Download OfferingCircular - Santander Consumer Finance, SA

Prospectus pursuant to article 2, paragraph 3, of Italian law No. 130 of 30 April 1999
Golden Bar (Securitisation) S.r.l.
(incorporated with limited liability under the laws of the Republic of Italy)
€2,500,000,000 Euro Medium Term Asset-Backed Notes Programme
Under the €2,500,000,000 Euro Medium Term Asset-Backed Notes Programme (the “Programme”) described in this Prospectus (as defined below), Golden Bar (Securitisation) S.r.l. (the “Issuer”), subject
to compliance with all relevant laws, regulations and directives, may from time to time issue limited recourse asset-backed notes (the “Notes”).
The aggregate nominal amount of Notes outstanding will not at any time exceed €2,500,000,000.00, subject to increase as described herein.
The Notes may be issued in series (each a “Single Series”) and each Single Series will consist of: (i) class A limited recourse asset-backed notes (the “Class A Notes”); (ii) class B limited recourse assetbacked notes (the “Class B Notes” and, together with the Class A Notes, the “Senior Notes”); and (iii) class C limited recourse asset-backed notes (the “Junior Notes”).
The Senior Notes (together with the Junior Notes) may be issued on a continuing basis to the Dealer(s) appointed under the Programme in respect of the Senior Notes from time to time by the Issuer (each a
“Dealer” and together the “Dealers”), the appointment of which may be for a specific issue or on an ongoing basis. References in this Prospectus to the “relevant Dealer” shall, in the case of an issue of
Senior Notes being (or intended to be) subscribed by more than one Dealer, be to all Dealers agreeing to subscribe such Senior Notes.
The Issuer is a limited liability company incorporated under the laws of the Republic of Italy under article 3 of Italian law No. 130 of 30 April 1999 (Disposizioni sulla cartolarizzazione dei crediti), as
amended from time to time (the “Securitisation Law”), having its registered office at via Principe Amedeo, 11, 10123 Turin, Italy, registered with the companies register of Turin under number
13232920150 and registered with the register pursuant to article 106 of Italian legislative decree No. 385 of 1 September 1993 (the “Banking Act”) under number 31975.
This prospectus (the “Prospectus”) is issued pursuant to article 2, paragraph 3 of Italian law No. 130 of the Securitisation Law and constitutes a prospetto informativo for all Classes of Notes (as defined
below) issued from time to time, in accordance with the Securitisation Law. The Junior Notes of any Single Series may not be, and are not, offered pursuant to this Prospectus.
This Prospectus constitutes a base prospectus for the purposes of article 5.4 of Directive 2003/71/EC of the European Parliament and of the Council of 4 November 2003 (the “Prospectus Directive”) and
the relevant implementing measures in the Grand Duchy of Luxembourg. This Prospectus will be available on the Luxembourg Stock Exchange website at www.bourse.lu.
Application has been made to the Commission de Surveillance du Secteur Financier (the “CSSF”) in its capacity as competent authority under the Luxembourg Act dated 10 July 2005 relating to
prospectuses for securities, for the approval of this Prospectus as a base prospectus for the purposes of article 5.4 of the Prospectus Directive. Application has also been made to the Luxembourg Stock
Exchange for the Senior Notes issued under the Programme to be admitted to the official list of the Luxembourg Stock Exchange (the “Official List”) and to be admitted to trading on the Luxembourg Stock
Exchange’s regulated market. References in this Prospectus to Senior Notes being “listed” (and all related references) shall mean that such Senior Notes have been admitted to the Official List and admitted
to trading on the Luxembourg Stock Exchange’s regulated market. The Luxembourg Stock Exchange’s regulated market is a regulated market for the purposes of Directive 2004/39/EC of the European
Parliament and of the Council on markets in financial instruments. However, unlisted Notes may be issued pursuant to the Programme. The relevant Final Terms (as defined below) in respect of the issue of
any Notes will specify whether or not such Notes will be listed on the Official List and admitted to trading on the Luxembourg Stock Exchange’s regulated market (or any other stock exchange).
As at the date of this Prospectus no application has been made to list any Junior Notes to be issued from time to time by the Issuer under the Programme on any stock exchange, although such application
may be made in the future.
Each Single Series may be issued without the consent of the holders of any outstanding Notes, subject to certain conditions. Notes of different Single Series may have different terms and conditions,
including, without limitation, different maturity dates. Notice of the aggregate nominal amount of Notes, interest (if any) payable in respect of Notes, the issue price of Notes and any other terms and
conditions not contained herein which are applicable to each Single Series will be set out in final terms (the “Final Terms”) which, with respect to Notes to be listed on the Luxembourg Stock Exchange, will
be delivered to the Luxembourg Stock Exchange on or before the date of issue of the Notes of such Single Series.
The principal source of funds available to the Issuer for the payment of interest and the repayment of principal on the Notes will be collections received in respect of pools of monetary claims and other
connected rights arising from portfolios of consumer loans originated and to be originated by Santander Consumer Bank S.p.A. (“Santander” or the “Originator”). The first pool of claims (the “Initial
Claims”), arising from a portfolio of consumer loans consisting of vehicle loans, other purpose loans and personal loans originated by Santander (the “Initial Portfolio”), has been transferred from Santander
to the Issuer pursuant to the terms of a master transfer agreement dated 27 November 2009, between the Issuer and Santander (as from time to time amended and/or supplemented, the “Master Transfer
Agreement”). Pursuant to the Master Transfer Agreement, the Issuer may use the Programme Principal Available Funds (as defined below) to purchase from Santander, on a quarterly basis during each
Single Series Revolving Period, additional pools of monetary claims and other connected rights (the “Subsequent Claims”) arising from additional portfolios of consumer loans, consisting of vehicle loans,
other purpose loans and personal loans originated, or to be originated, by Santander and, save as provided in the Transaction Documents (as defined below), having substantially the same characteristics as
the Initial Portfolio (each, a “Subsequent Portfolio”). The Issuer may purchase from Santander, in connection with any issuance of Notes (each, an “Additional Issue”) additional pools of monetary claims
and other connected rights (the “Additional Claims” and, together with the Initial Claims and the Subsequent Claims, the “Claims”) arising from additional portfolios of consumer loans, consisting of
vehicle loans, other purpose loans and personal loans originated, or to be originated, by Santander and, save as provided in the Transaction Documents, having substantially the same characteristics as the
Initial Portfolio (each, an “Additional Portfolio” and, together with the Initial Portfolio and the Subsequent Portfolios, the “Portfolio”).
The net proceeds of the issue of the Notes of the first Single Series issued by the Issuer under the Programme (the “First Single Series”) will be used to fund the purchase of the Initial Claims. The net
proceeds of the issue of the Notes of any further Single Series to be issued by the Issuer under the Programme will be used to fund the purchase of the relevant Additional Claims.
The Senior Notes of all Single Series are expected, on issue, to be assigned a Rating (as defined below) by Standard and Poor’s Ratings Services, a division of The McGraw-Hill Companies Inc. (“S&P” or
the “Rating Agency”, which expression shall include any successor). It is a condition precedent to the issuance of each Single Series that (i) the Class A Notes and the Class B Notes of each such Single
Series obtain the Class A Rating and the Class B Rating (all as defined below), respectively; (ii) the Rating Agency confirms that such issuance will not result in a reduction or withdrawal of the ratings of
any of the then outstanding Senior Notes, if any; (iii) a Programme Acceleration Notice has not been served; and (iv) with regard to the issuance of a Single Series other than the First Single Series, the Issuer
purchases from Santander Additional Claims the purchase price of which is to be financed by such issuance.
A credit rating is not a recommendation to buy, sell or hold securities and may be subject to revision, suspension or withdrawal at any time by the Rating Agency.
Payments under the Notes may be subject to withholding for or on account of tax or to a substitute tax, in accordance with Italian legislative decree No. 239 of 1 April 1996 as amended from time to time or
otherwise with any applicable law. Upon the occurrence of any withholding for or on account of tax, whether or not in the form of a substitute tax, from any payments under the Notes, neither the Issuer nor
any other person shall have any obligation to pay any additional amount to any holder of Notes.
Notes of each Single Series issued from time to time under the Programme will be collateralised by the Claims under the Portfolio as a whole. The Noteholders will have rights over the Claims as
a whole (subject to the applicable Priority of Payments, as defined below) irrespective of the relevant Single Series Issue Date (as defined below) and of the Claims purchased by the Issuer on or
immediately prior to the applicable Single Series Issue Date. The Notes of all Single Series will be limited recourse obligations solely of the Issuer. In particular, the Notes will not be obligations or
responsibilities of, or guaranteed by, the Representative of the Noteholders, the Paying Agents, the Agent Bank, the Account Bank, the Programme Administrator, the Corporate Services Provider, the
Stichtingen Corporate Services Provider, the Computation Agent, the Single Series Swap Counterparties, the Subordinated Loan Providers, the Dealers, the Arranger, the Single Series Junior Notes
Underwriters (each as defined in “General Description of the Programme — The Principal Parties”, below), Santander (in any capacity) or the quotaholders of the Issuer. Furthermore, none of such persons
accepts any liability whatsoever in respect of any failure by the Issuer to make payment of any amount due on the Notes.
The Notes of each Single Series will be issued in dematerialised form (emesse in forma dematerializzata) on the terms of, and subject to, the Terms and Conditions and the applicable Final Terms and will be
held in such form on behalf of the beneficial owners, until redemption and cancellation thereof, by Monte Titoli S.p.A. with registered office at via Mantegna, 6, 20154 Milan, Italy (“Monte Titoli”) for the
account of the relevant Monte Titoli Account Holders. The expression “Monte Titoli Account Holders” means any authorised financial intermediary institution entitled to hold accounts on behalf of their
customers with Monte Titoli and includes any depository banks appointed by Clearstream Banking, société anonyme (“Clearstream, Luxembourg”) and Euroclear Bank S.A./N.V. as operator of the
Euroclear System (“Euroclear”). The Notes of each Single Series will be deposited by the Issuer with Monte Titoli on the relevant Single Series Issue Date, will be in bearer form, will be at all times be in
book entry form and title to the relevant Notes of each Single Series will be evidenced by book entry in accordance with the provisions of article 28 of Italian legislative decree No. 213 of 24 June 1998 and
with regulation issued by the Bank of Italy and the Commissione Nazionale per le Società e la Borsa (“CONSOB”) on 22 February 2008, as subsequently amended. No physical document of title will be
issued in respect of the relevant Notes of each Single Series.
The Notes of each Single Series will mature on the date mentioned in the applicable Final Terms (each a “Single Series Maturity Date”). Before the relevant Single Series Maturity Date, the Notes of each
Single Series will be subject to mandatory and/or optional redemption in whole or in part in certain circumstances (as set out in the Conditions (as defined below)). Prior to the service of either a Programme
Acceleration Notice or a Purchase Termination Event Notice (as defined below), the Class A Notes of each Single Series will be redeemed in priority to the Class B Notes and the Junior Notes of the same
Single Series. The Class B Notes of each Single Series will be redeemed in priority to the Junior Notes of the same Single Series. Following the service of either a Programme Acceleration Notice or a
Purchase Termination Event Notice, the Class A Notes of all Single Series will be redeemed in priority to the Class B Notes and the Junior Notes of all Single Series. The Class B Notes of all Single Series
will be redeemed in priority to the Junior Notes of all Single Series.
If any of the Notes cannot be redeemed in full on the relevant Single Series Maturity Date, as a result of the Issuer having insufficient funds available to it in accordance with the terms and
conditions of the Notes (as integrated, amended and/or replaced by the applicable Final Terms, the “Conditions”) for application in or towards such redemption, including the proceeds of any
sale of Claims or any enforcement of Note Security, the Issuer will have no other funds available to it to be paid to the holders of the relevant Notes. The Issuer has no assets other than the Claims
and the Issuer’s Rights (as defined below) as described in this Prospectus as well the claims and assets purchased, and the agreements entered into, by the Issuer in relation to the Previous Programme 2004,
the Previous Programme March 2008 and the Previous Programme December 2008 (all as defined below) which, however, do not constitute collateral for the Notes and are not available to the Noteholders.
Prospective investors should have regard to the factors described under the section headed “Risk Factors” in this Prospectus.
Arranger
Banco Santander, S.A.
The date of this Prospectus is 22 December 2009.
A11536799/2.1/21 Dec 2009
This Prospectus comprises a base prospectus for the purposes of article 5.4 of Directive 2003/71/EC
(the “Prospectus Directive”) and for the purpose of giving information with regard to the Issuer
and the Notes which, according to the particular nature of the Issuer and the Notes, is necessary to
enable investors to make an informed assessment of the assets and liabilities, financial position,
profit and losses and prospects of the Issuer.
The Arranger and the Dealers have not separately verified the information contained in this
Prospectus. None of the Dealers or the Arranger makes any representation, express or
implied, or accepts any responsibility, with respect to the accuracy or completeness of any of
the information in this Prospectus.
None of the Issuer, the Representative of the Noteholders, the Arranger, the Dealers or any other
party to the Transaction Documents other than Santander has undertaken or will undertake any
investigations, searches or other actions to verify the details of the Portfolio or the related Claims
(each as defined below) sold or to be sold by Santander to the Issuer, nor have the Issuer, the
Representative of the Noteholders, the Arranger, the Dealers or any other party to the Transaction
Documents undertaken, nor will they undertake, any investigations, searches or other actions to
establish the creditworthiness of any debtor in respect of the Portfolio or the Claims.
The Issuer accepts responsibility for the information contained in this Prospectus. To the best of the
knowledge of the Issuer (having taken all reasonable care to ensure that such is the case) the
information contained in this Prospectus is in accordance with the facts and does not omit anything
likely to affect the import of such information. The Issuer, having made all reasonable enquiries,
confirms that this Prospectus contains or incorporates all information which is material in the
context of the issuance and offering of Notes, that the information contained or incorporated in this
Prospectus is true and accurate in all material respects and is not misleading, that the opinions and
intentions expressed in this Prospectus are honestly held and that there are no other facts the
omission of which would make this Prospectus or any of such information or the expression of any
such opinions or intentions misleading. The Issuer accepts responsibility accordingly.
Santander has provided the information under the sections headed “The Portfolio”, “The credit and
collection policies” and “The Originator and Servicer” and any other information contained in this
document relating to itself, the “Gruppo Bancario Santander Consumer Bank”, the credit policy
relating to the Consumer Loans (as defined below), the collection procedures relating to the
Portfolio and the Claims and it accepts responsibility for the information contained in those
sections. To the best of the knowledge of Santander (which has taken all reasonable care to ensure
that such is the case) the information contained in those sections is in accordance with the facts and
contains no omission likely to affect its import. Santander, having made all reasonable enquiries,
confirms that the above sections and information contain or incorporate all information which is
material in the context of the issuance and offering of Notes, that the information contained or
incorporated therein is true and accurate in all material respects and is not misleading, that the
opinions and intentions expressed therein are honestly held and that there are no other facts the
omission of which would make the above sections and information or any of such information or
the expression of any such opinions or intentions misleading. Santander accepts responsibility
accordingly.
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Deutsche Bank AG, London Branch has provided the information under the section headed “The
Account Bank” below and, together with the Issuer, accepts responsibility for the information
contained in that section. To the best of the knowledge of Deutsche Bank AG, London Branch
(having taken all reasonable care to ensure that such is the case) such information is in accordance
with the facts and contains no omission likely to affect its import. Save as aforesaid, Deutsche Bank
AG, London Branch has not, however, been involved in the preparation of, and does not accept
responsibility for, this Prospectus or any part hereof.
Banco Santander, S.A. has provided the information under the section headed “Banco Santander,
S.A.” below and, together with the Issuer, accepts responsibility for the information contained in
that section. To the best of the knowledge of Banco Santander, S.A. (having taken all reasonable
care to ensure that such is the case) such information is in accordance with the facts and contains no
omission likely to affect its import. Save as aforesaid, Banco Santander, S.A. has not, however,
been involved in the preparation of, and does not accept responsibility for, this Prospectus or any
part hereof.
The information provided (a) by the Originator under the sections headed “The Portfolio”, “The
credit and collection policies” and “The Originator and Servicer”, (b) by the Account Bank under
the section headed “The Account Bank” and (c) by Banco Santander, S.A. under the section headed
“Banco Santander, S.A.” has been accurately reproduced and, as far the Issuer is aware and is able
to ascertain from information published by the Originator, the Account Bank and Banco Santander,
S.A., respectively, no facts have been omitted which would render the reproduced information
inaccurate or misleading.
This Prospectus is to be read and construed in conjunction with the applicable Final Terms. This
Prospectus shall be read and construed on the basis that such documents are incorporated and form
part of this Prospectus.
This Prospectus is to be read in conjunction with all documents which are incorporated herein by
reference (see “Documents Incorporated by Reference”).
The Notes of all Single Series will constitute limited recourse obligations of the Issuer. By
operation of Italian law, the Issuer’s right, title and interest in and to the Claims in relation to the
Portfolio will be segregated from all other assets of the Issuer and amounts deriving therefrom will
only be available, both prior to and following a winding-up of the Issuer, to satisfy the obligations
of the Issuer to the holders of the Notes of all Single Series and the Other Issuer Creditors (as
defined below) and to any third-party creditor in respect of any taxes, costs, fees, expenses or
liabilities incurred by the Issuer to such third-party creditor in relation to the securitisation of the
Claims under the Programme. The holders of the Notes of all Single Series, by subscribing for the
Notes, agree and the Other Issuer Creditors will agree that amounts deriving from the Claims will
be applied by the Issuer in accordance with the applicable order of priority of application of Single
Series Interest Available Funds, Single Series Principal Available Funds, Programme Principal
Available Funds and the Post-Enforcement Issuer Available Funds (all as defined below) contained
in the Intercreditor Agreement (as defined below) and the terms and conditions of the Notes. See
“General Description of the Programme — Priority of Payments” and “Terms and Conditions of the
Notes”, below. The Notes will also be secured over certain of the assets of the Issuer pursuant to and
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as more fully described in the section entitled “General Description of the Programme — Summary
of the Notes”, below.
No person has been authorised to give any information or to make any representation other
than those contained in this Prospectus in connection with the issue or sale of the Notes and, if
given or made, such information or representation must not be relied upon as having been
authorised by the Issuer or any of the Dealers, the Arranger, the Representative of the
Noteholders, the Issuer, the Corporate Services Provider, the Single Series Swap
Counterparties, Santander (in any capacity) or any other person.
Neither this Prospectus nor any other financial statements are intended to provide the basis of
any credit or other evaluation and should not be considered as a recommendation by any of
the Issuer, the Arranger, the Originator or the Dealers that any recipient of this Prospectus or
any other financial statements should purchase the Notes. Each potential purchaser of Notes
should determine for itself the relevance of the information contained in this Prospectus and
its purchase of Notes should be based upon such investigation as it deems necessary. None of
the Dealers or the Arranger undertakes to review the financial condition or affairs of the
Issuer during the life of the arrangements contemplated by this Prospectus nor to advise any
investor or potential investor in the Notes of any information coming to the attention of any of
the Dealers, the Arranger or the Originator.
Neither the delivery of this Prospectus nor any sale made in connection herewith shall, under
any circumstances, create any implication that there has been no change in the affairs of the
Issuer, Santander and the Santander Banking Group since the date hereof or the date upon
which this Prospectus has been most recently amended or supplemented or that there has
been no adverse change in the financial position of the Issuer since the date hereof or the date
upon which this Prospectus has been most recently amended or supplemented or that any
other information supplied in connection with the Programme is correct as of any time
subsequent to the date on which it is supplied or, if different, the date indicated in the
document containing the same.
The Notes have not been and will not be registered under the United States Securities Act of
1933 (the “Securities Act”) or with any securities regulatory authority of any state or other
jurisdiction of the United States and include Notes in bearer form that are subject to U.S. tax
law requirements. Subject to certain exceptions, Notes may not be offered, sold or delivered
within the United States or to, or for the account or benefit of, U.S. persons (as defined in the
U.S. Internal Revenue Code of 1986, as amended, and regulations thereunder). For a
description of certain restrictions on offers and sales of Notes and on distribution of this
Prospectus, see “Subscription and sale”.
This Prospectus does not constitute an offer of, or an invitation by or on behalf of the Issuer or
the Dealers to subscribe for, or purchase, any Notes.
The distribution of this Prospectus and the offering or sale of the Notes in certain jurisdictions
may be restricted by law. Persons into whose possession this Prospectus comes are required by
the Issuer, the Dealers, the Arranger and the Originator to inform themselves about and to
observe any such restriction.
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The Notes may not be offered or sold directly or indirectly, and neither this Prospectus nor any
other offering circular nor any prospectus, form of application, advertisement, other offering
material nor other information relating to the Issuer or the Notes may be issued, distributed or
published in any country or jurisdiction (including the Republic of Italy, the United Kingdom and
the United States), except under circumstances that will result in compliance with all applicable
laws, orders, rules and regulations. No action has or will be taken which could allow an offering
(sollecitazione all’investimento) of the Notes to the public in the Republic of Italy. For a further
description of certain restrictions on offers and sales of the Notes and the distribution of this
Prospectus, see “Subscription and sale”.
Each initial and each subsequent purchaser of a Note will be deemed, by its acceptance of such
Note, to have made certain acknowledgements, representations and agreements intended to restrict
the resale or other transfer thereof as described in this Prospectus and in any Final Terms and, in
connection therewith, may be required to provide confirmation of its compliance with such resale or
other transfer restrictions in certain cases. See “Subscription and sale”, below.
Certain monetary amounts and currency translations included in this Prospectus have been subject
to rounding adjustments; accordingly, figures shown as totals in certain tables may not be an
arithmetic aggregation of the figures which preceded them.
In connection with the issue of any Single Series, the Dealer or Dealers (if any) named as the
stabilising manager(s) (the “Stabilising Manager(s)”) (or persons acting on behalf of any
Stabilising Manager(s)) in the applicable Final Terms may over-allot the relevant Single Series
or effect transactions with a view to supporting the market price of the Senior Notes of the
relevant Single Series (or any Class of them) at a level higher than that which might otherwise
prevail. However, there is no assurance that the Stabilising Manager(s) (or persons acting on
behalf of a Stabilising Manager) will undertake stabilisation action. Any stabilisation action
may begin on or after the date on which adequate public disclosure of the terms of the offer of
the Senior Notes of the relevant Single Series is made and, if begun, may be ended at any time,
but it must end no later than the earlier of 30 days after the issue date of the relevant Single
Series and 60 days after the date of the allotment of the relevant Single Series. Any
stabilisation action or over-allotment must be conducted by the relevant Stabilising
Manager(s) (or person(s) acting on behalf of any Stabilising Manager(s)) in accordance with
all applicable laws and rules.
All references in this Prospectus to “Euro”, “€” and “euro” refer to the currency introduced
at the start of the third stage of European economic and monetary union pursuant to the
Treaty establishing the European Community (signed in Rome on 25 March 1957), as
amended.
The language of this Prospectus is English. Certain legislative references and technical terms have
been cited in their original language in order that the correct technical meaning may be ascribed to
them under applicable law.
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DOCUMENTS INCORPORATED BY REFERENCE
This Prospectus should be read and construed in conjunction with the audited annual financial
statements of the Issuer for the financial years ended 31 December 2007 and 31 December 2008
together in each case with the audit report thereon, which have been previously published and
which have been approved by the CSSF or filed with it. Such documents shall be incorporated in
and form part of this Prospectus, save that any statement contained in a document which is
incorporated by reference herein shall be modified or superseded for the purpose of this Prospectus
to the extent that a statement contained herein modifies or supersedes such earlier statement
(whether expressly, by implication or otherwise). Any statement so modified or superseded shall
not, except as so modified or superseded, constitute a part of this Prospectus.
Copies of documents incorporated by reference in this Prospectus may be obtained without charge
from the website of the Luxembourg Stock Exchange (www. bourse.lu) and, during usual office
hours on any weekday from the registered office of the Issuer, the registered office of the
Representative of the Noteholders and the Specified Offices of the Paying Agents (as set forth in
Condition 18 (Notices)).
The table below sets out the relevant page references for the audited annual financial statements of
the Issuer for the financial years ended 31 December 2007 and 31 December 2008. Information
contained in the documents incorporated by reference other than information listed in the table
below is for information purposes only, and does not form part of this Prospectus.
Audited annual financial statements of the Issuer for the financial years ended 31 December
2007
Balance sheet ...............................................................................................................
Page 5
Income statement .........................................................................................................
Page 6
Accounting principles ..................................................................................................
Page 11
Notes to the accounts ...................................................................................................
Page 11
Auditor’s report ............................................................................................................
Page 58
Audited annual financial statements of the Issuer for the financial years ended 31 December
2008
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Balance sheet ...............................................................................................................
Page 5
Income statement .........................................................................................................
Page 6
Accounting principles ..................................................................................................
Page 11
Notes to the accounts ...................................................................................................
Page 11
Auditor’s report ............................................................................................................
Page 61
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PROSPECTUS SUPPLEMENT
If at any time the Issuer shall be required to prepare a prospectus supplement pursuant to article 13
of the Luxembourg Act dated 10 July 2005 relating to prospectuses for securities, the Issuer will
prepare and make available an appropriate amendment or supplement to this Prospectus or a further
Prospectus which, in respect of any subsequent issue of Notes to be listed on the Official List and
admitted to trading on the Luxembourg Stock Exchange’s regulated market, shall constitute a
prospectus supplement as required by article 13 of the Luxembourg Act dated 10 July 2005 relating
to prospectuses for securities.
The Issuer has given an undertaking to the Dealer(s) that if at any time during the duration of the
Programme there is a significant new factor, material mistake or inaccuracy relating to information
contained in this Prospectus which is capable of affecting the assessment of any Notes and whose
inclusion in or removal from this Prospectus is necessary for the purpose of allowing an investor to
make an informed assessment of the assets and liabilities, financial position, profits and losses and
prospects of the Issuer, and the rights attaching to the Notes, the Issuer shall prepare an amendment
or supplement to this Prospectus or publish a replacement Prospectus for use in connection with any
subsequent offering of the Notes and shall supply to each Dealer and the Representative of the
Noteholders such number of copies of such supplement hereto as such Dealer and the
Representative of the Noteholders may reasonably request.
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TABLE OF CONTENTS
GENERAL DESCRIPTION OF THE PROGRAMME...................................................................... 2
STRUCTURE DIAGRAM ............................................................................................................... 72
RISK FACTORS............................................................................................................................... 73
THE PORTFOLIO ............................................................................................................................ 98
THE ORIGINATOR AND SERVICER ......................................................................................... 104
THE CREDIT AND COLLECTION POLICIES ........................................................................... 118
THE ISSUER’S BANK ACCOUNTS ............................................................................................ 129
TERMS AND CONDITIONS OF THE NOTES............................................................................ 131
SCHEDULE TO THE TERMS AND CONDITIONS OF THE NOTES ....................................... 205
FORM OF FINAL TERMS ............................................................................................................ 222
THE ISSUER .................................................................................................................................. 237
INFORMATION ABOUT OWNERSHIP OR CONTROL BETWEEN THE PARTIES OF THE
PROGRAMME ....................................................................................................................... 248
THE ACCOUNT BANK ................................................................................................................ 251
BANCO SANTANDER, S.A. ........................................................................................................ 252
THE AGENCY AND ACCOUNTS AGREEMENT...................................................................... 253
THE ISSUER ACCOUNT BANK AGREEMENT ........................................................................ 259
THE MASTER TRANSFER AGREEMENT ................................................................................. 264
THE SERVICING AGREEMENT ................................................................................................. 272
THE WARRANTY AND INDEMNITY AGREEMENT .............................................................. 277
THE SINGLE SERIES SWAP AGREEMENTS............................................................................ 292
THE TRANSACTION DOCUMENTS .......................................................................................... 297
TAXATION .................................................................................................................................... 304
SUBSCRIPTION AND SALE ........................................................................................................ 313
INDEX OF DEFINED TERMS ...................................................................................................... 317
GENERAL INFORMATION .......................................................................................................... 325
1
GENERAL DESCRIPTION OF THE PROGRAMME
The following information is a general description of the transactions and assets underlying the
Notes and is qualified in its entirety by reference to the detailed information presented elsewhere in
this document and in the Transaction Documents.
Certain terms used, but not defined, in the general description may be found in other sections of this
document, unless otherwise stated. An index of defined terms is contained at the end of this
document, commencing on page 317.
1
The Principal Parties
Issuer
Golden Bar (Securitisation) S.r.l. (the “Issuer”) is a
limited liability company incorporated in the Republic of
Italy under article 3 of Italian law No. 130 of 30 April
1999 (Disposizioni sulla cartolarizzazione dei crediti), as
amended from time to time (the “Securitisation Law”).
The Issuer is registered with the companies register of
Turin under number 13232920150 and with the register
pursuant to article 106 of Italian legislative decree No.
385 of 1 September 1993 (the “Banking Act”) under
number 31975. The registered office of the Issuer is at via
Principe Amedeo, 11, 10123 Turin, Italy. The equity
capital of the Issuer is held by Stichting Turin and
Stichting Po River. See “The Issuer”, below.
In accordance with the Securitisation Law, the Issuer is a
special purpose vehicle established for the purposes of
issuing asset-backed securities.
In addition to any other transaction carried out under the
Programme, the Issuer has already engaged in a
securitisation transaction named “€2,500,000,000 Euro
Medium Term Asset-Backed Notes Programme”
structured in the form of a programme and established by
the Issuer in accordance with the Securitisation Law in
March 2004.
The Issuer has also engaged in a further securitisation
transaction named “€2,500,000,000 Euro Medium Term
Asset-Backed Notes Programme” structured in the form
of a programme and established by the Issuer in
accordance with the Securitisation Law in March 2008.
The Issuer has also recently engaged in a further
securitisation transaction named “€2,500,000,000 Euro
Medium Term Asset-Backed Notes Programme”
structured in the form of a programme and established by
/
2
the Issuer in accordance with the Securitisation Law in
December 2008.
The Issuer may engage in the future in other securitisation
transactions, subject to certain conditions.
On 27 November 2009 (the “Initial Execution Date”)
the Issuer acquired the first pool of monetary claims and
other connected rights (the “Initial Claims”) arising from
a portfolio of consumer loans consisting of vehicle loans,
other purpose loans and personal loans granted by the
Originator (as defined below) to customers residing in
Italy (the “Initial Portfolio”). The payment of the
purchase price of the Initial Claims will be financed by
the issue of the Notes of the First Single Series.
Stichting Turin
Stichting Turin (“Stichting Turin”) is a Dutch foundation
(stichting) established under the laws of The Netherlands,
the statutory seat of which is at Claude Debussylaan 24,
1082 MD Amsterdam, The Netherlands.
Stichting Po River
Stichting Po River (“Stichting Po River” and, together
with Stichting Turin, the “Stichtingen”) is a Dutch
foundation (stichting) established under the laws of The
Netherlands, the statutory seat of which is at Claude
Debussylaan 24, 1082 MD Amsterdam, The Netherlands.
Originator
Santander Consumer Bank S.p.A. (“Santander”) is a
bank organised as a joint stock company under the laws
of the Republic of Italy, the registered office of which is
at via Nizza, 262, 10126 Turin, Italy, and which is
registered under number 05634190010 with the
companies register of Turin and with the register of banks
(albo delle banche) held by the Bank of Italy pursuant to
article 13 of the Banking Act under number 5496.
Santander is the parent company of the banking group
named “Gruppo Bancario Santander Consumer Bank”
registered with the register of banking groups (albo dei
gruppi bancari) held by the Bank of Italy pursuant to
article 64 of the Banking Act under number 3191.4 (the
“Santander Banking Group”). See “The Originator and
Servicer”, below.
Santander (or, in such capacity, the “Originator”) sold
the Initial Claims to the Issuer pursuant to the terms of a
master transfer agreement dated the Initial Execution
Date, between the Issuer and the Originator (as from time
to time amended and/or supplemented, the “Master
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3
Transfer Agreement”).
Pursuant to the Master Transfer Agreement, during any
Single Series Revolving Period, the Originator will offer
for sale to the Issuer, on a quarterly basis, Subsequent
Claims. In addition, during the Additional Issue Period,
the Issuer will purchase from the Originator Additional
Claims in connection with each Additional Issue.
/
Representative of the Noteholders
Deutsche Trustee Company Limited, acting through its
office at Winchester House, 1 Great Winchester Street,
London EC2N 2DB, United Kingdom, will be the
representative of the holders of the Notes
(“Representative of the Noteholders”) pursuant to the
terms of the Intercreditor Agreement (as defined below)
dated 22 December 2009 (the “Signing Date”) (as from
time to time amended and/or supplemented in connection
with each Additional Issue) and the Rules of the
Organisation of the Noteholders (as defined below).
Corporate Services Provider
Bourlot Gilardi Romagnoli e Associati, acting through its
office at via Principe Amedeo, 11, 10123 Turin, Italy, will
be the corporate services provider to the Issuer (the
“Corporate Services Provider”). Pursuant to the terms
of a corporate services agreement dated the Signing Date
(the “Corporate Services Agreement”), the Corporate
Services Provider has agreed to provide certain
administrative and secretarial services to the Issuer.
Stichtingen Corporate Services
Provider
Wilmington Trust SP Services (London) Limited, acting
through its office at Fifth Floor, 6 Broad Street Place,
London EC2M 7JH, United Kingdom, will be the
corporate services provider to the Stichtingen (in such
capacity, the “Stichtingen Corporate Services
Provider”). Pursuant to the terms of a Stichtingen
corporate services agreement dated the Signing Date (the
“Stichtingen Corporate Services Agreement”), the
Stichtingen Corporate Services Provider has agreed to
provide certain management, administrative and
secretarial services to the Stichtingen. The Stichtingen
Corporate Services Provider may be replaced by the
Stichtingen subject to certain conditions and to the prior
written consent of the Representative of the Noteholders.
Subordinated Loan Providers
Santander is the first subordinated loan provider (in such
capacity, the “First Subordinated Loan Provider”)
pursuant to the terms of a subordinated loan agreement
4
dated the Signing Date (the “First Subordinated Loan
Agreement”) between the Issuer and the First
Subordinated Loan Provider. Pursuant to the First
Subordinated Loan Agreement, the First Subordinated
Loan Provider has granted to the Issuer a subordinated
loan in an amount equal to €20,000,000 (the “First
Subordinated Loan”). It is envisaged that the Issuer will
enter into further subordinated loans in relation to any
Additional Issue under the Programme (each such
subordinated loan, including the First Subordinated Loan,
a “Subordinated Loan”). The amount of each
Subordinated Loan will be indicated in the applicable
Final Terms. See “The Transaction Documents”, below.
Each Subordinated Loan will be repaid in accordance
with the applicable Priority of Payments. Each
Subordinated Loan will be drawn down by the Issuer on
the relevant Single Series Issue Date (as defined below)
and immediately credited to the Cash Reserve Account.
“Subordinated Loan Providers” means, collectively, the
First Subordinated Loan Provider and all lenders under
any of the Subordinated Loans from time to time
outstanding.
/
Servicer
Santander (in such capacity, the “Servicer”) will
administer the Portfolio (as increased from time to time
with Subsequent Claims and Additional Claims under the
Programme) on behalf of the Issuer pursuant to the terms
of a servicing agreement dated the Initial Execution Date,
between the Issuer and the Servicer (the “Servicing
Agreement”). See “The Servicing Agreement”, below.
Computation Agent
Deutsche Bank S.p.A., a bank incorporated as a joint
stock company (società per azioni) organised under the
laws of the Republic of Italy, registered with the
companies’ register of Milan under No. 01340740156,
registered with the register of banks (albo delle banche)
held by the Bank of Italy pursuant to article 13 of the
Banking Act under No. 3104.7, belonging to the Gruppo
Deutsche Bank registered with the register of banking
groups held by the Bank of Italy pursuant to article 64 of
the Banking Act under No. 3104.7 and having its
registered office at Piazza del Calendario, 3, 20126
Milan, Italy, or any other person for the time being acting
as such, will be the computation agent to the Issuer (in
5
such capacity, the “Computation Agent”) pursuant to the
terms of an agency and accounts agreement dated the
Signing Date between the Issuer, the Representative of
the Noteholders, the Computation Agent, the Account
Bank, the Programme Administrator, the Principal Paying
Agent, the Italian Paying Agent, the Listing and
Luxembourg Paying Agent and the Agent Bank (the
“Agency and Accounts Agreement”). See “The Agency
and Accounts Agreement”, below.
/
Account Bank
Deutsche Bank AG, London Branch, acting through its
principal office at Winchester House, 1 Great Winchester
Street, London EC2N 2DB, United Kingdom, or any
other person for the time being acting as such, will be the
account bank to the Issuer in respect of certain bank
accounts and securities accounts of the Issuer (in such
capacity, the “Account Bank”). The Account Bank has
opened, and will maintain, certain bank accounts and
securities accounts in the name of the Issuer pursuant to
the terms of the Issuer Account Bank Agreement and will
operate such accounts in the name and on behalf of the
Issuer pursuant to the terms of the Agency and Accounts
Agreement. In addition, the Account Bank will perform
certain management functions on behalf of the Issuer. See
“The Issuer Account Bank Agreement” and “The Agency
and Accounts Agreement”, below.
Principal Paying Agent
Deutsche Bank AG, London Branch, or any other person
for the time being acting as such, will be the principal
paying agent (in such capacity, the “Principal Paying
Agent”) pursuant to the terms of the Agency and
Accounts Agreement. See “The Agency and Accounts
Agreement”, below.
Italian Paying Agent
Deutsche Bank S.p.A., or any other person for the time
being acting as such, will be the Italian paying agent (in
such capacity, the “Italian Paying Agent”) pursuant to
the terms of the Agency and Accounts Agreement. See
“The Agency and Accounts Agreement”, below.
Listing and Luxembourg Paying
Agent
Deutsche Bank Luxembourg S.A., acting through its
principal office at 2 Boulevard Konrad Adenauer, L-1115
Luxembourg, Luxembourg, or any other person for the
time being acting as such, will be the listing and
Luxembourg paying agent (in such capacity, the “Listing
and Luxembourg Paying Agent” and, together with the
6
Principal Paying Agent and the Italian Paying Agent, the
“Paying Agents”) pursuant to the terms of the Agency
and Accounts Agreement. See “The Agency and Accounts
Agreement”, below.
2
Agent Bank
Deutsche Bank AG, London Branch, or any other person
for the time being acting as such, will be the agent bank
(in such capacity, the “Agent Bank”) pursuant to the
terms of the Agency and Accounts Agreement. See “The
Agency and Accounts Agreement”, below.
Programme Administrator
Deutsche Bank S.p.A., or any other person for the time
being acting as such, will be the Programme administrator
(in such capacity, the “Programme Administrator”)
pursuant to the terms of the Agency and Accounts
Agreement. In accordance with the Agency and Accounts
Agreement, the Programme Administrator will verify that
the criteria utilised by the Originator to select the
Subsequent Claims and the Additional Claims, if any, to
be transferred on each Subsequent Transfer Date are in
compliance with the Common Criteria and the Specific
Criteria listed in the Master Transfer Agreement. For an
English translation of the Common Criteria and the
Specific Criteria, see “The Master Transfer Agreement”,
below. See “The Agency and Accounts Agreement”,
below.
Single Series Swap Counterparty
“Single Series Swap Counterparty” means, in
connection with each Single Series, the party (or parties)
acting as swap counterparty (or swap counterparties) of
the Issuer in connection with the relative Single Series
and “Single Series Swap Counterparties” means,
collectively, all the parties acting, from time to time, as
swap counterparties of the Issuer in connection with all
Single Series. Each Final Terms will indicate the name of
the Single Series Swap Counterparty acting as such in
connection with the relevant Single Series. Banco
Santander, S.A. will be the Single Series Swap
Counterparty in respect of the First Single Series (see
“Banco Santander, S.A.”, below).
Summary of the Notes
Programme size
/
At any time the Principal Amount Outstanding (as
defined below) of the Notes cannot exceed
€2,500,000,000. The maximum aggregate principal
7
amount of the Notes which may be outstanding at any
time under the Programme may be increased from time to
time, as may be agreed in writing between the Originator,
the Issuer and the Dealers in accordance with the
Programme Agreement.
Distribution
The Notes may be distributed by way of private or public
placement and in each case on a syndicated or nonsyndicated basis.
Maturities
The Notes will have such maturities as may be agreed
between the Issuer and the relevant Dealer, subject to
such minimum or maximum maturities as may be allowed
or required from time to time by the relevant central bank
(or equivalent body) or any laws or regulations applicable
to the Issuer and indicated in the applicable Final Terms
in respect of any Single Series.
Issue Price
The Notes may be issued at an issue price which is at par
or at a discount to, or premium over, par as specified in
the applicable Final Terms in respect of any Single Series.
Additional Issue Period
The Issuer may engage in Additional Issues in the period
from the First Single Series Issue Date to 31 December
2016 (inclusive) (the “Additional Issue Period”).
Single Series
The Notes will be issued in Single Series. Each Single
Series will consist of: (i) class A limited recourse assetbacked notes (the “Class A Notes”); (ii) class B limited
recourse asset-backed notes (the “Class B Notes” and,
together with the Class A Notes, the “Senior Notes”); and
(iii) class C limited recourse asset-backed notes (the
“Junior Notes” and, together with the Senior Notes, the
“Notes”). The Notes of each Single Series will be issued
on the same date subject to the terms set out in the
applicable Final Terms for such Single Series.
Notes of different Single Series may have different
maturity dates and therefore Notes of the same Class (as
defined below) but of different Single Series may have
different maturity dates.
During the Additional Issue Period the Issuer may engage
in the issuance of Single Series without the prior consent
of the holders of any outstanding Notes but subject to
certain conditions. It is a condition precedent to the
issuance of each Single Series that:
(i) the Class A Notes and the Class B Notes of each
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8
such Single Series obtain the Class A Rating and the
Class B Rating (all as defined below), respectively;
(ii) the Rating Agency confirms that such issuance will
not result in a reduction or withdrawal of the ratings
of any of the then outstanding Senior Notes, if any;
(iii) a Programme Acceleration Notice has not been
served; and
(iv) with regard to the issuance of a Single Series other
than the First Single Series, the Issuer purchases
from Santander Additional Claims the purchase price
of which is to be financed by such issuance.
The Issuer will inform the Noteholders of the issuance of
other Single Series of Notes in accordance with Condition
18 (Notices).
/
Final Terms
Each issue of Notes will be the subject of a Final Terms
which, for the purposes of that Single Series of Notes
only, integrates the Terms and Conditions and this
Prospectus and must be read in conjunction with this
Prospectus. The terms and conditions applicable to any
particular issue of Notes are the Terms and Conditions as
integrated, amended and/or replaced by the applicable
Final Terms (the “Conditions” and each a “Condition”).
Status of the Notes
The Notes of all Single Series will constitute limited
recourse obligations of the Issuer. The Noteholders of the
Notes of all Single Series will have a claim against the
Issuer only to the extent of (i) prior to the service of a
Programme Acceleration Notice and prior to the service
of a Purchase Termination Event Notice, the Single Series
Interest Available Funds and the Single Series Principal
Available Funds available for such purposes in
accordance with, respectively, the Pre-Enforcement
Priority of Payments for Single Series Interest Available
Funds and the Pre-Enforcement Priority of Payments for
Single Series Principal Available Funds; (ii) prior to the
service of a Programme Acceleration Notice but
following the service of a Purchase Termination Event
Notice, the Single Series Interest Available Funds
available for such purposes in accordance with the PreEnforcement Priority of Payments for Single Series
Interest Available Funds and the share of the Programme
Principal Available Funds to be apportioned to the
relevant Single Series in accordance with the Pre9
Enforcement Priority of Payments for Programme
Principal Available Funds or (iii) following the service of
a Programme Acceleration Notice, the share of the PostEnforcement Issuer Available Funds to be apportioned to
the relevant Single Series in accordance with the PostEnforcement Priority of Payments according to the
proportions set out in the Terms and Conditions and the
Agency and Accounts Agreement. It is not anticipated
that the Issuer will make any profits from this transaction.
The Notes of all Single Series will be secured over certain
assets of the Issuer pursuant to the Note Security. The
rights arising from the Note Security are included in each
Note of all Single Series.
Proceeds of the Notes
The net proceeds of the issue of the First Single Series
will be used to pay the purchase price of the Initial
Claims. The net proceeds of each Additional Issue of
Notes will be used to pay the purchase price of the
relevant Additional Claims and will not form part of the
Programme Available Funds (as defined below).
Rating
It is a condition precedent to the issue of each Single
Series that: (i) the Class A Notes of the relevant Single
Series will have a rating equal to the Class A Rating; and
(ii) the Class B Notes of the relevant Single Series will
have a rating equal to the Class B Rating. The Junior
Notes will not be assigned a rating.
“Class A Rating” means a rating equal to “AAA” by
Standard and Poor’s Ratings Services, a division of The
McGraw-Hill Companies Inc. (“S&P” or the “Rating
Agency”) or such other rating level communicated by the
Rating Agency for Class A Notes at any time during the
Programme.
“Class B Rating” means a rating equal to “BBB” by S&P
or such other rating level communicated by the Rating
Agency for Class B Notes at any time during the
Programme.
Each of the Class A Rating and the Class B Rating is
referred to as a “Rating”.
A credit rating is not a recommendation to buy, sell or
hold securities and may be subject to revision,
suspension or withdrawal at any time by the Rating
Agency.
Form and denomination of the
/
The
Notes
10
will
be
denominated
in
Euro.
The
Notes
denomination of the Notes to be issued from the date
hereof will be €50,000 or such other higher denomination
as may be specified in the applicable Final Terms. The
Notes will be held in dematerialised form (in forma
dematerializzata) on behalf of the beneficial owners, until
redemption and cancellation thereof, by Monte Titoli for
the account of the relevant Monte Titoli Account Holders.
Monte Titoli will act as depository for Clearstream,
Luxembourg and Euroclear. Title to the Notes will be
evidenced by book entry in accordance with the provisions
of article 28 of Italian legislative decree No. 213 of
24 June 1998 and regulation issued by the Bank of Italy
and the CONSOB on 22 February 2008, as subsequently
amended. No physical document of title will be issued in
respect of the Notes.
Ranking
In respect of the obligations of the Issuer to pay interest
and to repay principal on the Notes of each Single Series,
the Conditions and the Intercreditor Agreement provide
that:
(i) in respect of the obligations of the Issuer to pay
interest on the Notes, prior to the service of a
Programme Acceleration Notice:
(A)
the Class A Notes of any Single Series rank
pari passu and without any preference or
priority amongst themselves and in priority to
the Class B Notes and the Junior Notes of the
same Single Series;
(B)
the Class B Notes of any Single Series rank
pari passu and without any preference or
priority amongst themselves and in priority to
the Junior Notes of the same Single Series, but
subordinate to the Class A Notes of the same
Single Series; and
(C)
the Junior Notes of any Single Series rank pari
passu and without any preference or priority
amongst themselves, but subordinate to the
Senior Notes of the same Single Series,
it being understood that payments of interest on the
Notes of any Single Series will be funded
exclusively out of the relevant Single Series Interest
Available Funds (subject to Condition 4(d) (PreEnforcement Priority of Payments for Single Series
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11
Interest Available Funds)) and that therefore: (a)
interest on the Class B Notes and the Junior Notes of
any other Single Series may be paid in priority to
payment of interest on the Class A Notes of the
relevant Single Series; (b) interest on the Junior
Notes of any other Single Series may be paid in
priority to payment of interest on the Class B Notes
of the relevant Single Series;
(ii) in respect of the obligations of the Issuer to repay
principal on the Notes, prior to the service of either a
Programme Acceleration Notice or a Purchase
Termination Event Notice:
(A)
the Class A Notes of any Single Series rank
pari passu and without any preference or
priority amongst themselves and in priority to
repayment of principal on the Class B Notes
and the Junior Notes of the same Single
Series;
(B)
the Class B Notes of any Single Series rank
pari passu and without any preference or
priority amongst themselves but subordinate to
repayment of principal on the Class A Notes of
the same Single Series and in priority to the
Junior Notes of the same Single Series and no
amount of principal in respect of the Class B
Notes of the same Single Series shall become
due and payable or be repaid until redemption
in full of the Class A Notes of the same Single
Series; and
(C)
the Junior Notes of any Single Series rank pari
passu and without any preference or priority
amongst themselves, but subordinate to
repayment of principal on the Senior Notes of
the same Single Series and no amount of
principal in respect of the Junior Notes of the
same Single Series shall become due and
payable or be repaid until redemption in full of
the Senior Notes of the same Single Series,
it being understood that repayment of principal on
the Notes of any Single Series will be funded
exclusively out of the relevant Single Series
Principal Available Funds (subject to Condition 4(e)
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12
(Pre-Enforcement Priority of Payments for Single
Series Principal Available Funds)) and that
therefore: (a) the Class B Notes and the Junior Notes
of any other Single Series may be redeemed prior to
the redemption of the Class A Notes of the relevant
Single Series; and (b) the Junior Notes of any other
Single Series may be redeemed prior to the
redemption of the Senior Notes of the relevant
Single Series;
(iii) in respect of the obligations of the Issuer (a) to repay
principal on the Notes, prior to the service of a
Programme Acceleration Notice but following the
service of a Purchase Termination Event Notice or
(b) to pay interest and repay principal on the Notes,
following the service of a Programme Acceleration
Notice:
(A)
the Class A Notes of all Single Series will rank
pari passu and without any preference or
priority amongst themselves and in priority to
the Class B Notes and the Junior Notes of all
Single Series;
(B)
the Class B Notes of all Single Series will rank
pari passu and without any preference or
priority amongst themselves, but subordinate
to repayment in full of the Class A Notes of all
Single Series and in priority to the Junior
Notes of all Single Series and no amount of
principal in respect of the Class B Notes of all
Single Series shall become due and payable or
be repaid until redemption in full of the Class
A Notes of all Single Series; and
(C)
the Junior Notes of all Single Series will rank
pari passu and without any preference or
priority amongst themselves, but subordinate
to repayment in full of the Senior Notes of all
Single Series and no amount of principal in
respect of the Junior Notes of all Single Series
shall become due and payable or be repaid
until redemption in full of the Senior Notes of
all Single Series.
Without prejudice to the above and to the applicable
Priority of Payments, Notes of any Class of any Single
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13
Series issued under the Programme may have a Single
Series Maturity Date or a Single Series Decree 239
Interest Payment Date which is earlier than that of the
Notes of the same Class or a more senior Class issued
under another Single Series. Accordingly, Class B Notes
of any Single Series may be redeemed in priority to the
Class A Notes of any other Single Series; and Junior
Notes of any Single Series may be redeemed in priority to
the Senior Notes of any other Single Series.
The Intercreditor Agreement and the Rules of the
Organisation of Noteholders provide that the
Representative of the Noteholders shall have regard to the
respective interests of all holders of the Notes of all
Single Series in connection with the exercise of the
powers, authorities, rights, duties and discretions of the
Representative of the Noteholders under or in relation to
the Notes or any of the Transaction Documents. In this
respect, the same Class of Notes of all Single Series will
be considered as one class provided that, if, in the opinion
of the Representative of the Noteholders, there is a
conflict between the interests of the holders of one Class
of Notes of one Single Series and the interests of the
holders of the same Class of Notes of another Single
Series, the same Class of Notes of all Single Series will
be considered as separate classes, one in respect of each
Single Series. Furthermore, if, in the opinion of the
Representative of the Noteholders, there is a conflict
between the interests of the Class A Noteholders and the
interests of the Class B Noteholders and/or the Junior
Noteholders, the Representative of the Noteholders is
required under the Intercreditor Agreement and the Rules
of the Organisation of Noteholders to have regard only to
the interests of the Class A Noteholders, until all Class A
Notes have been entirely redeemed. If there are no Class
A Notes outstanding and, in the opinion of the
Representative of the Noteholders, there is a conflict
between the interests of the Class B Noteholders and/or
the interests of the Junior Noteholders, the Representative
of the Noteholders is required under the Intercreditor
Agreement and the Rules of the Organisation of
Noteholders to have regard only to the interests of the
Class B Noteholders, until the Class B Notes have been
entirely redeemed. If there are no Class A Notes and, in
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14
the opinion of the Representative of the Noteholders,
there is a conflict between the interests of the Class B
Noteholders and the interests of the Junior Noteholders,
the Representative of the Noteholders is required under
the Intercreditor Agreement and the Rules of the
Organisation of Noteholders to have regard only to the
interests of the Class B Noteholders, until the Class B
Notes have been entirely redeemed.
Limited recourse nature of the
Issuer’s obligations under the
Notes
The obligations of the Issuer to each of the holders of the
Notes will be limited recourse obligations of the Issuer.
Costs
The costs of the transaction (with the exception of certain
initial costs for the setting up of the transaction which
will be paid for by the Originator), including the amounts
payable to the various agents of the Issuer appointed in
connection with the issue of the Notes, will be funded
from all the Single Series Interest Available Funds (as
defined below) and will therefore be included in the
relevant Priority of Payments for Single Series Interest
Available Funds.
Interest on the Notes
The Senior Notes of each Single Series will bear interest
on their Principal Amount Outstanding (as defined below)
from and including the relevant Single Series Issue Date
at a rate equal to EURIBOR for three-month euro
deposits (the applicable Final Terms may specify that for
the relevant first Interest Period of each Single Series the
rate will be obtained using linear interpolation
methodology of EURIBOR as therein specified) plus the
margins, in respect of each Class, indicated in the
applicable Final Terms. Each Final Terms will also
indicate the first Interest Payment Date applicable to the
relevant Single Series (each a “Single Series First
Interest Payment Date”).
The Junior Notes of each Single Series will bear interest
in accordance with Condition 7(e) (Calculation of Single
Series Interest Amounts).
Subject to the applicable Priority of Payments prior to the
service of a Programme Acceleration Notice, interest on
each Class of Notes of all Single Series will be payable
quarterly in arrear on 20 January, 20 April, 20 July and 20
October in each year (or, if any such date is not a
Business Day, that date will be the first following day that
/
15
is a Business Day unless that day falls in the next
calendar month in which case that date will be the first
preceding day that is a Business Day).
“Business Day” means a day on which banks are open
for business in Milan, Luxembourg and London and
which is a TARGET Settlement Day.
“Principal Amount Outstanding” means, on any day:
Maturity Date
(a)
in relation to each Single Series, the aggregate
principal amount outstanding of all Notes in such
Single Series;
(b)
in relation to each Class of Notes of a specific
Single Series, the aggregate principal amount
outstanding of all Notes in such Class of Notes of
such Single Series;
(c)
in relation to each Class of Notes, the aggregate
principal amount outstanding of all Notes in such
Class of Notes in all Single Series; and
(d)
in relation to a Note, the principal amount of that
Note upon issue (considering the relevant Single
Series Issue Date) less the aggregate amount of all
Principal Payments in respect of that Note which
have become due and payable (and which have
actually been paid) on or prior to that date.
Save as described below and unless previously redeemed
in full, the Issuer will redeem the Notes of each Single
Series at their respective Principal Amounts Outstanding
on the Interest Payment Date specified in the applicable
Final Terms (each a “Single Series Maturity Date”). See
“General Description of the Programme — Redemption
of the Notes”, below.
If the Notes of each Single Series cannot be redeemed in
full on the relevant Single Series Maturity Date, as a
result of the Issuer having insufficient available funds for
application in or towards such redemption, any amount
unpaid shall remain outstanding and the Terms and
Conditions shall continue to apply in full in respect of the
Notes of the same Single Series until the Cancellation
Date, at which date any amount outstanding, whether in
respect of interest, principal or other amounts in respect
of the Notes of the same Single Series, shall be finally
and definitively cancelled. All Notes of each Single Series
/
16
redeemed in full will be cancelled upon such redemption
and may not be resold or reissued.
The Issuer has no assets other than the Claims and the
Issuer’s Rights (as defined below) as described in this
Prospectus as well the claims and assets purchased, and
the agreements entered into, by the Issuer in relation to
the Previous Programme 2004, the Previous Programme
March 2008 and Previous Programme December 2008
(all as defined below) which, however, do not constitute
collateral for the Notes and are not available to the
Noteholders.
Withholding tax on the Notes
A Noteholder who is resident for tax purposes in a
country which does not allow for a satisfactory exchange
of information will receive amounts of interest payable on
the Notes net of Italian withholding tax referred to as a
substitute tax (any such withholding or deduction for or
on account of Italian tax under legislative decree No. 239
of 1 April 1996, as amended, a “Decree 239
Withholding”).
Upon the occurrence of any withholding for or on account
of tax, whether or not through a substitute tax, from any
payments of amounts due under the Notes of any Single
Series, neither the Issuer, the Originator, the
Representative of the Noteholders, the Paying Agents nor
any other person shall have any obligation to pay any
additional amount to any Noteholders. See “Taxation”,
below.
Security for the Notes
/
By operation of Italian law, the Issuer’s right, title and
interest in and to the Claims will be segregated from all
other assets of the Issuer and amounts deriving therefrom
will only be available, both prior to and following a
winding-up of the Issuer, to satisfy the obligations of the
Issuer to the holders of the Class A Notes (the “Class A
Noteholders”) of all Single Series, the holders of the Class
B Notes (the “Class B Noteholders” and, together with the
Class A Noteholders, the “Senior Noteholders”) of all
Single Series, the holders of the Junior Notes (the “Junior
Noteholders” and, together with the Senior Noteholders,
the “Noteholders”) of all Single Series, each of the Other
Issuer Creditors (as defined below) and any connected
third-party creditor to whom the Issuer has incurred costs,
fees, expenses or liabilities in relation to the securitisation
17
of the Claims (together, the “Issuer Creditors”).
The Issuer will grant the following security:
/
(a)
concurrently with the issue of the First Single
Series, in favour of the Representative of the
Noteholders for itself and on behalf of the
Noteholders and the other Issuer Secured Creditors,
an Italian law pledge, to be confirmed and novated
on or around any Single Series Issue Date, over all
monetary claims and rights and all the amounts
(including payment for claims, indemnities,
damages, penalties, credits and guarantees) to
which the Issuer is entitled from time to time
pursuant to the Italian Law Transaction Documents
(other than the Mandate Agreement, the Conditions
of the Notes of each Single Series and the Italian
Deed of Pledge); and
(b)
in favour of the Representative of the Noteholders
for itself and as security trustee for the Noteholders
and the other Issuer Secured Creditors, inter alia,
an English law charge over (i) (a) the Accounts, all
its present and future right, title and interest in or to
the Accounts and all amounts (including interest)
now or in the future standing to the credit of, or
accrued or accruing on the Accounts and (b) all its
present (if any) and future right, title and interest in
or to the cash, the units of money markets funds,
the debt securities or other debt instruments from
time to time purchased by or on behalf of the Issuer
pursuant to the Issuer Account Bank Agreement
and the Agency and Accounts Agreement or to any
moneys deriving therefrom standing to the credit of
any of the Accounts; (ii) an English law assignment
by way of security of all the Issuer’s rights, title,
interest and benefit present and future in to and
under the Single Series Swap Agreement executed
on or about the Signing Date and the Issuer
Account Bank Agreement and all other present and
future contracts, agreements, deeds and documents
governed by English law to which the Issuer is or
may become a party in relation to the Notes, the
Claims and the Portfolio including for the
avoidance of doubt all its rights, title, interest and
benefit present and future in, to and under any
18
Single Series Swap Agreement (but excluding the
collateral (either cash or securities) from time to
time provided by any Single Series Swap
Counterparty to the Issuer under the relevant Single
Series Swap Agreement) that the Issuer may enter
into in the future in connection with any Additional
Issue; and (iii) a floating charge over all of the
Issuer’s assets which are subject to the charge and
assignments described under (i) and (ii) above and
not effectively assigned or charged by way of first
fixed charge or assignment thereunder.
The Notes of each Single Series will be collateralised by
the Claims purchased from time to time by the Issuer
pursuant to the Master Transfer Agreement. The
Noteholders of all Single Series will have rights over all
the Claims (subject to the Intercreditor Agreement and the
applicable Priority of Payments) irrespective of the Single
Series Issue Date of the relevant Single Series and of the
Claims owned by the Issuer on or immediately prior to
the relevant Single Series Issue Date.
Intercreditor Agreement
On the Signing Date, the Issuer, the Representative of the
Noteholders on its own behalf and on behalf of the
Noteholders, the Paying Agents, the Agent Bank, the
Computation Agent, the Account Bank, the Programme
Administrator, the first Single Series Swap Counterparty,
Santander (in any capacity), the Corporate Services
Provider, the Stichtingen Corporate Services Provider, the
Servicer and the Arranger (with the exception of the Issuer
and the Noteholders but including any other entity which
will be a party to the Intercreditor Agreement, the “Other
Issuer Creditors”) have entered into an intercreditor
agreement (as from time to time amended and/or
supplemented in connection with each Additional Issue,
the “Intercreditor Agreement”) pursuant to which the
Other Issuer Creditors have agreed to the limited recourse
nature of the obligations of the Issuer and to the Priority of
Payments described below. The Intercreditor Agreement is
governed by Italian law.
In connection with each Additional Issue, any entity
appointed by the Issuer (for instance, a Dealer, a Single
Series Swap Counterparty or a Subordinated Loan
Provider) will be requested to accede to the Intercreditor
Agreement and be bound by it as if it were a party to it
/
19
from the Signing Date, even if such entity is already a
party to the Intercreditor Agreement in any other capacity.
Mandate Agreement
Pursuant to the terms of a mandate agreement dated the
Signing Date (the “Mandate Agreement”), the
Representative of the Noteholders is empowered to take
such action in the name of the Issuer, following the
delivery of a Programme Acceleration Notice, as the
Representative of the Noteholders may deem necessary to
protect the interests of the Noteholders and the Other
Issuer Creditors.
Purchase of the Notes
The Issuer may not purchase any Notes at any time.
Listing of the Senior Notes
Application has been made to the Commission de
Surveillance du Secteur Financier (the “CSSF”) in its
capacity as competent authority under the Luxembourg
Act dated 10 July 2005 relating to prospectuses for
securities, for the approval of this Prospectus as a base
prospectus for the purposes of article 5.4 of the
Prospectus Directive. Application has also been made to
the Luxembourg Stock Exchange for the Senior Notes
issued under the Programme to be admitted to the official
list of the Luxembourg Stock Exchange (the “Official
List”) and to be admitted to trading on the Luxembourg
Stock Exchange’s regulated market. References in this
Prospectus to Senior Notes being “listed” (and all related
references) shall mean that such Senior Notes have been
admitted to the Official List and admitted to trading on
the Luxembourg Stock Exchange’s regulated market. The
Luxembourg Stock Exchange’s regulated market is a
regulated market for the purposes of Directive
2004/39/EC of the European Parliament and of the
Council on markets in financial instruments. The Notes
may also be listed on such other or further stock
exchange(s) as may be agreed between the Issuer and the
relevant Dealer in relation to each Single Series.
Unlisted Notes may also be issued.
The applicable Final Terms will state whether or not the
relevant Notes are to be listed and, if so, on which stock
exchange.
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Governing law
The Notes will be governed by, and construed in
accordance with, Italian law.
Selling restrictions
There will be restrictions on the sale of the Notes and on
the distribution of information in respect thereof. See
20
“Subscription and sale”, below.
3
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The Portfolio
Transfer of the Initial Claims
On the Initial Execution Date and pursuant to the terms of
the Master Transfer Agreement, the Originator sold to the
Issuer without recourse (pro soluto) the Initial Claims
arising from the Initial Portfolio in accordance with the
Securitisation Law. The purchase price of the Initial
Claims will be paid by the Issuer to the Originator on the
First Single Series Issue Date using the net proceeds of
the issue of the Notes of the First Single Series. See “The
Portfolio” and “The Master Transfer Agreement”, below.
Transfer of Subsequent Claims
Pursuant to the Master Transfer Agreement, during any
Single Series Revolving Period, Santander will offer for
sale to the Issuer, on a quarterly basis, additional pools of
monetary claims and other connected rights (the
“Subsequent Claims”) arising from additional portfolios
of consumer loans, consisting of vehicle loans, other
purpose loans, personal loans originated, or to be
originated, by Santander and, save as provided in the
Transaction Documents (as defined below), having
substantially the same characteristics as the Initial
Portfolio (each a “Subsequent Portfolio”). The Issuer
will pay to Santander the purchase price for the
Subsequent Claims (if any) on each Interest Payment
Date, during any Single Series Revolving Period,
according to the Priority of Payments for Single Series
Principal Available Funds and subject to the availability
of Single Series Principal Available Funds.
Transfer of Additional Claims
In addition to the Initial Claims which have been
purchased in connection with the issuance of the Notes of
the First Single Series (as defined below) and in addition
to the Subsequent Claims which the Issuer may purchase
from the Originator during each Single Series Revolving
Period, the Issuer may purchase from Santander, in
connection with any issuance of Notes under the
Programme (each an “Additional Issue”), additional
pools of monetary claims and other connected rights (the
“Additional Claims” and, together with the Initial
Claims and the Subsequent Claims, the “Claims”) arising
from additional portfolios of consumer loans, consisting
of vehicle loans, other purpose loans and personal loans
21
originated, or to be originated, by Santander and, save as
provided in the Transaction Documents (as defined
below), having substantially the same characteristics as
the Initial Portfolio (each an “Additional Portfolio” and,
together with the Initial Portfolio and the Subsequent
Portfolios, the “Portfolio”). The purchase price for the
Additional Claims will be payable by the Issuer to
Santander on the relevant Single Series Issue Date using
the net proceeds of the issue of the Notes of the relevant
Single Series. See “The Portfolio” and “The Master
Transfer Agreement”, below.
The Criteria
The Claims (other than the Claims already purchased by
the Issuer which have been already selected) will be
identified by the Originator and the Issuer on the basis of
objective common criteria listed in exhibit 1 part 1 of the
Master Transfer Agreement (the “Common Criteria”)
and of certain specific criteria listed in exhibit 1 part 4 of
the Master Transfer Agreement (the “Specific Criteria”
and, together with the Common Criteria, the “Criteria”).
The Master Transfer Agreement provides that the Issuer
and the Originator may agree to amend the Common
Criteria and/or the Specific Criteria in connection with
any Additional Issue provided that the Issuer sends a prior
notification to S&P in respect of such amendment. Such
new Common Criteria and/or Specific Criteria will be
disclosed in the applicable Offer to Sell and Final Terms.
The pools
Claims meeting the Criteria will be classified in the
following pools:
(A) “Personal Loans”, i.e. loans without specific
purposes requested by, and advanced to, the
Borrowers directly or to a person specified by that
Borrower, but different from a Retail Distributor
(Convenzionato), and defined as “personal loans”;
(B) “New Car Loans”, i.e. loans granted for the
purchase of (i) vehicles (including cars, motorbikes,
caravans and commercial vehicles with a weight not
exceeding 3,500 kilograms) registered with the Car
Registration Board (P.R.A. — Pubblico Registro
Automobilistico) for not more than 12 months as at
the date of execution of the relevant Consumer Loan
or of (ii) boats registered with R.I.D. (Registro
Imbarcazioni Diporto) for not more than 12 months
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22
as at the date of execution of the relevant Consumer
Loan and in both cases granted to the Borrower and
advanced to the relevant Retail Distributor
(Convenzionato);
(C) “Used Car Loans”, i.e. loans granted for the
purchase of (i) vehicles (including cars, motorbikes,
caravans and commercial vehicles with a weight not
exceeding 3,500 kilograms) registered with the Car
Registration Board (P.R.A. — Pubblico Registro
Automobilistico) for more than 12 months as at the
date of execution of the relevant Consumer Loan or
of (ii) boats registered with R.I.D. (Registro
Imbarcazioni Diporto) for more than 12 months as at
the date of execution of the relevant Consumer Loan
and in both cases granted to the Borrower and
advanced to the relevant Retail Distributor
(Convenzionato); and
(D) “Other Purpose Loans”, i.e. loans exclusively
aimed at either the supply of services or the purchase
of goods other than those specified in the previous
paragraphs (B) and (C), granted to the relevant
Borrower and advanced to the relevant Retail
Distributor (Convenzionato).
Single Series Revolving Period
“Single Series Revolving Period” means, in relation to
each Single Series, the period starting on and including
the relevant Single Series Issue Date and ending on but
excluding the relevant Single Series Revolving Period
Termination Date.
“Single Series Revolving Period Termination Date”
means, in relation to each Single Series, the earlier of: (i)
the date defined as such in the applicable Final Terms and
(ii) the day on which a Purchase Termination Event
Notice is delivered by the Computation Agent to the
Issuer.
Single Series Amortising Period
“Single Series Amortising Period” means, in relation to
each Single Series, the period from and including: (a) the
day defined as such in the applicable Final Terms or, if
earlier, (b) the date on which a Purchase Termination
Event Notice is delivered by the Computation Agent to
the Issuer.
“Purchase Termination Event” means any of the
following events:
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23
(a)
the Default Ratio Rolling Average for the
immediately preceding Collection Period is higher
than 1.5%; or
(b) the Arrear Ratio Rolling Average for the
immediately preceding Collection Period is higher
than 6%; or
(c)
the Collateral Ratio is lower than 95% for the three
immediately preceding Collection Periods; or
(d) on any Interest Payment Date, following the making
of the payments and/or provisions required to be
made by the Issuer on such date, a debit balance
remains outstanding on one or more Principal
Deficiency Ledgers; or
(e)
provided that on the immediately preceding Interest
Payment Date the amount standing to the credit of
the Cash Reserve Account was at least equal to the
Target Cash Reserve Amount, the amount standing
to the credit of the Cash Reserve Account on the
immediately following Interest Payment Date,
following all payments and/or provisions to be made
on such date, will be lower than the Target Cash
Reserve Amount,
each, as determined by the Computation Agent on a
Calculation Date and as set out in the Payments Report;
or
(a) in relation to the Originator:
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(i)
an administrator, administrative receiver or
liquidator is appointed or it becomes subject to
any bankruptcy, liquidation, administration,
insolvency, composition, reorganisation or
similar proceedings or application is made for
the commencement of any such proceedings or
an encumbrance takes possession of the whole
or any substantial part of its undertaking or
assets; or
(ii)
proceedings are initiated under any applicable
bankruptcy,
liquidation,
administration,
insolvency, composition, reorganisation or
similar laws and such proceedings are not, in
the opinion of the Representative of the
Noteholders, being disputed in good faith; or
24
(iii) any action is taken for the readjustment or
deferment of a substantial part of its
obligations or it makes a general assignment
or an arrangement or a composition with or for
the benefit of its creditors or is granted by a
competent court a moratorium in respect of
any of its indebtedness or any guarantee of any
indebtedness given by it or applies for
bankruptcy or suspension of payment; or
(iv)
an order is made or an effective resolution is
passed for the winding-up, liquidation or
dissolution of the Originator; or
(v)
the collections relating to the Claims are not
transferred irrevocably and in cleared funds,
pursuant to the terms and conditions of the
Servicing Agreement, by the Servicer into the
Collection Account; or
(vi)
other than as a result of force majeure,
notwithstanding the occurrence of which the
Servicer has used its reasonable endeavours to
deliver the Quarterly Servicer Report in the
circumstances, the Servicer fails to deliver a
Quarterly Servicer Report on the due date
therefor in accordance with the Servicing
Agreement and such failure continues for a
period of seven Business Days; or
(vii) the Originator or the Servicer is in breach of
any of its other obligations under any of the
Transaction Documents to which it is a party
and, in the case of an obligation which is a
payment obligation (including, but not limited
to, in this regard, its obligation to repurchase
or make payments in respect of any Claim),
such breach continues for a period of seven
Business Days after the date on which such
payment obligation was due to be performed
or, in the case of a breach of any other
obligation, such breach is not remedied in the
opinion of either the Issuer or the
Representative of the Noteholders within ten
Business Days of notice being given by the
Issuer or the Representative of the Noteholders
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25
to the Originator or the Servicer, as the case
may be and in accordance with the terms of
the relevant Transaction Document; or
(viii) a representation or warranty given by
Santander in the Warranty and Indemnity
Agreement has been breached and has not
been remedied within 10 Business Days, in
accordance with the terms of the Warranty and
Indemnity Agreement; or
(ix)
the Originator fails, during any Single Series
Revolving Period, to offer for sale to the
Issuer Subsequent Claims for three
consecutive Offer Dates.
“Default Ratio Rolling Average” means, on each
Calculation Date, the average of the Default Ratio for the
three immediately preceding Collection Periods.
“Default Ratio” means, as at the last day of each
Collection Period, the ratio expressed as a percentage
between (i) the aggregate Outstanding Principal of all
Claims which have become Defaulted Claims during the
immediately preceding Collection Period and (ii) the
aggregate Outstanding Principal of all Claims as at such
date, as determined by the Servicer in the Quarterly
Servicer Report.
“Arrear Ratio Rolling Average” means, on each
Calculation Date, the average of the Arrear Ratio for the
three immediately preceding Collection Periods.
“Arrear Ratio” means, as at the last day of each
Collection Period, the ratio expressed as a percentage
between (i) the aggregate Outstanding Principal of all
Claims which are Arrear Claims as at the last day of the
immediately preceding Collection Period and (ii) the
aggregate Outstanding Principal of all Claims at such
date, as determined by the Servicer in the Quarterly
Servicer Report.
“Collateral Ratio” means, as at the last day of each
Collection Period, the ratio expressed as a percentage
between (i) the aggregate Outstanding Principal of all
Claims, calculated taking into account also the Claims to
be purchased by the Issuer on the immediately following
Subsequent Transfer Date, and (ii) the Principal Amount
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26
Outstanding of the Notes of all Single Series.
“Purchase Termination Event Notice” means the notice
delivered by the Computation Agent to the Issuer in
accordance with the Agency and Accounts Agreement
following the occurrence of a Purchase Termination
Event.
Warranties in relation to the
Portfolio
Pursuant to the terms of a warranty and indemnity
agreement dated the Initial Execution Date, as
subsequently amended on the Signing Date (the
“Warranty and Indemnity Agreement”) between the
Originator and the Issuer, the Originator has given certain
representations and warranties in favour of the Issuer in
relation to the Initial Portfolio and the Initial Claims (and
has agreed to give certain representations and warranties
in relation to any Subsequent Portfolio, Subsequent
Claims, Additional Claims and Additional Portfolio) and
has agreed to indemnify the Issuer in respect of certain
liabilities of the Issuer incurred in connection with the
purchase and ownership of the Claims. In order to avoid
any set-off risk, the Originator has warranted and
represented that it has not, and it will not, open bank
accounts with any of the Borrowers. See “The Warranty
and Indemnity Agreement”, below.
Servicing and collection procedures
Pursuant to the terms of the Servicing Agreement, the
Servicer has agreed to administer and service the
Portfolio on behalf of the Issuer and, in particular, to
administer and manage each Claim as well as the
relationship with any person who is a borrower under a
Consumer Loan (a “Borrower”).
“Consumer Loans” means, from time to time, the
aggregate of the consumer loans the Claims in respect of
which are comprised in the Portfolio and “Consumer
Loan” means any one of these.
Any monies received or recovered in respect of the
Consumer Loans and related Claims (the “Collections”)
are initially paid to Santander in its capacity as Servicer
and will remain in the accounts of Santander until
transferred to the Collection Account of the Issuer. All
Collections are required to be transferred by the Servicer
into the Collection Account one Business Day following
their receipt by the Servicer, provided that, in the case of
exceptional circumstances causing an operational delay in
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27
the transfer, the Collections will be transferred to the
Collection Account within three Business Days of the
date on which such Collections are received by the
Servicer.
Collections in respect of the Consumer Loans will be
calculated by reference to successive three-month periods
(each, a “Collection Period”). Each Collection Period,
with the exception of the first Collection Period of each
Single Series, which will be indicated in the applicable
Final Terms, will commence on (and include) a
Collection Date and end on (but exclude) the next
succeeding Collection Date.
“Collection Date” means 1 January, 1 April, 1 July and 1
October of each year.
The Servicer has undertaken to prepare and submit to,
inter alia, the Dealers, the Computation Agent, the
Representative of the Noteholders, the Rating Agency, the
Account Bank and the Issuer by no later than the date
which is four Business Days after the last day of each
Collection Period (each such date, a “Quarterly
Reporting Date”) quarterly reports (each, a “Quarterly
Servicer Report”) in the form set out in the Servicing
Agreement and containing information as to the Portfolio
and any Collections in respect of the preceding Collection
Period.
The Servicer is obliged to appoint a firm of
internationally recognised auditors acceptable to the
Issuer, or the same independent auditors as are appointed
to audit the annual accounts of the Servicer, and to obtain
from such auditors certification in writing that the
modality of extraction, the recording and the processing
of the information and data contained in the Quarterly
Servicer Report related to the immediately preceding
Collection Period are correct, accurate and in accordance
with the accounting records kept by the Servicer. See
“The Servicing Agreement”, below.
Servicing fees
/
In return for the services provided by the Servicer in
relation to the ongoing management of the Portfolio and
as reimbursement of expenses, on each Interest Payment
Date and in accordance with the applicable Priority of
Payments, the Issuer will pay the Servicer the following
amounts:
28
(a)
a quarterly fee equal to 0.125% (inclusive of VAT,
where applicable) of the principal amount
outstanding of the Claims (with the exception of
those Claims which qualify as Defaulted Claims) on
the first Business Day of the immediately preceding
Collection Period, according to the information
contained in the Quarterly Servicer Report;
(b)
a fee equal to 6% (inclusive of VAT, where
applicable) of the Collections deriving from the
Claims classified as Defaulted Claims (excluding
any purchase price received in relation to the sale of
any Defaulted Claims) during the immediately
preceding Collection Period, according to the
information contained in the Quarterly Servicer
Report; and
(c)
an annual fee of €13,000 plus value added tax (to
the extent applicable) payable by the Issuer on the
first Interest Payment Date of each year in
connection with certain compliance and consultancy
services provided by the Servicer pursuant to the
Servicing Agreement.
“Defaulted Claim” means a Claim arising from a
Consumer Loan (i) under which there are six or more
consecutive or inconsecutive Unpaid Instalments, or (ii)
under which, following the relevant final maturity date,
there is at least one instalment which is an Unpaid
Instalment from six or more months.
“Unpaid Instalment” means an Instalment which, at a
given date, is due but not fully paid and remains such for
at least one calendar month following the date on which it
should have been paid, under the terms of the relevant
Consumer Loan.
See “The Servicing Agreement”, below.
4
The Issuer Account Bank Agreement and the Agency and Accounts Agreement
The Cash Accounts
Pursuant to the terms of the Issuer Account Bank
Agreement, the Issuer has opened the following accounts
with the Account Bank:
(a)
/
a euro-denominated current account into which the
Servicer is required to deposit, inter alia, the
Collections in accordance with the Servicing
29
Agreement (the “Collection Account”);
(b)
a euro-denominated current account into which the
Issuer is required to deposit, inter alia, available
amounts on each Interest Payment Date under item
(xi) of the Pre-Enforcement Priority of Payments for
Single Series Interest Available Funds (the “Cash
Reserve Account”); and
(c)
a euro-denominated current account into which the
Issuer will deposit €30,000 on the First Single
Series Issue Date (the “Expenses Account” and,
together with the Collection Account and the Cash
Reserve Account, the “Cash Accounts”). This
account will then be replenished on each Interest
Payment Date up to the Retention Amount (as
defined below) and such amount will be applied by
the Issuer to pay all fees, costs, expenses and taxes
required to be paid in order to preserve the
corporate existence of the Issuer or to maintain it in
good standing or to comply with applicable
legislation.
Pursuant to the terms of the Issuer Account Bank
Agreement, the Issuer has also opened with the Account
Bank a securities account (the “Eligible Investments
Securities Account”) into which the Issuer will deposit
the units of money market funds from time to time owned
by it. In addition, should the Issuer invest in other
Eligible Investments, in accordance with the Issuer
Account Bank Agreement and the Agency and Accounts
Agreement, the Issuer will open with the Account Bank
another securities account (the “Additional Eligible
Investments Securities Account” and, together with the
Eligible
Investments
Securities
Account,
the
“Investments Securities Accounts” and, together with
the Cash Accounts, the “Accounts”) into which the Issuer
will deposit all securities constituting Eligible
Investments from time to time owned by it, other than the
units of money market funds from time to time owned by
it.
The Issuer has also opened with Santander a eurodenominated bank account (the “Equity Capital
Account”) into which the Issuer’s equity capital of
€10,000 will be required to be deposited for as long as
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30
any notes issued by the Issuer (including the Notes) are
outstanding.
In accordance with the Securitisation Law, the Issuer is a
special purpose vehicle for the purposes of issuing assetbacked securities and in the context of the Previous
Programme 2004, the Previous Programme March 2008
and the Previous Programme December 2008 (as defined
below) has opened certain bank accounts. The sums
standing from time to time to the credit of such bank
accounts will not be available to the Issuer Creditors,
because, pursuant to the Securitisation Law, the assets
relating to each securitisation transaction will constitute
assets segregated for all purposes from the assets of the
Issuer and from the assets relating to other securitisation
transactions. The assets relating to a particular
securitisation transaction will not be available to the
holders of notes issued to finance any other securitisation
transaction or to the general creditors of the Issuer.
Provisions relating to the Cash
Accounts
Pursuant to the Issuer Account Bank Agreement, the
Account Bank has agreed to provide the Issuer with
certain services in connection with reporting requirements
in relation to the monies from time to time standing to the
credit of the Collection Account, the Cash Reserve
Account and the Expenses Account, including the
preparation of statements of account on each Quarterly
Reporting Date (the “Statement of the Cash Accounts”).
Pursuant to the Issuer Account Bank Agreement and the
Agency and Accounts Agreement, the Account Bank has
agreed to provide the Issuer with certain account
management services, including the making of payments
of amounts due from the Issuer out of amounts standing
to the credit of the Collection Account, the Cash Reserve
Account and the Expenses Account.
Amounts standing to the credit of the Collection Account
and the Cash Reserve Account during a Collection Period
may be invested by the Issuer or by the Account Bank on
behalf of the Issuer, upon instructions of Santander, in
Eligible Investments.
If the Account Bank ceases to be an Eligible Institution,
(a)
/
the Account Bank will notify the Rating Agency
thereof and use, by no later than 30 (thirty)
calendar days’ from the date on which the relevant
31
downgrading occurs, commercially reasonable
efforts to select a leading bank:
(b)
(i)
approved by the Representative of the
Noteholders; and
(ii)
which is (i) an English depository institution
or an English branch of a EU depository
institution resident in the United Kingdom
and (ii) an Eligible Institution, willing to act
as successor Account Bank thereunder; and
the Issuer will, by no later than 30 (thirty) calendar
days’ from the date on which the relevant
downgrading occurs,
(i)
appoint that bank specified above as
successor Account Bank (and will promptly
after so doing notify the Representative of
the Noteholders and the Rating Agency
thereof);
(ii)
open a replacement Collection Account, a
replacement Cash Reserve Account and a
replacement Expenses Account with the
successor Account Bank specified in (i)
above;
(iii)
transfer the balance standing to the credit of,
respectively, the Collection Account, the
Cash Reserve Account and the Expenses
Account to the credit of each of the relevant
replacement accounts set out above;
(iv)
terminate the appointment of the Account
Bank (and will promptly after so doing
notify the Representative of the Noteholders
and the Rating Agency thereof);
(v)
close the Collection Account, the Cash
Reserve Account and the Expenses Account
once the steps under (i), (ii), (iii) and (iv) are
completed,
provided that the administrative costs incurred with
respect to the selection of a successor Account Bank
(which, for the avoidance of doubt, shall not include any
fees payable to, or costs and expenses of, the successor
Account Bank) under (a) above and the transfer of funds
referred under (b) above shall be borne by the Account
Bank.
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Provisions relating to the
Investments Securities Accounts
Pursuant to the Issuer Account Bank Agreement, the
Account Bank has agreed to provide the Issuer with
certain services in connection with reporting requirements
in relation to the securities from time to time standing to
the credit of the Investments Securities Accounts,
including the preparation of statements of account on
each Quarterly Reporting Date (the “Statement of the
Investments Securities Accounts” and, together with the
Statement of the Cash Accounts, the “Statement of
Accounts”).
If the Account Bank ceases to be an Eligible Institution,
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(a)
the Account Bank will notify the Rating Agency
thereof and use, by no later than 30 (thirty)
calendar days’ from the date on which the relevant
downgrading occurs, commercially reasonable
efforts to select a leading bank (a) approved by the
Representative of the Noteholders; and (b) which
is (i) an English depository institution or an
English branch and (ii) an Eligible Institution,
willing to act as successor Account Bank
hereunder; and
(b)
the Issuer will, by no later than 30 (thirty) calendar
days’ from the date on which the relevant
downgrading occurs,
(i)
appoint the bank specified above as
successor Account Bank (and will promptly
after so doing notify the Representative of
the Noteholders and the Rating Agency
thereof);
(ii)
open a replacement Eligible Investments
Securities Account and (if opened) a
replacement Additional Eligible Investments
Securities Account with the successor
Account Bank specified in (i) above;
(iii)
transfer the balance standing to the credit of,
respectively, the Eligible Investments
Securities Account and (if opened) the
Additional Eligible Investments Securities
Account to the credit of each of the relevant
replacement accounts opened in accordance
with the accordance with the Issuer Account
Bank Agreement;
33
(iv)
terminate the appointment of the Account
Bank (and will promptly after so doing
notify the Representative of the Noteholders
and the Rating Agency thereof); and
(v)
close the Eligible Investments Securities
Account and (if opened) the Additional
Eligible Investments Securities Account
once the steps under (i), (ii), (iii) and (iv) are
completed,
provided that the administrative costs incurred with
respect to the selection of a successor Account Bank
(which, for the avoidance of doubt, shall not include any
fees payable to, or costs and expenses of, the successor
Account Bank) under (a) above and the transfer of funds
referred under (b) above shall be borne by the Account
Bank.
“Eligible Institution” means (A) any depository
institution organised under the laws of any state which is
a member of the European Union or of the United States
of America (i) whose short-term, unsecured and
unsubordinated debt obligations are rated at least “A-1”
by S&P or (ii) whose obligations under the Transaction
Documents to which it is a party are guaranteed, in a
manner that is in accordance with S&P’s rating criteria,
by a depository institution organised under the laws of
any state which is a member of the European Union or of
the United States of America, whose short-term,
unsecured and unsubordinated debt obligations are rated
at least “A-1” by S&P and (B) Deutsche Bank S.p.A.,
acting as initial Sub-Custodian under the terms of the
Issuer Account Bank Agreement, for so long as (I)
Deutsche Bank AG’s short-term, unsecured and
unsubordinated debt obligations are rated at least “A-1”
by S&P; (II) Deutsche Bank S.p.A. continues to be
owned (directly and indirectly) by Deutsche Bank AG;
(III) there are no material changes in the ownership
structure of Deutsche Bank AG which would result in the
downgrading of any of the Senior Notes; and (IV) the
words “Deutsche Bank” are contained in its legal name
and, in any case, only until such date when S&P notifies
the Issuer that Deutsche Bank S.p.A. no longer qualifies
as an Eligible Institution.
Computation agency
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Pursuant to the Agency and Accounts Agreement, the
34
Computation Agent has agreed to provide the Issuer with
certain calculation, notification and reporting services in
relation to the Portfolio and the Notes. By no later than
the third Business Day prior to each Interest Payment
Date (each such date, a “Calculation Date”), the
Computation Agent will calculate, inter alia, the
Programme Interest Available Funds, the Programme
Principal Available Funds, the Single Series Interest
Available Funds, the Single Series Principal Available
Funds and the payments to be made under the Priority of
Payments set out below and will prepare a report (the
“Payments Report”) setting forth each of the above
amounts and will deliver the Payments Report to, inter
alios, the Issuer, the Servicer, Santander, the Arranger, the
Dealers, the Corporate Services Provider, the Rating
Agency, the Paying Agents, each Single Series Swap
Counterparty, the Account Bank and the Representative of
the Noteholders.
In addition, the Computation Agent will prepare and
deliver (by no later than ten days after each Interest
Payment Date or, if such day is not a Business Day, on
the next succeeding Business Day) to, inter alios, the
Issuer, the Servicer, the Representative of the
Noteholders, the Dealer(s) and the Rating Agency a report
substantially in the form set out in the Agency and
Accounts Agreement (the “Investor Report”) containing
details of, inter alia, the Portfolio, amounts received by
the Issuer from any source during the preceding
Collection Period and amounts paid by the Issuer during
that Collection Period and on the Interest Payment Date
immediately after that Collection Period.
In carrying out its duties, the Computation Agent will be
entitled to rely on certain information provided to it by
the Servicer, the Account Bank, the Agent Bank and the
Issuer and will not be liable for any error or omission in
doing so save as are caused by its own gross negligence
(colpa grave) or wilful misconduct (dolo).
In return for the services so provided, the Computation
Agent will receive a fee as agreed on the Signing Date
between the Issuer and the Computation Agent, payable
by the Issuer on each Interest Payment Date in
accordance with the applicable Priority of Payments.
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35
Payments under the Notes
Based on the Payments Report, the Paying Agents will,
on each Interest Payment Date, make the payments under
the Notes set forth in the relevant Priority of Payments
described below.
In accordance with the Agency and Accounts Agreement,
the Programme Administrator will verify that the criteria
utilised by the Originator to select the Subsequent Claims
and the Additional Claims, if any, to be transferred on
each Subsequent Transfer Date are in compliance with the
Criteria listed in the Master Transfer Agreement. For an
English translation of the Common Criteria and the
Specific Criteria, see “The Master Transfer Agreement”,
below.
5
Priority of Payments
Programme Available Funds and
Single Series Available Funds
On each Calculation Date, the Computation Agent will
calculate, inter alia, the Programme Interest Available
Funds and the Programme Principal Available Funds. On
each Calculation Date, the Computation Agent will also
calculate the Programme Principal Available Funds and
the Programme Interest Available Funds pertaining to
each Single Series of Notes, i.e., respectively, the Single
Series Principal Available Funds and the Single Series
Interest Available Funds, both as defined below.
“Programme Interest Available Funds” means, on any
Calculation Date prior to the service of a Programme
Acceleration Notice, an amount equal to the sum of:
(a) the Interest Components received by the Issuer in
respect of the Consumer Loans in the Portfolio
during the Collection Period immediately preceding
such Calculation Date;
(b) without duplication with (a) above, an amount equal
to the Interest Components invested in Eligible
Investments (if any) during the immediately
preceding Collection Period from the Collection
Account, following liquidation thereof on the
preceding Liquidation Date;
(c) the Cash Reserve;
(d) without duplication with (c) above, an amount equal
to the sums invested in Eligible Investments (if any)
during the immediately preceding Collection Period
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36
from the Cash Reserve Account, following
liquidation thereof on the preceding Liquidation
Date;
(e) without duplication with (c) above, all amounts of
interest accrued and paid on the Cash Accounts
during the Collection Period immediately preceding
such Calculation Date;
(f) without duplication with (e) above, payments made
to the Issuer by any other party to the Transaction
Documents during the Collection Period
immediately preceding such Calculation Date
excluding amounts paid or payable under any of the
Single Series Swap Agreements and excluding those
amounts
constituting
Programme
Principal
Available Funds;
(g) the Revenue Eligible Investments Amount realised
on the preceding Liquidation Date, if any;
(h) any recoveries (including any purchase price
received in relation to the sale of any Defaulted
Claims) received by the Issuer in respect of any
Defaulted Claim during the Collection Period
immediately preceding such Calculation Date; and
(i) any other amount standing to the credit of the
Collection Account as at the end of the Collection
Period immediately preceding the relevant
Calculation Date but excluding those amounts
constituting Programme Principal Available Funds.
“Programme Principal Available Funds” means, on any
Calculation Date prior to the service of a Programme
Acceleration Notice, an amount equal to the sum of:
/
(a)
the Principal Components received by the Issuer in
respect of the Consumer Loans (other than
Defaulted Claims) in the Portfolio during the
Collection Period immediately preceding such
Calculation Date;
(b)
without duplication with (a) above, an amount equal
to the Principal Components (other than those
relating to Defaulted Claims) invested in Eligible
Investments (if any) during the immediately
preceding Collection Period from the Collection
Account, following liquidation thereof on the
37
preceding Liquidation Date;
(c)
the Programme Principal Deficiency Ledger
Amount calculated in respect of such Calculation
Date;
(d)
the amounts actually credited to and/or retained in,
on the immediately preceding Interest Payment
Date, the Collection Account under items (i)(B),
(ii)(B) and (iv)(B) of the Pre-Enforcement Priority
of Payments for Programme Principal Available
Funds, if any;
(e)
payments made to the Issuer by the Originator
pursuant to the Warranty and Indemnity Agreement
and/or the Master Transfer Agreement during the
Collection Period immediately preceding such
Calculation Date in respect of indemnities or
damages for breach of representations or
warranties;
(f)
any purchase price received by the Issuer in relation
to the sale of any Claims (other than Defaulted
Claims) made in accordance with the Master
Transfer Agreement and the Warranty and
Indemnity Agreement during the Collection Period
immediately preceding such Calculation Date; and
(g)
on the Calculation Date immediately preceding the
Final Redemption Date and on any Calculation
Date thereafter, the balance standing to the credit of
the Expenses Account at such dates.
The Programme Interest Available Funds and the
Programme Principal Available Funds are collectively
referred to as the “Programme Available Funds”.
For so long as all the Notes outstanding form part of the
same Single Series, the Single Series Interest Available
Funds of such Single Series will be equal to the
Programme Interest Available Funds and the Single Series
Principal Available Funds will be equal to the Programme
Principal Available Funds.
Single Series Interest Available
Funds
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“Single Series Interest Available Funds” means, in
respect of each Single Series and in respect of the
immediately following Interest Payment Date, the sum,
calculated on each Calculation Date prior to the service of
a Programme Acceleration Notice, of:
38
(i) an amount equal to the relevant Single Series Ratio
of the Programme Interest Available Funds;
(ii) any amount due and payable, although not yet paid,
to the Issuer by the relevant Single Series Swap
Counterparty under the relevant Single Series Swap
Agreement on the second Business Day before the
Interest Payment Date immediately following the
relevant Calculation Date; and
(iii) to the extent that the aggregate of the funds under (i)
and (ii) above is lower than the applicable Single
Series Senior Interest Payments, a portion
(determined in accordance with Condition 8(h)
(Programme Interest Excess) of the amounts (if any)
credited to and/or retained in the Collection Account
pursuant to item (xii) of the Pre-Enforcement
Priority of Payments for Single Series Interest
Available Funds relative to any other Single Series,
but excluding (i) any amount paid by the relevant Single
Series Swap Counterparty upon termination of the
relevant Single Series Swap Transaction in respect of any
termination payment and, until a replacement swap
counterparty has been found, exceeding the net amounts
which would have been due and payable by the relevant
Single Series Swap Counterparty with respect to the next
Interest Payment Date, had the relevant Single Series
Swap Transaction not been terminated; and (ii) the
relevant Collateral (if any).
“Single Series Ratio” means, in respect of each Single
Series, on any Calculation Date, the fraction, expressed as
a percentage, the numerator of which is the then Principal
Amount Outstanding of such Single Series and the
denominator of which is the then Principal Amount
Outstanding of the Notes under the Programme.
“Applicable Ratio” means, on any Calculation Date, in
respect of each Single Series (other than those which have
suffered on the same date a Single Series Interest
Shortfall), the fraction, expressed as a percentage, the
numerator of which is the Single Series Interest Excess of
such Single Series at such Calculation Date and the
denominator of which is the Programme Interest Excess
at the same Calculation Date.
“Single Series Senior Interest Payments” means, on any
/
39
Calculation Date, in relation to each Single Series, the
sum of all amounts that would be payable under items (i)
to (x) of the Pre-Enforcement Priority of Payments for
Single Series Interest Available Funds on the immediately
following Interest Payment Date.
“Single Series Interest Shortfall” means, in relation to
any Single Series, on any Calculation Date, the difference
(if positive) between the relevant Single Series Senior
Interest Payments and the relevant Single Series Interest
Available Funds (without considering the portion of the
Programme Interest Excess (if any) used to augment such
Single Series Interest Available Funds).
“Programme Interest Shortfall” means, on any
Calculation Date, an amount equal to the aggregate of all
Single Series Interest Shortfalls at such Calculation Date.
Amounts credited to and/or retained in the Collection
Account under item (xii) of the Pre-Enforcement Priority
of Payments for Single Series Interest Available Funds, if
any, relative to each Single Series (including, where
applicable, the relevant Single Series) (such amounts, in
respect of each Single Series, the “Single Series Interest
Excess” and, collectively, the “Programme Interest
Excess”) will be used to augment the Single Series
Interest Available Funds pertaining to any Single Series
(including, where applicable, the relevant Single Series)
suffering a Single Series Interest Shortfall, if any, as
follows:
/
(a)
if the Programme Interest Excess is equal to the
Programme Interest Shortfall, the portion of
Programme Interest Excess to be used to augment
the Single Series Interest Available Funds
pertaining to each Single Series suffering a Single
Series Interest Shortfall will be equal to the
relative Single Series Interest Shortfall; or
(b)
if the Programme Interest Excess is less than the
Programme Interest Shortfall, the portion of
Programme Interest Excess to be used to augment
the Single Series Interest Available Funds
pertaining to each Single Series suffering a Single
Series Interest Shortfall will be calculated by
reference to the ratio borne by the Single Series
Interest Shortfall of such Single Series to the
40
Programme Interest Shortfall on such Calculation
Date.
Single Series Principal Available
Funds
On each Calculation Date, the Issuer shall determine, or
shall cause to be determined, the Single Series Principal
Available Funds pertaining to a Single Series and each
other Single Series by allocating the Programme Principal
Available Funds as follows:
(i)
if there are no other Single Series of Notes
outstanding, the Single Series Principal Available
Funds pertaining to the relevant Single Series will be
equal to the Programme Principal Available Funds;
(ii) if there are two or more Single Series of Notes
outstanding (including the relevant Single Series),
the Programme Principal Available Funds will be
allocated between such Single Series (thus
constituting the relevant Single Series Principal
Available Funds) as follows:
(A)
(B)
first, to the Oldest Single Series, in an amount
equal to the lower of:
(a)
the greater of (I) the relevant Single
Series Ratio of the Programme Principal
Available Funds and (II) the difference
(if positive) between (a) the Principal
Amount Outstanding of such Oldest
Single Series on such Calculation Date
and (b) the relevant Single Series Target
Outstanding Amount in respect of the
immediately following Interest Payment
Date; and
(b)
the difference between the Principal
Amount Outstanding of such Oldest
Single Series and the relevant Single
Series Outstanding PDL Amount;
second, provided that there are more than two
Single Series outstanding, to each immediately
Subsequent Single Series (in chronological
order, beginning with the oldest one), in an
amount equal to the lower of:
(a)
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41
the greater of (I) the relevant Single
Series Ratio of the Programme Principal
Available Funds and (II) the difference
(if positive) between (a) the Principal
Amount
Outstanding
of
such
Subsequent Single Series on such
Calculation Date and (b) the relevant
Single Series Target Outstanding
Amount in respect of the immediately
following Interest Payment Date; and
(b)
(C)
the difference between the Principal
Amount
Outstanding
of
such
Subsequent Single Series and the
relevant Single Series Outstanding PDL
Amount;
third, the remainder, if any, to the Newest
Single Series.
“Newest Single Series” means, on each Calculation Date,
the outstanding Single Series with the most recent Single
Series Issue Date in respect of the Single Series Issue
Dates of all Single Series still outstanding.
“Oldest Single Series” means, on each Calculation Date,
the outstanding Single Series with the earliest Single
Series Issue Date in respect of the Single Series Issue
Dates of all Single Series still outstanding.
“Subsequent Single Series” means, provided that there
are more than two Single Series outstanding, any one of
the Single Series other than the Oldest Single Series and
the Newest Single Series.
“Single Series Target Outstanding Amount” means, in
relation to each Single Series and in respect of each
Interest Payment Date, the amount indicated in the
applicable Final Terms.
“Single Series Outstanding PDL Amount” means in
relation to each Single Series and in respect of each
Interest Payment Date the difference (if any) between (i)
the sum of the amounts to be credited to and/or retained
in, on such Interest Payment Date, the Collection Account
under items (vii), (ix) and (x) of the applicable PreEnforcement Priority of Payments for Single Series
Interest Available Funds to reduce the applicable Single
Series Principal Deficiency Ledgers to zero and (ii) the
amounts actually credited to and/or retained in, on such
Interest Payment Date, the Collection Account under
items (vii), (ix) and (x) of the applicable Pre-Enforcement
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42
Priority of Payments for Single Series Interest Available
Funds to reduce the applicable Single Series Principal
Deficiency Ledgers to zero.
Principal Deficiency Ledgers
The Computation Agent has established three principal
deficiency ledgers (the “Principal Deficiency Ledgers”),
one in respect of each Class of Notes of all Single Series
and namely: (i) a principal deficiency ledger in respect of
the Class A Notes of all Single Series (the “Class A Notes
Principal Deficiency Ledger”); (ii) a principal
deficiency ledger in respect of the Class B Notes of all
Single Series (the “Class B Notes Principal Deficiency
Ledger”); and (iii) a principal deficiency ledger in
respect of the Junior Notes of all Single Series (the
“Junior Notes Principal Deficiency Ledger”). The
Principal Deficiency Ledgers have been established by
the Computation Agent pursuant to the Agency and
Accounts Agreement and will be used by the
Computation Agent to record, as a debit entry, any
Realised Loss in respect of the Claims.
In addition, the Principal Deficiency Ledger established
in respect of each Class will consist of as many subledgers as are the Single Series under which the relevant
Class of Notes is outstanding. Thus:
“Single Series Class A Notes Principal Deficiency
Ledger” means, in relation to each Single Series, the
principal deficiency ledger established in respect of the
Class A Notes of such Single Series where a portion of
any Realised Losses will be recorded as a debit entry in
accordance with Condition 4(i) (Single Series Principal
Deficiency Ledgers) and “Single Series Class A Notes
Principal Deficiency Ledgers” means all of them
collectively;
“Single Series Class B Notes Principal Deficiency
Ledger” means, in relation to each Single Series, the
principal deficiency ledger established in respect of the
Class B Notes of such Single Series where a portion of
any Realised Losses will be recorded, as a debit entry in
accordance with Condition 4(i) (Single Series Principal
Deficiency Ledgers) and “Single Series Class B Notes
Principal Deficiency Ledgers” means all of them
collectively;
“Single Series Junior Notes Principal Deficiency
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43
Ledger” means, in relation to each Single Series, the
principal deficiency ledger established in respect of the
Junior Notes of such Single Series where a portion of any
Realised Losses will be recorded, as a debit entry in
accordance with Condition 4(i) (Single Series Principal
Deficiency Ledgers) and “Single Series Junior Notes
Principal Deficiency Ledgers” means all of them
collectively.
Any Realised Loss will be debited:
(i) first, to the Junior Notes Principal Deficiency Ledger
so long as, and to the extent that, the debit balance of
the Junior Notes Principal Deficiency Ledger is less
than or equal to the Principal Amount Outstanding
on the Junior Notes of all Single Series (taking into
account any Realised Loss previously debited to
such Junior Notes Principal Deficiency Ledger and
in respect of which funds have not yet been allocated
in accordance with the Pre-Enforcement Priority of
Payments for Single Series Interest Available Funds);
(ii) second, to the Class B Notes Principal Deficiency
Ledger so long as, and to the extent that, the debit
balance of the Class B Notes Principal Deficiency
Ledger is less than or equal to the Principal Amount
Outstanding on the Class B Notes of all Single Series
(taking into account any Realised Loss previously
debited to such Class B Notes Principal Deficiency
Ledger and in respect of which funds have not yet
been allocated in accordance with the PreEnforcement Priority of Payments for Single Series
Interest Available Funds); and
(iii) third, to the Class A Notes Principal Deficiency
Ledger so long as, and to the extent that, the debit
balance of the Class A Notes Principal Deficiency
Ledger is less than or equal to the Principal Amount
Outstanding on the Class A Notes of all Single Series
(taking into account any Realised Loss previously
debited to such Class A Notes Principal Deficiency
Ledger and in respect of which funds have not yet
been allocated in accordance with the PreEnforcement Priority of Payments for Single Series
Interest Available Funds).
The amount to be debited to the Junior Notes Principal
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44
Deficiency Ledger under (i) above will be apportioned
among the Single Series Junior Notes Principal
Deficiency Ledgers so that the amount to be debited to
each Single Series Junior Notes Principal Deficiency
Ledger will be a share of the aggregate amount debited to
the Junior Notes Principal Deficiency Ledger calculated
by reference to the ratio borne by the then Principal
Amount Outstanding of the Junior Notes of the applicable
Single Series to the then Principal Amount Outstanding of
the Junior Notes of all Single Series.
The amount to be debited to the Class B Notes Principal
Deficiency Ledger under (ii) above will be apportioned
among the Single Series Class B Notes Principal
Deficiency Ledgers so that the amount to be debited to
each Single Series Class B Notes Principal Deficiency
Ledger will be a share of the aggregate amount debited to
the Class B Notes Principal Deficiency Ledger calculated
by reference to the ratio borne by the then Principal
Amount Outstanding of the Class B Notes of the
applicable Single Series to the then Principal Amount
Outstanding of the Class B Notes of all Single Series.
The amount to be debited to the Class A Notes Principal
Deficiency Ledger under (iii) above will be apportioned
among the Single Series Class A Notes Principal
Deficiency Ledgers so that the amount to be debited to
each Single Series Class A Notes Principal Deficiency
Ledger will be a share of the aggregate amount debited to
the Class A Notes Principal Deficiency Ledger calculated
by reference to the ratio borne by the then Principal
Amount Outstanding of the Class A Notes of the
applicable Single Series to the then Principal Amount
Outstanding of the Class A Notes of all Single Series.
“Realised Loss” means, as at the end of each Collection
Period, in respect of a Claim which has become a
Defaulted Claim during such Collection Period, the
Outstanding Principal of such Defaulted Claim.
“Outstanding Principal” means, on any date and in
respect of each Claim, the aggregate of all Principal
Components owing from the relevant Borrower and/or
scheduled to be paid after such date.
“Principal Component” means the principal component
of each Instalment.
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45
“Interest Component” means the interest component of
each Instalment (including commissions for direct debit
payments — RID, collection commissions for postal
payments, Prepayment Fees) and any other amount which
is not a Principal Component.
“Prepayment Fees” means the fee due to the Originator
by any Borrower opting for a voluntary prepayment of the
relevant Consumer Loan.
“Instalment” means the scheduled monthly payment
falling due from the relevant Borrower under a Consumer
Loan and which consists of an Interest Component and a
Principal Component.
Pre-Enforcement Priority of
Payments for Single Series Interest
Available Funds
Prior to the service of a Programme Acceleration Notice,
the Single Series Interest Available Funds of each Single
Series as calculated on each Calculation Date will be
applied by the Issuer on the Interest Payment Date
immediately following such Calculation Date in making
payments or provisions in the following order of priority
(the “Pre-Enforcement Priority of Payments for Single
Series Interest Available Funds”) but, in each case, only
if and to the extent that payments or provisions of a
higher priority have been made in full:
(i) first, in or towards satisfaction, pro rata and pari
passu, according to the respective amounts thereof,
of the Single Series Ratio of any and all outstanding
taxes due and payable by the Issuer in relation to this
Programme (to the extent that amounts standing to
the credit of the Expenses Account are insufficient to
pay such costs and to the extent not paid by
Santander under the Transaction Documents);
(ii) second, in or towards satisfaction, pro rata and pari
passu, according to the respective amounts thereof,
of the Single Series Ratio of:
(A)
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46
any and all outstanding fees, costs, liabilities
and any other expenses to be paid in order to
preserve the corporate existence of the Issuer,
to maintain it in good standing, to comply with
applicable legislation and to fulfil obligations
of the Issuer to third parties (not being Other
Issuer Creditors) incurred in relation to this
Programme (to the extent that amounts
standing to the credit of the Expenses Account
are insufficient to pay such costs and to the
extent not paid by Santander under the
Transaction Documents);
(B)
any and all outstanding fees, costs, expenses
and taxes required to be paid in connection
with the listing, deposit or ratings of the Notes,
or any notice to be given to the Noteholders or
the other parties to the Transaction Documents
(to the extent that amounts standing to the
credit of the Expenses Account are insufficient
to pay such costs);
(C)
any and all outstanding fees, costs and
expenses of and all other amounts due and
payable to the Representative of the
Noteholders or any appointee thereof; and
(D)
the amount necessary to replenish the
Expenses Account up to the Retention
Amount;
(iii) third, in or towards satisfaction, pro rata and pari
passu, according to the respective amounts thereof,
of the Single Series Ratio, of any and all outstanding
fees, costs and expenses of and all other amounts due
and payable to the Paying Agents, the Agent Bank,
the Computation Agent, the Corporate Services
Provider, the Stichtingen Corporate Services
Provider, the Account Bank, the Programme
Administrator, each under the Transaction
Document(s) to which each of them is a party;
(iv) fourth, in or towards satisfaction, pro rata and pari
passu, of all amounts due and payable to the Single
Series Swap Counterparty under the terms of the
Single Series Swap Agreement other than any
termination payment due to the Single Series Swap
Counterparty following the occurrence of a Swap
Trigger but including, in any event, the amount of
any termination payment due and payable to the
Single Series Swap Counterparty in relation to the
termination of the Single Series Swap Transaction to
the extent of any premium received (net of any costs
reasonably incurred by the Issuer to find a
replacement swap counterparty), if any, by the Issuer
from a replacement swap counterparty in
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47
consideration for entering into a swap transaction
with the Issuer on the same terms as the Single
Series Swap Transaction;
(v) fifth, in or towards satisfaction of the Single Series
Ratio of any and all outstanding fees, costs and
expenses of and all other amounts due and payable to
the Servicer pursuant to the terms of the Servicing
Agreement, other than the amounts due to the
Servicer in respect of Servicer’s Advance (if any)
under the terms of the Servicing Agreement;
(vi) sixth, in or towards satisfaction, pro rata and pari
passu, of all amounts of interest due and payable on
the Class A Notes of the same Single Series;
(vii) seventh, in or towards reduction of the Single Series
Class A Notes Principal Deficiency Ledger to zero
by crediting such amount to and/or retaining such
amount in the Collection Account;
(viii) eighth, in or towards satisfaction, pro rata and
pari passu, of all amounts of interest due and
payable on the Class B Notes of the same Single
Series;
(ix) ninth, in or towards reduction of the Single Series
Class B Notes Principal Deficiency Ledger to zero
by crediting such amount to and/or retaining such
amount in the Collection Account;
(x) tenth, in or towards reduction of the Single Series
Junior Notes Principal Deficiency Ledger to zero by
crediting such amount to and/or retaining such
amount in the Collection Account;
(xi) eleventh, to credit the Cash Reserve Account with
the Single Series Ratio of the amount required, if
any, such that the Cash Reserve equals the Target
Cash Reserve Amount;
(xii) twelfth, to credit to and/or retain in the Collection
Account an amount up to the Applicable Ratio of the
Programme Interest Shortfall;
(xiii) thirteenth, in or towards satisfaction, pro rata and
pari passu, of any termination payment due and
payable to the Single Series Swap Counterparty
under the terms of the Single Series Swap Agreement
following the occurrence of a Swap Trigger other
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48
than the payments referred to under item (iv) above;
(xiv) fourteenth, in or towards satisfaction, pro rata
and pari passu, according to the respective amounts
thereof, of the Single Series Ratio of all amounts due
and payable to the Dealers and the Arranger under
the terms of the Programme Agreement and the
Single Series Senior Notes Subscription Agreements
to which each of them is a party;
(xv) fifteenth, in or towards satisfaction of the Single
Series Ratio of all amounts of interest due and
payable to the Subordinated Loan Providers, each
under the Subordinated Loan Agreements to which
each of them is a party;
(xvi) sixteenth, in or towards satisfaction of the Single
Series Ratio of all amounts of principal due and
payable to the Subordinated Loan Providers, each
under the Subordinated Loan Agreements to which
each of them is a party;
(xvii) seventeenth, in or towards satisfaction, pro rata
and pari passu, according to the respective amounts
thereof, of the Single Series Ratio of all amounts due
and payable to Santander:
(A)
in respect of Originator’s Claims (if any)
under the terms of the Master Transfer
Agreement and the Warranty and Indemnity
Agreement; and
(B)
in connection with a Limited Recourse Loan
under the Programme Letter of Undertaking;
(xviii) eighteenth, in or towards satisfaction, pro rata
and pari passu, according to the respective amounts
thereof, of the Single Series Ratio of all amounts due
and payable to the Servicer in respect of Servicer’s
Advance (if any) under the terms of the Servicing
Agreement;
(xix) nineteenth, in or towards satisfaction, pro rata
and pari passu, according to the respective amounts
thereof, of the Single Series Ratio of any and all
outstanding fees, costs, liabilities and any other
expenses to be paid to fulfil obligations to any Other
Issuer Creditor incurred in the course of the Issuer’s
business in relation to this Programme (other than
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49
amounts already provided for in this PreEnforcement Priority of Payments for Single Series
Interest Available Funds); and
(xx) twentieth, in or towards satisfaction, pro rata and
pari passu, of the Single Series Junior Notes Interest
Amount due and payable on the Junior Notes of the
same Single Series.
Pre-Enforcement Priority of
Payments for Single Series
Principal Available Funds
Prior to the service of a Programme Acceleration Notice
and prior to the service of a Purchase Termination Event
Notice, the Single Series Principal Available Funds of
each Single Series as calculated on each Calculation Date
will be applied by the Issuer on the Interest Payment Date
immediately following such Calculation Date in making
payment or provision in the following order of priority
(the “Pre-Enforcement Priority of Payments for Single
Series Principal Available Funds”) but, in each case,
only if and to the extent that payments or provisions of a
higher priority have been made in full:
(i) first,
(A)
during the Single Series Revolving Period, in
or towards purchase of Subsequent Claims
from the Originator in accordance with the
terms of the Master Transfer Agreement; or
(B)
during the Single Series Amortising Period, in
or towards repayment, pro rata and pari
passu, of the Principal Amount Outstanding of
the Class A Notes of the same Single Series
until the Class A Notes of the same Single
Series are repaid in full,
as the case may be;
(ii) second, during the Single Series Revolving Period,
to credit to or retain in, as the case may be, all
remaining amounts to the Collection Account;
(iii) third, during the Single Series Amortising Period,
upon repayment in full of the Class A Notes of the
same Single Series, in or towards repayment, pro
rata and pari passu, of the Principal Amount
Outstanding of the Class B Notes of the same Single
Series until the Class B Notes of the same Single
Series are repaid in full;
(iv) fourth, in or towards satisfaction, pro rata and pari
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50
passu, of the Single Series Ratio of all amounts of
principal due and payable to the Subordinated Loan
Providers, each under the Subordinated Loan
Agreements to which each of them is a party, to the
extent not paid under item (xvi) of the PreEnforcement Priority of Payments for Single Series
Interest Available Funds;
(v) fifth, during the Single Series Amortising Period, in
or towards repayment, pro rata and pari passu,
(a) provided that the same Single Series is not the
Newest Single Series outstanding under the
Programme, of the Principal Amount
Outstanding of the Junior Notes of the same
Single Series until such Junior Notes are repaid
in full;
(b) so long as the same Single Series is the Newest
Single Series outstanding under the Programme,
of the Principal Amount Outstanding of the
Junior Notes of the same Single Series until the
Principal Amount Outstanding of such Junior
Notes is equal to €30,000;
(vi) sixth, so long as this Single Series is the Newest
Single Series outstanding under the Programme, on
the Final Redemption Date and on any Interest
Payment Date thereafter, in or towards satisfaction,
pro rata and pari passu, of the Principal Amount
Outstanding of such Junior Notes until such Junior
Notes are repaid in full;
(vii)
seventh, up to, but excluding the Final
Redemption Date, in or towards satisfaction, pro rata
and pari passu, of the Single Series Junior Notes
Additional Remuneration (if any) due and payable
on the Junior Notes of the same Single Series,
provided, however, that payments to be made to the
Originator under item (i)(A) above, if any, may only be
paid to the Originator by the Issuer on the later of: (i) the
relevant Interest Payment Date and (ii) the Business Day
on which the Originator gives satisfactory evidence to the
Account Bank of the publication of the notice of the
relevant assignment (a) in the Official Gazette of the
Republic of Italy (Gazzetta Ufficiale della Repubblica
Italiana) and (b) in the relevant companies register. In the
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51
latter case, such amounts will be retained by the Issuer in
the Collection Account until such Business Day, in
accordance with the terms of the Agency and Accounts
Agreement.
Pre-Enforcement Priority of
Payments for Programme
Principal Available Funds
Prior to the service of a Programme Acceleration Notice
but following the service of a Purchase Termination Event
Notice, the Programme Principal Available Funds as
calculated on each Calculation Date will be applied by the
Issuer on the Interest Payment Date immediately
following such Calculation Date in making payment or
provision in the following order of priority (the “PreEnforcement Priority of Payments for Programme
Principal Available Funds” and, together with the PreEnforcement Priority of Payments for Single Series
Interest Available Funds and the Pre-Enforcement Priority
of Payments for Single Series Principal Available Funds,
the “Pre-Enforcement Priority of Payments”) but, in
each case, only if and to the extent that payments or
provisions of a higher priority have been made in full:
(i) first, pro rata and pari passu, according to the
respective amounts thereof:
(A)
in or towards repayment of the Principal
Amount Outstanding of the Class A Notes of
all Single Series in respect of which the
applicable Single Series Decree 239 Interest
Payment Date has occurred; and
(B)
to credit to or retain in the Collection Account
an amount up to the Principal Amount
Outstanding of the Class A Notes of all Single
Series in respect of which the applicable
Single Series Decree 239 Interest Payment
Date has not occurred yet;
(ii) second, pro rata and pari passu, according to the
respective amounts thereof:
/
(A)
in or towards repayment of the Principal
Amount Outstanding of the Class B Notes of
all Single Series in respect of which the
applicable Single Series Decree 239 Interest
Payment Date has occurred; and
(B)
to credit to or retain in the Collection Account
an amount up to the Principal Amount
Outstanding of the Class B Notes of all Single
52
Series in respect of which the applicable
Single Series Decree 239 Interest Payment
Date has not occurred yet;
(iii) third, in or towards satisfaction, pro rata and pari
passu, of all amounts of principal due and payable to
the Subordinated Loan Providers, each under the
Subordinated Loan Agreements to which each of
them is a party, to the extent not paid under item
(xvi) of the Pre-Enforcement Priority of Payments
for Single Series Interest Available Funds; and
(iv) fourth, pro rata and pari passu, according to the
respective amounts thereof:
(A)
in or towards repayment of the Principal
Amount Outstanding of the Junior Notes of all
Single Series in respect of which the
applicable Single Series Decree 239 Interest
Payment Date has occurred; and
(B)
to credit to or retain in the Collection Account
an amount up to the Principal Amount
Outstanding of the Junior Notes of all Single
Series in respect of which the applicable
Single Series Decree 239 Interest Payment
Date has not occurred yet,
provided however that, if the Single Series Decree
239 Interest Payment Date has occurred in respect of
the Junior Notes of all Single Series, the Programme
Principal Available Funds available in respect of this
item (iv) will be used in or towards repayment, pro
rata and pari passu, according to the respective
amounts thereof:
(I)
first, of the Principal Amount Outstanding of
the Junior Notes of all Single Series other than
the Junior Notes of the Newest Single Series
until such Junior Notes are repaid in full;
(II)
second, of the Principal Amount Outstanding
of the Junior Notes of the Newest Single
Series until the Principal Amount Outstanding
of such Junior Notes is equal to €30,000;
(III) third, on the Final Redemption Date and on
any date thereafter, of the Principal Amount
Outstanding of the Junior Notes of the Newest
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53
Single Series until such Junior Notes are
repaid in full; and
(IV) fourth, up to, but excluding the Final
Redemption Date, of the Junior Notes
Additional Remuneration (if any) due and
payable on the Junior Notes of the Newest
Single Series.
Post-Enforcement Priority of
Payments
Following the service of a Programme Acceleration
Notice, or, in the event that the Issuer opts for the early
redemption of the Notes issued under the Programme
under Condition 8(d) (Optional redemption) or Condition
8(e) (Optional redemption in whole for taxation, legal or
regulatory reasons), the Post-Enforcement Issuer
Available Funds as calculated on each Calculation Date
will be applied by or on behalf of the Representative of
the Noteholders on the Interest Payment Date
immediately following such Calculation Date in making
payments or provisions in the following order (the “PostEnforcement Priority of Payments”) but, in each case,
only if and to the extent that payments of a higher priority
have been made in full:
(i) first, in or towards satisfaction, pro rata and pari
passu, according to the respective amounts thereof,
of any and all outstanding taxes to be paid in order to
preserve the corporate existence of the Issuer to
maintain it in good standing and to comply with
applicable legislation in relation to this Programme
(to the extent that amounts standing to the credit of
the Expenses Account are insufficient to pay such
costs and to the extent not paid by Santander under
the Transaction Documents);
(ii) second, in or towards satisfaction, pro rata and pari
passu, according to the respective amounts thereof,
of:
(A)
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54
any and all outstanding fees, costs, liabilities
and any other expenses to be paid in order to
preserve the corporate existence of the Issuer,
to maintain it in good standing, to comply with
applicable legislation and to fulfil obligations
of the Issuer to third parties (not being Other
Issuer Creditors) incurred in relation to this
Programme (to the extent that amounts
standing to the credit of the Expenses Account
are insufficient to pay such costs and to the
extent not paid by Santander under the
Transaction Documents and to the extent the
Issuer is not already subject to any insolvency
or analogous proceeding);
(B)
any and all outstanding fees, costs, expenses
and taxes required to be paid in connection
with the listing, deposit or ratings of the Notes,
or any notice to be given to the Noteholders or
the other parties to the Transaction Documents
(to the extent that amounts standing to the
credit of the Expenses Account are insufficient
to pay such costs and to the extent the Issuer is
not already subject to any insolvency or
analogous proceeding); and
(C)
any and all outstanding fees, costs and
expenses of, and all other amounts due and
payable to, the Representative of the
Noteholders or any appointee thereof;
(iii) third, in or towards satisfaction, pro rata and pari
passu, according to the respective amounts thereof,
of any and all outstanding fees, costs and expenses of
and all other amounts due and payable to the Paying
Agents, the Agent Bank, the Computation Agent, the
Servicer, the Corporate Services Provider, the
Stichtingen Corporate Services Provider, the Account
Bank, the Programme Administrator each, under the
Transaction Document(s) to which each of them is a
party;
(iv) fourth, in or towards satisfaction, pro rata and pari
passu, of all amounts due and payable to the Single
Series Swap Counterparties under the terms of the
Single Series Swap Agreements other than any
termination payment due to any Single Series Swap
Counterparty following the occurrence of a Swap
Trigger in respect of the relevant Single Series Swap
Agreement but including, in any event, the amount
of any termination payment due and payable to the
relevant Single Series Swap Counterparty in relation
to the termination of the relative Single Series Swap
Transaction to the extent of any premium received
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55
(net of any costs reasonably incurred by the Issuer to
find a replacement swap counterparty), if any, by the
Issuer from a replacement swap counterparty in
consideration for entering into a swap transaction
with the Issuer on the same terms as the applicable
Single Series Swap Transaction;
(v) fifth, in or towards satisfaction, pro rata and pari
passu, of all amounts due and payable in respect of
interest (including any interest accrued but unpaid)
on the Class A Notes of all Single Series at such
date;
(vi) sixth, in or towards repayment, pro rata and pari
passu, of the Principal Amount Outstanding of the
Class A Notes of all Single Series until the Class A
Notes of all Single Series are repaid in full;
(vii) seventh, in or towards satisfaction, pro rata and pari
passu, of all amounts due and payable in respect of
interest (including any interest accrued but unpaid)
on the Class B Notes of all Single Series at such
date;
(viii) eighth, in or towards repayment, pro rata and
pari passu, of the Principal Amount Outstanding of
the Class B Notes of all Single Series until the Class
B Notes of all Single Series are repaid in full;
(ix) ninth, in or towards satisfaction, pro rata and pari
passu, of any termination payment due and payable
to any Single Series Swap Counterparty under the
terms of the relative Single Series Swap Agreement
following the occurrence of a Swap Trigger in
respect of the relevant Single Series Swap
Agreement other than the payments referred to under
item (iv) above;
(x) tenth, in or towards satisfaction, pro rata and pari
passu, according to the respective amounts thereof,
of all amounts due and payable to the Dealers and
the Arranger under the terms of the Programme
Agreement and the Single Series Senior Notes
Subscription Agreements to which each of them is a
party;
(xi) eleventh, in or towards satisfaction, pro rata and pari
passu, according to the respective amounts thereof,
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56
of all amounts due and payable to Santander:
(A)
in respect of Originator’s Claims (if any)
under the terms of the Master Transfer
Agreement and the Warranty and Indemnity
Agreement; and
(B)
in connection with a Limited Recourse Loan
under the Programme Letter of Undertaking;
(xii) twelfth, in or towards satisfaction, pro rata and pari
passu, according to the respective amounts thereof,
of all amounts due and payable to the Servicer in
respect of Servicer’s Advance (if any) under the
terms of the Servicing Agreement;
(xiii) thirteenth, in or towards satisfaction, pro rata and
pari passu, of all amounts of interest due and
payable to the Subordinated Loan Providers
(including any interest accrued but unpaid) under the
terms of any Subordinated Loan Agreement;
(xiv) fourteenth, in or towards satisfaction, pro rata
and pari passu, of all amounts of principal due and
payable to any Subordinated Loan Provider under
any Subordinated Loan Agreement;
(xv) fifteenth, in or towards satisfaction, pro rata and pari
passu, of all amounts due and payable in respect of
interest (including any interest accrued but unpaid)
on the Junior Notes of all Single Series at such date;
(xvi) sixteenth, in or towards repayment, pro rata and
pari passu:
(a)
of the Principal Amount Outstanding of the
Junior Notes of all Single Series other than the
Junior Notes of the Newest Single Series until
such Junior Notes are repaid in full;
(b)
of the Principal Amount Outstanding of the
Junior Notes of the Newest Single Series until
the Principal Amount Outstanding of such
Junior Notes is equal to €30,000;
(xvii) seventeenth, on the Post-Enforcement Final
Redemption Date and on any date thereafter, in or
towards satisfaction, pro rata and pari passu, of the
Principal Amount Outstanding of the Junior Notes of
the Newest Single Series outstanding under the
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57
Programme until such Junior Notes are repaid in full;
and
(xviii) eighteenth, up to, but excluding the PostEnforcement Final Redemption Date, in or towards
satisfaction, pro rata and pari passu, of the Junior
Notes Additional Remuneration (if any) due and
payable on the Junior Notes of all Single Series,
provided, however, that if the amount of the monies at
any time available to the Issuer or to the Representative
of the Noteholders for the payments above shall be less
than 10% of the Principal Amount Outstanding of the
Senior Notes of all Single Series, the Representative of
the Noteholders may, at its discretion, invest such monies
in some or one of the investments authorised pursuant to
the Intercreditor Agreement. The Representative of the
Noteholders at its discretion may vary such investments
and may accumulate such investments and the resulting
income until the immediately following Accumulation
Date.
The Issuer is entitled, pursuant to the Intercreditor
Agreement, to dispose of the Claims in order to finance
the redemption of the Notes of all Single Series following
the service of a Programme Acceleration Notice.
6
/
Redemption of the Notes
Final redemption
Unless previously redeemed in full and cancelled as
provided in Condition 8 (Redemption, Purchase and
Cancellation), the Issuer shall redeem the Notes of each
Single Series in full at their Principal Amount
Outstanding, plus any accrued but unpaid interest, on the
relevant Single Series Maturity Date, subject as provided
in Condition 9 (Payments).
Cancellation Date
If the Notes of each Single Series cannot be redeemed in
full on the relevant Single Series Maturity Date, as a
result of the Issuer having insufficient available funds for
application in or towards such redemption, any amount
unpaid shall remain outstanding and the Terms and
Conditions shall continue to apply in full in respect of the
Notes of the same Single Series until the Cancellation
Date, at which date any amount outstanding, whether in
respect of interest, principal or other amounts in respect
of the Notes of the same Single Series, shall be finally
58
and definitively cancelled. All Notes of each Single Series
redeemed in full will be cancelled upon such redemption
and may not be resold or reissued.
Mandatory pro rata redemption in
whole or in part and application of
Single Series Principal Available
Funds
In respect of each Single Series, during any Single Series
Amortising Period, but starting on the relevant Single
Series Decree 239 Interest Payment Date and on each
Interest Payment date thereafter, if no Programme
Acceleration Notice has been delivered by the
Representative of the Noteholders to the Issuer, and if, at
the close of business on the Calculation Date immediately
preceding the relevant Interest Payment Date, there are
Single Series Principal Available Funds of the relevant
Single Series available for such purpose, the Issuer will
apply such Single Series Principal Available Funds in or
towards the mandatory redemption of the Notes of the
relevant Single Series in the following order of priority:
(i) first, the Class A Notes of the same Single Series
until the Class A Notes of the same Single Series
have been redeemed in full;
(ii) second, the Class B Notes of the same Single Series
until the Class B Notes of the same Single Series
have been redeemed in full; and
(iii) third, the Junior Notes of the same Single Series,
until the Junior Notes of the same Single Series have
been redeemed in full.
In respect of the Notes of each Single Series, if no
Programme Acceleration Notice has been delivered to the
Issuer by the Representative of the Noteholders but a
Purchase Termination Event Notice has been delivered to
the Issuer by the Computation Agent and if at the close of
business on the Calculation Date immediately preceding
the relevant Interest Payment Date there are Programme
Principal Available Funds available for such purpose, the
Issuer will apply the share of such Programme Principal
Available Funds to be apportioned to the relevant Single
Series on the Interest Payment Date following each such
Calculation Date in or towards the mandatory redemption
of the Notes of each Class of Notes in the following order
of priority:
(i) first, the Class A Notes of the same Single Series
(pro rata and pari passu with the Class A Notes of
any other Single Series) until the Class A Notes of
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59
the same Single Series (and of any other Single
Series) have been redeemed in full;
(ii) second, the Class B Notes of the same Single Series
(pro rata and pari passu with the Class B Notes of
any other Single Series) until the Class B Notes of
the same Single Series (and of any other Single
Series) have been redeemed in full; and
(iii) third, the Junior Notes of the same Single Series (pro
rata and pari passu with the Junior Notes of any
other Single Series), until the Junior Notes of the
same Single Series (and of any other Single Series)
have been redeemed in full.
Optional redemption
Prior to the service of a Programme Acceleration Notice,
the Issuer may redeem the Notes of all Classes and of all
Single Series (in whole but not in part) at their Principal
Amount Outstanding (plus any accrued but unpaid
interest) in accordance with the Post-Enforcement
Priority of Payments and subject to the Issuer having
sufficient funds to redeem all the Notes of all Single
Series (or the Senior Notes of all Single Series only, if all
the holders of the Junior Notes of all Single Series
consent) and to make all payments ranking in priority
thereto, on any Interest Payment Date when (aa) the
Portfolio Outstanding Amount is equal to, or less than,
10% of the Initial Portfolio Outstanding Amount and (bb)
the Principal Amount Outstanding of each Single Series
then outstanding is equal to, or less than, 10% of the
Principal Amount Outstanding of such Single Series as of
the relevant Single Series Issue Date, subject to the
Issuer:
(i) giving not more than 60 days nor less than 30 days
notice to the Representative of the Noteholders and
the holders of the Notes of all Single Series, in
accordance with Condition 18 (Notices), of its
intention to redeem all Classes of Notes of all Single
Series (in whole but not in part); and
(ii) having provided, prior to giving such notice, to the
Representative of the Noteholders a certificate
signed by the chairman of the board or the sole
director of the Issuer (as applicable) to the effect that
it will have the funds on such Interest Payment Date
to discharge all its obligations under the Notes of all
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60
Single Series (or the Senior Notes of all Single
Series only, if all the holders of the Junior Notes of
all Single Series consent) and any obligations
ranking in priority thereto; and
(iii) giving not more than 60 days nor less than 30 days
written notice to the Bank of Italy of its intention to
redeem all Classes of Notes of all Single Series (in
whole but not in part), if so requested by the
applicable regulatory framework
provided, however, that:
(I)
pursuant to the Master Transfer Agreement, the
consideration for the purchase of the Claims to be
paid by the Originator (should the Originator
purchase the Claims from the Issuer) may not
exceed: (A) the Outstanding Principal of the Claims
to be repurchased, provided that none of such
Claims qualify as Crediti in Sofferenza or as Arrear
Claims or (B) the aggregate of: (I) the market value
of the Claims which are classified as Crediti in
Sofferenza or as Arrear Claims (if any), as
determined by one or more third-party experts
independent from the Originator and its banking
group in accordance with the Master Transfer
Agreement; and (II) the Outstanding Principal of the
Claims which are classified neither as Crediti in
Sofferenza or as Arrear Claims;
(II) in the event that (a) a third-party purchaser, other
than the Originator, purchases the Claims from the
Issuer; (b) any Further Notes are then outstanding;
and (c) such Further Notes are rated by S&P, upon
request from the Issuer, S&P gives written
confirmation to the Issuer and the Representative of
the Noteholders that the redemption of the Notes
would not adversely affect the then current rating of
the Further Notes then outstanding.
“Portfolio Outstanding Amount” means, on each
Interest Payment Date, the aggregate Outstanding
Principal of all the Claims.
“Initial Portfolio Outstanding Amount”
the
aggregate of the outstanding principal amount of the
Initial Claims as at the Initial Valuation Date, being equal
to €800,001,180.53, plus the outstanding principal of the
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Additional Claims as at the relevant transfer dates.
The Issuer is entitled, pursuant to the Intercreditor
Agreement, to dispose of the Claims in order to finance
the redemption of the Notes of all Single Series in the
circumstances described above.
See “General Description of the Programme — Credit
Structure — Programme Letter of Undertaking”, below.
Optional redemption in whole for
taxation, legal or regulatory
reasons
/
Prior to the service of a Programme Acceleration Notice,
the Issuer may redeem the Notes of all Single Series (in
whole but not in part) at their Principal Amount
Outstanding (plus any accrued but unpaid interest) in
accordance with the Post-Enforcement Priority of
Payments and subject to the Issuer having sufficient funds
to redeem all the Notes of all Single Series (or the Senior
Notes of all Single Series only, if all the holders of the
Junior Notes of all Single Series consent) and to make all
payments ranking in priority, or pari passu, thereto, on
any Interest Payment Date if, by reason of a change in
law or the interpretation or administration thereof since
the First Single Series Issue Date:
(a)
the assets of the Issuer in respect of this
Programme (including the Claims, the Collections
and the other Issuer’s Rights) become subject to
taxes, duties, assessments or governmental charges
of whatever nature imposed, levied, collected,
withheld or assessed by the Republic of Italy or by
any political sub-division thereof or by any
authority thereof or therein or by any applicable
taxing authority having jurisdiction; or
(b)
either the Issuer or any paying agent appointed in
respect of the Senior Notes of any Single Series or
any custodian of the Senior Notes of any Single
Series is required to deduct or withhold any
amount (other than in respect of a Decree 239
Withholding) in respect of any Class of Senior
Notes of any Single Series, from any payment of
principal or interest on such Interest Payment Date
for or on account of any present or future taxes,
duties, assessments or governmental charges of
whatever nature imposed, levied, collected,
withheld or assessed by the Republic of Italy or by
any political sub-division thereof or by any
62
authority thereof or therein or by any other
applicable taxing authority having jurisdiction and
provided that such deduction or withholding may
not be avoided by appointing a replacement paying
agent or custodian in respect of such Senior Notes
before the Interest Payment Date following the
change in law or the interpretation or
administration thereof; or
(c)
any amounts of interest payable on the Consumer
Loans to the Issuer are required to be deducted or
withheld from the Issuer for or on account of any
present or future taxes, duties assessments or
governmental charges of whatever nature imposed,
levied, collected, withheld or assessed by the
Republic of Italy or by any political sub-division
thereof or by any authority thereof or therein or by
any other applicable taxing authority having
jurisdiction; or
(d)
it is or will become unlawful for the Issuer to
perform or comply with any of its obligations
under or in respect of the Notes of any Single
Series or any of the Transaction Documents to
which it is a party,
subject to the Issuer:
(i) giving not more than 60 days nor less than 30 days’
written notice (which notice shall be irrevocable) to
the Representative of the Noteholders and the
holders of the Notes of all Single Series, pursuant to
Condition 18 (Notices), of its intention to redeem all
(but not some only) of the Notes of all Single Series;
and
(ii) providing to the Representative of the Noteholders:
/
(1)
a legal opinion (in form and substance
satisfactory to the Representative of the
Noteholders) from a firm of lawyers of
international repute (approved in writing by
the Representative of the Noteholders) opining
on the relevant change in law or interpretation
or administration thereof;
(2)
a certificate from the chairman of the board of
directors or the sole director of the Issuer (as
applicable) stating that the obligation to make
63
such deduction or withholding or the suffering
by the Issuer of such deduction or withholding
cannot be avoided or, as the case may be, the
events under paragraph (d) above will apply
on the next Interest Payment Date and cannot
be avoided by the Issuer taking reasonable
endeavours; and
(3)
a certificate from the chairman of the board of
directors or the sole director of the Issuer (as
applicable) to the effect that it will have the
funds on such Interest Payment Date to
discharge its obligations under: (a) the Notes
of all Single Series (or the Senior Notes of all
Single Series only, if all the holders of the
Junior Notes of all Single Series consent) and
any obligations ranking in priority, pari passu,
thereto; and (b) any additional taxes payable
by the Issuer by reason of such early
redemption of the such Notes.
The Issuer is entitled, pursuant to the Intercreditor
Agreement, to dispose of the Claims in order to finance
the redemption of the Notes of all Single Series in the
circumstances described above.
See “General Description of the Programme — Credit
Structure — Programme Letter of Undertaking”, below.
7
Credit structure
Cash Reserve
The Issuer has established a reserve fund for the
Programme in the Cash Reserve Account.
“Cash Reserve” means the monies standing to the credit
of the Cash Reserve Account at any given time. Pursuant
to the Subordinated Loan Agreements, each Subordinated
Loan Provider will agree to advance to the Issuer a
subordinated loan, in an amount equal to that indicated in
the applicable Final Terms, which the Issuer will deposit
into the Cash Reserve Account on the relevant Single
Series Issue Date.
On each Interest Payment Date, the Cash Reserve will be
increased or replenished, as the case may be, up to the
relevant Target Cash Reserve Amount out of the Single
Series Interest Available Funds and in accordance with
the Pre-Enforcement Priority of Payments for Single
/
64
Series Interest Available Funds.
“Target Cash Reserve Amount” means in respect of
each Interest Payment Date, the lower of:
(a)
€20,000,000; and
(b)
the greater of:
(i)
€4,000,000; and
(ii) 5% of the aggregate Principal Amount
Outstanding of the Notes of all Single Series
as at such Interest Payment Date (following
payments under the Notes to be made on such
Interest Payment Date),
provided that:
(A)
notwithstanding the formula above, the Target
Cash Reserve Amount may not be reduced below
the level applicable as at the immediately
preceding Interest Payment Date, unless the
following cumulative conditions are met in respect
of a given Interest Payment Date:
(a) on the Interest Payment Date on which the
reduction will become effective, the Cash
Reserve equals or exceeds the Target Cash
Reserve Amount as at the relevant Interest
Payment Date (upon making all the payments
and provisions to be made on such Interest
Payment Date);
(b) the Principal Deficiency Ledgers are either
zero or have been reduced to zero;
(c)
the aggregate Outstanding Principal of all
Arrear Claims as at the end of the
immediately preceding Collection Period
does not exceed six per cent. of the Initial
Portfolio Outstanding Amount;
(d) at least eighteen months have elapsed since
the last Single Series Issue Date; and
(e) the Single Series Revolving Period
Termination Date has already occurred; and
(B)
/
on the Calculation Date immediately following the
Interest Payment Date on which the Senior Notes
of all Single Series will be redeemed in full, the
Target Cash Reserve Amount will be reduced to
zero,
65
provided that the Issuer may change this definition (and
the defined terms referred to herein) pursuant to
Condition 14(a) (Modification).
On each Calculation Date, the Cash Reserve will be used
to augment the Programme Interest Available Funds to the
extent necessary to make the payments falling due on the
immediately following Interest Payment Date under the
relevant Pre-Enforcement Priority of Payments for Single
Series Interest Available Funds.
The Programme Principal
Deficiency Ledger Amount
Provisions will be made by the Issuer against any
Realised Losses in accordance with the Pre-Enforcement
Priority of Payments for Single Series Interest Available
Funds. The Programme Principal Deficiency Ledger
Amount will form part of the Programme Principal
Available Funds and will therefore be applied to make
payments due in accordance with the Pre-Enforcement
Priority of Payments for Single Series Principal Available
Funds or the Pre-Enforcement Priority of Payments for
Programme Principal Available Funds, as the case may
be.
“Programme Principal Deficiency Ledger Amount”
means the sum of all Single Series Principal Deficiency
Ledger Amounts and “Single Series Principal
Deficiency Ledger Amount” means, in respect of each
Single Series:
/
(a)
in respect of each Calculation Date immediately
preceding an Interest Payment Date falling in the
relevant Single Series Revolving Period, the
aggregate amounts retained in and/or credited to
the Collection Account on the immediately
preceding Interest Payment Date pursuant to items
(vii), (ix) and (x) of the Pre-Enforcement Priority
of Payments for Single Series Interest Available
Funds; and
(b)
in respect of each Calculation Date immediately
preceding an Interest Payment Date falling in the
relevant Single Series Amortising Period, the
aggregate amounts that will be retained in and/or
credited to the Collection Account on such Interest
Payment Date pursuant to items (vii), (ix) and (x)
of the relevant Pre-Enforcement Priority of
Payments for Single Series Interest Available
66
Funds.
Eligible Investments
Amounts standing to the credit of the Collection Account
and the Cash Reserve Account during a Collection Period
may be invested by the Issuer or by the Account Bank,
upon instructions of Santander, on behalf of the Issuer in
Eligible Investments.
Pursuant to the Issuer Account Bank Agreement and the
Agency and Accounts Agreement, the Account Bank is
obliged to invest, if so instructed in writing by Santander
on behalf of the Issuer, amounts standing to the credit of
the Cash Reserve Account and the Collection Account in
Eligible Investments (as defined below) as follows:
(i) the balance of the Cash Reserve Account or a portion
thereof will be invested in Eligible Investments on
the first Business Day following each Interest
Payment Date; and
(ii) the balance of the Collection Account or a portion
thereof will be invested in Eligible Investments on a
weekly basis on the last Business Day of each week,
each such date, an “Investment Date”.
“Eligible Investments” means:
/
(a)
euro-denominated money market funds which
have a long-term rating of “AAAm” or a shortterm rating of “AAAm-G” from S&P and permit
daily liquidation of investments or have a maturity
date falling before the next following Liquidation
Date provided that such money market funds are
disposable without penalty or loss; and
(b)
euro-denominated senior (unsubordinated) debt
securities or other debt instruments provided that:
(i) such investments are immediately repayable on
demand, disposable without penalty or loss or have
a maturity date falling on or before the next
following Liquidation Date; (ii) such investments
provide a fixed principal amount at maturity (such
amount not being lower than the initially invested
amount); and (iii) the debt securities or other debt
instruments are issued by, or are fully and
unconditionally guaranteed on an unsubordinated
basis by, an institution whose unsecured and
unsubordinated debt obligations are rated at least:
(A) either “A-1” by S&P in respect of short-term
67
debt (or “A+” by S&P if the institution does not
have a short-term rating by S&P), with regard to
investments having a maturity of less than 60
calendar days, or (B) “A-1” by S&P in respect of
short-term debt (or “A+” by S&P if the institution
does not have a short-term rating by S&P), with
regard to investments having a maturity longer
than 60 calendar days provided that if the shortterm debt rating of the relevant institution falls
below “A-1” by S&P (or “A+” by S&P if the
institution does not have a short-term rating by
S&P), such investments are repayable or
disposable without penalty or loss within 60
calendar day of the relevant downgrading; and
(c)
repurchase transactions between the Issuer and an
Eligible Repo Counterparty in respect of eurodenominated debt securities or other debt
instruments provided that (i) title to the securities
underlying such repurchase transactions (in the
period between the execution of the relevant
repurchase transactions and their respective
maturity) effectively passes to the Issuer, (ii) such
repurchase transactions are immediately repayable
on demand, disposable without penalty or loss or
have a maturity date falling on or before the next
following Liquidation Date (provided that, in
respect of such investments, their maturity must
be, in any case, shorter than 60 calendar days) and
(iii) such repurchase transactions provide a fixed
principal amount at maturity (such amount not
being lower than the initially invested amount).
“Eligible Repo Counterparty” means an entity whose
short-term unsecured, unsubordinated and unguaranteed
debt obligations are rated at least “A-1” by S&P.
Before investing in Eligible Investments, the Account
Bank shall obtain the prior approval of Santander, except
that, under the Issuer Account Bank Agreement,
Santander has given a standing approval in respect of
euro-denominated money market funds constituting
Eligible Investments.
Collection Account and Cash
Reserve Account
/
Pursuant to the Agency and Accounts Agreement, funds
standing to the credit of the Collection Account and the
Cash Reserve Account will accrue interest at a rate set out
68
in a separate letter in accordance with the Issuer Account
Bank Agreement.
Single Series Swap Agreements
The Issuer will hedge against certain interest rate risks in
relation to the Claims as at each Single Series Issue Date
by entering into one or more interest rate hedging
agreements with one or more Single Series Swap
Counterparties. See “The Single Series Swap
Agreements”, below.
Programme Letter of Undertaking
Pursuant to a letter of undertaking (the “Programme
Letter of Undertaking”) dated the Signing Date between
the Issuer, Santander and the Representative of the
Noteholders, Santander has undertaken to provide the
Issuer with all necessary monies (in any form of financing
deemed appropriate by the Representative of the
Noteholders, for example by way of a subordinated loan,
the repayment of which is effected in compliance with
item (xvii)(B) of the Pre-Enforcement Priority of
Payments for Single Series Interest Available Funds or, as
the case may be, item (xi)(B) of the Post-Enforcement
Priority of Payments) in order for the Issuer to pay any
losses, costs, expenses or liabilities in respect of:
(a)
/
any tax expenses or tax liability which the Issuer is
at any time obliged to pay other than: (i) any
withholding tax at any time applicable in respect of
either the Notes of any Single Series or the
Previous Programme Notes; (ii) any withholding
tax applicable in respect of the Accounts (other
than by reason of a change in law or the
interpretation or administration thereof since the
First Single Series Issue Date and provided that it
cannot be avoided by the Issuer), any other bank
account opened in the context of the Previous
Programmes, the Eligible Investments (other than
by reason of a change in law or the interpretation
or administration thereof since the First Single
Series Issue Date and provided that it cannot be
avoided by the Issuer) and the financial
instruments which meet the definition of “Eligible
Investments” in the context of the Programme and
the Previous Programmes; (iii) any VAT due in
respect of the Transaction Documents (other than
by reason of a change in law or the interpretation
or administration thereof since the First Single
69
Series Issue Date) and the Previous Transactions
Documents or the purchase of services or goods by
the Issuer; (iv) any tax applicable in respect of the
Transaction Documents and the Previous
Transactions Documents; and (v) any court tax
applicable to the Issuer, other than those provided
for by the Servicing Agreement;
(b)
any other costs, charges or liabilities arising in
connection with regulatory or supervisory
requirements (including as a result of any change
of law or regulation or interpretation or
administration thereof since the First Single Series
Issue Date) but excluding any amounts payable by
the Issuer under the Transaction Documents and
the Previous Transactions Documents (including,
for the avoidance of doubt, any amount due and
payable under the Notes of any Single Series or
the Previous Programme Notes); and
(c)
any other costs, charges or liabilities which may
affect the Issuer (other than losses, costs, expenses
or liabilities in respect of the normal day-to-day
operating costs of the Issuer) and which are not
directly related to the securitisation of the Claims
or the claims purchased by the Issuer in the
context of the Previous Programmes,
but, in each case, with the exception of any losses, costs,
expenses or liabilities borne by the Issuer as a
consequence of events or situations caused by the
fraudulent or negligent conduct of the Issuer or of any
other third party (other than Santander in its capacities in
the context of the Programme and the Previous
Programmes) who provides any services in relation to any
of the Transaction Documents or any of the Previous
Transactions Documents.
In addition, Santander has undertaken to ensure that the
Issuer is not wound up by reason of the Issuer’s equity
capital falling below the minimum equity capital required
from time to time by Italian law, as a result of any losses,
costs, expenses or liabilities arising in respect of
paragraph (a), (b) or (c) above in respect of which
Santander is obliged to provide the Issuer with a
financing as indicated above.
/
70
Prospective Noteholders’ attention is drawn to the fact
that the Programme Letter of Undertaking does not and
will not constitute a guarantee by Santander or any of the
quotaholders of the Issuer of any obligation of a Borrower
or the Issuer. The Programme Letter of Undertaking is
governed by Italian law.
/
71
STRUCTURE DIAGRAM
The following structure diagram does not purport to be complete and is taken from, and is qualified
in its entirety by, the remainder of this Prospectus, the applicable Final Terms and the Transaction
Documents. Words and expressions defined elsewhere in this Prospectus shall have the same
meanings in this structure diagram.
Appointment
of Agents
Stichting
Turin
Stichting
Po River
Corporate
Services
Agreement
Corporate Services Provider
Junior Notes
Junior Noteholders
30%
70%
Golden Bar
(Securitisation) S.r.l.
Senior
Notes
Dealers
Proceeds
Senior
Notes
Senior
Noteholders
Proceeds
Servicing Payment of Purchase
Agreement
Price
Santander
Consumer Bank
S.p.A.
Single Series
Swap
Agreements
Transfer of
Claims
Stichtingen Corporate
Stichtingen
Corporate Service Services Agreement
Provider
Mandate
Agreement
Note Security
Representatives
of the
Noteholders
Subordinated Loan
Agreements
Subordinated
Loan Providers
72
Single Series
Swap
Counterparties
RISK FACTORS
Investing in the Notes involves certain risks. The Issuer believes that the following factors may affect
its ability to fulfil its obligations under the Notes issued under the Programme. All of these factors
are contingencies which may or may not occur and the Issuer is not in a position to express a view
on the likelihood of any such contingency occurring.
Factors which the Issuer believes may be material for the purpose of assessing the market risks
associated with Notes issued under the Programme are also described below.
The Issuer believes that the factors described below represent the principal risks inherent in
investing in Notes issued under the Programme, but the inability of the Issuer to pay interest,
principal or other amounts on or in connection with any Notes may, exclusively or concurrently,
occur for other reasons and the Issuer does not represent that the statements below regarding the
risks of holding any Notes are exhaustive. Prospective investors should also read the detailed
information set out elsewhere in this Prospectus (including any documents incorporated by reference
herein), the applicable Final Terms and the Transaction Documents and reach their own views prior
to making any investment decision.
Additional risks and uncertainties not presently known to the Issuer or that it currently believes to be
immaterial could also have a material impact on its business operations.
Factors that may affect the Issuer’s ability to fulfil its obligations under Notes issued under the
Programme
Source of payments to Noteholders
The Notes will be limited recourse obligations solely of the Issuer and will not be the responsibility
of, or be guaranteed by, any other entity. In particular, the Notes will not be obligations or
responsibilities of, or be guaranteed by, the Representative of the Noteholders, the Agent Bank, the
Account Bank, the Programme Administrator, the Paying Agents, the Corporate Services Provider,
the Stichtingen Corporate Services Provider, the Computation Agent, the Single Series Swap
Counterparties, the Subordinated Loan Providers, Santander (in any capacity), the Dealers, the
Arranger, the Single Series Junior Notes Underwriters, the quotaholders of the Issuer or any other
person. None of such persons accepts any liability whatsoever in respect of any failure by the Issuer
to make any payment of any amount due on the Notes.
The Issuer has no assets other than the Claims and the Issuer’s Rights (as defined below) as
described in this Prospectus as well the claims and assets purchased, and the agreements entered
into, by the Issuer in relation to the Previous Programmes (as defined below) which, however, do not
constitute collateral for the Notes and are not available to the Noteholders.
As the date hereof, the Issuer’s principal assets are the Initial Claims. During each Single Series
Revolving Period, pursuant to the Master Transfer Agreement, it is envisaged that the Issuer will
purchase further Subsequent Claims. In addition, during the Additional Issue Period, the Issuer may
purchase further Additional Claims in accordance with the Master Transfer Agreement and the
Conditions. The Initial Claims, together with the Subsequent Claims and the Additional Claims will
73
form one and the same collateral for the Notes of all Single Series from time to time issued by the
Issuer. For a description of the Criteria that the Issuer will utilise when investing in Subsequent
Claims and Additional Claims, please see “The Portfolio” and “The Master Transfer Agreement”,
below.
The Issuer will not have any significant assets, for the purpose of meeting its obligations under this
Programme, other than the Claims, any amounts and/or securities standing to the credit of the
Accounts and its rights under the Transaction Documents to which it is a party.
As a result, there is no assurance that, over the life of the Senior Notes of any Single Series or at the
redemption date of the relevant Senior Notes (whether on maturity, on the Cancellation Date or upon
redemption by acceleration of maturity following service of a Programme Acceleration Notice or
otherwise), there will be sufficient funds to enable the Issuer to pay interest when due on the Senior
Notes and to repay the outstanding principal on the relevant Senior Notes in full.
The ability of the Issuer to meet its obligations in respect of the Senior Notes will be dependent on,
inter alia, the timely payment of amounts due under the Consumer Loans by the Borrowers, the
receipt by the Issuer of Collections received on its behalf by the Servicer in respect of the Consumer
Loans from time to time in the Portfolio, as well as on the receipt of any payments required to be
made by the Single Series Swap Counterparties under the Single Series Swap Agreements and of any
other amounts required to be paid to the Issuer by the various agents and counterparties to the Issuer
pursuant to the terms of the Transaction Documents. The performance by such parties of their
respective obligations under the relevant Transaction Documents is dependent on the solvency of
each relevant party. See “Risk factors — Administration and reliance on third parties”.
The Notes will be limited recourse obligations solely of the Issuer. If there are not sufficient funds
available to the Issuer to pay in full all principal and interest and other amounts due in respect of the
Notes, then the Noteholders will have no further claims against the Issuer in respect of any such
unpaid amounts. Following the service of a Programme Acceleration Notice, the only remedy
available to the Noteholders and the Other Issuer Creditors is the exercise by the Representative of
the Noteholders of the Issuer’s Rights.
Upon enforcement of the Note Security, the Representative of the Noteholders will have recourse
only to the Claims and to the assets pledged, charged or assigned pursuant to the Italian Deed of
Pledge and the English Deed of Charge and Assignment. Other than as provided in the Warranty and
Indemnity Agreement, the Master Transfer Agreement, the Servicing Agreement and the Programme
Letter of Undertaking, the Issuer and the Representative of the Noteholders will have no recourse to
Santander (in any capacity) or any other entity including, but not limited to, in circumstances where
the proceeds received by the Issuer from the enforcement of any particular Consumer Loan are
insufficient to repay in full the Claim in respect of such Consumer Loan.
If, upon default by one or more Borrowers under the Consumer Loans and after the exercise by the
Servicer of all usual remedies in respect of such Consumer Loans, the Issuer does not receive the full
amount due from those Borrowers, then the Senior Noteholders of any Single Series may receive by
way of principal repayment an amount less than the face value of their Senior Notes and the Issuer
may be unable to pay in full interest due on the Senior Notes of any Single Series.
74
Claims of unsecured creditors of the Issuer
Without prejudice to the right of the Representative of the Noteholders to enforce the Note Security,
the Conditions contain provisions stating, and each of the Other Issuer Creditors has undertaken
pursuant to the Intercreditor Agreement, that no Noteholder or Other Issuer Creditor will petition or
begin proceedings for a declaration of insolvency against the Issuer until the later of (i) the expiry of
the Additional Issue Period and (ii) the date on which any notes issued or to be issued by the Issuer
(including the Notes of all Single Series issued under the Programme and the Previous Programme
Notes) have been paid in full. There can be no assurance that each and every Noteholder and Other
Issuer Creditor will honour its contractual obligation not to petition or begin proceedings for a
declaration of insolvency against the Issuer before one year has elapsed after the day on which any
note issued by the Issuer (including the Notes) has been paid in full. In addition, under Italian law,
regardless of the non-petition clauses set forth in the Transaction Documents, a petition for the
bankruptcy of the Issuer may be filed by any creditor of the Issuer, by an Italian public prosecutor
(pubblico ministero) (who may act on its own initiative provided that the insolvency (stato di
insolvenza) of the Issuer is made known to such public prosecutor (i) in the context of a criminal
proceeding, (ii) by means of certain factual circumstances such as the physical locking of the
business premises or the diminution or substitution of the assets of the Issuer by the latter, or (iii) via
notice from an Italian judge who has become aware of the insolvency in the context of a civil
proceeding)), or by the directors of the Issuer (who could not validly undertake not to do so). Such
creditors could arise, for example, by virtue of unexpected expenses owed to third parties including
those additional creditors that the Issuer will have as a result of the Previous Programmes or any
Further Securitisation (as defined below). In order to address this risk, the Priority of Payments
contains provisions for the payment of amounts to third parties. Similarly, monies to the credit of the
Expenses Account may be used for the purpose of paying the ongoing fees, costs, expenses, liabilities
and taxes of the Issuer to third parties not being Other Issuer Creditors.
The Issuer is unlikely to have a large number of creditors unrelated to this Programme or any other
securitisation transaction because the corporate object of the Issuer, as contained in its by-laws
(statuto), is limited and the Issuer has provided certain covenants in the Intercreditor Agreement
which contain restrictions on the activities which the Issuer may carry out with the result that the
Issuer may only carry out limited transactions.
No creditors other than the Representative of the Noteholders on behalf of the Noteholders, the Other
Issuer Creditors and any third-party creditors having the right to claim for amounts due in connection
with this Programme would have the right to claim in respect of the Claims, even in a bankruptcy of
the Issuer.
Notwithstanding the above, there can be no assurance that, if any bankruptcy proceedings were to be
commenced against the Issuer, the Issuer would be able to meet all of its obligations under the Notes.
Previous Programmes and Further Securitisations
The Issuer’s principal assets are the Claims and the other portfolios of claims arising from consumer
loan contracts acquired by the Issuer, in accordance with three master transfer agreements entered
into, respectively, on 22 December 2003, on 19 December 2007 and 28 November 2008, from
75
Santander in the context of, respectively, the Previous Programme 2004, the Previous Programme
March 2008 and the Previous Programme December 2008 (together, the “Previous Programmes”).
The Issuer will not have as at the relevant Single Series Issue Dates any significant assets other than
the Initial Claims, the Subsequent Claims and the Additional Claims acquired from time to time, the
Issuer’s Rights and the agreements entered into by the Issuer in relation to the Previous Programmes.
In addition, the Issuer may, by way of a separate transaction, purchase and securitise further
portfolios of monetary claims in addition to the Claims (each a “Further Securitisation”). Before
entering into any Further Securitisation, the Issuer is required to obtain the written consent of the
Representative of the Noteholders and to obtain written confirmation from the Rating Agency that
the then current ratings of the Senior Notes of any Single Series will not be adversely affected by
such Further Securitisation.
Under the terms of article 3 of the Securitisation Law, the assets relating to each securitisation
transaction carried out by a company are stated to be segregated from all other assets of the company
and from those related to each other securitisation transaction, and, therefore, on a winding up of
such a company, such assets will only be available to holders of the notes issued to finance the
acquisition of the relevant receivables and to certain creditors claiming payment of debts incurred by
the company in connection with the securitisation. Accordingly, the right, title and interest of the
Issuer in and to the Claims should be segregated from all other assets of the Issuer (including, for the
avoidance of doubt, any other portfolio purchased by the Issuer pursuant to the Previous Programmes
or any Further Securitisation) and amounts deriving therefrom should be available on a winding-up
of the Issuer only to satisfy the obligations of the Issuer to the holders of the Notes of any Single
Series and the payment of any amounts due and payable to the other Issuer Creditors.
Although the Securitisation Law provides for the assets relating to a securitisation transaction carried
out by the Issuer to be segregated and separated from those of the Issuer or of other securitisation
transactions carried out by the Issuer, such as the Previous Programmes or any Further Securitisation,
this segregation principle will not extend to the tax treatment of the Issuer and should not affect the
applicable methods of calculation of the net taxable income of the Issuer.
Factors which are material for the purpose of assessing the market risks associated with Notes
issued under the Programme
Suitability
Prospective investors should determine whether an investment in the Notes is appropriate in their
particular circumstances and should consult with their legal, business and tax advisers to determine
the consequences of an investment in the Notes and to arrive at their own evaluation of the
investment.
Investment in the Notes is only suitable for investors who:
1.
have the requisite knowledge and experience in financial and business matters to evaluate the
merits and risks of an investment in the Notes;
2.
have access to, and knowledge of, appropriate analytical tools to evaluate such merits and risks
in the context of their financial situation;
76
3.
are capable of bearing the economic risk of an investment in the Notes; and
4.
recognise that it may not be possible to dispose of the Notes for a substantial period of time, if
at all.
Prospective investors in the Notes should make their own independent decision whether to invest in
the Notes and whether an investment in the Notes is appropriate or proper for them, based upon their
own judgement and upon advice from such advisers as they may deem necessary.
Prospective investors in the Notes should not rely on or construe any communication (written or
oral) of the Issuer, the Originator, the Arranger or any Dealer as investment advice or as a
recommendation to invest in the Notes, it being understood that information and explanations related
to the Conditions shall not be considered to be investment advice or a recommendation to invest in
the Notes.
No communication (written or oral) received from the Issuer, the Arranger, any Dealer or the
Originator or from any other person shall be deemed to be an assurance or guarantee as to the
expected results of an investment in the Notes.
Yield and repayment considerations
The yield to maturity of the Notes of each Single Series will depend, inter alia, on the amount and
timing of repayment of principal (including prepayments and sale proceeds arising on enforcement of
a Consumer Loan) on the Consumer Loans. Such yield may therefore be adversely affected by a
higher or lower than anticipated rate of prepayments on the Consumer Loans.
Each Borrower is entitled under the Consumer Loans to prepay the Consumer Loans, in whole but
not in part, at any time, with a prepayment fee (if agreed in the relevant Consumer Loan) not higher
than 1% of the principal amount outstanding. The rate of prepayment of Consumer Loans cannot be
predicted and is influenced by a wide variety of economic, social and other factors, including
prevailing consumer loans market interest rates and margins offered by the banking system, the
availability of alternative financing and local and regional economic conditions. Therefore, no
assurance can be given as to the level of prepayments that the Consumer Loans will experience.
The stream of principal payments received by a Senior Noteholder may not be uniform or consistent.
No assurance can be given as to the yield to maturity which will be experienced by a holder of any
Senior Notes.
Liquidity and credit risk
The Issuer is subject to the risk of delay arising between the receipt of payments due from Borrowers
and the scheduled Interest Payment Dates. The Issuer is also subject to the risk of, inter alia, default
in payment by the Borrowers and failure by the Servicer to collect or recover sufficient funds in
respect of the Claims in order to enable the Issuer to discharge all amounts payable under the Notes.
These risks are mitigated by the liquidity and credit support provided: (A) in respect of the Class A
Notes by the Class B Notes and the Junior Notes; (B) in respect of the Class B Notes by the Junior
Notes; and (C) to a lesser extent in respect of all Classes of Senior Notes of all Single Series by the
Cash Reserve.
77
However, in each case, there can be no assurance that the levels of credit support and liquidity
support provided by the relevant Junior Notes of any Single Series and the Cash Reserve,
respectively, will be adequate to ensure punctual and full receipt of amounts due under the Senior
Notes of any Single Series.
In connection with each Additional Issue, the Rating Agency will analyse the Portfolio as a whole,
i.e. adjusted as a result of the acquisition of any Additional Claims. This analysis will be conducted
with a view to (a) affirming the ratings of the Senior Notes previously issued and (b) assigning the
same ratings to the Senior Notes of the new Single Series. As a result of such analysis, following
each Additional Issue, the Target Cash Reserve Amount may be increased, thus increasing the overall
credit support and liquidity support provided to any Senior Notes by the Cash Reserve. Alternatively,
based on the characteristics of the Portfolio adjusted as a result of the acquisition of the relevant
Additional Claims, the Target Cash Reserve Amount may be reduced, thus reducing the overall credit
support and liquidity support provided by the Cash Reserve. However, each Additional Issue is
conditional upon the Rating Agency confirming that such Additional Issue (together with any
possible alteration of the Target Cash Reserve Amount) will not result in a reduction or withdrawal of
the ratings of any of the then outstanding Senior Notes.
Cross-collateralisation
Notes of each Single Series will be collateralised by the Claims under the Portfolio as a whole from
time to time purchased by the Issuer pursuant to the Master Transfer Agreement. Any Collections
deriving from the Claims are segregated for the benefit of the Noteholders of any Single Series
(subject to the Priority of Payments) irrespective of the Single Series Issue Date of the relevant
Single Series and of the Claims purchased by the Issuer on or immediately prior to the relevant
Single Series Issue Date.
Subordination and credit enhancement
Payments of interest and repayment of principal under the Notes are subject to certain subordination
and ranking provisions.
In respect of the Issuer’s obligations under the Notes, the Conditions and the Intercreditor Agreement
provide that:
(i)
in respect of the obligations of the Issuer to pay interest on the Notes, prior to the service of a
Programme Acceleration Notice:
(A)
the Class A Notes of any Single Series rank pari passu and without any preference or
priority amongst themselves and in priority to the Class B Notes and the Junior Notes
of the same Single Series;
(B)
the Class B Notes of any Single Series rank pari passu and without any preference or
priority amongst themselves and in priority to the Junior Notes of the same Single
Series, but subordinate to the Class A Notes of the same Single Series; and
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(C)
the Junior Notes of any Single Series rank pari passu and without any preference or
priority amongst themselves, but subordinate to the Senior Notes of the same Single
Series,
it being understood that payments of interest on the Notes of any Single Series will be funded
exclusively out of the relevant Single Series Interest Available Funds (subject to Condition
4(d) (Pre-Enforcement Priority of Payments for Single Series Interest Available Funds)) and
that therefore: (a) interest on the Class B Notes and the Junior Notes of any other Single Series
may be paid in priority to payment of interest on the Class A Notes of the relevant Single Series;
and (b) interest on the Junior Notes of any other Single Series may be paid in priority to payment
of interest on the Class B Notes of the relevant Single Series;
(ii)
in respect of the obligations of the Issuer to repay principal on the Notes, prior to the service of
either a Programme Acceleration Notice or a Purchase Termination Event Notice:
(A)
the Class A Notes of any Single Series rank pari passu and without any preference or
priority amongst themselves and in priority to repayment of principal on the Class B
Notes and the Junior Notes of the same Single Series;
(B)
the Class B Notes of any Single Series rank pari passu and without any preference or
priority amongst themselves but subordinate to repayment of principal on the Class A
Notes of the same Single Series and in priority to the Junior Notes of the same Single
Series and no amount of principal in respect of the Class B Notes of the same Single
Series shall become due and payable or be repaid until redemption in full of the Class
A Notes of the same Single Series; and
(C)
the Junior Notes of any Single Series rank pari passu and without any preference or
priority amongst themselves, but subordinate to repayment of principal on the Senior
Notes of the same Single Series and no amount of principal in respect of the Junior
Notes of the same Single Series shall become due and payable or be repaid until
redemption in full of the Senior Notes of the same Single Series,
it being understood that repayment of principal on the Notes of any Single Series will be
funded exclusively out of the relevant Single Series Principal Available Funds (subject to
Condition 4(e) (Pre-Enforcement Priority of Payments for Single Series Principal Available
Funds)) and that therefore: (a) the Class B Notes and the Junior Notes of any other Single Series
may be redeemed prior to the redemption of the Class A Notes of the relevant Single Series; and
(b) the Junior Notes of any other Single Series may be redeemed prior to the redemption of the
Class B Notes of the relevant Single Series;
(iii)
in respect of the obligations of the Issuer (a) to repay principal on the Notes, prior to the
service of a Programme Acceleration Notice but following the service of a Purchase
Termination Event Notice or (b) to pay interest and repay principal on the Notes, following the
service of a Programme Acceleration Notice:
(A)
the Class A Notes of all Single Series will rank pari passu and without any
preference or priority amongst themselves and in priority to the Class B Notes and
the Junior Notes of all Single Series;
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(B)
the Class B Notes of all Single Series will rank pari passu and without any
preference or priority amongst themselves, but subordinate to repayment in full of
the Class A Notes of all Single Series and in priority to the Junior Notes of all Single
Series and no amount of principal in respect of the Class B Notes of all Single Series
shall become due and payable or be repaid until redemption in full of the Class A
Notes of all Single Series; and
(C)
the Junior Notes of all Single Series will rank pari passu and without any preference
or priority amongst themselves, but subordinate to repayment in full of the Senior
Notes of all Single Series and no amount of principal in respect of the Junior Notes
of all Single Series shall become due and payable or be repaid until redemption in
full of the Senior Notes of all Single Series.
As a result:
(a)
in respect of the obligation of the Issuer to pay interest and to repay principal on the Notes of
any Single Series, prior to the service of either a Programme Acceleration Notice or a Purchase
Termination Event Notice, to the extent that any losses are suffered by any of the Noteholders
of such Single Series, such losses will be borne in the first instance by the relevant Junior
Noteholders, then (to the extent that the Class B Notes of such Single Series have not been
redeemed) by the relevant Class B Noteholders, then (to the extent that the Class A Notes of
such Single Series have not been redeemed) by the relevant Class A Noteholders;
(b)
in respect of the obligation of the Issuer to pay interest on the Notes of any Single Series, prior
to the service of a Programme Acceleration Notice but following the service of a Purchase
Termination Event Notice, to the extent that any losses are suffered by any of the Noteholders
of such Single Series, such losses will be borne in the first instance by the relevant Junior
Noteholders, then (to the extent that the Class B Notes of such Single Series have not been
redeemed) by the relevant Class B Noteholders, then (to the extent that the Class A Notes of
such Single Series have not been redeemed) by the relevant Class A Noteholders;
(c)
in respect of the obligation of the Issuer to repay principal on the Notes of any Single Series,
prior to the service of a Programme Acceleration Notice but following the service of a
Purchase Termination Event Notice, to the extent that any losses are suffered by any of the
Noteholders, such losses will be borne in the first instance by the Junior Noteholders of all
Single Series, then (to the extent that the Class B Notes of all Single Series have not been
redeemed) by the Class B Noteholders of all Single Series, then (to the extent that the Class A
Notes of all Single Series have not been redeemed) by the Class A Noteholder of all Single
Series; and
(d)
in respect of the obligation of the Issuer to pay interest and to repay principal on the Notes of
any Single Series, following the service of a Programme Acceleration Notice, to the extent that
any losses are suffered by any of the Noteholders, such losses will be borne in the first instance
by the Junior Noteholders of all Single Series, then (to the extent that the Class B Notes of all
Single Series have not been redeemed) by the Class B Noteholders of all Single Series, then (to
the extent that the Class A Notes of all Single Series have not been redeemed) by the Class A
Noteholders of all Single Series.
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Without prejudice to the above and to the applicable Priority of Payments, Notes of any Class of any
Single Series issued under the Programme may have a Single Series Maturity Date or a Single Series
Decree 239 Interest Payment Date which is earlier than that of the Notes of the same Class or a more
senior Class issued under another Single Series. Accordingly, Class B Notes of any Single Series may
be redeemed in priority to the Class A Notes of any other Single Series; and Junior Notes of any
Single Series may be redeemed in priority to the Senior Notes of any other Single Series.
Prospective investors in the Class A Notes, the Class B Notes and the Junior Notes should have
particular regard to the sections headed “General description of the Programme – Ranking” and
“General Description of the Programme — Credit structure” in determining the likelihood or extent
of any shortfall of funds available to the Issuer to meet payments of interest and/or repayment of
principal due under the Class A Notes, the Class B Notes or, as applicable, the Junior Notes.
See also “General Description of the Programme — Priority of Payments”, “General Description of
the Programme — Redemption of the Notes” and “Terms and Conditions of the Notes”.
Interest rate risk
The Issuer expects to meet its obligations under the Notes primarily from Collections in respect of
the Claims. Such Collections may have no correlation to EURIBOR. To protect the Issuer from a
situation where EURIBOR increases to the extent that such Collections are no longer sufficient to
cover the Issuer’s obligations under the Senior Notes of each Single Series, the Issuer will execute,
on or around each Single Series Issue Date and in relation to each Single Series, an interest rate swap
transaction with the relevant Single Series Swap Counterparty/ies. However, should any of the Single
Series Swap Agreements be terminated for any reason, no assurance can be given that similar
protection could be obtained.
Should any of the Single Series Swap Counterparty fail to provide the Issuer with all amounts owing
to the Issuer (if any) on any payment date under the relevant Single Series Swap Agreement, or
should any of the Single Series Swap Transactions be otherwise terminated, then the Issuer may have
insufficient funds to make payments of principal and interest on the Senior Notes of the relevant
Single Series. However, prospective investors’ attention is drawn to the fact that if the Issuer is not
able to make payments due on the Senior Notes of a Single Series, such non-payment could
constitute an Event of Default under such Notes and cause the Representative of the Noteholders to
serve to the Issuer a Programme Acceleration Notice in respect of the Senior Notes of all Single
Series.
Each of the Single Series Swap Counterparties will be entitled, under certain circumstances, to
terminate the Single Series Swap Transaction if (i) it is obliged to gross up payments following any
withholding or deduction for or on account of any taxes or (ii) it receives a payment in respect of
which an amount is required to be deducted or withheld for or on account of any taxes.
Each Single Series Swap Agreement will contain certain limited termination events and events of
default which will entitle either party to terminate the relevant Single Series Swap Transaction. For
instance, the Issuer may terminate a Single Series Swap Transaction, inter alia, if the relevant Single
Series Swap Counterparty is downgraded below certain rating thresholds set out in the relevant
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Single Series Swap Agreement and the Single Series Swap Counterparty fails to take such action as it
is required in the Single Series Swap Agreement to remedy such downgrade.
If a Single Series Swap Transaction is terminated for any reason, the Issuer may be required to pay an
amount to the relevant Single Series Swap Counterparty as a result of the termination. Following
such termination, any payments by the Issuer to the Single Series Swap Counterparty will be made in
accordance with the applicable Priority of Payments.
Relationship among Noteholders and between Noteholders and Other Issuer Creditors
The Intercreditor Agreement contains provisions applicable where, in the opinion of the
Representative of the Noteholders, there is a conflict between all or any of the interests of one or
more Classes of Noteholders, or between one or more Classes of Noteholders and any other Issuer
Creditors, requiring the Representative of the Noteholders to have regard only to the holders of the
Notes of the Most Senior Class (as defined in Condition 2 (Definitions)) then outstanding (provided
that, if, in the opinion of the Representative of the Noteholders, there is a conflict between the
interests of the holders of one Class of Notes of one Single Series and the interests of the holders of
the same Class of Notes of another Single Series, the same Class of Notes of all Single Series will be
considered as separate classes, one in respect of each Single Series) and the Representative of the
Noteholders is not required to have regard to the holders of any other Class of Notes then
outstanding, nor to the interests of the other Issuer Creditors, except to ensure that the application of
the Issuer’s funds is in accordance with the applicable Priority of Payments. In addition, the
Intercreditor Agreement contains provisions requiring the Representative of the Noteholders to have
regard to the interests of each Class of Noteholders as a class and relieves the Representative of the
Noteholders from responsibility for any consequence for individual Noteholders as a result of such
Noteholders being domiciled or resident in, or otherwise connected in any way with, or subject to the
jurisdiction of, a particular territory or taxing jurisdiction.
If an Event of Default occurs, then (subject to Condition 11(b) (Service of a Programme Acceleration
Notice), the Representative of the Noteholders may, at its sole discretion, and shall:
(i)
if so directed in writing by the holders of at least 45% of the Principal Amount Outstanding of
the Most Senior Class of Notes of all Single Series; or
(ii)
if so directed by an Extraordinary Resolution of the holders of the Most Senior Class of Notes
of all Single Series,
give a Programme Acceleration Notice to the Issuer and to the Servicer declaring the Notes of all
Single Series to be due and payable provided that:
(A)
in the case of the occurrence of any of the events mentioned in Condition 11(a)(ii) (Breach of
other obligations) and Condition 11(a)(iii) (Failure to take action), the service of a Programme
Acceleration Notice has been approved either in writing by the holders of at least 45% of the
Principal Amount Outstanding of the Most Senior Class of Notes of all Single Series or by an
Extraordinary Resolution of the holders of the Most Senior Class of Notes of all Single Series;
and
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(B)
in each case, it is indemnified and/or secured and/or pre-funded to its satisfaction against all
liabilities and all costs and expenses (provided that supporting documents are delivered) which
it may incur in so doing.
The Intercreditor Agreement contains provisions requiring the Representative of the Noteholders to
have regard to the interests of the Other Issuer Creditors as regards all powers, trusts, authorities,
duties and discretions of the Representative of the Noteholders (except where expressly provided
otherwise), but requiring the Representative of the Noteholders, in the event of a conflict between the
interests of the holders of any Class of outstanding Notes and any Other Issuer Creditor, to have
regard only (except where specifically provided otherwise) to the interests of the holders of such
Class of outstanding Notes, except to ensure that the application of the Issuer’s funds is in accordance
with the applicable Priority of Payments.
Noteholders’ directions and resolutions in respect of early redemption of the Notes
In a number of circumstances, the Notes may become subject to early redemption. Early redemption
of the Notes as a result of some circumstances may be dependent upon receipt by the Representative
of the Noteholders of a direction from, or a resolution passed by, a certain majority of Noteholders. If
the economic interest of a Noteholder represents a relatively small proportion of the majority and its
individual vote is contrary to the majority vote, its direction or vote may be ignored and, if a
determination is made by certain of the Noteholders to redeem the Notes, such minority Noteholders
may face early redemption of the Notes held by them.
Limited enforcement rights
The protection and exercise of the Noteholders’ rights against the Issuer under the Notes and the
enforcement of the Note Security is one of the duties of the Representative of the Noteholders. The
Conditions limit the ability of individual Noteholders to commence proceedings (including
proceedings for a declaration of insolvency) against the Issuer by conferring on the Meeting the
power to determine in accordance with the Rules of the Organisation of Noteholders on the ability of
any Noteholder to commence any such individual actions. Accordingly, individual Noteholders may
not, without breaching the Conditions, be able to commence proceedings or take other individual
remedies against the Issuer unless the Meeting has approved such action in accordance with the
provisions of the Rules of the Organisation of the Noteholders.
Remedies available for the purpose of recovering amounts owed in respect of the Notes of each
Single Series shall be limited to actions in respect of the Claims, the applicable Single Series Interest
Available Funds, the applicable Single Series Principal Available Funds, the share of the Programme
Principal Available Funds to be apportioned to the relevant Single Series and the share of the PostEnforcement Issuer Available Funds to be apportioned to the relevant Single Series in accordance
with the applicable Priority of Payments and the Note Security (but, for the avoidance of doubt,
excluding any Collateral). In the event that the amounts recovered pursuant to such actions are
insufficient, after payment of all other claims ranking in priority to or pari passu with amounts due
under the Notes of each Class, to pay in full all principal and interest and other amounts whatsoever
due in respect of the Senior Notes, the Senior Noteholders will have no further actions available in
respect of any such unpaid amounts.
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Absence of secondary market and limited liquidity
There is not, at present, a secondary market for the Notes, nor can there be any assurance that a
secondary market for the Notes will develop. Even if a secondary market does develop, it may not
continue for the life of the Notes or it may leave Noteholders with illiquidity of investment.
Illiquidity means that a Noteholder may not be able to find a buyer to buy its Notes readily or at
prices that will enable the Noteholder to realise a desired yield. Illiquidity can have a severe adverse
effect on the market value of the Notes. Consequently, any sale of Notes by Noteholders in any
secondary market which may develop may be at a discount to the original purchase price of those
Notes.
In addition, prospective Noteholders should be aware of the prevailing and widely reported global
credit market conditions (which continue at the date hereof), whereby there is a general lack of
liquidity in the secondary market for instruments similar to the Notes. As a result of the current
liquidity crisis, there exists significant additional risks to the Issuer and the investors which may
affect the returns on the Notes to investors.
Moreover, the current liquidity crisis has stalled the primary market for a number of financial
products including instruments similar to the Notes. While it is possible that the current liquidity
crisis may soon alleviate for certain sectors of the global credit markets, there can be no assurance
that the market for securities similar to the Notes will recover at the same time or to the same degree
as such other recovering global credit market sectors.
There exists significant additional risks for the Issuer and investors as a result of the current crisis.
These risks include, among others, (i) the likelihood that the Issuer will find it harder to dispose of
the Claims in accordance with the Transaction Documents, (ii) the possibility that, on or after the
relevant Single Series Issue Date, the price at which assets can be sold by the Issuer will have
deteriorated from their effective purchase price and (iii) the increased illiquidity and price volatility
of the Notes as there is currently no secondary trading in asset-backed securities. These additional
risks may affect the returns on the Notes to investors.
Notes issued under the Programme
Under the Programme, the Issuer may create and issue new Single Series of Notes without the
consent of the existing Noteholders to fund, inter alia, the payment to the Originator of all or part of
the purchase price for Additional Claims. Notes of each Single Series issued from time to time under
the Programme will be collateralised by the Claims, irrespective of the Single Series Issue Date of the
relevant Notes and of the Claims purchased by the Issuer on or immediately prior to the relevant
Single Series Issue Date.
In particular, with specific regard to the Issuer’s obligation to pay interest and repay principal on any
Notes, prior to the service of a Programme Acceleration Notice, all funds available to the Issuer to
meet such payment obligations will be apportioned amongst the various Single Series on the basis of
certain proportions set out in the Terms and Conditions and the Agency and Accounts Agreement and,
thereafter, applied according to the applicable Priority of Payments.
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With specific regard to the Issuer’s obligation (a) to repay principal on any Notes following the
service of a Purchase Termination Event Notice or (b) to pay interest and repay principal on any
Notes following the service of a Programme Acceleration Notice, all funds available to the Issuer to
meet such payment obligations will be applied pro rata and pari passu to repay each Class of Notes
of all Single Series, according to the applicable Priority of Payments.
In order to mitigate the risk that the issue of new Single Series could negatively affect existing
Noteholders, it is a condition precedent to the issuance of any new Single Series that, inter alia, the
Rating Agency confirm that such issuance will not result in a reduction or withdrawal of the ratings
of any of the then outstanding Senior Notes, if any. No assurance can be given that the new issue of
Notes will not adversely affect the timing and amounts of payments on any outstanding Notes.
Class A Notes as eligible collateral for ECB liquidity and/or open market transactions
Following issuance of the Class A Notes application may be made to a central bank in the Eurozone
to record the Class A Notes as eligible collateral. The relevant central bank will ultimately assess and
confirm whether the Class A Notes qualifies as eligible collateral for liquidity and/or open market
operations in accordance with its policies and it will not confirm their eligibility prior to their
issuance. However, following admission of the Class A Notes as eligible collateral for liquidity and/or
open market operations, the relevant central bank may at any time amend or withdraw any such
approval. None of the Issuer, the Originator or the Arranger gives any representation or warranty as to
whether the relevant central bank will ultimately confirm the eligibility of the Class A Notes and none
of the Issuer, the Originator or the Arranger will have any liability or obligation in relation thereto if
the Class A Notes are deemed ineligible for such purposes.
Performance of the Portfolio
The Initial Portfolio is comprised of Consumer Loans which were classified as performing (crediti in
bonis) by the Originator in accordance with the Bank of Italy’s guidelines as at the Initial Valuation
Date (as defined below). Any Subsequent Claims and Additional Claims that the Issuer may purchase
in the future are also required to be comprised only of consumer loans classified as performing
(crediti in bonis) by the Originator in accordance with the same guidelines as at the relevant
Valuation Date (as defined below). See “The Portfolio”, below. There can be no guarantee that the
Borrowers will not default under such Consumer Loans or that they will continue to perform
thereunder. It should be noted that adverse changes in economic conditions may affect the ability of
the Borrowers to repay the Consumer Loans. In addition, as Additional Claims are sold to the Issuer,
the characteristics of the Claims, which form the security for all Series of Notes, may, subject to the
criteria set out in the Master Transfer Agreement and in any Final Terms, change. This risk is
mitigated by the fact that the Master Transfer Agreement provides that the Issuer sends a prior
notification to S&P in respect of any amendment to the Criteria. Such new Common Criteria and/or
Specific Criteria will be disclosed in the applicable Offer to Sell and Final Terms and, if so required
by Directive 2003/71/CE and its implementing rules, through a prospectus supplement.
The recovery of overdue amounts in respect of the Consumer Loans will be affected by the length of
enforcement proceedings in respect of the Consumer Loans, which in the Republic of Italy can take a
considerable amount of time depending on the type of action required and where such action is taken.
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Factors which can have a significant effect on the length of the proceedings include the following: (i)
certain courts may take longer than the national average to enforce the Consumer Loans and (ii) more
time will be required for the proceedings if it is necessary first to obtain a payment injunction
(decreto ingiuntivo) or if the Borrower raises a defence or counterclaim to the proceedings.
No independent investigation in relation to the Portfolio
None of the Issuer, the Arranger, the Dealers nor any other party to the Transaction Documents (other
than Santander) has undertaken or will undertake any loan file review, searches or other actions to
verify the details of the Claims and the Portfolio, nor has any of such persons undertaken, nor will
any of them undertake, any investigations, searches or other actions to establish the creditworthiness
of any Borrower or any other debtor thereunder. There can be no assurance that the assumptions used
in the modelling of the cash flows of the Claims and the Portfolio accurately reflect the status of the
underlying Consumer Loan.
The Issuer will rely instead on the representations and warranties given by the Originator in the
Warranty and Indemnity Agreement and in the Master Transfer Agreement. The only remedies of the
Issuer in respect of the occurrence of a breach of a representation and warranty which materially and
adversely affects the value of a Claim will be the requirement that the Originator indemnifies the
Issuer for the damage deriving therefrom or repurchases the relevant Claim. See “The Warranty and
Indemnity Agreement”, below. There can be no assurance that Santander will have the financial
resources to honour such obligations.
The parties to the Warranty and Indemnity Agreement have expressly agreed, pursuant to Clause 16
thereof, that claims for a breach of representation or warranty given by the Originator may be pursued
against the Originator until the later of (i) the expiry of the Additional Issue Period and (ii) the first
anniversary of the Single Series Maturity Date latest in time. However, there is a possibility that legal
actions initiated for breach of some representations or warranties are nonetheless subject to a oneyear statutory limitation period if article 1495 of the Italian civil code (which regulates ordinary sales
contracts (contratti di compravendita)) is held to apply to the Warranty and Indemnity Agreement.
Recoveries under the Consumer Loans
Following default by a Borrower under a Consumer Loan, the Servicer will be required to take steps
to recover the sums due under the Consumer Loan in accordance with its credit and collection
policies and the Servicing Agreement. The Consumer Loans contracts provide that upon one unpaid
instalment falling due, the Originator is entitled to take steps to terminate its agreement with the
relevant Borrower under the Consumer Loan and to require immediate repayment of all amounts
advanced and/or due under the relevant Consumer Loan in accordance with its terms. See “The
Servicing Agreement” and “The Credit and Collection Policies”, below.
The Servicer may take steps to recover the deficiency from the Borrower. Such steps could include an
out-of-court settlement; however, legal proceedings may be taken against the Borrower if the Servicer
is of the view that the potential recovery would exceed the costs of the enforcement measures. In
such event, due to the complexity of and the time involved in carrying out legal or insolvency
proceedings against the Borrower and the possibility for challenges, defences and appeals by the
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Borrower, there can be no assurance that any such proceedings would result in the payment in full of
outstanding amounts under the relevant Consumer Loan.
In the Republic of Italy, a lender which has received a judgment against a debtor in default may
enforce the judgment through a forced sale of the debtor’s (or guarantor’s) goods (pignoramento
mobiliare) or real estate assets (pignoramento immobiliare), if the lender has previously been granted
a court order or injunction to pay amounts in respect of any outstanding debt or unperformed
obligation.
Forced sale proceedings are directed against the debtor’s properties following notification of an atto
di precetto to the relevant debtor together with a titolo esecutivo, i.e. an instrument evidencing the
nature of the claims and having certain characteristics.
The average length of time for a forced sale of a debtor’s goods, from the court order or injunction of
payment to the final sharing-out, is about three years. The average length of time for a forced sale of
a debtor’s real estate asset, from the court order or injunction of payment to the final sharing-out, is
between six and seven years. In the medium-sized central and northern Italian cities it can be
significantly less, whereas in major cities or in southern Italy the duration of the procedure can
significantly exceed the average.
Attachment proceedings may also be commenced on due and payable claims of a borrower (such as
bank accounts, salary etc.) or on a borrower’s moveable property which is located on a third party’s
premises.
Principal Deficiency Ledger
If, upon default by Borrowers and the exercise by the Issuer or the Servicer of all available remedies
under the Consumer Loans, the Issuer does not receive the full amount due from those Consumer
Loans, the Issuer will be obliged to record any related Realised Loss first in the Junior Notes
Principal Deficiency Ledger and, when the amount debited to the Junior Notes Principal Deficiency
Ledger is equal to the Principal Amount Outstanding of the Junior Notes of all Single Series, in the
Class B Notes Principal Deficiency Ledger and, when the amount debited to the Class B Notes
Principal Deficiency Ledger is equal to the Principal Amount Outstanding of the Class B Notes of all
Single Series, in the Class A Notes Principal Deficiency Ledger. These principal deficiencies will be
recouped from subsequent receipts (other than principal receipts) into the Collection Account and,
subject to the payment of prior-ranking obligations as set out under the Pre-Enforcement Priority of
Payments for Single Series Interest Available Funds, firstly credited to the Class A Notes Principal
Deficiency Ledger and secondly (once the balance on the Class A Notes Principal Deficiency Ledger
is reduced to nil) to the Class B Notes Principal Deficiency Ledger and thirdly (once the balance on
the Class B Notes Principal Deficiency Ledger is reduced to nil) to the Junior Notes Principal
Deficiency Ledger.
If there are insufficient funds available as a result of such principal deficiencies, then one or more of
the following consequences may ensue:
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(i)
the Issuer’s interest and other net income may not be sufficient, after making the payments to
be made in priority thereto, to pay, in full or at all, interest due on the Class B Notes and/or the
Junior Notes;
(ii)
there may be insufficient funds to redeem the Class B Notes and/or the Junior Notes at their
face value unless prior to their relevant final maturity date the Issuer’s interest and other net
income is sufficient, after making other payments to be made in priority thereto, to reduce to
nil the debit provision in the relevant Principal Deficiency Ledger; and
(iii)
if the aggregate debit balances, notwithstanding any reduction as aforesaid, exceed the
aggregate face value of the Junior Notes, the Class B Noteholders may not receive by way of
principal repayment the full face value of their Class B Notes, and if they exceed the aggregate
face value of the Class B Notes and the Junior Notes, the Class A Noteholders may not receive
by way of principal repayment the full face value of their Class A Notes.
However, funds may be drawn from the Cash Reserve to be applied under the Pre-Enforcement
Priority of Payments for Single Series Interest Available Funds.
The Securitisation Law
As at the date of this Prospectus, no interpretation of the application of the Securitisation Law has
been issued by any Italian governmental or regulatory authority, except for (i) regulations issued by
the Bank of Italy concerning, inter alia, the accounting treatment of securitisation transactions for
special purpose companies incorporated under the Securitisation Law, such as the Issuer, and the
duties of the companies which carry out collection and recovery activities in the context of a
securitisation transaction, and (ii) the decree of the Italian Ministry of Treasury dated 4 April 2001
and the recent Bank of Italy regulation dated 25 September 2009 on the deletion of securitisation
vehicles incorporated under the Securitisation Law from the special register held by the Bank of Italy
pursuant to article 107 of the Banking Act. Consequently, it is possible that such authorities may issue
further regulations relating to the Securitisation Law or the interpretation thereof, the impact of which
cannot be predicted by the Issuer as at the date of this Prospectus.
Servicing of the Portfolio
The Portfolio has always been serviced by Santander up to the transfer of the relevant Claims as
owner of the Consumer Loans and the relevant Claims and, following the transfer of the Claims to the
Issuer, as Servicer pursuant to the Servicing Agreement. As a result, the net cash flows from the
Portfolio may be affected by decisions made, actions taken and collection procedures adopted by the
Servicer pursuant to the provisions of the Servicing Agreement.
The Servicer has been appointed by the Issuer as responsible for the collection of the Claims
transferred by it (as Originator) to the Issuer and for the cash and payment services (soggetto
incaricato della riscossione dei crediti ceduti e dei servizi di cassa e pagamento). In accordance with
the Securitisation Law, the Servicer is therefore responsible for ensuring that the collection of the
Claims serviced by it and the relative cash and payment services comply with Italian law and with
this Prospectus.
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Development in EU consumer protection legislation
The Council Directive 87/102/EEC of 22 December 1986 for the approximation of the laws,
regulations and administrative provisions of the Member States concerning consumer credit (the
“Directive 87/102/EEC”) aimed to create an environment where consumers are sufficiently protected
throughout the EU, so that they can carry out cross-border transactions with confidence. The
Directive 87/102/EEC was amended in 1990 and 1998. It was based on minimum harmonisation,
which means that Member States are obliged to implement at least the provisions contained in the
Directive 87/102/EEC. However, they may also maintain or introduce stricter rules in favour of
consumers.
Since the original Directive 87/102/EEC was passed in 1987, the consumer credit market has changed
significantly.
Twenty years after the adoption of the Directive 87/102/EEC in 1987, the European Parliament and of
the Council adopted the Directive 2008/48/EC of the European Parliament and of the Council of 23
April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC (the
“Directive 2008/48/EC”).
Further integration of the markets and a high level of consumer protection are the main objectives of
the Directive 2008/48/EC. The Directive 2008/48/EC focuses on transparency and consumer rights. It
provides for a comprehensible set of information to be given to consumers in good time before the
contract is concluded and also as part of the credit agreement. In order to enhance the comparability
of different offers and to make the information better understandable, the pre-contractual information
needs to be supplied in a standardised form (“Standard European Consumer Credit
Information”), i.e. every creditor has to use this form when marketing a consumer credit in any
Member State, and consumers will receive the “Annual Percentage Rate of Charge” (APR, a single
figure, harmonised at EU level, representing the cost of the credit). The Directive 2008/48/EC
foresees in addition two essential rights for consumers: they are allowed to withdraw from the credit
agreement without giving any reason within a period of 14 days after the conclusion of the contract.
They also will have the possibility to repay their credit early at any time, while the creditor can ask
for a fair and objectively justified compensation.
Member States are required to transpose the Directive 2008/48/EC into national law before 12 May
2010.
Italian consumer protection legislation
In Italy, consumer loans are regulated by, inter alia: (a) articles 121 to 126 of the Italian legislative
decree No. 385 of 1 September 1993 (the “Banking Act”) and (b) chapter II, section I of law No. 142
of 19 February 1992. Chapter II, section I of law No. 142 of 19 February 1992 was repealed by the
Banking Act, but currently remains in force pending the Bank of Italy issuing the regulations
implementing the foregoing provisions of the Banking Act. Under the current legislation, consumer
loans are only those granted for amounts respectively lower and higher than the maximum and
minimum levels set by sub-section 3 of article 18 of law No 142 of 19 February 1992, such levels
being currently fixed at €30,987.41 and €154.94, respectively.
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The following risks, inter alia, could arise in relation to a consumer loan contract:
(a)
pursuant to sub-section 2 of article 125 of the Banking Act, borrowers under consumer loan
contracts have the right (which cannot be waived by agreement between the parties) to prepay
any consumer loan without penalty and with the additional right to a pro rata reduction in the
aggregate amount of the loan, as provided by the Comitato Interministeriale per il Credito e il
Risparmio (“CICR”) (the inter-ministerial committee for credit and savings). This defence
could potentially be used by the Borrowers against the payment of any amount on the
termination of a Consumer Loan;
(b)
pursuant to sub-section 3 of article 125 of the Banking Act, borrowers are entitled to exercise
against the assignee of any lender under a consumer loan contract, any defence (including set
off) which they had against the original lender, in derogation to the provisions of article 1248
of the Italian civil code (that is even if the borrower has accepted the assignment or has been
given written notice thereof). This could result in Borrowers obtaining a right of set-off or
other right of defence against the Issuer in respect of any of the Originator’s obligations to the
Borrower. For this purpose, the Originator has warranted and represented that it has not and it
will not open bank accounts with any of the Borrowers;
(c)
pursuant to article 42 of legislative decree 6 September 2005, No. 206 (“Codice del consumo,
a norma dell'articolo 7 della legge 29 luglio 2003, n. 229”) (the “Consumer Code”),
borrowers under consumer loan contracts have the right to seek redress against a lender
following default by suppliers linked to the lenders by an exclusivity agreement. In this respect
it should be noted that, with reference to the provisions of sub-section 4 of article 125 of the
Banking Act (which are now included in the above-mentioned article 42 of the Consumer
Code), the Italian Supreme Court seems to purport that the existence of an exclusivity
agreement between the lender and the supplier is not considered as a prerequisite for the
exercise by the borrower of its right to seek redress. For this purpose, under the Warranty and
Indemnity Agreement the Originator has agreed to indemnify the Issuer in respect of any
losses, costs and expenses that may be incurred as a result of the exercise by any Borrower of
any counterclaim and it has represented and warranted that the Claims derive from Consumer
Loans in relation to which no agreement has been entered into between Santander and the
relevant supplier pursuant to which Santander has the exclusive right to grant loans to the
clients of the relevant supplier; and
(d)
sub-section 11 of article 21 of law No. 142/1992 provides that borrowers under consumer loan
contracts must receive 15 days’ prior written notice of any assignment of the rights of the
lender under such contracts. This provision has been repealed by the Banking Act, with effect
from the date on which the Bank of Italy issues the relevant implementing regulations, but no
such regulations have been enacted as yet. Prior notice of the purchase of the Claims under the
Master Transfer Agreement was not, and will not be, given to the Borrowers as the Originator
will continue to service the relevant Claims and the Borrowers’ payment procedure will not be
subject to change. Since no notice of the assignment of the Claims to the Issuer is being given
there is a risk that Borrowers could raise a defence in any enforcement action taken by the
Issuer in respect of the Consumer Loans that the assignment of the Claims cannot be enforced
against them, until 15 days after they receive formal notice of the assignment.
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The Consumer Loans are regulated, inter alia, by article 1469 bis of the Italian civil code and by the
Consumer Code, which implement EC Directive 93/13/CEE on unfair terms in consumer contracts,
and provide that any clause in a consumer contract which contains a material imbalance between the
rights and obligations of the consumer under the contract, is deemed to be unfair and is not
enforceable against the consumer whether or not the consumer’s counterparty acted in good faith.
Article 33 of the Consumer Code identifies clauses which, if included in consumer contracts, are
deemed to be prima facie unfair but which are binding on the consumer if it can be shown that such
clauses were actually individually negotiated or that they can be considered fair in the circumstances
of the relevant consumer contract. Such clauses include, inter alia, clauses which give the right to the
non-consumer contracting party to (a) terminate the contract or (b) modify the conditions of the
contract without reasonable cause. However, with regard to financial contracts, if there is a valid
reason, the provider is empowered to modify the economic terms but must inform the consumer
immediately; in this case the consumer has the right to terminate the contract.
Pursuant to article 36 of the Consumer Code, the following clauses, inter alia, are considered null and
void as a matter of law and are not enforceable: (a) any clause which has the effect of excluding or
limiting the remedies of the consumer in case of total or partial failure by the non-consumer
contracting party to perform its obligations under the consumer contract; and (b) any clause which
has the effect of making the consumer party to be bound by clauses he has not had any opportunity to
consider and evaluate before entering into the consumer contract.
Santander has represented and warranted in the Warranty and Indemnity Agreement that the
Consumer Loans comply with all applicable laws and regulations.
Under the terms of the Warranty and Indemnity Agreement, the Originator has agreed to indemnify
the Issuer in respect of any reduction in amounts received by the Issuer in respect of the Portfolio as a
result of the exercise by any Borrower of a right of set-off.
Italian Usury Law
The interest payments and other remuneration paid by the Borrowers under the Consumer Loans are
subject to Italian law No. 108 of 7 March 1996 (the “Usury Law”), which introduced legislation
preventing lenders from applying interest rates equal to, or higher than, rates (the “Usury Rates”) set
every three months on the basis of a decree issued by the Italian Treasury (the last such decree having
been issued on 24 September 2009). In addition, even where the applicable Usury Rates are not
exceeded, interest and other benefits and/or remuneration may be held to be usurious if: (i) they are
disproportionate to the amount lent (taking into account the specific situations of the transaction and
the average rate usually applied for similar transactions); and (ii) the person who paid or agreed to
pay them was in financial and economic difficulties. The provision of usurious interest, benefits or
remuneration has the same consequences as non-compliance with the Usury Rates.
The Italian Government, with law decree No. 394 of 29 December 2000 (the “Usury Law Decree”
and, together with the Usury Law, the “Usury Regulations”), converted into law by law No. 24 of 28
February 2001, has established, inter alia, that interest is to be deemed usurious only if the interest
rate agreed by the parties exceeds the Usury Rate applicable at the time the relevant agreement is
reached. The Usury Law Decree also provides that, as an extraordinary measure due to the
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exceptional fall in interest rates in the years 1998 and 1999, interest rates due on instalments payable
after 2 January 2001 on loans already entered into on the date on which the Usury Law Decree came
into force (such date being 31 December 2000) are to be substituted with a lower interest rate fixed in
accordance with parameters determined by the Usury Law Decree.
No official or judicial interpretation of the Usury Law Decree is yet available. However, the Italian
Constitutional Court has rejected, with decision No. 29/2002 (deposited on 25 February 2002), a
constitutional exception raised by the Court of Benevento (2 January 2001) concerning article 1,
paragraph 1, of the Usury Law Decree (now reflected in article 1, paragraph 1 of the abovementioned conversion law No. 24 of 28 February 2001). In so doing, it has confirmed the
constitutional validity of the provisions of the Usury Law Decree which hold that interest rates may
be deemed to be void due to usury only if they infringe Usury Regulations at the time they are agreed
between the borrower and the lender and not at the time such rates are actually paid by the borrower.
Pursuant to the Warranty and Indemnity Agreement, the Originator has undertaken to indemnify the
Issuer in respect of any losses, costs and expenses that may be incurred by the Issuer in connection
with any loss or reduction in any interest accrued prior to the Initial Execution Date. However, if a
Consumer Loan is found to contravene the Usury Regulations, the relevant Borrower might be able to
claim relief on any interest previously paid and oblige the Issuer to accept a reduced rate of interest,
or potentially no interest on such Consumer Loan. In such cases, the ability of the Issuer to maintain
scheduled payments of interest and principal on the Notes may be adversely affected.
Compounding of interest (anatocismo)
Pursuant to article 1283 of the Italian civil code, accrued interest in respect of a monetary claim or
receivable may be capitalised after a period of not less than six months only (i) under an agreement
subsequent to such accrual or (ii) from the date when any legal proceedings are commenced in
respect of that monetary claim or receivable. Article 1283 of the Italian civil code allows derogation
from this provision in the event that there are recognised customary practices (usi) to the contrary.
Banks and financial companies in the Republic of Italy have traditionally capitalised accrued interest
on a three-monthly basis on the grounds that such practice could be characterised as a customary
practice (uso normativo). However, a number of recent judgments from Italian courts (including the
judgments from the Italian Supreme Court (Corte di Cassazione) No. 2374/99, No. 2594/2003 and
No. 21095/2004) have held that such practices are not uso normativo. As a result, if customers of the
Originator were to challenge this practice and such interpretation of the Italian civil code were to be
upheld before other courts in the Republic of Italy, there could be a negative effect on the returns
generated from the Consumer Loans.
Santander has consequently undertaken in the Warranty and Indemnity Agreement to indemnify the
Issuer in respect of any losses, costs and expenses that may be incurred by the Issuer in connection
with any challenge in respect of interest on interest. In this respect, it should be noted that article 25,
paragraph 3, of legislative decree No. 342 of 4 August 1999 (“Law No. 342”), enacted by the Italian
Government under a delegation granted pursuant to law No. 142 of 19 February 1992, has considered
the capitalisation of accrued interest (anatocismo) made by banks prior to the date on which it came
into force (19 October 1999) to be valid. After such date, the capitalisation of accrued interest is no
longer possible upon the terms established by a resolution of the CICR issued on 22 February 2000.
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Law No. 342 has been challenged and decision No. 425 of 17 October 2000 of the Italian
Constitutional Court has declared as unconstitutional under the provisions of Law No. 342 regarding
the validity of the capitalisation of accrued interest made by banks prior to the date on which Law
No. 342 came into force.
Prepayments under loan agreements
Pursuant to article 65 (“Article 65”) of Royal Decree No. 267 of 16 March 1942 (the “Bankruptcy
Law”), payments made by a debtor with respect to debts that fall due on or after the date on which
the relevant debtor is declared bankrupt are ineffective against the creditors of the relevant debtor, if
such payments are made within the two years prior to the declaration of bankruptcy. Any such
ineffective payment may therefore be clawed-back by the bankruptcy receiver of the payor regardless
of whether the debtor was insolvent at the time when the payment was made.
According to the prevailing opinion of Italian legal scholars and decision No. 1153 of 10 April 1969
of the Italian Supreme Court, the provisions of Article 65 of the Bankruptcy Law would not apply to
prepayments made by a debtor under a loan agreement, if the debtor exercises the right to prepay
amounts due under the loan agreement in accordance with the terms of such agreement, as such
payments which have been anticipated pursuant to a contractual right of the relevant debtor have to
be considered as payments of a debt which falls due upon the exercise of such right and not as
payments of a debt which is not yet due.
Pursuant to decision No. 4842 of 5 April 2002 of the Italian Supreme Court, however, it has been
held that the provisions of Article 65 of the Bankruptcy Law apply to payments of debts made on or
before the date on which the relevant debts fall due, as such date has been fixed originally,
irrespective of whether the loan agreement entitled the debtor to prepay the amounts due. Recently, in
the decision No. 19978 of 18 July 2008, the Italian Supreme Court held that a prepayment of a
mortgage loan does not fall within the scope of article 65 of the Bankruptcy Law if the relevant
debtor is entitled to prepay its debt pursuant to mandatory provisions of law.
While pursuant to article 4, paragraph 3, of the Securitisation Law, payments made by the assigned
debtors to the Issuer may not be clawed-back pursuant to article 67 of the Bankruptcy Law in the
event of insolvency of the relevant debtor, it is unclear whether the protection given by such
provision against the claw-back actions taken pursuant to article 67 of the Bankruptcy Law may be
extended in order to provide protection against the claw-back actions taken pursuant to article 65 of
such law. In addition, it should be noted that Italian court decisions are not binding on other courts.
Historical, financial and other information
The historical, financial and other information set out in each Final Terms and in the sections headed
“The Credit and Collection Policies”, “The Servicing Agreement”, “The Originator and Servicer” and
“The Portfolio”, including information in respect of collection rates, represents the historical
experience of Santander. There can be no assurance that the future experience and performance of
Santander, as Servicer of the Portfolio, will be similar to the experience shown in this Prospectus or
in the Final Terms.
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Competition in the consumer credit business
Santander faces significant competition from a large number of banks and consumer credit firms
throughout the Republic of Italy. Many of its competitors have in the recent past adopted and
implemented aggressive policies aimed at increasing their market share and reaching the critical mass
which would enable them to face the challenges imposed by the market and in particular to invest
heavily in more reliable and efficient credit scoring technologies. Strong competition has in general
led to a progressive narrowing of the margins (consumer loan rates less funding cost). Consequently,
no assurance can be given that the interest rates charged to Borrowers under Consumer Loans
constituting the Subsequent Portfolios and Additional Portfolios will be as high as those described
under “The Portfolio”, below.
The deregulation of the banking industry in Italy and throughout the European Union has intensified
competition in both deposit-taking and lending activities, contributing to a progressive narrowing of
spreads between deposit and loan rates. In addition, as with all European banks, the introduction of
European Economic and Monetary Union (“EMU”) pursuant to the Treaty establishing the European
Communities, as amended by the Treaty on European Union, may eliminate markets in which the
Originator has a comparative advantage and provide significantly more competition in other areas,
such as electronic banking.
Administration and reliance on third parties
The ability of the Issuer to make payments in respect of the Notes will depend upon the due
performance by the parties to the Transaction Documents of their respective various obligations under
the Transaction Documents to which they are each a party. In particular, without limitation, the
punctual payment of amounts due on the Notes will depend on the ability of the Servicer to service
the Portfolio and to recover the amounts relating to Defaulted Claims (if any), the Single Series Swap
Counterparties complying with their obligation under the relevant Single Series Swap Agreement and
the continued availability of hedging under the Single Series Swap Agreements. Prospective
Noteholders should note that the Single Series Swap Agreements may be terminated in certain
circumstances described in the Single Series Swap Agreements. In addition, the ability of the Issuer
to make payments under the Notes may depend to an extent upon the due performance by the
Originator of its obligations under the Warranty and Indemnity Agreement in respect of the Portfolio.
The performance of such parties of their respective obligations under the relevant Transaction
Documents is dependent on the solvency of each relevant party. In each case, the performance by the
Issuer of its obligations under the Transaction Documents is also dependent on the solvency of, inter
alios, Santander and the Single Series Swap Counterparties.
In the event of the termination of the appointment of the Servicer under the Servicing Agreement, it
would be necessary for the Issuer to appoint a substitute servicer (acceptable to the Representative of
the Noteholders). Such substitute servicer would be required to assume responsibility for the services
required to be performed under the Servicing Agreement for the Consumer Loans. The ability of a
substitute servicer to perform fully the required services would depend, inter alia, on the information,
software and records available at the time of the relevant appointment. There can be no assurance that
a substitute servicer will be found or that any substitute servicer will be willing to accept such
appointment or that a substitute servicer will be able to assume and/or perform the duties of the
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Servicer pursuant to the Servicing Agreement. In such circumstances, the Issuer could attempt to sell
all, or part of, the Claims, but there is no assurance that the amount received on such a sale would be
sufficient to repay in full all amounts due to the Noteholders. The Representative of the Noteholders
has no obligation to assume the role or responsibilities of the Servicer or to appoint a substitute
servicer.
Legal proceedings
The Santander Banking Group is subject to a variety of claims and Santander is party to a certain
number of legal proceedings arising in the ordinary course of business. Although the outcome of such
claims is inherently uncertain and several litigants claim relatively large sums in damages, Santander
has represented and warranted that, as of the date of the Warranty and Indemnity Agreement, to its
knowledge, it is not involved in any litigation the outcome of which might jeopardise its ability to
perform the obligations of each under the Transaction Documents to which it is a party.
Claw-back of the transfer of the Claims
The transfers of the Claims under the Master Transfer Agreement are subject to revocation upon
bankruptcy of the Originator under article 67 of Bankruptcy Law but only in the event that the
relevant transfer is perfected within three months of the adjudication of bankruptcy of Santander or,
in cases where paragraph 1 of article 67 applies, within six months of the adjudication of bankruptcy.
Tax treatment of the Issuer
Taxable income of the Issuer is determined, without any special rights, in accordance with Italian
presidential decree No. 917 of 22 December 1986 as subsequently amended (the Italian Income Taxes
Consolidated Code). Pursuant to the regulations issued by the Bank of Italy on 29 March 2000
(schemi di bilancio delle società per la cartolarizzazione dei crediti) as confirmed in its regulations
issued on 14 February 2006 (istruzioni per la redazione dei bilanci degli intermediari finanziari
iscritti nell'Elenco Speciale, degli Istituti di moneta elettronica, delle Società di gestione del
risparmio e delle Società di intermediazione mobiliare), the assets, liabilities, costs and revenues of
the Issuer in relation to the Securitisation will be treated as off-balance sheet assets, liabilities, costs
and revenues. Based on the general rules applicable to the calculation of the net taxable income of a
company, pursuant to which such taxable income should be calculated on the basis of accounting
earnings (i.e. on-balance sheet earnings), subject to such adjustments as are specifically provided for
by applicable income tax rules and regulations and according to the guidelines of the Italian tax
authorities (circular No. 8/E of 6 February 2003), no taxable income should accrue to the Issuer until
the satisfaction of the obligations of the Issuer to the holders of the Notes, to the Other Issuer
Creditors and to any third-party creditor in relation to whom the Issuer has incurred costs, liabilities,
fees and expenses in relation to the securitisation of the Claims. Future rulings, guidelines,
regulations or letters relating to the Securitisation Law issued by the Italian Ministry of Economy and
Finance, or other competent authorities, may alter or affect the tax position of the Issuer, as described
above.
Pursuant to the Bank of Italy regulations, the accounting information relating to the securitisation of
the Claims will be contained in the Issuer’s Nota Integrativa which, together with the balance sheet
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and the profit and loss statements, forms part of the financial statements of Italian limited liability
companies (società a responsabilità limitata).
Withholding tax under the Senior Notes
Where the Senior Notes fall within the category of bonds (obbligazioni) or debentures similar to
bonds (titoli similari alle obbligazioni), as defined in section “Taxation”, below, any beneficial owner
of an interest payment relating to the Senior Notes of any Class, who is a non-Italian resident without
a permanent establishment in Italy to which the Senior Notes are effectively connected and (a) is not
resident, for tax purposes, in a country which allows for a satisfactory exchange of information with
the Italian tax authorities or an institutional investor established therein, or (b) has failed to comply
with the requirements and procedures set forth in Italian legislative decree No. 239 of 1 April 1996,
as subsequently amended (“Decree 239”) in order to benefit from an exemption, will receive amounts
of interest payable on the Senior Notes net of Italian withholding tax, referred to as a substitute tax
(imposta sostitutiva). As at the date of this Prospectus, such withholding tax is levied at the rate of
12.5% or such lower rate as may be applicable under the relevant double taxation treaty, if any.
In the event that the Notes are redeemed in whole or in part (including following the service of an
Programme Acceleration Notice) prior to the date which is 18 months after the relevant Single Series
Issue Date, the Issuer will be obliged to pay a tax in Italy at a rate of 20% on interest accrued up to
the relevant repayment date. See “Taxation”, below.
In the event that withholding taxes are imposed in respect of payments to Noteholders of amounts
due pursuant to the Notes, whether or not through a substitute tax, the Issuer will not be obliged to
gross up any such payments or otherwise compensate Noteholders for the lesser amounts the
Noteholders will receive as a result of the imposition of withholding taxes.
EU Savings Directive
Legislative Decree No. 84 of 18 April 2005 implemented in Italy, as of 1 July 2005, the European
Council Directive No. 2003/48/EC on the taxation of savings income. Under the directive, Member
States, if a number of important conditions are met, are required to provide to the tax authorities of
another Member State details of payments of interest (or similar income) paid by a person within its
jurisdiction to an individual resident in that other Member State.
However, for a transitional period, Belgium, Luxembourg and Austria will instead be required (unless
during that period they elect otherwise) to operate a withholding tax system in relation to such
payments. As far as Luxembourg and Austria are concerned, the ending of such transitional period
dependents upon the conclusion of certain other agreements relating to information exchange with
certain other countries. In Belgium, the transitional period will end on 1 January 2010. Same details
concerning payment of interest (or similar income) shall be provided to the tax authorities of a
number of non-EU countries and territories, which have agreed to adopt similar measures with effect
from the same date.
Change of law
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The structure of the transaction and, inter alia, the issue of the Notes of any Single Series and the
rating assigned to the Senior Notes of any Single Series are based on Italian and English law, on tax
and administrative practice in effect at the date hereof and having due regard to the expected tax
treatment of all relevant entities under such law and practice. No assurance can be given as to any
possible change to Italian or English law, tax or administrative practice after the relevant Single
Series Issue Date.
Fixed and floating security
Security given under the English law governed transaction documents, although expressed as fixed
security, may take effect as a floating charge and thus on enforcement certain preferential creditors
may rank ahead of the Issuer Secured Creditors.
Projections, forecasts and estimates
Forward-looking statements, including estimates, any other projections and forecasts in this
Prospectus, are necessarily speculative and subjective in nature and some or all of the assumptions
underlying the projections may not materialise or may vary significantly from actual results.
Such statements are subject to risks and uncertainties that could cause the actual results to differ
materially from those expressed or implied by such forward-looking statements. Prospective
investors are cautioned not to place undue reliance on these forward-looking statements, which speak
only as of the date of this Prospectus and are based on assumptions that may prove to be inaccurate.
No one undertakes any obligation to update or revise any forward-looking statements contained
herein to reflect events or circumstances occurring after the date of this Prospectus.
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THE PORTFOLIO
The Notes of each Single Series will be collateralised by the Claims purchased by the Issuer in
accordance with the terms of the Master Transfer Agreement. The Noteholders of all Single Series
will have rights over the pool of Claims as a whole (subject to the Priority of Payments) irrespective
of the Single Series Issue Date of the relevant Additional Issue and of the Claims owned by the Issuer
on or immediately prior to the relevant Single Series Issue Date.
The Consumer Loans comprising any Subsequent Portfolio and any Additional Portfolio will be
selected on the basis of certain criteria which are set out in the Master Transfer Agreement and other
criteria to be agreed between the Issuer and the Originator.
The Issuer has undertaken in the Master Transfer Agreement to publish both sets of criteria (a) in the
Gazzetta Ufficiale della Repubblica Italiana (Official Gazette of the Republic of Italy) and (b) in the
relevant companies register promptly within the relevant Interest Payment Date in relation to any
transfer of Subsequent Claims and promptly within the relevant Single Series Issue Date in relation to
the transfer of Additional Claims. See “The Master Transfer Agreement”, below.
Furthermore, pursuant to the Warranty and Indemnity Agreement, the Originator has warranted that
the Claims have, or will have, as applicable, on the relevant Valuation Date, certain characteristics on
an aggregate basis as set out in the Warranty and Indemnity Agreement.
In addition, the Originator has also undertaken not to sell to the Issuer Additional Claims or
Subsequent Claims if, as a result of such transfer, the Claims, on an aggregate basis, will cease to
have certain characteristics, in each case as set out in the Warranty and Indemnity Agreement.
“Valuation Date” means (i) in relation to the Initial Claims, the Initial Valuation Date; (ii) in relation
to any Subsequent Claims, the first day of the Collection Period during which the Issuer has
purchased them; and (iii) in relation to any Additional Claims, the date indicated as such in the
relevant Offer to Sell.
The first pool of monetary claims and other connected rights (the “Initial Claims”) arising from a
portfolio (the “Initial Portfolio”) of consumer loans, consisting of vehicle loans, other purpose loans
and personal loans (the “Initial Consumer Loans”) originated by Santander has been transferred
from Santander to the Issuer pursuant to the terms of a transfer agreement dated 27 November 2009,
between the Issuer and Santander (as from time to time amended and/or supplemented, the “Master
Transfer Agreement”).
During any Single Series Revolving Period, subject to the terms of the Master Transfer Agreement, it
is envisaged that the Issuer will acquire from the Originator, on a quarterly basis, the monetary claims
and other connected rights (the “Subsequent Claims”) arising from additional portfolios (each a
“Subsequent Portfolio”) of consumer loans (the “Subsequent Consumer Loans”) originated and to
be originated by the Originator and having substantially the same characteristics as the Initial
Consumer Loans.
During the Additional Issue Period, subject to the terms of the Master Transfer Agreement, the Issuer
may acquire from the Originator, on or around any Single Series Issue Date, additional pools of
monetary claims and other connected rights (the “Additional Claims”) arising from additional
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portfolios of consumer loans consisting of vehicle loans, other purpose loans and personal loans
originated, or to be originated, by Santander and, save as provided in the Transaction Documents,
having substantially the same characteristics as the Initial Portfolio (each an “Additional Portfolio”).
“Claims” identifies the aggregate, from time to time, of the Initial Claims, all Subsequent Claims and
all Additional Claims; “Portfolio” identifies the aggregate of, from time to time, the Initial Portfolio,
the Subsequent Portfolios and the Additional Portfolios; and “Consumer Loans” identifies the
aggregate, from time to time, of the Initial Consumer Loans, the Subsequent Consumer Loans and the
Additional Consumer Loans.
For a description of the procedure to be put in place for the purchase of Subsequent Claims, see “The
Master Transfer Agreement”, below. Any payment due to the Originator, in consideration of the
purchase of any Subsequent Claims or Additional Claims, will be made by the Issuer, respectively, on
the relevant Interest Payments Dates or the relevant Single Series Issue Date, or, in both cases, if
later, when the Originator gives satisfactory evidence to the Account Bank that a notice summarising
the details of the transfer of such Subsequent Claims or Additional Claims, as applicable, has been
published (a) in the Gazzetta Ufficiale della Repubblica Italiana (the Official Gazette of the Republic
of Italy) and (b) in the relevant companies register.
In order to ensure that, following the purchase of any Subsequent Claims and any Additional Claims,
the Portfolio maintains substantially the same characteristics as the Initial Portfolio, the Master
Transfer Agreement sets out certain objective criteria that the Originator will apply when selecting
any Subsequent Portfolio and any Additional Portfolio. For this purpose, in each Offer to Sell the
Originator will represent and warrant that each Subsequent Portfolio and each Additional Portfolio
will be comprised of loans which, as at the relevant Valuation Date, meet certain criteria.
Criteria
The Claims have been and will be (as applicable) identified by the Originator and the Issuer on the
basis of objective common criteria listed in exhibit 1 part 1 of the Master Transfer Agreement (the
“Common Criteria”) and of certain specific criteria listed in exhibit 1 part 4 of the Master Transfer
Agreement (the “Specific Criteria” and, together with the Common Criteria, the “Criteria”). The
Master Transfer Agreement provides that the Issuer and the Originator may agree to amend the
Common Criteria and/or the Specific Criteria in connection with any Additional Issue provided that
the Issuer sends a prior notification to S&P in respect of such amendment. Such new Common
Criteria and/or Specific Criteria will be disclosed in the applicable Offer to Sell and Final Terms and,
if so required by Directive 2003/71/CE and its implementing rules, through a prospectus supplement.
The Criteria pursuant to which the Claims will be selected will be published from time to time in the
Gazzetta Ufficiale della Repubblica Italiana (Official Gazette of the Republic of Italy) and in the
relevant companies register. See “The Master Transfer Agreement”, below.
The Claims, offered by the Originator to the Issuer on any Offer Date, shall be selected by the
Originator, or by the Originator together with the Issuer, in accordance with the provisions of the
Master Transfer Agreement. The Claims are governed by Italian law.
Characteristics of the Consumer Loans
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Each Consumer Loan, from which the relevant Claims originate, shall have the following
characteristics.
(A)
Consumer Loan status
Each Consumer Loan shall be, as at the relevant Valuation Date, performing (in bonis). This
means that, as at the relevant Valuation Date, none of the Consumer Loans shall:
(B)
(i)
have Unpaid Instalments;
(ii)
have ever had, since its execution, more than three, consecutive or inconsecutive
Unpaid Instalment;
(iii)
be classified as a credito in sofferenza or a credito incagliato in the books of the
Originator in accordance with the Bank of Italy’s guidelines.
Types of Consumer Loans
Each Claim shall, as at the relevant Valuation Date, arise from Consumer Loans which fall in
one of four categories:
(C)
(i)
“Personal Loans”, i.e. loans without specific purposes requested by, and advanced
to, the Borrowers directly or to a person specified by that Borrower, but different
from a Retail Distributor (Convenzionato), and defined as “personal loans”;
(ii)
“New Car Loans”, i.e. loans granted for the purchase of (i) vehicles (including cars,
motorbikes, caravans and commercial vehicles with a weight not exceeding 3,500
kilograms) registered with the Car Registration Board (P.R.A. — Pubblico Registro
Automobilistico) for not more than 12 months as at the date of execution of the
relevant Consumer Loan or of (ii) boats registered with R.I.D. (Registro
Imbarcazioni Diporto) for not more than 12 months as at the date of execution of the
relevant Consumer Loan and in both cases granted to the Borrower and advanced to
the relevant Retail Distributor (Convenzionato);
(iii)
“Used Car Loans”, i.e. loans granted for the purchase of (i) vehicles (including cars,
motorbikes, caravans and commercial vehicles with a weight not exceeding 3,500
kilograms) registered with the Car Registration Board (P.R.A. — Pubblico Registro
Automobilistico) for more than 12 months as at the date of execution of the relevant
Consumer Loan or of (ii) boats registered with R.I.D. (Registro Imbarcazioni
Diporto) for more than 12 months as at the date of execution of the relevant
Consumer Loan and in both cases granted to the Borrower and advanced to the
relevant Retail Distributor (Convenzionato); and
(iv)
“Other Purpose Loans”, i.e. loans exclusively aimed at either the supply of services
or the purchase of goods other than those specified in the previous paragraphs (ii)
and (iii), granted to the relevant Borrower and advanced to the relevant Retail
Distributor (Convenzionato).
Borrowers
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(D)
(i)
As at the execution date of the relevant Consumer Loan, the relevant Borrower shall
be an individual (persona fisica) resident in Italy;
(ii)
As at the disbursement date of the relevant Consumer Loan, none of the relevant
Borrowers shall be either an employee, an agent or an attorney in fact of Santander
Consumer Bank S.p.A. or of other companies belonging to the Santander Consumer
Bank S.p.A. group (Gruppo Bancario Santander Consumer Bank);
(iii)
no Consumer Loans shall be disbursed to borrowers which entered into other
consumer loans agreement with Santander Consumer Bank S.p.A., even in the past,
pursuant to which Santander Consumer Bank S.p.A. exercised the right to declare
them accelerated (decaduti dal beneficio del termine).
Interest rate type
As at the relevant Valuation Date, each Consumer Loan shall be a fixed rate loan.
(E)
Amortisation
As at the relevant Valuation Date, each Consumer Loan shall provide for the repayment of
principal in several instalments in accordance with the so-called “French method” (as agreed
on the relevant execution date of the relevant consumer loan) whereby instalments consist of
(i) a principal component which increases over time according to a pre-determined schedule
agreed at the date of disbursement and (ii) a variable interest component which decreases over
time.
Concentration
The Originator has represented and warranted in the Warranty and Indemnity Agreement the
concentration of Initial Consumer Loans from which the Initial Claims arise (measured by reference
to the aggregate outstanding principal of the Initial Claims in respect of all Initial Consumer Loans of
that type) calculated in respect to the aggregate Initial Portfolio is, as at the Initial Valuation Date:
(i)
for Initial Consumer Loans granted by branches of the Originator located in Southern Italy
equal to, or lower than, 35%;
(ii)
for Initial Consumer Loans which provide for postal payments (i.e. not by direct debit of the
Borrower’s account), equal to, or lower than, 30%;
(iii)
for New Car Loans, equal to, or higher than, 50%
(iv)
for Used Car Loans, equal to, or lower than, 25%;
(v)
for Personal Loans, equal to, or lower than 35%;
(vi)
for Other Purpose Loans, equal to, or lower than 8%; and
(vii) the Internal Rate of Return is not lower than 7.40%.
In addition to the above, the Originator has undertaken in the Warranty and Indemnity Agreement that
the concentration of Consumer Loans from which the Claims arise (measured by reference to the
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aggregate outstanding principal of the Claims in respect of all Consumer Loans of that type)
calculated in respect to the aggregate Portfolio will be, as at the relevant Valuation Date:
(a)
for Consumer Loans granted by branches of the Originator located in Southern Italy equal to,
or lower than, 35%;
(b)
for Consumer Loans which provide for postal payments (i.e. not by direct debit of the
Borrower’s account), equal to, or lower than, 30%;
(c)
for New Car Loans, equal to, or higher than, 50%
(d)
for Used Car Loans, equal to, or lower than, 25%;
(e)
for Personal Loans, equal to, or lower than 35%;
(f)
for Other Purpose Loans, equal to, or lower than 8%;
(g)
the Internal Rate of Return is not lower than 7.40%.
The Originator and the Issuer may amend either the categories set out in (d) and (e) above or the
percentages set out above on or around the transfer of the Additional Claims provided that the Issuer
sends a prior notification to S&P in respect of such amendment. Such amendments will be disclosed
in the applicable Offer to Sell and Final Terms and, if so required by Directive 2003/71/CE and its
implementing rules, through a prospectus supplement.
“Southern Italy” means the territories of the Italian regions of Campania, Basilicata, Puglia,
Calabria, Sicily, Molise, Abruzzi and Sardinia.
“Internal Rate of Return” means, (i) in relation to the Initial Claims, the aggregate weighted
average T.A.N. of the Instalments scheduled to be paid in relation to the Initial Claims after the Initial
Execution Date together with any commission pertaining thereto; (ii) in relation to the Subsequent
Claims and/or Additional Claims transferred or to be transferred on a particular Subsequent Transfer
Date, the aggregate weighted average T.A.N. of the Instalments scheduled to be paid in relation to
such Subsequent Claims and/or Additional Claims after such Subsequent Transfer Date together with
any commission pertaining thereto; and (iii) in relation to the Claims, the aggregate weighted average
T.A.N. on all outstanding Instalments of the Claims together with any commission pertaining thereto.
“T.A.N.” means, in respect of each Consumer Loan, the annual nominal rate of return (tasso
nominale annuo).
The Claims backing the Notes have characteristics that (taken together with the structural features of
the Programme and the arrangements entered into or to be entered into in accordance with the
Transaction Documents) demonstrate capacity to produce funds to service any payments due and
payable on the Notes in accordance with the Conditions.
Main characteristics of the Portfolio
Each Final Terms will contain tables setting out statistical information representative of the
characteristics of the Portfolio, the Initial Portfolio and/or the Additional Portfolio, as the case may
be. The tables will derive from information supplied by the Originator in connection with the
acquisition of the relevant Claims by the Issuer on the Initial Execution Date in relation to the Initial
102
Claims or the Subsequent Transfer Date in relation to the applicable Additional Claims. The
information in the tables will reflect the position as at the relevant Valuation Date.
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THE ORIGINATOR AND SERVICER
Santander Consumer Bank S.p.A. (the “Originator”) is an Italian bank that provides a range of retail
and commercial banking and other financial services to customers in Italy, with services currently
focusing on consumer credits, personal loans, car leasing and credit card loans.
Historical background and general information
On 16 November 1988, ten medium-sized banks operating in the Piedmont, Liguria and Aosta Valley
areas and their subsidiary leasing company, Leasimpresa S.p.A., incorporated the Originator in Turin,
with the aim of targeting the consumer credit market through a specialised company. These ten
founding banks were Banca Anonima di Credito S.p.A. (currently named Banca del Piemonte
S.p.A.), Banca Brignone S.p.A., Banca Cuneese Lamberti, Meinardi & C. S.p.A., Banca Passadore
S.p.A., Banca Piemontese S.p.A., Banca Sella S.p.A., Banca Zanone S.p.A., Banca di Credito P.
Azzoaglio S.p.A., Banco Valdostano A. Berard S.p.A. and Banca Fratelli Ceriana S.p.A. The
Originator was established as a financial intermediary (intermediario finanziario) and was registered
in the special register held by the Bank of Italy pursuant to article 107 of the Banking Act. The
Originator's shareholders have varied significantly over the last decade. In particular, in 1993 Istituto
Bancario S. Paolo di Torino (now known as Intesa SanPaolo S.p.A. (“Intesa”)) purchased a 20%
stake in the Originator. By late 1993, the shareholders of the Originator were:
Shareholders
Percentage of shareholdings
Banca di Credito del Piemonte S.p.A.
Fincab S.p.A. (CAB Group)
Insel (Banca Sella Group) S.r.l.
Istituto Bancario S. Paolo di Torino S.p.A.
Reale Mutua Assicurazioni S.p.A.
20%
20%
20%
20%
20%
In 1997, Istituto Bancario S. Paolo di Torino increased its shareholding to 50% while the other
shareholders sold their shares to CC-Holding GmbH (“CC-Holding”), a German holding company
indirectly owned by Santander Central Hispano (“SCH”). CC-Holding also controlled CC-Bank AG,
a German bank which manages SCH consumer finance business in Germany and in several other
European countries. In March 2003 the Originator’s two remaining shareholders (Sanpaolo IMI and
SCH) announced that an agreement had been reached for the sale of the 50% stake in the bank owned
by Intesa to the Santander Central Hispano Group (the “SCH Group”). The agreement involved the
initial purchase of a 20% stake.
As at the date of this Prospectus the Originator is wholly owned by Santander Consumer Finance,
S.A. and Santander Consumer Finance, S.A. is wholly owned by Banco Santander S.A. In May 2006,
the Originator changed its name from “Finconsumo Banca S.p.A.” to “Santander Consumer Bank
S.p.A.”, completing the process of integration with the Group.
The authorised and paid-up share capital of the Originator as at 31st October 2009 is €217,000,000,
following the increase of 45,000,000 perfected in June 2009, divided into 217,000 ordinary shares
having a face value of €1,000 each. All issued share capital is fully paid-up. In June 2001, the long-
104
term and short-term unsecured and unsubordinated debt obligations and financial strength of the
Originator was rated, respectively, “A-1”, “P-1” and “D+” by Moody's. In December, 2002 the longterm rating of the Originator was placed under credit watch for possible downgrade due to the
downgrade of the rating of the SCH Group because of its exposure in Latin America. In April 2003,
Moody's downgraded the Originator's long-term rating from “A-1” to “A-2”, whilst the short-term
rating was confirmed at “P-1” and the financial strength at “D+” with positive outlook. On 7 August
2003, Moody's upgraded the Originator’s financial strength from "D+" with positive outlook to "C–"
with stable outlook. On 14 October 2003, Moody's changed the outlook of the Originator's “A-2”
long-term debt rating from stable to positive, following the upgrade of the long-term rating of
Santander Consumer Finance from “A-2” to “A-1”. On 21 November 2003, Moody’s upgraded the
Originator's long-term debt rating from “A-2” to “A-1” following the upgrade of SCH’s long-term
rating from “A-1” to “Aa3”. During the year 2004 and 2005, Moody’s have confirmed these ratings.
In 2006, further to the financial strengthening of the Originator and its improved positioning in the
market, and taken into account a closer integration with the Santander Group, Moody’s increased the
Originator’s long-term deposit rating from “A1” to “Aa3”, confirming a rating on short-term deposit
of (P-1) and Financial Strength of (C-). During 2007, revising the SCH Group rating, Moody’s
downgraded the Originator’s long-term deposit rating from “Aa3” to “A1”, upgraded the Financial
Strength to “C-“ to “C+”, due to a change in the rating calculating method adopted by Moody’s and
kept the same short-term deposit rating at “P-1”. During September 2009, Moody’s downgraded the
Originator’s long-term deposit rating from “A1” to “Baa1” and downgraded the Bank Financial
Strength rating from “C” to “D+“, due to a revision on all the banks ratings, and also on those of the
Banco Santander Group. Moody’s also downgraded the short-term deposit rating from “P-1” to “P-2”
and changed their outlook from “Stable” to “Negative”.
The Originator's registered address is at via Nizza 262, 10126, Torino, Italy.
Organisational structure
General
During the year 2008, the Originator maintained the position reached in previous years. As at 31
December 2008, the Originator had 59 branches, all with a specific office fully dedicated to direct
loans and many brokers/operating desks working in close relationship with the branches. Such
brokers/operating desks are typically companies separated from the Originator which work in areas
where, due to market conditions, the establishment of a branch would not be the most efficient way to
service the Retail Distributors (Convenzionati) and the customers in terms of costs/revenues ratio and
other economic factors. These brokers/operating desks are under the control of the nearest branch of
the Originator with which they maintain a close working relationship, and each broker/operating desk
must conduct its affairs in accordance with rules and regulations set out by the Originator.
Commonly, the brokers/operating desks' main tasks include the development of commercial
relationships with Retail Distributors (Convenzionati) and customers and the collection of
documentation relating to finalised loan applications. Brokers/operating desks are not permitted to
accept or approve any application, which must be left to the decision of the particular branch.
The commercial network
105
As at 31 December 2008, the Originator employed 684 people. The Commercial Department's
objective is to ensure that the Originator's product areas (Direct Business, Bank Products, Leasing,
Renting and National Agreements) and the support areas (the Marketing Unit, the Call Centre and the
Processing Area) all co-operate and interact with each other. In particular:
–
within their own geographical business, the territorial areas must (i) guarantee that the
branches develop in accordance with the strategies adopted by the top management and the
Board of Directors; (ii) support the commercial activity of the branches; (iii) authorise
commercial agreements with agreed Retail Distributors; and (iv) advise the Staff and Personnel
Department in the staff selection process. The Manager of each branch reports directly to its
Regional Area Manager;
–
the Direct Loans Area focuses on personal loans and is responsible for the business planning,
development and monitoring of such activities. Currently, every branch has at least one person
fully dedicated to the development of the direct business;
–
the National Agreements Area is in charge of the Originator's promotion, negotiation and
management of certain partnership agreements with counterparts who have their own
established commercial networks in order to create a number of direct and indirect points of
sale. These agreements lessen the need to conduct door-to-door promotional activity and thus
achieve a higher level of efficiency. The main aim is to increase the Bank’s database through
the acquisition of new customers, especially for the durables and motorcycles business. The
agreements are generally entered into with manufacturing companies and retail distributors. At
present, more than 40 partnership agreements are live, in the most important markets like
Automotive (Mazda, Kia Motors & the National Association of Audi/VW Dealers, Yamaha,
Peugeot Motorcycles, Harley Davidson, KTM, MV Agusta, Triumph), durables
(Feg&Salvarani, Goodyear/Dunlop) and digital photo and electronic market (Canon, Kodak
and Bang & Olufsen). These counterparts entered into the partnership agreements to promote
sales by offering, through the Originator, financial services (i.e. consumer credit, Leasing and
Stock Financing) to their customers/dealers. Interests paid by partners on campaigns are lower
than under the usual consumer credit loans; in this way consumer finance becomes a real
support to increase sales. In some cases Santander acts like a real “Captive” partner (i.e.
Mazda) and develops tailored products/operations in order to fit the needs of the Manufacturer.
–
to further enhance the Originator's efficiency, a Processing Area was created by unifying the
main activities performed by the back-office and the approval tasks (for all applications and
amounts) previously carried out by branches.
The table below shows the changes in the number of employees, branches and agents of the
Originator from 2001 to 31 December 2007:
Employees, branches and brokers/operating desks
Number
Employees
Number of
As at 31
December
2008
As at 31
December
2007
As at 31
December
2006
684
702
738
As at 31
December
2005
As at 31
December
2004
As at 31
December
2003
As at 31
December
2002
of
670
106
584
478
456
Branches
59
59
59
52
39
24
24
Management
The management of the Originator is carried out by the Executive Committee and the Board of
Directors.
The composition of the Board of Directors is the following:
Position
Name
Chairman
Deputy Chairman
Director
Independent Councilman
Director
Director
Managing Director/General Manager
*Members of Executive Committee
Ettore Gotti Tedeschi*
Serrano Gonzalez Ines*
Francisco Javier Anton San Pablo*
Carlo Callieri
Zulueta Ernesto Benito
Paul Adriaan Verburgt
Mauro Viotto*
The Board of Directors is vested with powers for the Originator's ordinary and extraordinary
management, and may perform all required actions for the implementation and achievement of
corporate objects, excluding those actions reserved by law to the Originator's shareholders' meeting.
Therefore, it carries out all the Group's strategic policies, as well as the control and monitoring of the
Originator’s results. Furthermore, it is in charge of the definition, compliance, and implementation of
the corporate governance rules of the Originator.
In carrying out its mandate, the Board of Directors addresses and takes decisions concerning vital
aspects of the bank’s business, always in accordance with the strategic policies and stances of the
Santander Group. In particular, it:
•
determines short-term and medium-term management policies and approves strategic projects
as well as corporate policies (strategic plan, operating plans, projects);
•
identifies the bank’s willingness to accept various types of risk according to expected business
returns;
•
approves capital allocation methods and the macro-criteria to be adopted in applying
investment strategies;
•
approves the budget and supervises general management policies;
•
prepares the periodic reports on operations and the annual accounts, with the related proposals
for allocation of the net income for the subsequent Shareholders’ Meeting;
•
examines and approves transactions with a major impact on operations, capital, cash flow and
risk;
•
reports to Shareholders’ Meetings;
107
•
approves the organisational structure and related regulations and supervises suitability in terms
of business;
•
approves the system of powers of attorney;
•
approves the audit plan and examining the results of the most significant actions.
The Chairman of the Board and, if appointed, the Deputy Chairman of the Board and the Managing
Director, act as the company's legal representatives. The Board consists of between five and 13
members, and meets at least quarterly. Moreover, the by-laws provide for the Board of Directors to
delegate, as permitted by law, some of its powers to an Executive Committee, consisting of between
three and six members of the Board. Currently (October 2009) the Committee consists of four
members and it may resolve on any matter which the Board of Directors has the power to carry out,
with the exception of those powers which cannot be delegated either by law or under the by-laws.
The Committee meets on a monthly basis, except for the months when the Meeting of the Board of
Directors is held.
The top-management level of the Originator consists of the following (October 2009):
Position
Name
Managing Director
Deputy General Manager in charge of the
Control/Planning Dpt.
Deputy General Manager in charge of the H.R.
Organiz. Dept and IT Dpt.
Deputy General Manager in charge of the
Commercial Dpt.
Deputy General Manager in charge of the Finance
& Accounting Dpt.
Managing Director of Santander Consumer
Finanzia and Responsible for Credit and Recovery
Dpt. of Santander Consumer Bank
Mauro Viotto
Marco Gariglio
Guido Pelissero
Pietro Vailati
Maurizio Valfrè
Juan Ramon Duque Bilbao
The above-mentioned top managers are members of the Management Committee. The General
Management carries out the following activities:
•
liaising with the bodies of the Santander Group in drafting the strategic plan to be submitted to
the approval of the Board of Directors, as well as in relation to all major management issues or
for studies and projects of high strategic value;
•
liaising with the bodies of the Santander Consumer Finance, S.A. controlling company in
drafting operating plans that are subsequently submitted to the approval of the competent
bodies and also monitoring of performance and issues regarding the various executive
activities;
108
•
supervision of global strategies application as resolved by the Board of Directors, verifying
compliance of company operations with policies regarding investments and adoption of
organisational resources and empowerment of personnel;
•
identification and definition, according to the strategic guidelines defined by the Board of
Directors, of repositioning of the organisational and governance model and of major projects
to be submitted to the approval of the related administrative bodies, supervising application of
these;
•
formulation of preliminary analysis in order to define the risk management and performance
targets of the various business activities;
•
supervision of relationships and contacts with the markets and institutional investors;
•
promotion of actions able to reinforce corporate ethics as a mainstay of the internal and
external conduct of the bank.
In particular, the Managing Director/General Manager, who participates at the meetings of the
Administrative Bodies, is also responsible for taking the decisions regarding credit, pursuant to the
powers granted to him, acts as Head of Personnel, represents the bank in legal actions and
proceedings, liaises directly with the Statutory Auditors, the Independent Auditors and the Bank of
Italy, orders routine inspections and administrative inquiries in accordance with the audit plan or as
proposed by the competent authorities.
The number of the Committee Members, as well as their appointment or revocation, is determined by
the Board of Directors. The Committee Members operate jointly by co-operating and keeping
themselves mutually informed on any important matter concerning their respective operating areas.
The General Manager acts as the Chairman of the Committee; among his tasks, he calls the meetings,
co-ordinates the Committee's activity and represents the Committee within the Corporate Bodies.
Pursuant to Italian law, the shareholders must appoint a Statutory Board of Auditors (Collegio
Sindacale) which consists of three regular Statutory Auditors and two alternate Statutory Auditors.
The composition of the current Statutory Auditors is the following (October 2009):
Position
Chairman
Auditor
Auditor
Alternate auditor
Alternate auditor
Name
Alessandro Braja
Giorgio Ferrino
Roberto Mignanego
Francesco Maria Spano
Edoardo Aschieri
According to the by-laws, the main tasks of the Board of Statutory Auditors include checking formal
and substantial correctness of administrative activities; the Board is also entitled to liaise with the
Supervisory Authorities and the Independent Auditors. At present, the Board of Statutory Auditors
performs its functions through direct audits and also by acquiring information from members of the
Administrative Bodies and from representatives of the Independent Auditors.
In particular, the main activities of the Board include:
109
•
supervising compliance with laws and the by-laws in accordance with the principles of correct
administration;
•
verifying the adequacy of the organisation model, with specific reference to efficiency and
correct functioning of the internal control system;
•
investigating major problems and issues highlighted during auditing and monitoring of the
related corrective actions.
The Statutory Auditors are responsible for overseeing management and for verification of compliance
in accordance with applicable Italian law and the Originator's by-laws. They are also responsible for
ensuring that the Originator's organisation, internal auditing and accounting system are adequate and
reliable. The Statutory Auditors are usually appointed for a three-year period. They have to meet on a
quarterly basis each year and are required by law to attend each Board of Directors’ meeting and,
although not strictly required by law, the Executive Committee's meetings. In accordance with
applicable Italian regulations, the accounts of the Originator must be audited by external auditors
appointed by the shareholders. The appointment must be approved by the Statutory Auditors. Deloitte
& Touche S.p.A. has been appointed for a three-year period to audit the financial statements of the
Originator.
Business and market approach
Products currently offered by the Originator may be classified under the following six main
categories:

Consumer Credits (ad-hoc loans);

Personal Loans;

Car Leasing;

Credit Cards Loans;

Savings Deposits;

Fifth of Salary.
On a historical basis and as of the date of this Prospectus in terms of volume, the core business is
consumer credit. The Originator is looking, however, to develop further its relationships with
borrowers and to enhance its own presence in other business areas whilst maintaining a conservative
approach to its business.
Consumer credit
These are the simplest type of loans, i.e. those where the instalments (which are due on a monthly
basis) remain the same along all the life of the loan (the first instalment is due 20 to 50 days after the
contract has been signed). Over the last decade, the Originator has gradually enlarged its product base
in relation to these loans to be able to keep in line with its competitors' standards.
All loans have monthly instalments with payments due on the 1st or the 15th of each month. Purpose
loans accounted for 86% of the Originator's turnover up to September 2009. Middle-class families
110
with medium to medium-low monthly incomes are the typical target of consumer credit services. The
duration and average amount lent on loans of this nature depend on the products being financed: for
example, the average terms of loans for cars and motorbikes are respectively 52 and 31 months with
average financed amounts of €13,281 and €4,545; the average term for direct loans is about 75
months with an average financed amount of €17,000. In any case, the financed amount must not
exceed €78,000 for a maximum duration of 120 months. Consumer credit loans may also be insured
by the relevant debtor in favour of the Originator against the risk of death and temporary disability
through primary insurance companies.
As shown in the table below (as at September 30th, 2009), purpose loans may be divided into various
classes having different characteristics:
Maximum term of the
loan (month)
Maximum amount per
loan ()
Average amount per loan
()(2008 new business)
Payment frequency
Financed product
New vehicles:
Cars
Motorcycles
Caravans
Boats
90
60
120
96
78,000
31.000
78.000
52.000
13,281
4,545
27,437
7,939
Monthly
Monthly
Monthly
Monthly
Used vehicles:
Cars
Caravans
60
96
41,500
52,000
9,783
17,806
Monthly
Monthly
60
31,000
1,471
Monthly
84
120
31,000
33,000
4,709
17,044
Monthly
Monthly
Other products:
Electric
Appliances
Furniture
Personal Loans
At 30th June 2009, the total amount of outstanding credits in the Italian domestic market amounted to
approximately €29,099 billion, according to the Assofin data-base (Assofin is the Italian association
of leading companies and banks acting in the consumer credit market). At 30th June 2009, the
Originator held a market share equal to 5.9% of the total Assofin business volumes, securing the fifth
position in the consumer credit market. The banking department, which, in November 2002, launched
current accounts available to Retail Distributors for credit and settlement purposes and to employees,
offered to its customers in March 2005 a savings deposit, that is becoming a considerable success.
With regard to the car financing market, in 2005 the Originator launched a stock financing product in
order to retain a large number of dealers.
Personal Loans
Whilst consumer credit loans, by law, must have well-specified purposes, Personal Loans are granted
both for specified and general purposes. The selected customers are those previously acquired
through consumer credit business who have good credit records. Typically, a Personal Loan is offered
to customers who have had a consumer loan or during the course of a regular pay back plan. The size
and the maturity of such loans range from €1,500 up to €30,000 and from 6 to 84 months respectively
and it is also possible to manage personal loans with a duration of 120 months, in particular for house
111
renovation loans. In this case the limit can be increased to €50,000. During the last year, the activity
of the Originator in the Personal Loan area has grown significantly. The personal loan segment
accounts for approximately 29% of the Originator's total portfolio and at 30th June 2009, the
Originator had a 5.11% market share in this area (Assofin associated). Nowadays the Originator is
working on the integration of different communication channels (mailing, SMS, e-mail and
telemarketing) in order to optimize the contract activity with the customer base. An important activity
of this segmentation has been managed with the new internal data warehouse. This has enabled a new
range of Personal Loan to be offered to specific customer clusters.
Personal loans business has obtained, as at 30 September 2009, a yearly increase in lending of
10.93% moving up from €719,000,000 to €797,707,000.
The Direct channel has reached this goals thanks to a development of new synergies with third
parties, an efficient customers service, well-structured campaigns and an increasing attention to direct
marketing strategies.
During 2009, this department was involved in a large suite of projects:
-
Improvement of the synergies with third parties, in particular with Real Finance S.p.A., a wellstructured company formed by more than 50 brokers who work all over Italy and with Unifin
S.p.A., a company which manages loans secured by one fifth of the borrowers’ salary through
its own agency network. Unifin S.p.A. is owned by Santander Consumer Finance. Our
personal loans are handed out also through 60 Unifin S.p.A. agents.
-
Development of the agreement with the Mediolanum Group, one of the most important
investment banks in Italy, in order to distribute the Santander personal loans through a network
of over 6,000 family bankers who are in charge of proposing such personal loans directly to
customers.
-
Branch telemarketing activities on existing portfolios were further reinforced and upgraded
with excellent results.
-
Branch retention and loyalty enhancing activities.
-
In cooperation with the legal department, credit and auditing, the personal loan product
management procedures were improved to obtain the best results in commercial terms and also
in portfolio quality.
-
To improve the operating efficiency and to promote better management of the network, the
commercial structure of Direct Loans was divided in two channels: branches and brokers. The
first channel has two Area Managers who coordinate with two supervisors. The broker
network is led by one Manager with three Regional Managers under him. Each Regional
Manager has to organise the activities of nine Key Account Managers. The Key Accounts
Managers have specific skills and professional experience to manage liaisons with all brokers
for the entire range of financial products.
Particular attention was also dedicated to sharing with the sales network about several topics
regarding the quality and profitability of Direct Loans portfolio.
Car Leases
112
The Originator provides finance for car purchasing through its finance lease activity both to
companies and private individuals. The average maturity ranges from a minimum of 24 months up to
a maximum of 72 months for private cars, from 30 months up to 72 months for commercial vehicles,
from 24 months up to 72 months for motorbikes and from 24 months up to 120 months for motor
caravan. The targeted customers are usually small to medium companies.
This is a fast growing product which is getting more and more strategic for the Originator. As at 30th
August 2009, the Originator had a 9.06% market share in the car leasing industry. Nonetheless, the
Originator is planning to further enhance its leasing segment with the sale of collateral insurance
products and new partnerships with commercial entities.
Credit Cards
Since 1997 Santander Consumer Bank S.p.A. started with the production of credit cards, with the
object to conjugate its expertise in managing credits with the possibility of establishing a direct
contact with final customers.
To achieve this result Santander Consumer Bank S.p.A. has become a Principal Member both of Visa
International and Europay MasterCard International, and developed a private platform to offer to its
main dealers the possibility of private co-branded programmes.
Santander Consumer Bank issues these types of card:
•
Revolving credit card (private, co-branded, Gold, Standard).
•
Charge card (most of all co-branded).
•
Since 2006 debit card of Cirrus platform.
The main channels used to develop this business are:
•
Santander’s Data Base, that has allowed to issue approximately 400,000 cards (Charge or
Revolving).
•
Co-branded cards programmes, with regard to private platforms (since July 2006, in partner
with DeAgostini, one of the most important Italian Publishing companies, Santander Consumer
Bank issues Private platform cards) or international platforms (Visa and MasterCard).
•
Prime programmes such as MasterCard Gold credit cards, to particular customer segments.
•
Company’s programmes, to offer the best product to employees of Santander main partners.
Partners can benefit from corporate credit card programmes, which allow them to manage all the
expenses made for the Company, without any additional charge. Moreover, partners’ employees can
choose between the whole portfolio of products offered by Santander Consumer Bank S.p.A., at the
best conditions available (i.e. personal loans, credit cards, etc.).
Here below, we outline the main credit cards issued by Santander Consumer Bank:
113
Channel
Issued Cards
Main Partners
Direct Mailing
11,000
Carta Santander/Harley Davidson/Yamaha
Co-Branded Programmes
190,000
Yamaha
Harley - Davidson
Triumph
Allianz Lloyd Adriatico
Generali Assicurazioni
Genialloyd
Olio Carli
CRAI
MasterCard Gold
90
Padova Star
Company’s Programmes
Yamaha
Allianz Lloyd Adriatico
Axa Assicurazioni S.p.A.
Santander Consumer Bank S.p.A.
Regarding its strategic plan, Santander gives to its dealers the possibility to open a credit card with an
instant credit.
This kind of policy has two main advantages:
•
it allows to obtain positive results in terms of customer loyalty;
•
it makes it easier to reach better results in terms of card re-use with the same dealer (cobranded used cards give better results, in terms of number of carried out transactions,
compared with international platforms).
In order to protect the purchasing power of each credit card, Santander Consumer Bank can manage a
double credit limit, one dedicated to particular categories of products and the other to the rest of
products sold in the store. As a result, one single large purchase of products of a particular category
will not prevent from purchasing products of different categories. The financial conditions charged
on each of the two credit limits can be agreed between the partners and can be different.
Marketing
Direct & indirect channel activities
Direct channel activities have been focused on existing customers using different channels: mailing,
SMS and e-mailing and having a special focus on new products: DIMEZZO, OLE’, RATA LIGHT
are some examples.
114
A new customer base project is ongoing and will be ready at the beginning of 2009; the main goal is
to have a user-friendly instrument enabling the creation of clusters related to different customers
socio-demographic profiles. The new customer database has been up and running since the beginning
of 2009, the new tool has provided the possibility to have a better customer segmentation which helps
the business to identify new customer clusters and improve redemption.
Marketing activities on credit cards have been carried out using a new contact method: a new mailing
was launched in June and a telemarketing activity of existing customers was used with the aim of
increasing the activation rate.
An important activity of customer retention is dedicated to existing customers.
Insurance
The marketing department developed new insurance products, renewing the agreement with
insurance companies in the “Credit Protection” product, and strengthening the partnership with
Assicurazioni Generali, Allianz-Lloyd Adriatico and La Piemontese Assicurazioni, a leading
insurance company belonging to Reale Mutua, for the distribution of products concerning insurance
against fire and theft. The new product GAP launched with the collaboration of Cardif Risques
Divers, in May 2008, delivered a good result in both term of net profit for the Bank and increasing
dealer loyalty. Two new products, with the collaboration of Europ Assistance, were launched just
after summer, one is dedicated to durables business and cover “All Risks” that could affect financed
goods, the second is an assistance product “Stop & Go” dedicated to the auto segment.
A process of continuous optimization was carried out to reach the budget of insurance products sold
together with financial services, in particular through new products and prices in order to achieve a
higher market penetration especially in the automotive sector, while acting in accordance with the
provisions of ISVAP Regulation No. 5 dated 16 October 2006 which addresses the insurance
intermediation activity.
Fifth of salary
In May 2006, after Santander Consumer Finance acquired part of the share capital of Unifin S.p.A.,
Santander Consumer Bank entered into the market of the fifth of salary by signing an agreement for
the purchase of the outstanding loans issued by Unifin S.p.A., a company that specialises in this
market. Santander Consumer Finance owned the 100 per cent of Unifin S.p.A. during June 2009. The
business generated by this new product amounted to €133,000,000 and €204,400,000 in 2007 and
2008, respectively. The average term (in months) of this product, concerning the new business 2008,
is about 100 months, while the average term (in months) concerning the new business 2009 is about
103 months.
As at 30th September 2009, the new business generated approximately €296,900,000.
All the loans have monthly instalment with payment due on the last day of each month. Borrowers
opting for these loans are both private employees and state employees.
Banking products
115
On September 30th, 2009, there were around 7,300 active “Santander Consumer Accounts” (the highyield deposit account) with total deposits of €298,000,000.
The marketing of “Santander Time Deposit”, which offers particularly interesting returns to
customers who make deposits for a pre-established period of time (6 or 12 months) continued in
2009. From May to July, the 2008 campaign, with a rate of 5.40%, expired, which resulted in a
reduction in the total deposited amount. At the end of September 2009 there were around 600
accounts with total deposits of €35,400,000.
Opening of current accounts for franchised sales points continued, as preferred instruments for the
settlement of directed workflows and short-term management of cash, and also as settlement
accounts for stock financing product operations (financing of stocks of goods – new vehicles and
motorbikes – reserved for top dealers) which, during the year, contributed to sustaining and
integrating the Bank’s core business. At the end of September 2009, with regard to stock financing,
there were about 300 active positions, and credit lines granted reached about €210,000,000, with
average draw-down during the year of around €89,000,000.
Guarantees and securities
Contracts in respect of personal loans and purpose loans are mostly executed by the customer and
one or more relatives (spouse and/or parents) or third parties acting as co-obligors. Sometimes the
customer is required to sign a number of bills of exchange in favour of the Originator for a maximum
agreed amount. Bills of exchange constitute title (titolo esecutivo) to commence proceedings directly
against the client, without having to obtain a previous court order. Purpose loans financing the
purchase of cars or other vehicles might be secured by mortgages (ipoteca su beni mobili registratimortgage over registered movable property) which can benefit from a mandate to register such
mortgages in the public registers executed by the customer in favour of the Originator.
The following table shows a summary of various aspects of the business of the Originator:
Outstanding
Auto Loans
Purpose Loans
2005
2006
2007
2,716,830,144.6
3,605,631,037.0
449,812,945.4
365,312,237.3
2008
2009, September
3,947,121,408.6
4,341,837,103.2
4,464,898,908.3
337,795,653.0
309,418,691.1
329,432,614.8
1,570,503,945.5
Personal Loans
528,796,110.2
752,845,233.9
1,053,996,485.8
1,660,498,450.9
Cards
151,518,182.0
154,463,295.5
140,630,252.3
116,357,525.6
105,443,670.3
Stock
4,962,536.7
9,255,700.1
61,394,151.3
61,376,503.5
87,360,370.7
56,584,785.0
169,370,146.4
291,199,836.7
562,957,230.8
5,710,308,097.2
6,780,688,110.0
7,120,596,740.4
Fifth of Salary
TOTAL
-
3,851,919,919.0
4,944,092,288.9
116
The following financial information has been extracted from the Originator’s 2005, 2006, 2007 2008
and 2009 (September) unaudited unconsolidated annual internal management reports, with proper
allocation of results coming from the securitised portfolios.
New Loans breakdown by business area
€/000
2005
2006
2007
2008
2009
(September)
New Cars
1,497,100
1,682,400
1,553,000
1,760,300
1,136,200
Used Cars
258,300
314,900
270,300
334,200
260,100
1,755,400
1,997,300
1,823,300
2,094,500
1,396,300
Durables
315,200
320,400
262,600
257,700
168,700
Cards
158,700
166,800
211,500
184,500
102,100
Direct
384,000
524,800
727,300
972,300
797,700
Other
1,100
59,100
132,800
204,400
296,800
Total
2,614,400
3,068,400
3,157,500
3,713,500
2,761,600
Cars
Assets Breakdown by Residual Maturity
Amount (€/1.000)
As at 31
December 2005
As at 31
December 2006
As at 31
December 2007
As at 31
December 2008
As at 30
September 2009
Up to 3 months
260.434
283.610
268.715
331.044
371.848
Over 3 months up to 1 year
662.028
733.800
711.278
784.518
866.950
Over 1 year up tp o 5 years
1.343.645
1.700.471
1.780.633
2.089.047
2.440.847
58.922
96.820
175.734
305.524
428.650
2.325.030
2.814.701
2.936.360
3.510.133
4.108.295
Over 5 years
TOTAL
Non performing loans analysis
3 instalments
6 instalments
Net Management outstanding
Risk Ratio
As at 31
December 2005
As at 31
December 2006
As at 31
December 2007
As at 31
December 2008
As at 30
September 2009
Outstanding
Outstanding
Outstanding
Outstanding
Outstanding
96.129.375
145.856.990
2,55%
3,03%
51.202.072
87.474.108
1,36%
1,82%
3.767.271.300
1,42%
4.805.880.600
1,61%
117
164.610.456
3,01%
116.905.804
201.069.114
2,92%
167.178.152
271.986.362
3,74%
224.930.011
2,14%
2,43%
3,09%
5.474.962.950
6.180.271.667
7.079.579.361
1,62%
1,79%
1,89%
THE CREDIT AND COLLECTION POLICIES
Credit Policy
Origination sources
Santander Consumer Bank S.p.A. originates consumer loans through different channels:
 Branches of Santander Consumer Bank S.p.A.
The company advances personal loans to customers directly on the premises and provides indirect
assistance to the Retail Distributors (Convenzionati) on ad-hoc consumer loans.

Retail Distributors (Convenzionati)
The majority of consumer loans granted by Santander Consumer Bank S.p.A. are originated through
this channel, only in the form of ad-hoc consume loans and consumer loans granted for the purchase
of new and second-hand vehicles. The consumer loan is advanced to facilitate the purchase of an
asset on the part of the customer. The process starts by gathering the application form, the
information and the documents necessary for granting the consumer loan, which are sent by
fax/internet to Santander Consumer Bank S.p.A. Alternatively, high-standing Retail Distributors
(Convenzionati) send the relevant information of the applicant directly to Santander Consumer Bank
S.p.A. through a computerized connection. The outcome of the consumer loan application is sent
either via the internet (immediately) or by fax (within 4 hours). The amount granted is paid to the
Retail Distributor that supplies the asset to the relevant customer.

Mailing/Marketing
Santander Consumer Bank S.p.A.’s customers who proved timely to meet their payments are
contacted by letter or the call centre. Customers who have fully repaid a short- or mid-term
consumer loan or at least 40% of a longer-term consumer loan are offered a personal loan. The letter
is accompanied by the contract. Then the customer contacts the call centre by phone in order to
agree a repayment plan, signs the contract and sends it directly to Santander Consumer Bank S.p.A.

Internet
These are personal loans, the application for which may be formalised by the customer directly
through the website of Santander Consumer Bank S.p.A. or of Prestitionline.
Consumer loan application
The applicant is required to provide the following documents:

application form, in a standard form set out by Santander Consumer Bank S.p.A. (the customer
fills in the form and signs it);

personal identification data: any document admitted under Presidential Decree no. 445 dated
28 December 2000, amongst which ID card, passport (administrators with foreign residence
may apply on behalf of companies with their registered office in Italy and with a company
search document (visura camerale) issued by the Chamber of Commerce not older than 90
days from the relevant consumer loan application date) and driving licence;
118

Fiscal code;

income certifications (save for certain promotional products and/or promotional campaigns):

1.
latest payslip for employees;
2.
latest income tax return for self-employed people and company (società di persone);
3.
latest pension slip/CUD/730 declaration;
4.
financial statements of the two last fiscal years for companies;
consumer loan information: characteristics of the consumer loan (amount, term, interest rates).
Consumer loan evaluation process
The relevant consumer loan application or the information on the consumer loan application are
sent either to external companies (outsourcing) or via the internet, by fax or off-line directly to the
head office of Santander Consumer Bank S.p.A. in Turin, where the evaluation is carried out. The
creditworthiness of a potential customer is assessed on the following basis:
-
database searches;
-
allocation and approval of a credit score.
Database checks (internal and external)
Searches in several databases to find information on the creditworthiness of potential customers are
carried out, as each database allows for different classification criteria and draws from different
sources. Searches usually concern potential customers and their guarantors.
Once the data from the relevant application form have been inserted in the electronic information
system, the system starts an automatic search in the following databases:
(1)
Santander Consumer Bank S.p.A.’s database
The analysis is carried out to check the customer’s behaviour in relation to any previous loans
granted by Santander Consumer Bank S.p.A. The main evaluation parameters include (i) the
average number of overdue payments; and (ii) the analysis of the customer’s past behaviour over a
certain period of time, the residual amount and the financed amount. No sociological data are taken
into account. Scores in this database are classified under three levels. Even when negative, the
outcome of this search does not prejudice the search in the other databases.
(2)
CTC (Consorzio di Tutela del Credito)
Santander Consumer Bank S.p.A. carries out a search also in this database managed by Consorzio
di Tutela del Credito (“CTC”) which is participated in by more than 90% of Italian financial
institutions. Currently over 1,000,000 records are on CTC’s record as “negative positions”.
(3)
CRIF’s database
CRIF’s database is managed privately and contains information on individuals who took out loans
in the past from Italian financial institutions (banks and finance companies). CRIF contains
information about over 36 million positions. This database enables an evaluation of the total debt of
119
the relevant individual towards the entire financial system, as well as any unpaid instalments and
loan applications rejected by other banks.
(4)
Experian
The Experian database is the world largest consumer credit database. In Italy, Experian ranks
second as to the number of recorded positions (whether negative or positive). The information
contained in this database is supplied by financial institutions, banks, mobile phone companies and
insurance companies.
The consultation of the various databases is carried out simultaneously and additional variables may
be taken into account (including telephone numbers, etc.). A score is assigned for each database.
The Experian weighted scores are then added up and the resulting value is further processed by the
evaluation system.
The evaluation system
The final evaluation of the consumer loan application is thus based on:
1.
the quality of the consumer loan application itself: Santander Consumer Bank S.p.A. assigns a
score to each piece of information; and
2.
the quality of the Retail Distributor which advanced the consumer loan application.
The Credit Scoring System: the assignment of a score to each consumer loan application
The credit scoring system is managed and developed by the Credit Department. Experian-Scorex
Ltd have been working on the development and management of the credit scoring system in
conjunction with Santander Consumer Bank S.p.A. since 1997.
The credit scoring system is processed on the basis of Santander Consumer Bank S.p.A.’s
experience since 1999. The system uses 16 scoring grids: 13 for individuals, 1 for companies, 1 for
credit cards and 1 for collection & LGD. Each group of grids distinguishes between different types
of products.
The grids have been developed on the basis of a number of variables, which may be classified under
three main categories:

sociological (age, marital status, occupation etc.);
 consumer loan-related (amount, instalments, instalments/income, number of instalments, term,
type of payment etc);
 behavioural (customers’ behaviour in respect of loan payments, acquired from various
databases).
120
The grid is updated every two/three years or sometimes more often if inconsistencies appear during
the periodical checks. A score is assigned to each variable considered. This credit scoring system
produces a result for each consumer loan application which is comprised between “AAA” and
“DDD”.
Highest Risk
Lowest Risk
•
•
•
•
•
DDD
CCC
CC
C
BBB
Automatic Reject
Automatic Reject
Automatic Reject
Automatic Reject
Manual Reject
•
•
•
•
•
BB
B
A
AA
AAA
Manual Approval
Automatic Approval
Automatic Approval
Automatic Approval
Automatic Approval
Consumer loan applications obtaining a negative score (and therefore rejected) may be overridden
and accepted at branch level. However, branches have a monthly cap that they may not exceed,
which limits their possibility to accept these consumer loan applications. The cap is determined
according to the risk level of the branch, calculated on an annual basis. Similarly, the officers of the
branch may reject a consumer loan application with a positive score, if deemed necessary. The
rejection of consumer loan applications with a positive score is not limited by any cap.
The Credit Scoring System: the score of the Retail Distributor
Assessment of the potential Retail Distributor
121
Santander Consumer Bank S.p.A. has agreements with about 11,065 Retail Distributors which have
generated at least one loan over the past 12 months (as at July 2009).
The staff of each branch negotiate and execute the trade agreements with the Retail Distributors
(Convenzionati). The process starts with an evaluation of the economic and financial fundamentals
of the Retail Distributor and its expected creditworthiness profile. The purpose of assigning a rating
to the Retail Distributor is to assess, based on historical data, the performance and reliability of
Santander Consumer Bank S.p.A.’s counterparties as they channel through potential customers for
the advance of new consumer loans.
Monitoring of the Retail Distributor
Santander Consumer Bank S.p.A. monitors and records the activity of each Retail Distributor with
which it has an agreement and prepares a monthly analysis assigning a specific score to each Retail
Distributor. Scoring is classified in 5 levels:

A (very good)

B (good)

C (average)

D (on a watch list)

E (negative)

N (not classified)
These scores are obtained through an assessment of the performance of a specific Retail Distributor
in the context of the general performance of the branch, taking into account the product
commercialised by the Retail Distributor. This way, different Retail Distributors (Convenzionati) are
compared in a consistent manner.
The products are:

Cars

Motorcycles

Other assets

Personal loans
The criteria upon which the assessment of the Retail Distributors (Convenzionati) is based in the
general context of the branch are as follows:
INDEXES
Bad / Write Off
Concentration
IRR and Commissions
Qualitative
Quantitative
Profitability
The sum of each score produces the Retail Distributor performance.
122
The relationship with the Retail Distributor may also be terminated for inactivity (no loans
generated by the Retail Distributor over a period of 12 months) or fraud (in this case, termination is
mandatory and irrevocable).
Authorisation levels
The table in the following pages describes the authorisation levels for Santander Consumer Bank
S.p.A.:
Personel Authorisation
Levels
Purpose Loans
Furniture
New Cars
Used Cars
-
-
10 FIL - Operativo Junior
€1,500
€3,000
20 FIL - Operativo Senior
€3,000
€5,500
€8,000
€5,500
30 FIL - Vice Responsabile
€5,500
€8,000
€13,000
€9,500
40 FIL - Responsabile
€8,000
€15,500
€18,500
€15,500
50 AREA - Responsabile
€15,500
€18,500
€26,000
€21,000
60 RETI - Responsabile
€21,000
€23,500
€36,500
€26,000
70 RETI - Responsabile
€26,000
€26,000
€46,500
€31,000
80 RETI - Responsabile
€31,000
€31,000
€62,000
€41,500
90 - Chief executive
€78,000
€78,000
€78,000
€78,000
* Duration Max (month)
60
* Limit for single debit
position
84
€31,000
€31,000
90
€78,000
60
€41,500
*Index of self-employed persons.
Motorcycle
New Caravan
Used Caravan
Personal Loans
Personel Authorisation
Levels
10 FIL - Operativo Junior
€2.000
-
-
-
20 FIL - Operativo Senior
€3,000
-
-
-
30 FIL - Vice Responsabile
€5,500
€15,500
€10,500
€4,500
40 FIL - Responsabile
€8,000
€26,000
€21,000
€8,000
50 AREA - Responsabile
€15,500
€36,500
€31,000
€15,500
60 RETI - Responsabile
€21,000
€41,500
€36,500
€21,000
70 RETI - Responsabile
€26,000
€52,000
€41,500
€26,000
80 RETI - Responsabile
€31,000
€62,000
€52,000
€31,000
90 - Chief executive
€78,000
€78,000
€78,000
€78,000
123
* Duration Max (month)
60
* Limit for single debit
position
€31,000
126
96
€78,000
120
€52,000
€33,000
*Index of self-employed persons,
House
Renovation
Repeat
Business
-
-
Credit
Cards
Fin rent auto
Fin rent
strumentale
€1,500
-
-
€5,500
€3,000
€8,000
€8,000
Personel
Authorisation
Levels
10 FIL - Operativo
Junior
20 FIL - Operativo
Senior
€5,500
30 FIL - Vice
Responsabile
€8,000
€8,000
€5,500
€13,000
€13,000
40 FIL Responsabile
€13,000
€13,000
€8,000
€18,500
€18,500
50 AREA Responsabile
€26,000
€21,000
€15,500
€26,000
€26,000
60 RETI Responsabile
€31,000
€23,500
€21,000
€36,500
€36,500
70 RETI Responsabile
€41,500
€26,000
€26,000
€46,500
€46,500
80 RETI Responsabile
€52,000
€31,000
€31,000
€62,500
€62,500
90 - Chief
executive
€78,000
€78,000
* Duration Max
(month)
* Limit for single
debit position
€78,000
€78,000
72
72
€78,000
€30,000
€78,000
120
120
€52,000
60
€33,000
€31,000
*Index of self-employed persons.
Purpose
Loans
Furniture
New
Cars
Used
Cars
Motorcycle
Fin rent
auto
-
-
-
-
-
-
Personel Authorisation
Levels
10 FIL - Operativo Junior
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20 FIL - Operativo Senior
-
-
-
-
-
-
30 FIL - Vice Responsabile
€5,200
€7,800
€13,000
€9,500
€5,500 €13,000
40 FIL - Responsabile
€7,800
€13,000
€18,100
€13,000
€7,800 €18,100
50 AREA - Responsabile
€13,000
€15,500
€25,900
€15,500
€13,000 €25,900
60 RETI - Responsabile
€36,200
€36,200
€36,200
€21,000
€21,000 €36,200
70 RETI - Responsabile
€46,500
€46,500
€46,500
€26,000
€26,000 €46,500
80 RETI - Responsabile
€62,000
€62,000
€62,000
€31,000
€31,000 €62,000
90 - Chief executive
€155,000
€155,000
€155,000
€155,000
84
90
60
€155,000
€155,000
€155,000
* Duration Max (month)
60
* Limit for single debit position €155,000
€155,000
60
€155,000
€155,000
72
€155,000
€250,000
Limit for single debit position “Company” €155,000
Collection policy
Upon signing the consumer loan agreement, the client can choose between two reimbursement
methods: postal slip (“BP”) or direct debit (“RID”). In addition, the client is allowed to switch
payment method at any time during the length of the contract.
Direct Debit (RID)
In view of its strong interest in increasing the percentage of consumer loans reimbursed by using the
RID method, Santander Consumer Bank S.p.A. has over time invested in the implementation of
internal procedures with the aim of achieving the highest degree of efficiency.
The current procedure uses the RNI or Rete Nazionale Interbancaria (the Italian Interbank
Network), the BancoPosta network (the Italian mail network) (for ordinary clients) and a number of
other primary retail banks (for ordinary clients), in order to carry out the various payment collection
stages. In particular:

the client authorises the payment via direct debit by signing a specific box on the front page of
the application form;

when the application form is submitted to the system, a message, adhering to the technical
standards set out by current procedures, containing the personal data and current account
details of the client, is sent to the client’s bank through the Italian Interbank Network. After
having verified that the data are correct the procedure is activated from the client’s bank;

on average after 10 days from the request, the client’s bank sends back, always through the
Italian Interbank Network or the BancoPosta network (for ordinary clients), to Santander
Consumer Bank S.p.A., a message confirming whether the procedure has been activated or
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rejected (rejection grounds code to be included in such message). Usually 92% of first requests
are activated;

the rejected requests are immediately processed either by Santander Consumer Bank S.p.A.’s
Collection Department or by external parties coordinated and monitored by the “Call Centre
After Sale”, depending on the different rejection grounds put forward by the client’s bank.
After receiving the communication that the RID, or a similar procedure conforming to current
banking legislation, has been activated, Santander Consumer Bank S.p.A. sends through the Italian
Interbank Network the request for payment of the instalments to the client’s bank not earlier than 20
days and not later than five days before the instalment is due and within one business day from the
payment date the proof of collection is received (or within the immediately following business day,
if the due date falls on a day which is not a business day). In case of insolvency, within 15 days from
the date by which the payment is due (usually four business days) Santander Consumer Bank S.p.A.
is made aware by the client’s bank, through the Italian Interbank Network, of the fact that the
payment had not been executed and the related reason. This message contains a code to identify the
reason for the missed payment.
Postal Slip (BP)
In the event the client opts to pay by postal slip, 10 business days after the consumer loan agreement
has been signed, Santander Consumer Bank S.p.A. sends to Postel the request to print and send to
the client’s address the postal slip book to execute all the due payments.
Each slip contains, in particular, the agreement’s identification number, the instalment payment date,
the instalment amount due and the number of the postal account, in the name of Santander
Consumer Bank S.p.A., to which instalments have to be credited.
Payments can be made at all Italian post offices. The recent restructuring of the Italian mail system
allows nowadays to receive notifications of payments made by clients within an extremely reduced
time lag (on average 2/3 days from the relevant payment date) on a daily basis. The process of
transferring funds into Santander Consumer Bank S.p.A.’s postal account has also become very
swift.
Santander Consumer Bank S.p.A. immediately and automatically processes the flow of electronic
information received; after this process the single account position of every client is updated. On the
total amount of payments received, on average 4% of the received payments on a daily basis are not
immediately processed due to the fact that such percentage corresponds to those payments made
using slips other than the standard ones provided by the Originator and have to be manually
processed by the operators.
Recovery Policy
The consumer loan agreements entered into by Santander Consumer Bank S.p.A. with its clients
have payment dates that fall on either the 1st or on the 15th day of each month. With regards to
payments due but unpaid in the previous month, the identification of unpaid installments and their
entry in the recovery procedure system are usually made 35 days from the older unpaid instalment
due date, on the 5th and 20th of each month, or on the next business day.
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In addition, Santander Consumer Bank S.p.A. has a “pre-collection” process where the recovery
system allocates all files which have a payment delay of between 5 and 20 days. This mechanics
allow Santander Consumer Bank S.p.A. to monitor the consumer loans and to start preliminary
recovery activities. At present, these activities begin 20 days after their entry into the “precollection” process. These activities include:
-
contact request sent by SMS;
written demand, sent by Postal Service, for consumer loans which have a postal slip (BP)
payment method;
new direct debit sent for consumer loans which have a direct debit (RID) payment method;
phone collection for cases of medium/high amount;
35 days after the first unpaid installment, the following recovery activities are used:
-
-
written demand, sent by Postal Service, for consumer loans which have an RID (direct debit)
payment;
accounting adjustments;
issue of a contact request, by text via mobile phone, on all the consumer loans;
scoring model to allocate cases to the best collection workflow (FID consumer loans, small
tickets, consumer loans coming from a refinancing case, 150 consumer loans high ticket are
excluded from the scoring);
phone collection activities through external collection companies;
The phone call is performed through specialised operators. The external companies attempt to
contact the client using all the known phone numbers. The external companies are constantly
monitored and checked by Santander Consumer Bank employees;
Following these activities, in order to support the collection activity, it is also possible to send (also
on the operator request) additional SMS or cables. Depending upon the handling phase, it is also
possible to generate written demands to all the consumer loans.
On the 65th day of collection, all the cases still in collection are classified once again, with a
behavioral criteria, in order to improve categorization for the following recovery actions (phone
collection or home collection).
In the last collection phase, a legal demand is introduced.
During the collection period, it is possible to refinance the consumer loan, respecting the preestablished criteria.
Telephone and mail recovery activities continue until the 7th installment is due for payment (or up to
a delay of almost 210 days in the case of matured consumer loans). At this point, a notice of
declaration of acceleration (“decadenza beneficio del termine”, if the consumer loan has not
reached its maturity yet) or a formal injunction (“messa in mora”, if the consumer loan has already
matured) is addressed to the borrower and all the other additional guarantors also informing the
selling of the consumer loan to Santander Consumer Finanzia.
The transfer of the claim to Santander Consumer Finanzia cannot be done at a price lower than 30%
of the outstanding amount computed as the sum of:
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-
Expired amount; and
-
Outstanding principal.
Each single consumer loan sale is done pursuant to the terms of the Master Agreement rules (see the
section of the Prospectus entitled “The Master Transfer Agreement”).
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THE ISSUER’S BANK ACCOUNTS
Pursuant to the terms of the Issuer Account Bank Agreement, the Issuer has opened the following
accounts with the Account Bank:
(a)
a euro-denominated current account into which the Servicer is required to deposit, inter alia,
the Collections in accordance with the Servicing Agreement (the “Collection Account”);
(b)
a euro-denominated current account into which the Issuer is required to deposit, inter alia,
available amounts on each Interest Payment Date under item (xi) of the Pre-Enforcement
Priority of Payments for Single Series Interest Available Funds (the “Cash Reserve
Account”);
(c)
a euro-denominated current account into which the Issuer will deposit €30,000 (the
“Retention Amount”) on the First Single Series Issue Date (the “Expenses Account” and,
together with the Collection Account and the Cash Reserve Account, the “Cash Accounts”).
This account will then be replenished on each Interest Payment Date up to the Retention
Amount and such amount will be applied by the Issuer to pay all fees, costs, expenses and
taxes required to be paid in order to preserve the corporate existence of the Issuer or to
maintain it in good standing or to comply with applicable legislation;
(d)
a securities account (the “Eligible Investments Securities Account”) into which the Issuer
will deposit the units of money market funds from time to time owned by it. In addition,
should the Issuer invest in other Eligible Investments, in accordance with the Agency and
Accounts Agreement and the Issuer Account Bank Agreement, the Issuer will open with the
Account Bank another securities account (the “Additional Eligible Investments Securities
Account” and, together with the Eligible Investments Securities Account, the “Investments
Securities Accounts” and, together with the Cash Accounts, the “Accounts”) into which the
Issuer will deposit all securities constituting Eligible Investments from time to time owned by
it, other than the units of money market funds from time to time owned by it.
In addition, in the year 2008 the Issuer also opened, with Santander Consumer Bank S.p.A., a eurodenominated bank account into which the Issuer’s equity capital of €10,000 has been deposited and
will be required to remain deposited for as long as all notes issued or to be issued by the Issuer,
including the notes issued in the context of the Previous Programmes and any Notes issued or to be
issued in future by the Issuer under the Programme, have been redeemed or cancelled (the “Equity
Capital Account”).
Pursuant to the Issuer Account Bank Agreement and the Agency and Accounts Agreement,
Deutsche Bank AG, London Branch, in its capacity as Account Bank, has agreed (i) to provide the
Issuer with certain services in connection with account handling and reporting requirements in
relation to the monies from time to time standing to the credit of the Cash Accounts, including the
preparation of statements of account on each Quarterly Reporting Date; and (ii) to invest on behalf
of the Issuer funds standing to the credit of the Cash Reserve Account and the Collection Account in
Eligible Investments.
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Pursuant to the Issuer Account Bank Agreement and the Agency and Accounts Agreement,
Deutsche Bank AG, London Branch, in its capacity as Account Bank, has also agreed to provide the
Issuer with certain services in connection with account handling and reporting requirements in
relation to the securities from time to time standing to the credit of the Investments Securities
Accounts, including the preparation of statements of account on each Quarterly Reporting Date.
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TERMS AND CONDITIONS OF THE NOTES
The following are the terms and conditions of the Notes (the “Terms and Conditions”). The
applicable Final Terms in relation to each Single Series of Notes may specify other terms and
conditions which shall, to the extent so specified or to the extent inconsistent with the following
Terms and Conditions, replace or modify the following Terms and Conditions for the purpose of
such Notes. Reference should be made to “Form of Final Terms” for a description of the content of
Final Terms which will specify the terms applicable in relation to the relevant Notes.
1
Introduction
(a)
The Programme
Golden Bar (Securitisation) S.r.l., a company incorporated with limited liability under the
laws of the Republic of Italy in accordance with the Securitisation Law, having its registered
office at via Principe Amedeo, 11, 10123 Turin, Italy, registered in the companies’ register
held in Turin under number 13232920150, in the general register pursuant to article 106 of
the Banking Act under number 31975 (the “Issuer”) has established a Euro Medium Term
Asset-Backed Notes Programme (the “Programme”) for the issuance, during the Additional
Issue Period, of up to €2,500,000,000 in aggregate principal amount of: (i) class A limited
recourse asset-backed notes (the “Class A Notes”); (ii) class B limited recourse asset-backed
notes (the “Class B Notes” and, together with the Class A Notes, the “Senior Notes”); and
(iii) class C limited recourse asset-backed notes (the “Junior Notes” and, together with the
Senior Notes, the “Notes”).
The Notes will be issued in series (each, a “Single Series”) and each Single Series will
consist of: (i) Class A Notes; (ii) Class B Notes and (iii) Junior Notes. Any references below
to a “Class” of Notes or a “Class” of Noteholders will be, respectively, a reference to the
Class A Notes, the Class B Notes or the Junior Notes, as the case may be, or to the respective
holders thereof. References to “Noteholders” or to the “holders” of Notes are to the
beneficial owners of the Notes.
The maximum aggregate principal amount of the Notes which may be outstanding at any
time under the Programme may be increased from time to time, as may be agreed in writing
between the Originator (as defined below), the Issuer and the Dealers (as defined below) in
accordance with the Programme Agreement (as defined below).
(b)
Final Terms
Each Single Series and each Class comprised in each Single Series will be the subject of a
final terms (each, a “Final Terms”) which integrates these Terms and Conditions. The terms
and conditions applicable to any particular Single Series of Notes are these Terms and
Conditions as integrated, amended and/or replaced by the applicable Final Terms (the
“Conditions” and, each, a “Condition” and any reference to a numbered condition shall be
construed accordingly). Each Final Terms may specify other terms and conditions which
shall, to the extent so specified or to the extent inconsistent with these Terms and Conditions,
replace or modify these Terms and Conditions for the purposes of the Notes of the relevant
131
Single Series provided that, following the issue of the First Single Series, no Final Terms may
amend the Terms and Conditions so as to conflict with the Conditions of any outstanding
Notes. References to the “applicable Final Terms” are to the Final Terms (or the relevant
provisions thereof) pursuant to which the relevant Single Series of Notes are issued. Copies
of the Prospectus (prospetto informativo), the Terms and Conditions, all Final Terms, the
Agency and Accounts Agreement (as defined below), the Issuer Account Bank Agreement (as
defined below), the Intercreditor Agreement (as defined below) and any other Transaction
Documents (as defined below) are available for inspection during normal business hours at
the office for the time being of the Representative of the Noteholders being at Winchester
House, 1 Great Winchester Street, London EC2N 2DB, United Kingdom and at the Specified
Office of each of the Paying Agents (as defined below). The Noteholders are deemed to have
notice of, and are entitled to the benefit of, all the provisions of the Agency and Accounts
Agreement (as defined below), the Issuer Account Bank Agreement (as defined below), the
Intercreditor Agreement (as defined below), any other Transaction Documents (as defined
below) and the applicable Final Terms which are applicable to them.
(c)
The Portfolio
The principal source of funds available to the Issuer for the payment of interest and the
repayment of principal on the Notes of all Single Series will be collections received in respect
of pools of monetary claims and other connected rights arising from portfolios of consumer
loans granted and to be granted by Santander Consumer Bank S.p.A. (“Santander”). The
first pool of monetary claims and other connected rights (the “Initial Claims”) arising from a
portfolio of consumer loans, consisting of vehicle loans, other purpose loans and personal
loans granted by Santander (the “Initial Portfolio”), has been transferred from Santander to
the Issuer pursuant to the terms of a transfer agreement dated 27 November 2009, between
the Issuer and Santander (as from time to time amended and/or supplemented, the “Master
Transfer Agreement”). Pursuant to the Master Transfer Agreement, during any Single Series
Revolving Period (as defined below), the Issuer may use the Single Series Principal Available
Funds (as defined below), to purchase from Santander, on a quarterly basis, additional pools
of monetary claims and other connected rights (the “Subsequent Claims”) arising from
additional portfolios of consumer loans, consisting of vehicle loans, other purpose loans and
personal loans granted, or to be granted, by Santander and, save as provided in the
Transaction Documents (as defined below), having substantially the same characteristics as
the Initial Portfolio (each, a “Subsequent Portfolio”). In addition to the Initial Claims, the
Issuer may purchase from Santander, in connection with any issuance of Notes following the
First Single Series Issue Date under the Programme (each, an “Additional Issue”), additional
pools of monetary claims and other connected rights (the “Additional Claims” and, together
with the Initial Claims and the Subsequent Claims, the “Claims”) arising from additional
portfolios of consumer loans, consisting of vehicle loans, other purpose loans and personal
loans granted, or to be granted, by Santander and, save as provided in the Transaction
Documents, having substantially the same characteristics as the Initial Portfolio (each, an
“Additional Portfolio” and, together with the Initial Portfolio and the Subsequent Portfolios,
the “Portfolio”). The Claims will be segregated from all other assets of the Issuer by
operation of the Securitisation Law (as defined below) and, pursuant to the Intercreditor
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Agreement and these Terms and Conditions, amounts deriving therefrom will be available,
both before and after a winding-up of the Issuer, to satisfy the obligations of the Issuer to the
holders of the Notes of all Single Series, to pay costs, fees and expenses due to the Other
Issuer Creditors (as defined below) under the Transaction Documents and to pay any other
creditor of the Issuer in respect of costs, liabilities, fees or expenses payable to any such other
creditor in relation to the securitisation of the Initial Claims and of the Additional Claims by
the Issuer through the issuance of the Notes of all Single Series.
(d)
The Agency and Accounts Agreement
The Notes of all Single Series are subject to and have the benefit of an agency and accounts
agreement (the “Agency and Accounts Agreement”) dated 22 December 2009 (the “Signing
Date”) between the Issuer, Deutsche Bank S.p.A. as computation agent, programme
administrator and Italian paying agent (in such capacities, respectively, the “Computation
Agent”, the “Programme Administrator” and the “Italian Paying Agent”, which
expressions include any successor computation agent, programme administrator and Italian
paying agent, respectively, appointed from time to time in respect of the Notes), Deutsche
Bank AG, London Branch as account bank, agent bank and principal paying agent (in such
capacities, respectively, the “Account Bank”, the “Agent Bank” and the “Principal Paying
Agent”, which expressions include any successor account bank, agent bank and principal
paying agent, respectively, appointed from time to time in respect of the Notes), Deutsche
Bank Luxembourg S.A. as listing and Luxembourg paying agent (in such capacity, the
“Listing and Luxembourg Paying Agent”, which expression includes any successor listing
and Luxembourg paying agent appointed from time to time in respect of the Senior Notes,
and, together with the Principal Paying Agent and the Italian Paying Agent, the “Paying
Agents”) and Deutsche Trustee Company Limited as representative of the holders of the
Notes (in such capacity, the “Representative of the Noteholders”, which expression
includes any successor or additional representative of the Noteholders appointed from time to
time).
(e)
Other Transaction Documents
Certain of the statements in these Terms and Conditions include summaries of, and are
subject to, the detailed provisions of the Agency and Accounts Agreement, the Intercreditor
Agreement (as defined below) and the other Transaction Documents and are subject to their
detailed provisions. Any reference in these Terms and Conditions to a particular Transaction
Document is a reference to such Transaction Document as from time to time created and/or
modified and/or supplemented in accordance with the provisions therein contained and any
deed or other document expressed to be supplemental thereto, as from time to time so
amended and/or modified and/or supplemented.
(f)
Rules of the Organisation of Noteholders
The holders of the Class A Notes (the “Class A Noteholders”), the holders of the Class B
Notes (the “Class B Noteholders” and, together with the Class A Noteholders, the “Senior
Noteholders”) and the holders of the Junior Notes (the “Junior Noteholders” and, together
with the Senior Noteholders, the “Noteholders” and, each, a “Noteholder”) are deemed to
133
have notice of and are bound by and shall have the benefit of, inter alia, the terms of the rules
of the organisation of the Noteholders (the “Rules of the Organisation of Noteholders”)
which constitute an integral and essential part of these Terms and Conditions. The Rules of
the Organisation of Noteholders are attached hereto as a schedule. The rights and powers of
the Representative of the Noteholders and the Noteholders may be exercised only in
accordance with the Rules of the Organisation of Noteholders.
(g)
Prospectus
The Issuer has published to prospective Noteholders the prospetto informativo required by
article 2 of Italian law No. 130 of 30 April 1999 (Disposizioni sulla cartolarizzazione dei
crediti), as amended from time to time (the “Securitisation Law”). Copies of the prospetto
informativo will be available, upon request, to the Noteholders during normal business hours
at the Specified Office of the Representative of the Noteholders and at the Specified Offices
of each of the Paying Agents.
The Servicer shall ensure the proper segregation of the Issuer’s accounting and property from
its own activities and the Servicer, as “soggetto incaricato della riscossione dei crediti e dei
servizi di cassa e pagamento” pursuant to article 2(6) of the Securitisation Law, shall be
responsible for verifying that the transactions to be carried out in connection with the
Securitisation comply with applicable laws and are consistent with the contents of the
Prospectus.
Under the terms of the Mandate Agreement and the Intercreditor Agreement, the Issuer has,
inter alia, granted a mandate to the Representative of the Noteholders, pursuant to which,
inter alia, following service of a Programme Acceleration Notice, the Representative of the
Noteholders shall be authorised under article 1723, second paragraph, of the Italian civil
code, to exercise, in the name of the Issuer but in the interest and for the benefit of the
Noteholders and the Other Issuer Creditors, all the Issuer’s contractual rights arising out of
the Transaction Documents to which the Issuer is a party and in respect of the Claims,
including the right to sell them in whole or in part, in the interest of the Noteholders and the
Other Issuer Creditors.
The Noteholders are entitled to the benefit of, are bound by, and are deemed to have notice of
all the provisions of the Transaction Documents applicable to them. In particular, each
Noteholders, by reason of holding one or more Notes of any Single Series, (a) recognises the
Representative of the Noteholders as its representative, acting in its name and on its behalf,
and agrees to be bound by the terms of the Transaction Documents to which the
Representative of the Noteholders is a party as if such Noteholder was itself a signatory
thereto, and (b) acknowledges and accepts that the Dealers shall not be liable in respect of
any loss, liability, claim, expense or damage suffered or incurred by any of the Noteholders as
a result of the performance by Deutsche Trustee Company Limited (or any permitted
assignee or successor) of its duties as Representative of the Noteholders provided in the
Transaction Documents and these Terms and Conditions.
2
Definitions
134
In these Conditions:
“Acceptance Date” means (i) in relation to the Subsequent Claims, during any Single Series
Revolving Period, the fourth Business Day of each Collection Period; and (ii) in relation to the
Additional Claims, the fourth Business Day following the relevant Offer Date or the different date
indicated in the Offer to Sell;
“Account Bank” means Deutsche Bank AG, London Branch as account bank pursuant to the Issuer
Account Bank Agreement;
“Accounts” means, collectively, the Cash Accounts and the Investments Securities Accounts and
“Account” means any one of them;
“Accumulation Date” means, following the service of a Programme Acceleration Notice, the
earlier of: (i) each date on which the amount of the monies at any time available to the Issuer or to
the Representative of the Noteholders for the payments to be made in accordance with the PostEnforcement Priority of Payments shall be equal to at least 10% of the aggregate Principal Amount
Outstanding of the Senior Notes of all Single Series and (ii) each day falling 10 Business Days
before the day that, but for the service of a Programme Acceleration Notice, would have been an
Interest Payment Date;
“Additional Eligible Investments Securities Account” means the securities account that may be
opened by the Issuer with the Account Bank (as identified in the Issuer Account Bank Agreement);
“Additional Issue Period” means the period during which the Issuer may engage in Additional
Issues, this period being from the First Single Series Issue Date to 31 December 2016 (inclusive);
“Additional Portfolio Purchase Price” means the purchase price of the Additional Claims to be
paid from time to time by the Issuer to the Originator in accordance with the Master Transfer
Agreement;
“Agents” means, collectively, the Principal Paying Agent, the Italian Paying Agent, the Listing and
Luxembourg Paying Agent, the Agent Bank, the Account Bank and the Computation Agent;
“Applicable Ratio” means, on any Calculation Date, in respect of each Single Series (other than
those which have suffered on the same date a Single Series Interest Shortfall), the fraction,
expressed as a percentage, the numerator of which is the Single Series Interest Excess of such
Single Series at such Calculation Date and the denominator of which is the Programme Interest
Excess at the same Calculation Date;
“Arrear Claim” means a Claim arising from a Consumer Loan (i) under which there are one or
more consecutive or inconsecutive Unpaid Instalments, or (ii) under which, following the relevant
final maturity date, there is at least one instalment which is an Unpaid Instalment, and which, in
both cases, has not become a Defaulted Claim yet;
“Arrear Ratio” means, as at the last day of each Collection Period, the ratio expressed as a
percentage between (i) the aggregate Outstanding Principal of all Claims which are Arrear Claims
as at the last day of the immediately preceding Collection Period and (ii) the aggregate Outstanding
Principal of all Claims at such date, as determined by the Servicer in the Quarterly Servicer Report;
135
“Arrear Ratio Rolling Average” means, on each Calculation Date, the average of the Arrear Ratio
for the three immediately preceding Collection Periods;
“Banking Act” means the Italian legislative decree No. 385 of 1 September 1993, as amended and
integrated from time to time;
“Basic Terms Modification” has the meaning given in the Rules of the Organisation of
Noteholders;
“Borrower” means any person who is a borrower under a Consumer Loan contained in the
Portfolio;
“Business Day” means a day on which banks are open for business in Milan, Luxembourg and
London and which is a TARGET Settlement Day;
“Calculation Date” means a date no later than the third Business Day prior to each Interest
Payment Date;
“Cancellation Date” means the earlier of:
(A)
the later of (i) the last Business Day in December 2031 (or such later date as may be agreed
in writing between the Issuer and the Representative of the Noteholders); and (ii) the date that
falls three years after the latest Single Series Maturity Date;
(B)
the date when the Portfolios Outstanding Amount will have been reduced to zero; and
(C)
the date when all the Claims then outstanding will have been entirely written off by the
Issuer;
“Cash Accounts” means, collectively, the Collection Account, the Cash Reserve Account and the
Expenses Account;
“Cash Reserve” means the monies standing to the credit of the Cash Reserve Account at any given
time;
“Cash Reserve Account” means the euro-denominated current account opened by the Issuer with
the Account Bank (as identified in the Issuer Account Bank Agreement);
“Class A Notes Principal Deficiency Ledger” means the ledger established and maintained by the
Computation Agent in respect of the Class A Notes of all Single Series pursuant to the Agency and
Accounts Agreement where any Realised Losses will be recorded, as a debit entry in accordance
with Condition 4(h) (Principal Deficiency Ledgers);
“Class B Notes Principal Deficiency Ledger” means the ledger established and maintained by the
Computation Agent in respect of the Class B Notes of all Single Series pursuant to the Agency and
Accounts Agreement where any Realised Losses will be recorded, as a debit entry in accordance
with Condition 4(h) (Principal Deficiency Ledgers);
“Class A Rating” means a rating equal to “AAA” by S&P or such other rating level communicated
by the Rating Agency for Class A Notes at any time during the Programme;
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“Class B Rating” means a rating equal to “BBB” by S&P or such other rating level communicated
by the Rating Agency for Class B Notes at any time during the Programme;
“Clearstream, Luxembourg” means Clearstream Banking, société anonyme;
“Collateral” means, in respect of each Single Series Swap Agreement, (i) prior to the occurrence of
an Early Termination Date (as defined in any Single Series Swap Agreement) for the relevant Single
Series Swap Transaction, the amount and/or securities (if any) standing to the credit of the account
into which the collateral posted pursuant to the relevant Single Series Swap Agreement is held (the
“Collateral Account”); and (ii) following the date on which the Single Series Swap Transaction is
terminated, the monies and/or securities standing to the credit of the relevant Collateral Account (if
any) in an amount equal to the Excess Swap Collateral;
“Collateral Ratio” means, as at the last day of each Collection Period, the ratio expressed as a
percentage between (i) the aggregate Outstanding Principal of all Claims, calculated taking into
account also the Claims to be purchased by the Issuer on the immediately following Subsequent
Transfer Date, and (ii) the Principal Amount Outstanding of the Notes of all Single Series;
“Collection Account” means the euro-denominated current account opened by the Issuer with the
Account Bank (as identified in the Issuer Account Bank Agreement);
“Collection Date” means 1 January, 1 April, 1 July and 1 October of each year;
“Collection Period” means (a) prior to the service of a Programme Acceleration Notice, each
period commencing on (and including) a Collection Date and ending on (but excluding) the next
succeeding Collection Date up to the redemption in full of the Notes issued under the Programme,
the first Collection Period commencing on (but excluding) the Initial Valuation Date and ending on
(and including) 31 March 2010; and (b) following the service of a Programme Acceleration Notice,
each period commencing on (but excluding) the last day of the preceding Collection Period and
ending on (and including) the immediately following Accumulation Date;
“Collections” means any monies from time to time paid, as of (but excluding) the Initial Valuation
Date in respect of the Consumer Loans and the related Claims;
“Common Criteria” means the objective common criteria listed in exhibit 1 part 1 of the Master
Transfer Agreement;
“CONSOB” means Commissione Nazionale per le Società e la Borsa;
“Consumer Loan Agreement” means a loan agreement between the Originator and a Debtor
pursuant to which a Consumer Loan has been granted and out of which the relevant Claims arise;
“Consumer Loans” means, from time to time, the aggregate of the consumer loans the Claims in
respect of which are comprised in the Portfolio and “Consumer Loan” means any one of these;
“Corporate Services Agreement” means the corporate services agreement dated the Signing Date
between the Issuer, the Representative of the Noteholders and the Corporate Services Provider;
“Corporate Services Provider” means Bourlot Gilardi Romagnoli e Associati and includes any
successor corporate services provider appointed from time to time under the Corporate Services
Agreement;
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“Crediti in Sofferenza” means the Defaulted Claims which have not been sold by the Servicer
pursuant to clause 3.18 of the Servicing Agreement and which belong to the Issuer;
“Dealers” means the dealer or dealers for time to time appointed by the Issuer and acting as such
under the Programme;
“Debtor” means any Borrower, any person having granted any Guarantee to the Originator or any
person who is liable for the payment or repayment of amounts due under a Consumer Loan;
“Decree 239 Withholding” means any withholding or deduction for or on account of Italian tax
under legislative decree No. 239 of 1 April 1996;
“Default Ratio” means, as at the last day of each Collection Period, the ratio expressed as a
percentage between (i) the aggregate Outstanding Principal of all Claims which have become
Defaulted Claims during the immediately preceding Collection Period and (ii) the aggregate
Outstanding Principal of all Claims as at such date, as determined by the Servicer in the Quarterly
Servicer Report;
“Default Ratio Rolling Average” means, on each Calculation Date, the average of the Default
Ratio for the three immediately preceding Collection Periods;
“Defaulted Claim” means a Claim arising from a Consumer Loan (i) under which there are six or
more consecutive or inconsecutive Unpaid Instalments, or (ii) under which, following the relevant
final maturity date, there is at least one instalment which is an Unpaid Instalment from six or more
months;
“Eligible Institution” means (A) any depository institution organised under the laws of any state
which is a member of the European Union or of the United States of America (i) whose short-term,
unsecured and unsubordinated debt obligations are rated at least “A-1” by S&P or (ii) whose
obligations under the Transaction Documents to which it is a party are guaranteed, in a manner that
is in accordance with S&P’s rating criteria, by a depository institution organised under the laws of
any state which is a member of the European Union or of the United States of America, whose
short-term, unsecured and unsubordinated debt obligations are rated at least “A-1” by S&P and (B)
Deutsche Bank S.p.A., acting as initial Sub-Custodian under the terms of the Issuer Account Bank
Agreement, for so long as (I) Deutsche Bank AG’s short-term, unsecured and unsubordinated debt
obligations are rated at least “A-1” by S&P; (II) Deutsche Bank S.p.A. continues to be owned
(directly and indirectly) by Deutsche Bank AG; (III) there are no material changes in the ownership
structure of Deutsche Bank AG which would result in the downgrading of any of the Senior Notes;
and (IV) the words “Deutsche Bank” are contained in its legal name and, in any case, only until
such date when S&P notifies the Issuer that Deutsche Bank S.p.A. no longer qualifies as an Eligible
Institution;
“Eligible Investments” means:
(A)
euro-denominated money market funds which have a long-term rating of “AAAm” or a shortterm rating of “AAAm-G” from S&P and permit daily liquidation of investments or have a
maturity date falling before the next following Liquidation Date provided that such money
market funds are disposable without penalty or loss; and
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(B)
euro-denominated senior (unsubordinated) debt securities or other debt instruments provided
that: (i) such investments are immediately repayable on demand, disposable without penalty
or loss or have a maturity date falling on or before the next following Liquidation Date; (ii)
such investments provide a fixed principal amount at maturity (such amount not being lower
than the initially invested amount); and (iii) the debt securities or other debt instruments are
issued by, or are fully and unconditionally guaranteed on an unsubordinated basis by, an
institution whose unsecured and unsubordinated debt obligations are rated at least: (A) either
“A-1” by S&P in respect of short-term debt (or “A+” by S&P if the institution does not have
a short-term rating by S&P), with regard to investments having a maturity of less than 60
calendar days, or (B) “A-1” by S&P in respect of short-term debt (or “A+” by S&P if the
institution does not have a short-term rating by S&P), with regard to investments having a
maturity longer than 60 calendar days provided that if the short-term debt rating of the
relevant institution falls below “A-1” by S&P (or “A+” by S&P if the institution does not
have a short-term rating by S&P), such investments are repayable or disposable without
penalty or loss within 60 calendar day of the relevant downgrading; and
(C)
repurchase transactions between the Issuer and an Eligible Repo Counterparty in respect of
euro-denominated debt securities or other debt instruments provided that (i) title to the
securities underlying such repurchase transactions (in the period between the execution of the
relevant repurchase transactions and their respective maturity) effectively passes to the Issuer,
(ii) such repurchase transactions are immediately repayable on demand, disposable without
penalty or loss or have a maturity date falling on or before the next following Liquidation
Date (provided that, in respect of such investments, their maturity must be, in any case,
shorter than 60 calendar days) and (iii) such repurchase transactions provide a fixed principal
amount at maturity (such amount not being lower than the initially invested amount);
“Eligible Investments Securities Account” means the securities account opened by the Issuer with
the Account Bank (as identified in the Issuer Account Bank Agreement);
“Eligible Repo Counterparty” means an entity whose short-term unsecured, unsubordinated and
unguaranteed debt obligations are rated at least “A-1” by S&P;
“English Deed of Charge and Assignment” means the deed of charge and assignment dated on or
around the First Single Series Issue Date between the Issuer and the Representative of the
Noteholders and governed by English law;
“English Law Transaction Documents” means the Single Series Swap Agreements, the Issuer
Account Bank Agreement and the English Deed of Charge and Assignment;
“Equity Capital Account” means the euro-denominated current account opened in the name of the
Issuer with Santander Consumer Bank S.p.A. into which the Issuer’s equity capital of €10,000 will
be required to be deposited for as long as, inter alia, any Notes are outstanding;
“EURIBOR” means:
(i)
prior to the service of a Programme Acceleration Notice and in respect of each Interest
Period, the rate offered in the euro-zone inter-bank market for three-month deposits in euro
(save that for the first Interest Period the rate will be set out in the applicable Final Terms)
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which appears on the Reuters-EuriborØ1 page or (A) such other page as may replace the
Reuters-EuriborØ1 page on that service for the purpose of displaying such information or (B)
if that service ceases to display such information, such page as displays such information on
such equivalent service (or, if more than one, that one which is approved by the
Representative of the Noteholders) as may replace the Reuters-EuriborØ1 page (the “Screen
Rate”) at or about 11.00 a.m. (Brussels time) on the Interest Determination Date falling
immediately before the beginning of such Interest Period; or
(ii)
following the service of a Programme Acceleration Notice and in respect of each Interest
Period, the rate offered in the euro-zone inter-bank market for deposits in euro applicable in
respect of such Interest Period which appears on the Screen Rate nominated and notified by
the Agent Bank for such purpose or, if necessary, the relevant linear interpolation, as
determined by the Agent Bank in accordance with the Agency and Accounts Agreement at or
about 11.00 a.m. (Brussels time) on the Interest Determination Date which falls immediately
before the end of the relevant Interest Period; or
(iii)
if the Screen Rate is unavailable at such time for deposits in euro in respect of the relevant
period, then the rate for any relevant period shall be the arithmetic mean (rounded to four
decimal places with the mid-point rounded upwards) of the rates notified to the Agent Bank
at its request by each of the Reference Banks as the rate at which deposits in euro in respect
of the relevant period in a representative amount are offered by that Reference Bank to
leading banks in the euro-zone inter-bank market at or about 11.00 a.m. (Brussels time) on
the relevant Interest Determination Date; or
(iv)
if, at that time, the Screen Rate is unavailable and only two or three of the Reference Banks
provide such offered quotations to the Agent Bank, the relevant rate shall be determined, as
aforesaid, on the basis of the offered quotations of those Reference Banks providing such
quotations; or
(v)
if, at that time, the Screen Rate is unavailable and only one or none of the Reference Banks
provides the Agent Bank with such an offered quotation, the relevant rate shall be the rate in
effect for the immediately preceding period to which one of sub paragraphs (i) or (ii) above
shall have applied;
“Euro” or “euro” or “€” means the currency introduced at the start of the third stage of European
economic and monetary union pursuant to the Treaty establishing the European Community (signed
in Rome on 25 March 1957), as amended;
“Euroclear” means Euroclear Bank S.A./N.V. as operator of the Euroclear System;
“euro-zone” means the region comprising those member states of the European Union that adopted
the single currency in accordance with the Treaty establishing the European Community (signed in
Rome on 25 March 1957) as amended by the Treaty on European Union (signed in Maastricht on
7 February 1992) and the Treaty of Amsterdam (signed on 2 October 1997);
“Event of Default” has the meaning given to it in Condition 11(a) (Events of Default);
“Excess Swap Collateral” means, in respect of each Single Series Swap Agreement, an amount
equal to the value of the collateral (or the applicable part of any collateral) provided by the relevant
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Single Series Swap Counterparty to the Issuer in respect of its obligations to transfer collateral to
the Issuer under the relevant Single Series Swap Agreement (as a result of the ratings downgrade
provisions in the relevant Single Series Swap Agreement), which is in excess of the relevant Single
Series Swap Counterparty’s liability to the Issuer under the relevant Single Series Swap Agreement
as at the date of termination of the relevant Single Series Swap Transaction, or which the relevant
Single Series Swap Counterparty is otherwise entitled to have returned to it under the terms of the
relevant Single Series Swap Agreement;
“Expenses Account” means the euro-denominated current account opened by the Issuer with the
Account Bank (as identified in the Issuer Account Bank Agreement);
“Extraordinary Resolution” has the meaning given in the Rules of the Organisation of
Noteholders;
“Final Redemption Date” means the Interest Payment Date immediately following the earlier of:
(i) the date when the Portfolio Outstanding Amount will have been reduced to zero; and (ii) the date
when all the Claims then outstanding will have been entirely written off by the Issuer;
“First Interest Payment Date” has the meaning, in respect of each Single Series, given in the
applicable Final Terms;
“First Single Series” means the first Single Series of Notes issued under this Programme on or
around the First Single Series Issue Date;
“First Single Series Issue Date” means the Single Series Issue Date in respect of the First Single
Series;
“First Single Series Junior Notes Underwriter” means Santander Consumer Bank S.p.A.;
“First Subordinated Loan Provider” means Santander Consumer Bank S.p.A.;
“Guarantee” means, in respect of any Claim, any personal guarantee granted by or formed onto the
Originator, in relation to a Consumer Loan Agreement or a Claim;
“Initial Dealer ” means Santander Consumer Bank S.p.A.;
“Initial Execution Date” means 27 November 2009;
“Initial Portfolio Outstanding Amount” means the aggregate of the outstanding principal amount
of the Initial Claims as at the Initial Valuation Date, being equal to €800,001,180.53, plus the
outstanding principal of the Additional Claims as at the relevant transfer dates;
“Initial Portfolio Purchase Price” has the meaning given to the term “Prezzo del Portafoglio
Iniziale” in the Master Transfer Agreement, which term identifies the purchase price of the Initial
Claims;
“Initial Valuation Date” means 4 November 2009;
“Insolvent” means, in respect of the Issuer, that:
(a)
the Issuer ceases or threatens to cease to carry on its business or a substantial part of its
business;
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(b)
the Issuer is deemed unable to pay its debts pursuant to or for the purposes of any applicable
law; or
(c) the Issuer becomes unable to pay its debts as they fall due;
“Instalment” means the scheduled monthly payment falling due from the relevant Borrower under
a Consumer Loan and which consists of an Interest Component and a Principal Component;
“Intercreditor Agreement” means the intercreditor agreement dated the Signing Date between the
Issuer, the Noteholders (represented by the Representative of the Noteholders) and the Other Issuer
Creditors, as from time to time amended and/or supplemented in connection with each Additional
Issue;
“Interest Component” means the interest component of each Instalment (including commissions
for direct debit payments — RID, collection commissions for postal payments, Prepayment Fees)
and any other amount which is not a Principal Component;
“Interest Determination Date” means:
(a) prior to the service of a Programme Acceleration Notice, in respect of each Interest Period, the
date falling two TARGET Settlement Days prior to the Interest Payment Date at the beginning
of such Interest Period;
(b) following the service of a Programme Acceleration Notice, in respect of each Interest Period,
the date falling two TARGET Settlement Days prior to the Interest Payment Date at the end of
such Interest Period;
“Interest Payment Date” means (a) prior to the service of a Programme Acceleration Notice, 20
January, 20 April, 20 July and 20 October in each year (or, if any such date is not a Business Day,
that date will be the first following day that is a Business Day unless that day falls in the next
calendar month in which case that date will be the first preceding day that is a Business Day) and
(b) following the service of a Programme Acceleration Notice, the day falling 10 Business Days
after the Accumulation Date (if any) or any other day on which any payment is due to be made in
accordance with the Post-Enforcement Priority of Payments, the Conditions and the Intercreditor
Agreement;
“Interest Period” has the meaning given in Condition 7(a) (Interest Payment Dates and Interest
Periods);
“Internal Rate of Return” means, (i) in relation to the Initial Claims, the aggregate weighted
average T.A.N. of the Instalments scheduled to be paid in relation to the Initial Claims after the
Initial Execution Date together with any commission pertaining thereto; (ii) in relation to the
Subsequent Claims and/or Additional Claims transferred or to be transferred on a particular
Subsequent Transfer Date, the aggregate weighted average T.A.N. of the Instalments scheduled to
be paid in relation to such Subsequent Claims and/or Additional Claims after such Subsequent
Transfer Date together with any commission pertaining thereto; and (iii) in relation to the Claims,
the aggregate weighted average T.A.N. on all outstanding Instalments of the Claims together with
any commission pertaining thereto;
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“Investments Securities Accounts” means, collectively, the Eligible Investments Securities
Account and the Additional Eligible Investments Securities Account (if any);
“Issuer Account Bank Agreement” means the account bank agreement entered into on the Signing
Date between, inter alia, the Issuer, the Representative of the Noteholders and Deutsche Bank AG,
London Branch as Account Bank;
“Issuer Creditors” means (i) the Noteholders (represented, as the case may be, by the
Representative of the Noteholders); (ii) the Other Issuer Creditors; and (iii) any other third-party
creditors in respect of any taxes, costs, fees, expenses or liabilities incurred by the Issuer in relation
to the securitisation of the Claims;
“Issuer Secured Creditors” means the Representative of the Noteholders, the Noteholders, the
Paying Agents, the Agent Bank, the Computation Agent, the Account Bank, the Programme
Administrator, the Single Series Swap Counterparties, the Servicer, the Corporate Services
Provider, the Stichtingen Corporate Services Provider, the Subordinated Loan Providers, the
Noteholders, the Dealers, the Arranger, the Single Series Junior Notes Underwriters and Santander
(in respect of any monetary obligation due to it by the Issuer under the Programme Letter of
Undertaking, the Master Transfer Agreement and the Warranty and Indemnity Agreement), together
with any entity which will be, from time to time, a party to the Intercreditor Agreement;
“Issuer’s Rights” means the Issuer’s right, title and interest in and to the Claims, any rights that the
Issuer has acquired under the Transaction Documents and any other rights that the Issuer has
acquired against the Originator, any Other Issuer Creditors (including any applicable guarantors or
successors) or third parties for the benefit of the Noteholders in connection with the securitisation of
the Claims;
“Italian Deed of Pledge” means the deed of pledge dated on or around the Signing Date between
the Issuer and the Representative of the Noteholders (acting on its own behalf and on behalf of the
Issuer Secured Creditors), as from time to time amended, supplemented and/or novated on each
Single Series Issue Date, and governed by Italian law;
“Italian Law Transaction Documents” means the Agency and Accounts Agreement, the Corporate
Services Agreement, the Stichtingen Corporate Services Agreement, the Italian Deed of Pledge, the
Intercreditor Agreement, the Mandate Agreement, the Programme Shareholders’ Agreement, the
Programme Letter of Undertaking, the Master Transfer Agreement, the Servicing Agreement, the
Warranty and Indemnity Agreement, the Subordinated Loan Agreements, the Programme
Agreement, the Single Series Senior Notes Subscription Agreements and the Single Series Junior
Notes Subscription Agreements;
“Junior Notes Additional Remuneration ” means, in relation to the Junior Notes of all Single
Series, on each Interest Payment Date
(a)
prior to the service of a Programme Acceleration Notice but following the service of a
Purchase Termination Event Notice, the Programme Principal Available Funds calculated on
the immediately preceding Calculation Date minus all payments to be made under the PreEnforcement Priority of Payments for Programme Principal Available Funds under items (i)
to (iv)(III);
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(b)
following the service of a Programme Acceleration Notice, the Post-Enforcement Issuer
Available Funds minus all payments to be made under the Post-Enforcement Priority of
Payments under items (i) to (xvii);
“Junior Notes Principal Deficiency Ledger” means the ledger established and maintained by the
Computation Agent in respect of the Junior Notes of all Single Series pursuant to the Agency and
Accounts Agreement where any Realised Losses will be recorded, as a debit entry in accordance
with Condition 4(h) (Principal Deficiency Ledgers);
“Limited Recourse Loan” means any limited recourse loan, or other form of financing, advanced
by the Originator to the Issuer pursuant to the terms of clause 2 (Impegno a finanziare) of the
Programme Letter of Undertaking;
“Liquidation Date” means the date falling one Business Day before each Calculation Date;
“Mandate Agreement” means the mandate agreement entered into on the Signing Date between
the Issuer and the Representative of the Noteholders;
“Master Transfer Agreement” means the transfer agreement dated the Initial Execution Date,
between the Issuer and Santander;
“Meeting” has the meaning given to it in the Rules of the Organisation of Noteholders;
“Monte Titoli” means Monte Titoli S.p.A.;
“Monte Titoli Account Holder” means any authorised financial intermediary institution entitled to
hold accounts on behalf of its customers with Monte Titoli and includes any depository banks
appointed by Clearstream, Luxembourg and Euroclear;
“Moody’s” means Moody’s Investors Service Limited;
“Most Senior Class” means at any time, without prejudice to any applicable Priority of Payments:
(a)
the Class A Notes (for so long as there are Class A Notes outstanding of any Single Series); or
(b)
if no Class A Notes are then outstanding, the Class B Notes (for so long as there are Class B
Notes outstanding of any Single Series); or
(c)
if neither Class A Notes nor Class B Notes are then outstanding, the Junior Notes;
“Newest Single Series” means, on each Calculation Date, the outstanding Single Series with the
most recent Single Series Issue Date in respect of the Single Series Issue Dates of all Single Series
still outstanding;
“Note Security” has the meaning given in Condition 5(a) (Note Security);
“Offer Date” means:
(i)
in relation to the Subsequent Claims, during any Single Series Revolving Period, the third
Business Day of each Collection Period, the first Offer Date being 5 April 2010; and
(ii)
in relation to the Additional Claims the Business Day agreed as between the Originator and
the Issuer,
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pursuant to the terms of the Master Transfer Agreement and “Offer Dates” means, collectively, any
of them;
“Offer to Sell” means the letter of offer to sell either the Subsequent Claims or the Additional
Claims substantially in the form attached to appendix 4 to the Master Transfer Agreement which
shall be sent by the Originator to the Issuer pursuant to clause 2.4 of the Master Transfer
Agreement;
“Oldest Single Series” means, on each Calculation Date, the outstanding Single Series with the
earliest Single Series Issue Date in respect of the Single Series Issue Dates of all Single Series still
outstanding;
“Organisation of Noteholders” means the organisation of the Noteholders created by the issue and
subscription of the Notes of the First Single Series and regulated by the Rules of the Organisation of
Noteholders attached hereto as a schedule;
“Originator” means Santander Consumer Bank S.p.A.;
“Originator’s Claims” means, collectively, the monetary claims that the Originator may have from
time to time against the Issuer under the Master Transfer Agreement (other than in respect of the
Initial Portfolio Purchase Price and the Additional Portfolio Purchase Price(s)) and the Warranty and
Indemnity Agreement, and including, without limitation, the Rateo Amounts, all amounts due and
payable to the Originator for the repayment of any loan extended to the Issuer under clause 15.4
(Finanziamento spese) of the Master Transfer Agreement and clause 8.4 (Risoluzione delle
controversie) of the Warranty and Indemnity Agreement;
“Other Issuer Creditors” means the Paying Agents, the Agent Bank, the Computation Agent, the
Account Bank, the Programme Administrator, the first Single Series Swap Counterparty, the
Servicer, the Corporate Services Provider, the Stichtingen Corporate Services Provider, the First
Subordinated Loan Provider, the Noteholders, the Dealers, the Arranger, the Single Series Junior
Notes Underwriters and Santander (in respect of any monetary obligation due to it by the Issuer
under the Programme Letter of Undertaking, the Master Transfer Agreement and the Warranty and
Indemnity Agreement), together with any entity which has become or will become, from time to
time, a party to the Intercreditor Agreement;
“Outstanding Principal” means, on any date and in respect of each Claim, the aggregate of all
Principal Components owing from the relevant Borrower and/or scheduled to be paid after such
date;
“Payments Report” means the report prepared, on each Calculation Date, by the Computation
Agent which will calculate the amounts to be disbursed on the following Interest Payment Date
pursuant to the priority of payments as set forth in Condition 4(d) (Pre-Enforcement Priority of
Payments for Single Series Interest Available Funds), Condition 4(e) (Pre-Enforcement Priority of
Payments for Single Series Principal Available Funds), and Condition 4(f) (Pre-Enforcement
Priority of Payments for Programme Principal Available Funds) or, in accordance with the
Conditions, pursuant to the priority of payments as set forth in Condition 4(g) (Post-Enforcement
Priority of Payments), and to be delivered by the Computation Agent to the Issuer, the Servicer,
Santander, the Arranger, the Dealers, the Corporate Services Provider, the Rating Agency, the
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Paying Agents, each Single Series Swap Counterparty, the Account Bank and the Representative of
the Noteholders;
“Portfolio Outstanding Amount” means, on each Interest Payment Date, the aggregate
Outstanding Principal of all the Claims;
“Post-Enforcement Final Redemption Date” means the earlier to occur between: (i) the date
when all the Notes issued under the Programme are due for payment under Condition 8(d)
(Optional redemption) or Condition 8(e) (Optional redemption in whole for taxation, legal or
regulatory reasons) in the event that the Issuer opts for the early redemption of the Notes in
accordance therewith, (ii) the date when the Portfolio Outstanding Amount will have been reduced
to zero, and (iii) the date when all the Claims then outstanding will have been entirely written off by
the Issuer;
“Post-Enforcement Issuer Available Funds” means, as of each Calculation Date following the
service of a Programme Acceleration Notice, the aggregate of the amounts received or recovered by
or on behalf of the Issuer or the Representative of the Noteholders in respect of the Claims, the Note
Security and the Issuer’s Rights under the Transaction Documents (but excluding any Collateral);
“Post-Enforcement Priority of Payments” means the provisions relating to the order of priority of
payments as set out in Condition 4(g) (Post-Enforcement Priority of Payments);
“Pre-Enforcement Priority of Payments” has the meaning given in Condition 4(f) (PreEnforcement Priority of Payments for Programme Principal Available Funds);
“Pre-Enforcement Priority of Payments for Programme Principal Available Funds” means the
provisions relating to the order of priority of payments as set out in Condition 4(f) (PreEnforcement Priority of Payments for Programme Principal Available Funds);
“Pre-Enforcement Priority of Payments for Single Series Interest Available Funds” means the
provisions relating to the order of priority of payments as set out in Condition 4(d) (PreEnforcement Priority of Payments for Single Series Interest Available Funds);
“Pre-Enforcement Priority of Payments for Single Series Principal Available Funds” means the
provisions relating to the order of priority of payments as set out in Condition 4(e) (PreEnforcement Priority of Payments for Single Series Principal Available Funds);
“Prepayment Fees” means the fee due to the Originator by any Borrower opting for a voluntary
prepayment of the relevant Consumer Loan;
“Previous Programme 2004” means the securitisation transaction named “€2,500,000,000 Euro
Medium Term Asset-Backed Notes Programme” structured in the form of a programme and
established by the Issuer in accordance with the Securitisation Law in March 2004;
“Previous Programme 2004 Notes” means the following asset-backed notes issued in connection
with the Previous Programme 2004: “€188,000,000 Series 1 2004 - Class A limited recourse assetbacked notes due 2020”, “€8,000,000 Series 1 2004 - Class B limited recourse asset-backed notes
due 2020”, “€3,000,000 Series 1 2004 - Class limited recourse asset-backed notes due 2020”,
“€1,000,0000 Series 1 2004 - Class D limited recourse asset-backed notes due 2020”,
“€470,000,000 Series 2 2004 - Class A limited recourse asset-backed notes due 2021”,
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“€20,000,000 Series 2 2004 - Class B limited recourse asset-backed notes due 2021”, “€7,500,000
Series 2 2004 - Class limited recourse asset-backed notes due 2021”, “€2,500,000 Series 2 2004 Class D limited recourse asset-backed notes due 2021”, “€658,000,000 Series 3 2006 - Class A
limited recourse asset-backed notes due 2022”, “€28,000,000 Series 3 2006 - Class B limited
recourse asset-backed notes due 2022”, “€10,500,000 Series 3 2006 - Class limited recourse assetbacked notes due 2022”, “€3,500,000 Series 3 2006 - Class D limited recourse asset-backed notes
due 2022”, “€658,000,000 Series 4 2007 - Class A limited recourse asset-backed notes due 2023”,
“€28,000,000 Series 4 2007 - Class B limited recourse asset-backed notes due 2023”, “€10,500,000
Series 4 2007 - Class C limited recourse asset-backed notes due 2023” and “€3,500,000 Series 4
2007 - Class D limited recourse asset-backed notes due 2023”;
“Previous Programme December 2008” means the securitisation transaction named
“€2,500,000,000 Euro Medium Term Asset-Backed Notes Programme” structured in the form of a
programme and established by the Issuer in accordance with the Securitisation Law in December
2008;
“Previous Programme December 2008 Notes” means the following asset-backed notes issued in
connection with the Previous Programme December 2008: “€ 691,850,000 Series 1 2008 GB III
Class A limited recourse asset-backed notes due 2025”, “€ 31,500,000 Series 1 2008 GB III Class B
limited recourse asset-backed notes due 2025”, “€ 21,400,000 Series 1 2008 GB III Class C limited
recourse asset-backed notes due 2025” and “€ 5,250,000 Series 1 2008 GB III Class D limited
recourse asset-backed notes due 2025”;
“Previous Programme March 2008” means the securitisation transaction named “€2,500,000,000
Euro Medium Term Asset-Backed Notes Programme” structured in the form of a programme and
established by the Issuer in accordance with the Securitisation Law in March 2008;
“Previous Programme March 2008 Notes” means the following asset-backed notes issued in
connection with the Previous Programme March 2008: “€631,750,000 Series 1 2008 Class A
limited recourse asset-backed notes due 2024”, “€49,000,000 Series 1 2008 Class B limited
recourse asset-backed notes due 2024”, “€15,750,000 Series 1 2008 Class C limited recourse
asset-backed notes due 2024” and “€3,500,000 Series 1 2008 Class D limited recourse assetbacked notes due 2024”;
“Previous Programme Notes” means collectively the Previous Programme 2004 Notes, the
Previous Programme March 2008 Notes and the Previous Programme December 2008 Notes;
“Previous Transactions Documents” means collectively the documents, deeds and agreements
defined as “Transaction Documents” in the prospectus related to the Previous Programme 2004, in
the prospectus related to the Previous Programme March 2008 and the Previous Programme
December 2008;
“Principal Amount Outstanding” means, on any day:
(a)
in relation to each Single Series, the aggregate principal amount outstanding of all Notes in
such Single Series;
(b)
in relation to each Class of Notes of a specific Single Series, the aggregate principal amount
outstanding of all Notes in such Class of Notes of such Single Series;
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(c)
in relation to each Class of Notes, the aggregate principal amount outstanding of all Notes in
such Class of Notes in all Single Series; and
(d)
in relation to a Note, the principal amount of that Note upon issue (considering the relevant
Single Series Issue Date) less the aggregate amount of all Principal Payments in respect of
that Note which have become due and payable (and which have actually been paid) on or
prior to that date;
“Principal Component” means the principal component of each Instalment;
“Principal Deficiency Ledgers” means, collectively, the Class A Notes Principal Deficiency
Ledger, the Class B Notes Principal Deficiency Ledger and the Junior Notes Principal Deficiency
Ledger;
“Principal Payment” has the meaning given in Condition 8(c) (Mandatory pro rata redemption in
whole or in part and application of Single Series Principal Available Funds);
“Priority of Payments” means the Pre-Enforcement Priority of Payments for Single Series Interest
Available Funds, the Pre-Enforcement Priority of Payments for Single Series Principal Available
Funds, the Pre-Enforcement Priority of Payments for Programme Principal Available Funds or the
Post-Enforcement Priority of Payments, as the context requires;
“Programme Acceleration Notice” has the meaning given in Condition 11(b) (Service of a
Programme Acceleration Notice);
“Programme Agreement” means the programme agreement dated the Signing Date between,
among others, the Issuer, the Initial Dealer, the Arranger and the Originator as amended and/or
supplemented from time to time;
“Programme Interest Available Funds” means, on any Calculation Date prior to the service of a
Programme Acceleration Notice, an amount equal to the sum of:
(a)
the Interest Components received by the Issuer in respect of the Consumer Loans in the
Portfolio during the Collection Period immediately preceding such Calculation Date;
(b)
without duplication with (a) above, an amount equal to the Interest Components invested in
Eligible Investments (if any) during the immediately preceding Collection Period from the
Collection Account, following liquidation thereof on the preceding Liquidation Date;
(c)
the Cash Reserve;
(d)
without duplication with (c) above, an amount equal to the sums invested in Eligible
Investments (if any) during the immediately preceding Collection Period from the Cash
Reserve Account, following liquidation thereof on the preceding Liquidation Date;
(e)
without duplication with (c) above, all amounts of interest accrued and paid on the Cash
Accounts during the Collection Period immediately preceding such Calculation Date;
(f)
without duplication with (e) above, payments made to the Issuer by any other party to the
Transaction Documents during the Collection Period immediately preceding such Calculation
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Date excluding amounts paid or payable under any of the Single Series Swap Agreements
and excluding those amounts constituting Programme Principal Available Funds;
(g)
the Revenue Eligible Investments Amount realised on the preceding Liquidation Date, if any;
(h)
any recoveries (including any purchase price received in relation to the sale of any Defaulted
Claims) received by the Issuer in respect of any Defaulted Claim during the Collection Period
immediately preceding such Calculation Date; and
(i)
any other amount standing to the credit of the Collection Account as at the end of the
Collection Period immediately preceding the relevant Calculation Date but excluding those
amounts constituting Programme Principal Available Funds;
“Programme Interest Excess” has the meaning given in Condition 8(h) (Programme Interest
Excess);
“Programme Interest Shortfall” means, on any Calculation Date, an amount equal to the
aggregate of all Single Series Interest Shortfalls at such Calculation Date;
“Programme Letter of Undertaking” means the letter of undertaking entered into on the Signing
Date between the Issuer, Santander and the Representative of the Noteholders;
“Programme Principal Available Funds” means, on any Calculation Date prior to the service of a
Programme Acceleration Notice, an amount equal to the sum of:
(a)
the Principal Components received by the Issuer in respect of the Consumer Loans (other
than Defaulted Claims) in the Portfolio during the Collection Period immediately preceding
such Calculation Date;
(b)
without duplication with (a) above, an amount equal to the Principal Components (other than
those relating to Defaulted Claims) invested in Eligible Investments (if any) during the
immediately preceding Collection Period from the Collection Account, following liquidation
thereof on the preceding Liquidation Date;
(c)
the Programme Principal Deficiency Ledger Amount calculated in respect of such
Calculation Date;
(d)
the amounts actually credited to and/or retained in, on the immediately preceding Interest
Payment Date, the Collection Account under items (i)(B), (ii)(B) and (iv)(B) of the PreEnforcement Priority of Payments for Programme Principal Available Funds, if any;
(e)
payments made to the Issuer by the Originator pursuant to the Warranty and Indemnity
Agreement and/or the Master Transfer Agreement during the Collection Period immediately
preceding such Calculation Date in respect of indemnities or damages for breach of
representations or warranties;
(f)
any purchase price received by the Issuer in relation to the sale of any Claims (other than
Defaulted Claims) made in accordance with the Master Transfer Agreement and the Warranty
and Indemnity Agreement during the Collection Period immediately preceding such
Calculation Date; and
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(g)
on the Calculation Date immediately preceding the Final Redemption Date and on any
Calculation Date thereafter, the balance standing to the credit of the Expenses Account at
such dates;
“Programme Principal Deficiency Ledger Amount” means the sum of all Single Series Principal
Deficiency Ledger Amounts;
“Programme Shareholders’ Agreement” means the shareholders’ agreement dated the Signing
Date between the Issuer, Santander, Stichting Turin, Stichting Po River and the Representative of
the Noteholders;
“Prospectus” means the prospectus issued on 22 December 2009 relative to the Programme, as
from time to time amended and or integrated by the Final Terms, and which constitutes a prospetto
informativo for all Classes of Notes in accordance with the Securitisation Law;
“Purchase Termination Event” means any of the following events:
(a)
the Default Ratio Rolling Average for the immediately preceding Collection Period is higher
than 1.5%; or
(b)
the Arrear Ratio Rolling Average for the immediately preceding Collection Period is higher
than 6%; or
(c)
the Collateral Ratio is lower than 95% for the three immediately preceding Collection
Periods; or
(d)
on any Interest Payment Date, following the making of the payments and/or provisions
required to be made by the Issuer on such date, a debit balance remains outstanding on one or
more Principal Deficiency Ledgers; or
(e)
provided that on the immediately preceding Interest Payment Date the amount standing to the
credit of the Cash Reserve Account was at least equal to the Target Cash Reserve Amount,
the amount standing to the credit of the Cash Reserve Account on the immediately following
Interest Payment Date, following all payments and/or provisions to be made on such date,
will be lower than the Target Cash Reserve Amount,
each, as determined by the Computation Agent on a Calculation Date and as set out in the
Payments Report; or
(f)
in relation to the Originator:
(i)
an administrator, administrative receiver or liquidator is appointed or it becomes
subject to any bankruptcy, liquidation, administration, insolvency, composition,
reorganisation or similar proceedings or application is made for the commencement of
any such proceedings or an encumbrance takes possession of the whole or any
substantial part of its undertaking or assets; or
(ii)
proceedings are initiated under any applicable bankruptcy, liquidation, administration,
insolvency, composition, reorganisation or similar laws and such proceedings are not,
in the opinion of the Representative of the Noteholders, being disputed in good faith;
or
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(iii)
any action is taken for the readjustment or deferment of a substantial part of its
obligations or it makes a general assignment or an arrangement or a composition with
or for the benefit of its creditors or is granted by a competent court a moratorium in
respect of any of its indebtedness or any guarantee of any indebtedness given by it or
applies for bankruptcy or suspension of payment; or
(iv)
an order is made or an effective resolution is passed for the winding-up, liquidation or
dissolution of the Originator; or
(v)
the collections relating to the Claims are not transferred irrevocably and in cleared
funds, pursuant to the terms and conditions of the Servicing Agreement, by the
Servicer into the Collection Account; or
(vi)
other than as a result of force majeure, notwithstanding the occurrence of which the
Servicer has used its reasonable endeavours to deliver the Quarterly Servicer Report in
the circumstances, the Servicer fails to deliver a Quarterly Servicer Report on the due
date therefor in accordance with the Servicing Agreement and such failure continues
for a period of seven Business Days; or
(vii) the Originator or the Servicer is in breach of any of its other obligations under any of
the Transaction Documents to which it is a party and, in the case of an obligation
which is a payment obligation (including, but not limited to, in this regard, its
obligation to repurchase or make payments in respect of any Claim), such breach
continues for a period of seven Business Days after the date on which such payment
obligation was due to be performed or, in the case of a breach of any other obligation,
such breach is not remedied in the opinion of either the Issuer or the Representative of
the Noteholders within ten Business Days of notice being given by the Issuer or the
Representative of the Noteholders to the Originator or the Servicer, as the case may be
and in accordance with the terms of the relevant Transaction Document; or
(viii) a representation or warranty given by Santander in the Warranty and Indemnity
Agreement has been breached and has not been remedied within 10 Business Days in
accordance with the terms of the Warranty and Indemnity Agreement; or
(ix)
the Originator fails, during any Single Series Revolving Period, to offer for sale to the
Issuer Subsequent Claims for three consecutive Offer Dates;
“Purchase Termination Event Notice” means the notice delivered by the Computation Agent to
the Issuer in accordance with the Agency and Accounts Agreement following the occurrence of a
Purchase Termination Event;
“Quarterly Reporting Date” means the date which is fourth Business Days after the last day of
each Collection Period;
“Rateo Amounts” means (i) in relation to the Initial Claims, interest accrued on the relevant
Consumer Loans up to the Initial Valuation Date but not yet due, for an overall amount equal to
€1,538,644.93; and (ii) in relation to the Subsequent Claims and/or Additional Claims, interest
accrued on the relevant Consumer Loans up to the relevant Valuation Date but not yet due, the
overall amount of which will be provided in the relevant Offer to Sell;
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“Rating Agency” means S&P;
“Realised Loss” means, as at the end of each Collection Period, in respect of a Claim which has
become a Defaulted Claim during such Collection Period, the Outstanding Principal of such
Defaulted Claim;
“Reference Banks” means, initially, Barclays Bank PLC, Lloyds TSB Bank plc, HSBC Bank plc
and Royal Bank of Scotland plc, each acting through its principal London office and, if the principal
London office of any such bank is unable or unwilling to continue to act as a Reference Bank, the
principal London office of such other bank as the Issuer shall appoint and as may be approved in
writing by the Representative of the Noteholders to act in its place;
“Relevant Date” means, in respect of any payment in relation to any Single Series of Notes,
whichever is the later of:
(a)
the date on which the payment in respect of it first becomes due or (if any amount of the
money payable is improperly withheld or refused) the date on which payment in full of the
amount outstanding is made; and
(b)
if the full amount payable has not been received by the Principal Paying Agent or the
Representative of the Noteholders on or prior to such date, the date on which, the full amount
having been so received, notice to that effect has been given to the relevant Noteholders in
accordance with Condition 18 (Notices);
“Retention Amount” means an amount equal to €30,000;
“Revenue Eligible Investments Amount” means, as at each Liquidation Date, any interest or other
remuneration on the Eligible Investments bought by or for the account of the Issuer other than
repayment of principal or repayment of the initial capital invested, as applicable, in respect of each
Eligible Investment;
“S&P” means Standard and Poor’s Ratings Services, a division of The McGraw-Hill Companies
Inc.;
“Santander” means Santander Consumer Bank S.p.A.;
“Secured Amounts” means all the amounts due, owing or payable by the Issuer, whether present or
future, actual or contingent, to the Noteholders under the Notes of all Single Series and the other
Issuer Secured Creditors pursuant to the relevant Transaction Documents;
“Security Interest” means any mortgage, charge, pledge, lien, right of set-off, special privilege
(privilegio speciale), assignment by way of security, retention of title or any other security interest
whatsoever or any other agreement or arrangement having the effect of conferring security;
“Servicer” means Santander, and includes any successor servicer appointed from time to time
under the Servicing Agreement;
“Servicer’s Advance” means all amounts due and payable to the Servicer for the repayment of any
loan extended to the Issuer under clause 12.5.5 of the Servicing Agreement;
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“Servicing Agreement” means the servicing agreement entered into on the Initial Execution Date,
between the Servicer and the Issuer;
“Single Series Amortising Period” means, in relation to each Single Series, the period from and
including: (a) the day defined as such in the applicable Final Terms or, if earlier, (b) the date on
which a Purchase Termination Event Notice is delivered by the Computation Agent to the Issuer;
“Single Series Class A Margin” has the meaning, in respect of the Class A Notes of each Single
Series, given in the applicable Final Terms;
“Single Series Class A Notes Interest Amount” has the meaning given in Condition 7(e)(i)
(Calculation of Single Series Interest Amounts);
“Single Series Class A Notes Interest Amount Arrears” means, in the respect of the Class A
Notes of each Single Series, the relevant Single Series Class A Notes Interest Amount which has not
become payable pursuant to the relevant Pre-Enforcement Priority of Payments for Single Series
Interest Available Funds;
“Single Series Class A Notes Principal Deficiency Ledger” means, in relation to each Single
Series, the principal deficiency ledger established in respect of the Class A Notes of such Single
Series where a portion of the Realised Losses will be recorded as a debit entry in accordance with
Condition 4(i) (Single Series Principal Deficiency Ledgers) and “Single Series Class A Notes
Principal Deficiency Ledgers” means all of them collectively;
“Single Series Class A Rate of Interest” has, in relation to each Single Series, the meaning given
in Condition 7(c) (Interest on the Senior Notes);
“Single Series Class B Margin” has the meaning, in respect of the Class B Notes of each Single
Series, given in the applicable Final Terms;
“Single Series Class B Notes Interest Amount” has the meaning given in Condition 7(e)(ii)
(Calculation of Single Series Interest Amounts);
“Single Series Class B Notes Interest Amount Arrears” means, in the respect of the Class B
Notes of each Single Series, the relevant Single Series Class B Notes Interest Amount which has not
become payable pursuant to the relevant Pre-Enforcement Priority of Payments for Single Series
Interest Available Funds;
“Single Series Class B Notes Principal Deficiency Ledger” means, in relation to each Single
Series, the principal deficiency ledger established in respect of the Class B Notes of such Single
Series where a portion of the Realised Losses will be recorded as a debit entry in accordance with
Condition 4(i) (Single Series Principal Deficiency Ledgers) and “Single Series Class B Notes
Principal Deficiency Ledgers” means all of them collectively;
“Single Series Class B Rate of Interest” has, in relation to each Single Series, the meaning given
in Condition 7(c) (Interest on the Senior Notes);
“Single Series Decree 239 Interest Payment Date” has the meaning, in respect of each Single
Series, given in the applicable Final Terms;
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“Single Series Interest Amount” has the meaning given in Condition 7(e) (Calculation of Single
Series Interest Amounts);
“Single Series Interest Amount Arrears” means the Single Series Class A Interest Amount
Arrears, the Single Series Class B Interest Amount Arrears and/or the Single Series Junior Notes
Interest Amount Arrears, as the context requires;
“Single Series Interest Available Funds” means, in respect of each Single Series and in respect of
the immediately following Interest Payment Date, the sum, calculated on each Calculation Date
prior to the service of a Programme Acceleration Notice, of:
(i)
an amount equal to the relevant Single Series Ratio of the Programme Interest Available
Funds;
(ii)
any amount due and payable, although not yet paid, to the Issuer by the relevant Single Series
Swap Counterparty under the relevant Single Series Swap Agreement on the second Business
Day before the Interest Payment Date immediately following the relevant Calculation Date;
and
(iii)
to the extent that the aggregate of the funds under (i) and (ii) above is lower than the
applicable Single Series Senior Interest Payments, a portion (determined in accordance with
Condition 8(h) (Programme Interest Excess) of the amounts (if any) credited to and/or
retained in the Collection Account pursuant to item (xii) of the Pre-Enforcement Priority of
Payments for Single Series Interest Available Funds relative to any other Single Series,
but excluding (i) any amount paid by the relevant Single Series Swap Counterparty upon
termination of the relevant Single Series Swap Transaction in respect of any termination payment
and, until a replacement swap counterparty has been found, exceeding the net amounts which would
have been due and payable by the relevant Single Series Swap Counterparty with respect to the next
Interest Payment Date, had the relevant Single Series Swap Transaction not been terminated; and
(ii) the relevant Collateral (if any);
“Single Series Interest Excess” has the meaning given in Condition 8(h) (Programme Interest
Excess);
“Single Series Interest Shortfall” means, in relation to any Single Series, on any Calculation Date,
the difference (if positive) between the relevant Single Series Senior Interest Payments and the
relevant Single Series Interest Available Funds (without considering the portion of the Programme
Interest Excess (if any) used to augment such Single Series Interest Available Funds);
“Single Series Issue Date” has the meaning, in respect of each Single Series, given in the
applicable Final Terms;
“Single Series Junior Notes Additional Remuneration” means, in relation to the Junior Notes of
a Single Series, on each Interest Payment Date, prior to the service of a Programme Acceleration
Notice and prior to the service of a Purchase Termination Event Notice, the Single Series Principal
Available Funds of such Single Series calculated on the immediately preceding Calculation Date
minus all payments to be made under the Pre-Enforcement Priority of Payments for Single Series
Principal Available Funds of this Single Series under items (i) to (vi);
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“Single Series Junior Notes Available Funds” means, in relation to any Interest Payment Date, the
amount of Single Series Interest Available Funds for such Interest Payment Date adjusted as a
consequence of being calculated by reference to the Programme Interest Available Funds for such
Interest Payment Date in relation to which item (a) of the definition of Programme Interest
Available Funds is to be deemed as being “the aggregate of all Interest Components accrued,
although not yet paid, in respect of the Consumer Loans during the Collection Period immediately
preceding such Calculation Date”;
“Single Series Junior Notes Interest Amount” means:
(A)
in relation to the Junior Notes of each Single Series and in relation to each Interest Payment
Date on which the Cash Reserve equals the Target Cash Reserve Amount, the Single Series
Junior Notes Available Funds of such Single Series calculated on the immediately preceding
Calculation Date less: (i) the sum of amounts to be paid on such date under items (i) to (xix)
of the Pre-Enforcement Priority of Payments for Single Series Interest Available Funds of this
Single Series, with the exception of the amounts to be paid on such date under items (xvi)
and (xvii) of the same Pre-Enforcement Priority of Payments for Single Series Interest
Available Funds and; (ii) the Single Series Ratio of this Single Series of the aggregate Interest
Components due but not paid at such date under the Claims which have become Defaulted
Claims during the immediately preceding Collection Period;
(B)
in relation to the Junior Notes of each Single Series and in relation to each Interest Payment
Date on which the Cash Reserve is lower than the Target Cash Reserve Amount, the Single
Series Junior Notes Available Funds of such Single Series calculated on the immediately
preceding Calculation Date less: (i) the sum of amounts to be paid on such date under items
(i) to (xix) of the Pre-Enforcement Priority of Payments for Single Series Interest Available
Funds of this Single Series, with the exception of the amounts to be paid on such date under
items (xi), (xvi) and (xvii) of the same Pre-Enforcement Priority of Payments for Single
Series Interest Available Funds; (ii) the Single Series Ratio of this Single Series of the
aggregate Interest Components due but not paid at such date under the Claims which have
become Defaulted Claims during the immediately preceding Collection Period; and (iii) the
Cash Reserve at the immediately preceding Calculation Date;
“Single Series Junior Notes Interest Amount Arrears” means, in respect of the Junior Notes of
each Single Series, the relevant Single Series Junior Notes Interest Amount which has not become
payable pursuant to the relevant Pre-Enforcement Priority of Payments for Single Series Interest
Available Funds;
“Single Series Junior Notes Principal Deficiency Ledger” means, in relation to each Single
Series, the principal deficiency ledger established in respect of the Junior Notes of such Single
Series where a portion of the Realised Losses will be recorded as a debit entry in accordance with
Condition 4(i) (Single Series Principal Deficiency Ledgers) and “Single Series Junior Notes
Principal Deficiency Ledgers” means all of them collectively;
“Single Series Junior Notes Subscription Agreement” means each single series junior notes
subscription agreement entered into on or around each Single Series Issue Date in relation to the
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subscription of the relevant Junior Notes and “Single Series Junior Notes Subscription
Agreements” means, collectively, all of them;
“Single Series Junior Notes Underwriters” means, collectively, the First Single Series Junior
Notes Underwriter and any other underwriter of Junior Notes of any Single Series, pursuant to one
or more Single Series Junior Notes Subscription Agreements;
“Single Series Maturity Date” has the meaning, in respect of each Single Series, given in the
applicable Final Terms;
“Single Series Noteholder” has the meaning given in Condition 3(c) (Title);
“Single Series Outstanding PDL Amount” means in relation to each Single Series and in respect
of each Interest Payment Date the difference (if any) between (i) the sum of the amounts to be
credited to and/or retained in, on such Interest Payment Date, the Collection Account under items
(vii), (ix) and (x) of the applicable Pre-Enforcement Priority of Payments for Single Series Interest
Available Funds to reduce the applicable Single Series Principal Deficiency Ledgers to zero and (ii)
the amounts actually credited to and/or retained in, on such Interest Payment Date, the Collection
Account under items (vii), (ix) and (x) of the applicable Pre-Enforcement Priority of Payments for
Single Series Interest Available Funds to reduce the applicable Single Series Principal Deficiency
Ledgers to zero;
“Single Series Principal Available Funds” means, in respect of each Single Series, the portion of
Programme Principal Available Funds allocated to each Single Series in accordance with Condition
8(g) (Calculation of Single Series Principal Available Funds);
“Single Series Principal Deficiency Ledger Amount” means, in respect of each Single Series:
(a)
in respect of each Calculation Date immediately preceding an Interest Payment Date falling
in the relevant Single Series Revolving Period, the aggregate amounts retained in and/or
credited to the Collection Account on the immediately preceding Interest Payment Date
pursuant to items (vii), (ix) and (x) of the Pre-Enforcement Priority of Payments for Single
Series Interest Available Funds; and
(b)
in respect of each Calculation Date immediately preceding an Interest Payment Date falling
in the relevant Single Series Amortising Period, the aggregate amounts that will be retained
in and/or credited to the Collection Account on such Interest Payment Date pursuant to items
(vii), (ix) and (x) of the relevant Pre-Enforcement Priority of Payments for Single Series
Interest Available Funds;
“Single Series Principal Deficiency Ledgers” means, in respect of each Single Series, collectively,
the applicable Single Series Class A Notes Principal Deficiency Ledger, the applicable Single Series
Class B Notes Principal Deficiency Ledger and the applicable Single Series Junior Notes Principal
Deficiency Ledger;
“Single Series Rate of Interest” has, in relation to each Single Series, the meaning given in
Condition 7(c) (Interest on the Senior Notes);
“Single Series Ratio” means, in respect of each Single Series, on any Calculation Date, the
fraction, expressed as a percentage, the numerator of which is the then Principal Amount
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Outstanding of such Single Series and the denominator of which is the then Principal Amount
Outstanding of the Notes under the Programme;
“Single Series Revolving Period” means, in relation to each Single Series, the period starting on
and including the relevant Single Series Issue Date and ending on but excluding the relevant Single
Series Revolving Period Termination Date;
“Single Series Revolving Period Termination Date” means, in relation to each Single Series, the
earlier of: (i) the date defined as such in the applicable Final Terms and (ii) the day on which a
Purchase Termination Event Notice is delivered by the Computation Agent to the Issuer;
“Single Series Senior Interest Payments” means, on any Calculation Date, in relation to each
Single Series, the sum of all amounts that would be payable under items (i) to (x) of the PreEnforcement Priority of Payments for Single Series Interest Available Funds on the immediately
following Interest Payment Date;
“Single Series Senior Notes Subscription Agreement” means any Single Series Senior Notes
subscription agreement entered into on or around a Single Series Issue Date and “Single Series
Senior Notes Subscription Agreements” means, collectively, all of them;
“Single Series Swap Agreement” means, in connection with each Single Series, the 1992 ISDA
Master Agreement (Multicurrency-Cross Border) and the Schedule executed thereunder, on or
around the relevant Single Series Issue Date, between the Issuer, the relevant Single Series Swap
Counterparty and the Representative of the Noteholders, together with the Single Series Swap
Transaction and the credit support annex executed thereunder, on or around the relevant Single
Series Issue Date, between the Issuer and the relevant Single Series Swap Counterparty and “Single
Series Swap Agreements” means, collectively, all of them;
“Single Series Swap Counterparty” means, in connection with each Single Series, the party (or
parties) acting as swap counterparty (or swap counterparties) of the Issuer in connection with the
relative Single Series and “Single Series Swap Counterparties” means, collectively, all the parties
acting, from time to time, as swap counterparties of the Issuer in connection with all Single Series.
Each Final Terms will indicate the name of the Single Series Swap Counterparty acting as such in
connection with the relevant Single Series;
“Single Series Swap Transaction” means the relevant interest rate swap transaction entered into,
on or around the relevant Single Series Issue Date, between the Issuer and the relevant Single Series
Swap Counterparty;
“Single Series Target Outstanding Amount” means, in relation to each Single Series and in
respect of each Interest Payment Date, the amount indicated in the applicable Final Terms;
“Specified Office” means, in respect of the Agents listed in Condition 18(d) (Initial Specified
Offices), the addresses indicated in the same Condition 18(d), or any specified office notified to the
Noteholders in accordance with Condition 18 (Notices) from time to time;
“Stichtingen Corporate Services Agreement” means the Stichtingen corporate services agreement
entered into on the Signing Date between the Issuer, Wilmington Trust SP Services (London)
Limited, the Representative of the Noteholders, Stichting Turin and Stichting Po River;
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“Stichtingen Corporate Services Provider” means Wilmington Trust SP Services (London)
Limited as corporate services provider to Stichting Turin and Stichting Po River pursuant to the
Stichtingen Corporate Services Agreement or any permitted assignee or successor;
“Subordinated Loan” means any subordinated loan, the amount of which is indicated in the
applicable Final Terms, granted by any Subordinated Loan Provider in connection with any
Subordinated Loan Agreement and “Subordinated Loans” means, collectively, all of them;
“Subordinated Loan Agreement” means any subordinated loan agreement entered into on or
around a Single Series Issue Date, the amount of which is indicated in the applicable Final Terms
and “Subordinated Loan Agreements” means, collectively, all of them;
“Subordinated Loan Providers” means, collectively, the First Subordinated Loan Provider and all
lenders under any of the Subordinated Loans from time to time outstanding;
“Subsequent Portfolio Purchase Price” has the meaning given to the term “Prezzo Crediti
Ulteriori” in the Master Transfer Agreement, which term identifies the purchase price of the
Subsequent Claims, from time to time;
“Subsequent Single Series” means, provided that there are more than two Single Series
outstanding, any one of the Single Series other than the Oldest Single Series and the Newest Single
Series;
“Subsequent Transfer Date” means (i) in relation to the Subsequent Claims, during any Single
Series Revolving Period, each Interest Payment Date, or, if later, the later of (a) the date on which
the relevant notice is published in the Gazzetta Ufficiale della Repubblica Italiana and (b) the date
on which the relevant notice is published in the relevant companies register; and (ii) in relation to
the Additional Claims, the second Business Day following the relevant Acceptance Date or the
different date indicated in the Offer to Sell;
“Swap Trigger” means the occurrence of an early termination of any Single Series Swap
Transaction due to either:
(a)
(i) the occurrence of a Rating Event and (ii) the failure by the relevant Single Series Swap
Counterparty to take such action as is required in the relevant Single Series Swap Agreement
to remedy such Rating Event; or
(b)
the occurrence of an Event of Default (as defined in the relevant Single Series Swap
Agreement (which, for the avoidance of doubt, is not the same as an Event of Default under
the Notes) and as designated as such by the Issuer) in respect of the relevant Single Series
Swap Counterparty;
“T.A.N.” means, in respect of each Consumer Loan, the annual nominal rate of return (tasso
nominale annuo);
“Target Cash Reserve Amount”means in respect of each Interest Payment Date, the lower of:
(a) €20,000,000; and
(b) the greater of:
(i)
€4,000,000; and
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(ii)
5% of the aggregate Principal Amount Outstanding of the Notes of all Single Series
as at such Interest Payment Date (following payments under the Notes to be made on
such Interest Payment Date),
provided that:
(A) notwithstanding the formula above, the Target Cash Reserve Amount may not be reduced
below the level applicable as at the immediately preceding Interest Payment Date, unless the
following cumulative conditions are met in respect of a given Interest Payment Date:
(a)
on the Interest Payment Date on which the reduction will become effective, the Cash
Reserve equals or exceeds the Target Cash Reserve Amount as at the relevant Interest
Payment Date (upon making all the payments and provisions to be made on such
Interest Payment Date);
(b)
the Principal Deficiency Ledgers are either zero or have been reduced to zero;
(c)
the aggregate Outstanding Principal of all Arrear Claims as at the end of the
immediately preceding Collection Period does not exceed six per cent. of the Initial
Portfolio Outstanding Amount;
(d)
at least eighteen months have elapsed since the last Single Series Issue Date; and
(e)
the Single Series Revolving Period Termination Date has already occurred; and
(B) on the Calculation Date immediately following the Interest Payment Date on which the Senior
Notes of all Single Series will be redeemed in full, the Target Cash Reserve Amount will be
reduced to zero,
provided that the Issuer may change this definition (and the defined terms referred to herein)
pursuant to Condition 14(a) (Modification).
“TARGET Settlement Day” means any day on which TARGET (the Trans European Automated
Real Time Gross Settlement Express Transfer system) is open;
“Transaction Documents” means, collectively, the English Law Transaction Documents and the
Italian Law Transaction Documents and “Transaction Document” means any one of them;
“Unpaid Instalment” means an Instalment which, at a given date, is due but not fully paid and
remains such for at least one calendar month following the date on which it should have been paid,
under the terms of the relevant Consumer Loan;
“Valuation Date” means (i) in relation to the Initial Claims, the Initial Valuation Date; (ii) in
relation to any Subsequent Claims, the first day of each Collection Period during which the Issuer
has purchased them; and (iii) in relation to any Additional Claims, the date indicated as such in the
relevant Offer to Sell; and
“Warranty and Indemnity Agreement” means the warranty and indemnity agreement dated the
Initial Execution Date, as subsequently amended on the Signing Date, between the Issuer and
Santander.
In these Conditions, the following events are deemed to have occurred as set out below:
an “Insolvency Event” will have occurred in respect of the Issuer if:
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(i)
the Issuer becomes subject to any applicable bankruptcy, liquidation, administration,
receivership, insolvency, composition or reorganisation (among which, without limitation,
fallimento, liquidazione coatta amministrativa, concordato preventivo, accordi di
ristrutturazione and amministrazione straordinaria, each such expression bearing the
meaning ascribed to it by the laws of the Republic of Italy, and including also any equivalent
or analogous proceedings under the law of the jurisdiction in which the Issuer is deemed to
carry on business including the seeking of liquidation, winding-up, reorganisation,
dissolution, administration, receivership, arrangement, adjustment, protection or relief of
debtors) or similar proceedings or the whole or any substantial part of the undertaking or
assets of the Issuer are subject to a pignoramento or similar procedure having a similar effect
(other than any portfolio of assets purchased by the Issuer for the purposes of further
securitisation transactions), unless in the opinion of the Representative of the Noteholders
(who may in this respect rely on the advice of a lawyer selected by it), such proceedings are
being disputed by the Issuer in good faith with a reasonable prospect of success;
(ii)
an application for the commencement of any of the proceedings under (a) above is made in
respect of or by the Issuer or the same proceedings are otherwise initiated against the Issuer
or notice is given of intention to appoint an administrator in relation to the Issuer and, in the
opinion of the Representative of the Noteholders (who may in this respect rely on the advice
of a lawyer selected by it), the commencement of such proceedings are not being disputed in
good faith with a reasonable prospect of success;
(iii)
the Issuer takes any action for a re-adjustment or deferment of any of its obligations or makes
a general assignment or an arrangement or composition with or for the benefit of its creditors
(other than the Issuer Secured Creditors) or is granted by a competent court a moratorium in
respect of any of its indebtedness or any guarantee of any indebtedness given by it or applies
for suspension of payments; or
(iv)
an order is made or an effective resolution is passed for the winding-up, liquidation,
administration or dissolution in any form of the Issuer (except a winding-up for the purposes
of or pursuant to a solvent amalgamation or reconstruction, the terms of which have been
previously approved in writing by the Representative of the Noteholders) or any of the events
under article 2484 of the Italian civil code occurs with respect to the Issuer;
a “Rating Event” will have occurred in respect of a Single Series Swap Counterparty if the
unsecured, unsubordinated debt obligations of such Single Series Swap Counterparty (or its
guarantors) cease to be rated at least as high as set out in the relevant Single Series Swap
Agreement.
3
Form, denomination and title
(a)
Form
The Notes of this Single Series are in bearer form, will be issued in dematerialised form
(emesse in forma dematerializzata) and will be wholly and exclusively deposited with Monte
Titoli in accordance with article 28 of Italian legislative decree No. 213 of 24 June 1998,
through the authorised institutions listed in article 30 of such legislative decree.
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(b)
Denomination
The Notes of this Single Series are issued in the denomination of €50,000 or in such higher
denomination as specified in the applicable Final Terms.
(c)
Title
The Notes of this Single Series will be held by Monte Titoli on behalf of the holders of the
Notes of this Single Series (the “Single Series Noteholder”) until redemption and
cancellation for the account of each relevant Monte Titoli Account Holder. Monte Titoli shall
act as depository for Clearstream, Luxembourg and Euroclear. The Notes of this Single Series
will at all times be in book entry form and title to the Notes of this Single Series will be
evidenced by, and title thereto will be transferable by means of, book entries in accordance
with the provisions of (i) article 28 of Italian legislative decree No. 213 of 24 June 1998; and
(ii) regulation issued by the Bank of Italy and the CONSOB on 22 February 2008, as
subsequently amended and supplemented. No physical document of title will be issued in
respect of the Notes of this Single Series.
(d)
Holder Absolute Owner
Except as ordered by a court of competent jurisdiction or as required by law, the Issuer, the
Representative of the Noteholders and each of the Paying Agents may (to the fullest extent
permitted by applicable laws) deem and treat the Monte Titoli Account Holder, whose
account is at the relevant time credited with a Note of this Single Series, as the absolute
owner of such Note for the purposes of payments to be made to the holders of such Notes of
this Single Series (whether or not the Note of this Single Series shall be overdue and
notwithstanding any notice to the contrary, any notice of ownership or writing on the Note of
this Single Series or any notice of any previous loss or theft of the Note of this Single Series)
and shall not be liable for doing so.
4
Status, ranking and priority
(a)
Status
The Notes of this Single Series are limited recourse obligations of the Issuer and,
accordingly, the extent of the obligation of the Issuer to make payments under the Notes of
this Single Series is limited to (i) prior to the service of a Programme Acceleration Notice and
prior to the service of a Purchase Termination Event Notice, the Single Series Interest
Available Funds and the Single Series Principal Available Funds of this Single Series
available for such purposes in accordance with, respectively, the Pre-Enforcement Priority of
Payments for Single Series Interest Available Funds and the Pre-Enforcement Priority of
Payments for Single Series Principal Available Funds; (ii) prior to the service of a
Programme Acceleration Notice but following the service of a Purchase Termination Event
Notice, the Single Series Interest Available Funds available for such purposes in accordance
with the Pre-Enforcement Priority of Payments for Single Series Interest Available Funds and
the share of the Programme Principal Available Funds to be apportioned to this Single Series
in accordance with the Pre-Enforcement Priority of Payments for Programme Principal
Available Funds or (iii) following the service of a Programme Acceleration Notice, the share
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of the Post-Enforcement Issuer Available Funds to be apportioned to this Single Series in
accordance with the Post-Enforcement Priority of Payments according to the proportions set
out in these Terms and Conditions and the Agency and Accounts Agreement. The Notes of all
Single Series are secured over certain assets of the Issuer pursuant to the Note Security. The
Single Series Noteholders acknowledge that the limited recourse nature of the Notes of this
Single Series produces the effects of a contratto aleatorio under Italian law and they accept
the consequences thereof, including but not limited to the provisions of article 1469 of the
Italian civil code. The rights arising from the Note Security are included in each Note of all
Single Series.
(b)
Ranking
(i)
In respect of the obligations of the Issuer to pay interest on the Notes, prior to the
service of a Programme Acceleration Notice:
(A)
the Class A Notes of this Single Series rank pari passu and without any
preference or priority amongst themselves and in priority to the Class B Notes
and the Junior Notes of this Single Series;
(B)
the Class B Notes of this Single Series rank pari passu and without any
preference or priority amongst themselves and in priority to the Junior Notes of
this Single Series, but subordinate to the Class A Notes of this Single Series; and
(C)
the Junior Notes of this Single Series rank pari passu and without any
preference or priority amongst themselves, but subordinate to the Senior Notes
of this Single Series,
it being understood that payments of interest on the Notes of this Single Series will be
funded exclusively out of the Single Series Interest Available Funds (subject to
Condition 4(d) (Pre-Enforcement Priority of Payments for Single Series Interest
Available Funds)) and that therefore: (a) interest on the Class B Notes and the Junior
Notes of any other Single Series may be paid in priority to payment of interest on the
Class A Notes of this Single Series; and (b) interest on the Junior Notes of any other
Single Series may be paid in priority to payment of interest on the Class B Notes of this
Single Series.
(ii)
In respect of the obligations of the Issuer to repay principal on the Notes, prior to the
service of either a Programme Acceleration Notice or a Purchase Termination Event
Notice:
(A)
the Class A Notes of this Single Series rank pari passu and without any
preference or priority amongst themselves and in priority to repayment of
principal on the Class B Notes and the Junior Notes of this Single Series;
(B)
the Class B Notes of this Single Series rank pari passu and without any
preference or priority amongst themselves but subordinate to repayment of
principal on the Class A Notes of this Single Series and in priority to the Junior
Notes of this Single Series and no amount of principal in respect of the Class B
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Notes of this Single Series shall become due and payable or be repaid until
redemption in full of the Class A Notes of this Single Series; and
(C)
the Junior Notes of this Single Series rank pari passu and without any
preference or priority amongst themselves, but subordinate to repayment of
principal on the Senior Notes of this Single Series and no amount of principal in
respect of the Junior Notes of this Single Series shall become due and payable or
be repaid until redemption in full of the Senior Notes of this Single Series,
it being understood that repayment of principal on the Notes of this Single Series will
be funded exclusively out of the Single Series Principal Available Funds (subject to
Condition 4(e) (Pre-Enforcement Priority of Payments for Single Series Principal
Available Funds)) and that therefore: (a) the Class B Notes and the Junior Notes of any
other Single Series may be redeemed prior to the redemption of the Class A Notes of this
Single Series; and (b) the Junior Notes of any other Single Series may be redeemed prior
to the redemption of the Senior Notes of this Single Series.
(iii)
(iv)
In respect of the obligations of the Issuer (a) to repay principal on the Notes, prior to
the service of a Programme Acceleration Notice but following the service of a
Purchase Termination Event Notice or (b) to pay interest and repay principal on the
Notes, following the service of a Programme Acceleration Notice:
(A)
the Class A Notes of all Single Series will rank pari passu and without any
preference or priority amongst themselves and in priority to the Class B Notes
and the Junior Notes of all Single Series;
(B)
the Class B Notes of all Single Series will rank pari passu and without any
preference or priority amongst themselves, but subordinate to repayment in full
of the Class A Notes of all Single Series and in priority to the Junior Notes of all
Single Series and no amount of principal in respect of the Class B Notes of all
Single Series shall become due and payable or be repaid until redemption in full
of the Class A Notes of all Single Series; and
(C)
the Junior Notes of all Single Series will rank pari passu and without any
preference or priority amongst themselves, but subordinate to repayment in full
of the Senior Notes of all Single Series and no amount of principal in respect of
the Junior Notes of all Single Series shall become due and payable or be repaid
until redemption in full of the Senior Notes of all Single Series.
Without prejudice to the above and to the applicable Priority of Payments, Notes of
any Class of any Single Series issued under the Programme may have a Single Series
Maturity Date or a Single Series Decree 239 Interest Payment Date which is earlier
than that of the Notes of the same Class or a more senior Class issued under another
Single Series. Accordingly, Class B Notes of any Single Series may be redeemed in
priority to the Class A Notes of any other Single Series; and Junior Notes of any Single
Series may be redeemed in priority to the Senior Notes of any other Single Series.
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(v)
(c)
The Intercreditor Agreement and the Rules of the Organisation of Noteholders provide
that the Representative of the Noteholders shall have regard to the respective interests
of all holders of the Notes of all Single Series in connection with the exercise of the
powers, authorities, rights, duties and discretions of the Representative of the
Noteholders under or in relation to the Notes or any of the Transaction Documents. In
this respect, the same Class of Notes of all Single Series will be considered as one
class provided that, if, in the opinion of the Representative of the Noteholders, there is
a conflict between the interests of the holders of one Class of Notes of one Single
Series and the interests of the holders of the same Class of Notes of another Single
Series, the same Class of Notes of all Single Series will be considered as separate
classes, one in respect of each Single Series. Furthermore, if, in the opinion of the
Representative of the Noteholders, there is a conflict between the interests of the Class
A Noteholders and the interests of the Class B Noteholders and/or the Junior
Noteholders, the Representative of the Noteholders is required under the Intercreditor
Agreement and the Rules of the Organisation of Noteholders to have regard only to the
interests of the Class A Noteholders, until all Class A Notes have been entirely
redeemed. If there are no Class A Notes outstanding and, in the opinion of the
Representative of the Noteholders, there is a conflict between the interests of the Class
B Noteholders and/or the interests of the Junior Noteholders, the Representative of the
Noteholders is required under the Intercreditor Agreement and the Rules of the
Organisation of Noteholders to have regard only to the interests of the Class B
Noteholders, until the Class B Notes have been entirely redeemed. If there are no Class
A Notes and, in the opinion of the Representative of the Noteholders, there is a conflict
between the interests of the Class B Noteholders and the interests of the Junior
Noteholders, the Representative of the Noteholders is required under the Intercreditor
Agreement and the Rules of the Organisation of Noteholders to have regard only to the
interests of the Class B Noteholders, until the Class B Notes have been entirely
redeemed.
Sole obligations
The Notes of this Single Series are obligations solely of the Issuer and are not obligations of,
or guaranteed by, any other parties to the Transaction Documents.
(d)
Pre-Enforcement Priority of Payments for Single Series Interest Available Funds
Prior to the service of a Programme Acceleration Notice, the Single Series Interest Available
Funds of this Single Series as calculated on each Calculation Date will be applied by the
Issuer on the Interest Payment Date immediately following such Calculation Date in making
payments or provisions in the following order of priority (the “Pre-Enforcement Priority of
Payments for Single Series Interest Available Funds”) but, in each case, only if and to the
extent that payments or provisions of a higher priority have been made in full:
(i)
first, in or towards satisfaction, pro rata and pari passu, according to the respective
amounts thereof, of the Single Series Ratio of any and all outstanding taxes due and
payable by the Issuer in relation to this Programme (to the extent that amounts standing
164
to the credit of the Expenses Account are insufficient to pay such costs and to the
extent not paid by Santander under the Transaction Documents);
(ii)
second, in or towards satisfaction, pro rata and pari passu, according to the respective
amounts thereof, of the Single Series Ratio of:
(A)
any and all outstanding fees, costs, liabilities and any other expenses to be paid
in order to preserve the corporate existence of the Issuer, to maintain it in good
standing, to comply with applicable legislation and to fulfil obligations of the
Issuer to third parties (not being Other Issuer Creditors) incurred in relation to
this Programme (to the extent that amounts standing to the credit of the
Expenses Account are insufficient to pay such costs and to the extent not paid by
Santander under the Transaction Documents);
(B)
any and all outstanding fees, costs, expenses and taxes required to be paid in
connection with the listing, deposit or ratings of the Notes, or any notice to be
given to the Noteholders or the other parties to the Transaction Documents (to
the extent that amounts standing to the credit of the Expenses Account are
insufficient to pay such costs);
(C)
any and all outstanding fees, costs and expenses of and all other amounts due
and payable to the Representative of the Noteholders or any appointee thereof;
and
(D)
the amount necessary to replenish the Expenses Account up to the Retention
Amount;
(iii)
third, in or towards satisfaction, pro rata and pari passu, according to the respective
amounts thereof, of the Single Series Ratio, of any and all outstanding fees, costs and
expenses of and all other amounts due and payable to the Paying Agents, the Agent
Bank, the Computation Agent, the Corporate Services Provider, the Stichtingen
Corporate Services Provider, the Account Bank, the Programme Administrator, each
under the Transaction Document(s) to which each of them is a party;
(iv)
fourth, in or towards satisfaction, pro rata and pari passu, of all amounts due and
payable to the Single Series Swap Counterparty under the terms of the Single Series
Swap Agreement other than any termination payment due to the Single Series Swap
Counterparty following the occurrence of a Swap Trigger but including, in any event,
the amount of any termination payment due and payable to the Single Series Swap
Counterparty in relation to the termination of the Single Series Swap Transaction to the
extent of any premium received (net of any costs reasonably incurred by the Issuer to
find a replacement swap counterparty), if any, by the Issuer from a replacement swap
counterparty in consideration for entering into a swap transaction with the Issuer on the
same terms as the Single Series Swap Transaction;
(v)
fifth, in or towards satisfaction of the Single Series Ratio of any and all outstanding
fees, costs and expenses of and all other amounts due and payable to the Servicer
pursuant to the terms of the Servicing Agreement, other than the amounts due to the
165
Servicer in respect of Servicer’s Advance (if any) under the terms of the Servicing
Agreement;
(vi)
sixth, in or towards satisfaction, pro rata and pari passu, of all amounts of interest due
and payable on the Class A Notes of this Single Series;
(vii) seventh, in or towards reduction of the Single Series Class A Notes Principal
Deficiency Ledger to zero by crediting such amount to and/or retaining such amount in
the Collection Account;
(viii) eighth, in or towards satisfaction, pro rata and pari passu, of all amounts of interest
due and payable on the Class B Notes of this Single Series;
(ix)
ninth, in or towards reduction of the Single Series Class B Notes Principal Deficiency
Ledger to zero by crediting such amount to and/or retaining such amount in the
Collection Account;
(x)
tenth, in or towards reduction of the Single Series Junior Notes Principal Deficiency
Ledger to zero by crediting such amount to and/or retaining such amount in the
Collection Account;
(xi)
eleventh, to credit the Cash Reserve Account with the Single Series Ratio of the
amount required, if any, such that the Cash Reserve equals the Target Cash Reserve
Amount;
(xii) twelfth, to credit to and/or retain in the Collection Account an amount up to the
Applicable Ratio of the Programme Interest Shortfall;
(xiii) thirteenth, in or towards satisfaction, pro rata and pari passu, of any termination
payment due and payable to the Single Series Swap Counterparty under the terms of
the Single Series Swap Agreement following the occurrence of a Swap Trigger other
than the payments referred to under item (iv) above;
(xiv) fourteenth, in or towards satisfaction, pro rata and pari passu, according to the
respective amounts thereof, of the Single Series Ratio of all amounts due and payable
to the Dealers and the Arranger under the terms of the Programme Agreement and the
Single Series Senior Notes Subscription Agreements to which each of them is a party;
(xv) fifteenth, in or towards satisfaction of the Single Series Ratio of all amounts of interest
due and payable to the Subordinated Loan Providers, each under the Subordinated
Loan Agreements to which each of them is a party;
(xvi) sixteenth, in or towards satisfaction of the Single Series Ratio of all amounts of
principal due and payable to the Subordinated Loan Providers, each under the
Subordinated Loan Agreements to which each of them is a party;
(xvii) seventeenth, in or towards satisfaction, pro rata and pari passu, according to the
respective amounts thereof, of the Single Series Ratio of all amounts due and payable
to Santander:
166
(A)
in respect of Originator’s Claims (if any) under the terms of the Master Transfer
Agreement and the Warranty and Indemnity Agreement; and
(B)
in connection with a Limited Recourse Loan under the Programme Letter of
Undertaking;
(xviii) eighteenth, in or towards satisfaction, pro rata and pari passu, according to the
respective amounts thereof, of the Single Series Ratio of all amounts due and payable
to the Servicer in respect of Servicer’s Advance (if any) under the terms of the
Servicing Agreement;
(xix) nineteenth, in or towards satisfaction, pro rata and pari passu, according to the
respective amounts thereof, of the Single Series Ratio of any and all outstanding fees,
costs, liabilities and any other expenses to be paid to fulfil obligations to any Other
Issuer Creditor incurred in the course of the Issuer’s business in relation to this
Programme (other than amounts already provided for in this Pre-Enforcement Priority
of Payments for Single Series Interest Available Funds); and
(xx) twentieth, in or towards satisfaction, pro rata and pari passu, of the Single Series
Junior Notes Interest Amount due and payable on the Junior Notes of this Single
Series.
From time to time, during an Interest Period, the Issuer shall, in accordance with the Agency
and Accounts Agreement, be entitled to apply amounts standing to the credit of the Expenses
Account in respect of certain monies which properly belong to third parties, other than the
Single Series Noteholders and the Other Issuer Creditors, in order to preserve the corporate
existence of the Issuer or to maintain it in good standing or to comply with applicable
legislation, and in payment of sums due to third parties, other than the Single Series
Noteholders and the Other Issuer Creditors, under obligations incurred in the course of the
Issuer’s business.
(e)
Pre-Enforcement Priority of Payments for Single Series Principal Available Funds
Prior to the service of a Programme Acceleration Notice and prior to the service of a
Purchase Termination Event Notice, the Single Series Principal Available Funds of this
Single Series as calculated on each Calculation Date will be applied by the Issuer on the
Interest Payment Date immediately following such Calculation Date in making payment or
provision in the following order of priority (the “Pre-Enforcement Priority of Payments
for Single Series Principal Available Funds”) but, in each case, only if and to the extent
that payments or provisions of a higher priority have been made in full:
(i)
first,
(A)
during the Single Series Revolving Period, in or towards purchase of Subsequent
Claims from the Originator in accordance with the terms of the Master Transfer
Agreement; or
167
(B)
during the Single Series Amortising Period, in or towards repayment, pro rata
and pari passu, of the Principal Amount Outstanding of the Class A Notes of this
Single Series until the Class A Notes of this Single Series are repaid in full,
as the case may be;
(ii)
second, during the Single Series Revolving Period, to credit to or retain in, as the case
may be, all remaining amounts to the Collection Account;
(iii)
third, during the Single Series Amortising Period, upon repayment in full of the Class
A Notes of this Single Series, in or towards repayment, pro rata and pari passu, of the
Principal Amount Outstanding of the Class B Notes of this Single Series until the Class
B Notes of this Single Series are repaid in full;
(iv)
fourth, in or towards satisfaction, pro rata and pari passu, of the Single Series Ratio of
all amounts of principal due and payable to the Subordinated Loan Providers, each
under the Subordinated Loan Agreements to which each of them is a party, to the
extent not paid under item (xvi) of the Pre-Enforcement Priority of Payments for
Single Series Interest Available Funds;
(v)
fifth, during the Single Series Amortising Period, in or towards repayment, pro rata
and pari passu,
(vi)
(a)
provided that this Single Series is not the Newest Single Series outstanding
under the Programme, of the Principal Amount Outstanding of the Junior Notes
of this Single Series until such Junior Notes are repaid in full;
(b)
so long as this Single Series is the Newest Single Series outstanding under the
Programme, of the Principal Amount Outstanding of the Junior Notes of this
Single Series until the Principal Amount Outstanding of such Junior Notes is
equal to €30,000;
sixth, so long as this Single Series is the Newest Single Series outstanding under the
Programme, on the Final Redemption Date and on any Interest Payment Date
thereafter, in or towards satisfaction, pro rata and pari passu, of the Principal Amount
Outstanding of such Junior Notes until such Junior Notes are repaid in full;
(vii) seventh, up to, but excluding the Final Redemption Date, in or towards satisfaction, pro
rata and pari passu, of the Single Series Junior Notes Additional Remuneration (if
any) due and payable on the Junior Notes of this Single Series,
provided, however, that payments to be made to the Originator under item (i)(A) above, if
any, may only be paid to the Originator by the Issuer on the later of: (i) the relevant Interest
Payment Date and (ii) the Business Day on which the Originator gives satisfactory evidence
to the Account Bank of the publication of the notice of the relevant assignment (a) in the
Official Gazette of the Republic of Italy (Gazzetta Ufficiale della Repubblica Italiana) and
(b) in the relevant companies register. In the latter case, such amounts will be retained by the
Issuer in the Collection Account until such Business Day, in accordance with the terms of the
Agency and Accounts Agreement.
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(f)
Pre-Enforcement Priority of Payments for Programme Principal Available Funds
Prior to the service of a Programme Acceleration Notice but following the service of a
Purchase Termination Event Notice, the Programme Principal Available Funds as calculated
on each Calculation Date will be applied by the Issuer on the Interest Payment Date
immediately following such Calculation Date in making payment or provision in the
following order of priority (the “Pre-Enforcement Priority of Payments for Programme
Principal Available Funds” and, together with the Pre-Enforcement Priority of Payments for
Single Series Interest Available Funds and the Pre-Enforcement Priority of Payments for
Single Series Principal Available Funds, the “Pre-Enforcement Priority of Payments”) but,
in each case, only if and to the extent that payments or provisions of a higher priority have
been made in full:
(i)
(ii)
first, pro rata and pari passu, according to the respective amounts thereof:
(A)
in or towards repayment of the Principal Amount Outstanding of the Class A
Notes of all Single Series in respect of which the applicable Single Series
Decree 239 Interest Payment Date has occurred; and
(B)
to credit to or retain in the Collection Account an amount up to the Principal
Amount Outstanding of the Class A Notes of all Single Series in respect of
which the applicable Single Series Decree 239 Interest Payment Date has not
occurred yet;
second, pro rata and pari passu, according to the respective amounts thereof:
(A)
in or towards repayment of the Principal Amount Outstanding of the Class B
Notes of all Single Series in respect of which the applicable Single Series
Decree 239 Interest Payment Date has occurred; and
(B)
to credit to or retain in the Collection Account an amount up to the Principal
Amount Outstanding of the Class B Notes of all Single Series in respect of
which the applicable Single Series Decree 239 Interest Payment Date has not
occurred yet;
(iii)
third, in or towards satisfaction, pro rata and pari passu, of all amounts of principal
due and payable to the Subordinated Loan Providers, each under the Subordinated
Loan Agreements to which each of them is a party, to the extent not paid under item
(xvi) of the Pre-Enforcement Priority of Payments for Single Series Interest Available
Funds; and
(iv)
fourth, pro rata and pari passu, according to the respective amounts thereof:
(A)
in or towards repayment of the Principal Amount Outstanding of the Junior
Notes of all Single Series in respect of which the applicable Single Series
Decree 239 Interest Payment Date has occurred; and
(B)
to credit to or retain in the Collection Account an amount up to the Principal
Amount Outstanding of the Junior Notes of all Single Series in respect of which
169
the applicable Single Series Decree 239 Interest Payment Date has not occurred
yet,
provided however that, if the Single Series Decree 239 Interest Payment Date has
occurred in respect of the Junior Notes of all Single Series, the Programme Principal
Available Funds available in respect of this item (iv) will be used in or towards
repayment, pro rata and pari passu, according to the respective amounts thereof:
(I)
first, of the Principal Amount Outstanding of the Junior Notes of all Single
Series other than the Junior Notes of the Newest Single Series until such Junior
Notes are repaid in full;
(II)
second, of the Principal Amount Outstanding of the Junior Notes of the Newest
Single Series until the Principal Amount Outstanding of such Junior Notes is
equal to €30,000;
(III) third, on the Final Redemption Date and on any date thereafter, of the Principal
Amount Outstanding of the Junior Notes of the Newest Single Series until such
Junior Notes are repaid in full; and
(IV) fourth, up to, but excluding the Final Redemption Date, of the Junior Notes
Additional Remuneration (if any) due and payable on the Junior Notes of the
Newest Single Series.
(g)
Post-Enforcement Priority of Payments
Following the service of a Programme Acceleration Notice, or, in the event that the Issuer
opts for the early redemption of the Notes issued under the Programme under Condition 8(d)
(Optional redemption) or Condition 8(e) (Optional redemption in whole for taxation, legal or
regulatory reasons), the Post-Enforcement Issuer Available Funds as calculated on each
Calculation Date will be applied by or on behalf of the Representative of the Noteholders on
the Interest Payment Date immediately following such Calculation Date in making payments
or provisions in the following order (the “Post-Enforcement Priority of Payments”) but, in
each case, only if and to the extent that payments of a higher priority have been made in full:
(i)
first, in or towards satisfaction, pro rata and pari passu, according to the respective
amounts thereof, of any and all outstanding taxes to be paid in order to preserve the
corporate existence of the Issuer to maintain it in good standing and to comply with
applicable legislation in relation to this Programme (to the extent that amounts
standing to the credit of the Expenses Account are insufficient to pay such costs and to
the extent not paid by Santander under the Transaction Documents);
(ii)
second, in or towards satisfaction, pro rata and pari passu, according to the respective
amounts thereof, of:
(A)
any and all outstanding fees, costs, liabilities and any other expenses to be paid
in order to preserve the corporate existence of the Issuer, to maintain it in good
standing, to comply with applicable legislation and to fulfil obligations of the
Issuer to third parties (not being Other Issuer Creditors) incurred in relation to
170
this Programme (to the extent that amounts standing to the credit of the
Expenses Account are insufficient to pay such costs and to the extent not paid by
Santander under the Transaction Documents and to the extent the Issuer is not
already subject to any insolvency or analogous proceeding);
(B)
any and all outstanding fees, costs, expenses and taxes required to be paid in
connection with the listing, deposit or ratings of the Notes, or any notice to be
given to the Noteholders or the other parties to the Transaction Documents (to
the extent that amounts standing to the credit of the Expenses Account are
insufficient to pay such costs and to the extent the Issuer is not already subject to
any insolvency or analogous proceeding); and
(C)
any and all outstanding fees, costs and expenses of, and all other amounts due
and payable to, the Representative of the Noteholders or any appointee thereof;
(iii)
third, in or towards satisfaction, pro rata and pari passu, according to the respective
amounts thereof, of any and all outstanding fees, costs and expenses of and all other
amounts due and payable to the Paying Agents, the Agent Bank, the Computation
Agent, the Servicer, the Corporate Services Provider, the Stichtingen Corporate
Services Provider, the Account Bank, the Programme Administrator each, under the
Transaction Document(s) to which each of them is a party;
(iv)
fourth, in or towards satisfaction, pro rata and pari passu, of all amounts due and
payable to the Single Series Swap Counterparties under the terms of the Single Series
Swap Agreements other than any termination payment due to any Single Series Swap
Counterparty following the occurrence of a Swap Trigger in respect of the relevant
Single Series Swap Agreement but including, in any event, the amount of any
termination payment due and payable to the relevant Single Series Swap Counterparty
in relation to the termination of the relative Single Series Swap Transaction to the
extent of any premium received (net of any costs reasonably incurred by the Issuer to
find a replacement swap counterparty), if any, by the Issuer from a replacement swap
counterparty in consideration for entering into a swap transaction with the Issuer on the
same terms as the applicable Single Series Swap Transaction;
(v)
fifth, in or towards satisfaction, pro rata and pari passu, of all amounts due and
payable in respect of interest (including any interest accrued but unpaid) on the Class A
Notes of all Single Series at such date;
(vi)
sixth, in or towards repayment, pro rata and pari passu, of the Principal Amount
Outstanding of the Class A Notes of all Single Series until the Class A Notes of all
Single Series are repaid in full;
(vii) seventh, in or towards satisfaction, pro rata and pari passu, of all amounts due and
payable in respect of interest (including any interest accrued but unpaid) on the Class B
Notes of all Single Series at such date;
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(viii) eighth, in or towards repayment, pro rata and pari passu, of the Principal Amount
Outstanding of the Class B Notes of all Single Series until the Class B Notes of all
Single Series are repaid in full;
(ix)
ninth, in or towards satisfaction, pro rata and pari passu, of any termination payment
due and payable to any Single Series Swap Counterparty under the terms of the relative
Single Series Swap Agreement following the occurrence of a Swap Trigger in respect
of the relevant Single Series Swap Agreement other than the payments referred to
under item (iv) above;
(x)
tenth, in or towards satisfaction, pro rata and pari passu, according to the respective
amounts thereof, of all amounts due and payable to the Dealers and the Arranger under
the terms of the Programme Agreement and the Single Series Senior Notes
Subscription Agreements to which each of them is a party;
(xi)
eleventh, in or towards satisfaction, pro rata and pari passu, according to the
respective amounts thereof, of all amounts due and payable to Santander:
(A)
in respect of Originator’s Claims (if any) under the terms of the Master Transfer
Agreement and the Warranty and Indemnity Agreement; and
(B)
in connection with a Limited Recourse Loan under the Programme Letter of
Undertaking;
(xii) twelfth, in or towards satisfaction, pro rata and pari passu, according to the respective
amounts thereof, of all amounts due and payable to the Servicer in respect of
Servicer’s Advance (if any) under the terms of the Servicing Agreement;
(xiii) thirteenth, in or towards satisfaction, pro rata and pari passu, of all amounts of interest
due and payable to the Subordinated Loan Providers (including any interest accrued
but unpaid) under the terms of any Subordinated Loan Agreement;
(xiv) fourteenth, in or towards satisfaction, pro rata and pari passu, of all amounts of
principal due and payable to any Subordinated Loan Provider under any Subordinated
Loan Agreement;
(xv) fifteenth, in or towards satisfaction, pro rata and pari passu, of all amounts due and
payable in respect of interest (including any interest accrued but unpaid) on the Junior
Notes of all Single Series at such date;
(xvi) sixteenth, in or towards repayment, pro rata and pari passu:
(a)
of the Principal Amount Outstanding of the Junior Notes of all Single Series
other than the Junior Notes of the Newest Single Series until such Junior Notes
are repaid in full;
(b)
of the Principal Amount Outstanding of the Junior Notes of the Newest Single
Series until the Principal Amount Outstanding of such Junior Notes is equal to
€30,000;
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(xvii) seventeenth, on the Post-Enforcement Final Redemption Date and on any date
thereafter, in or towards satisfaction, pro rata and pari passu, of the Principal Amount
Outstanding of the Junior Notes of the Newest Single Series outstanding under the
Programme until such Junior Notes are repaid in full; and
(xviii) eighteenth, up to, but excluding the Post-Enforcement Final Redemption Date, in or
towards satisfaction, pro rata and pari passu, of the Junior Notes Additional
Remuneration (if any) due and payable on the Junior Notes of all Single Series,
provided, however, that if the amount of the monies at any time available to the Issuer or to
the Representative of the Noteholders for the payments above shall be less than 10% of the
Principal Amount Outstanding of the Senior Notes of all Single Series the Representative of
the Noteholders may at its discretion invest such monies in some or one of the investments
authorised pursuant to the Intercreditor Agreement. The Representative of the Noteholders at
its discretion may vary such investments and may accumulate such investments and the
resulting income until the immediately following Accumulation Date.
The Issuer is entitled, pursuant to the Intercreditor Agreement, to dispose of the Claims in
order to finance the redemption of the Notes of all Single Series following the service of a
Programme Acceleration Notice.
In the event that the Issuer redeems any Notes of any Single Series in whole or in part prior
to the date which is 18 months after the relevant Single Series Issue Date, the Issuer will be
required to pay a tax in Italy equal to 20% of all interest accrued on such principal amount
repaid early up to the relevant repayment date. This requirement will apply whether or not the
redemption takes place following an Event of Default under the Notes of the relevant Single
Series or pursuant to any requirement of the Issuer to redeem Notes of any Single Series
following the service of a Programme Acceleration Notice in connection with any such Event
of Default. Consequently, following an Event of Default, the Issuer may, with the consent of
the Representative of the Noteholders, and shall, if so instructed by the Representative of the
Noteholders, delay the redemption of the Notes of any Single Series until the end of such 18month period.
(h)
Principal Deficiency Ledgers
On each Calculation Date, the Computation Agent will record the Realised Losses arisen in
connection with the immediately preceding Collection Period in the Principal Deficiency
Ledgers by debiting any Realised Loss as follows:
(i)
first, to the Junior Notes Principal Deficiency Ledger so long as, and to the extent that,
the debit balance of the Junior Notes Principal Deficiency Ledger is less than or equal
to the Principal Amount Outstanding on the Junior Notes of all Single Series (taking
into account any Realised Loss previously debited to such Junior Notes Principal
Deficiency Ledger and in respect of which funds have not yet been allocated in
accordance with the Pre-Enforcement Priority of Payments for Single Series Interest
Available Funds);
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(i)
5
(ii)
second, to the Class B Notes Principal Deficiency Ledger so long as, and to the extent
that, the debit balance of the Class B Notes Principal Deficiency Ledger is less than or
equal to the Principal Amount Outstanding on the Class B Notes of all Single Series
(taking into account any Realised Loss previously debited to such Class B Notes
Principal Deficiency Ledger and in respect of which funds have not yet been allocated
in accordance with the Pre-Enforcement Priority of Payments for Single Series Interest
Available Funds); and
(iii)
third, to the Class A Notes Principal Deficiency Ledger so long as, and to the extent
that, the debit balance of the Class A Notes Principal Deficiency Ledger is less than or
equal to the Principal Amount Outstanding on the Class A Notes of all Single Series
(taking into account any Realised Loss previously debited to such Class A Notes
Principal Deficiency Ledger and in respect of which funds have not yet been allocated
in accordance with the Pre-Enforcement Priority of Payments for Single Series Interest
Available Funds).
Single Series Principal Deficiency Ledgers
(i)
The amount to be debited to the Junior Notes Principal Deficiency Ledger under (h)(i)
above will be apportioned among the Single Series Junior Notes Principal Deficiency
Ledgers so that the amount to be debited to each Single Series Junior Notes Principal
Deficiency Ledger will be a share of the aggregate amount debited to the Junior Notes
Principal Deficiency Ledger calculated by reference to the ratio borne by the then
Principal Amount Outstanding of the Junior Notes of the applicable Single Series to
the then Principal Amount Outstanding of the Junior Notes of all Single Series.
(ii)
The amount to be debited to the Class B Notes Principal Deficiency Ledger under
(h)(ii) above will be apportioned among the Single Series Class B Notes Principal
Deficiency Ledgers so that the amount to be debited to each Single Series Class B
Notes Principal Deficiency Ledger will be a share of the aggregate amount debited to
the Class B Notes Principal Deficiency Ledger calculated by reference to the ratio
borne by the then Principal Amount Outstanding of the Class B Notes of the applicable
Single Series to the then Principal Amount Outstanding of the Class B Notes of all
Single Series.
(iii)
The amount to be debited to the Class A Notes Principal Deficiency Ledger under
(h)(iii) above will be apportioned among the Single Series Class A Notes Principal
Deficiency Ledgers so that the amount to be debited to each Single Series Class A
Notes Principal Deficiency Ledger will be a share of the aggregate amount debited to
the Class A Notes Principal Deficiency Ledger calculated by reference to the ratio
borne by the then Principal Amount Outstanding of the Class A Notes of the applicable
Single Series to the then Principal Amount Outstanding of the Class A Notes of all
Single Series.
Security
(a)
Note Security
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As security for the discharge of the Secured Amounts, the Issuer will create, pursuant to the
Italian Deed of Pledge and the English Deed of Charge and Assignment, the following
security (together, the “Note Security”):
(a)
concurrently with the issue of the First Single Series, in favour of the Representative of
the Noteholders for itself and on behalf of the Noteholders and the other Issuer Secured
Creditors, an Italian law pledge, to be confirmed and novated on or around any Single
Series Issue Date, over all monetary claims and rights and all the amounts (including
payment for claims, indemnities, damages, penalties, credits and guarantees) to which
the Issuer is entitled from time to time pursuant to the Italian Law Transaction
Documents (other than the Mandate Agreement, the Conditions of the Notes of each
Single Series and the Italian Deed of Pledge); and
(b)
in favour of the Representative of the Noteholders for itself and as security trustee for
the Noteholders and the other Issuer Secured Creditors, inter alia, an English law
charge over (i) (a) the Accounts, all its present and future right, title and interest in or
to the Accounts and all amounts (including interest) now or in the future standing to
the credit of, or accrued or accruing on the Accounts and (b) all its present (if any) and
future right, title and interest in or to the cash, the units of money markets funds, the
debt securities or other debt instruments from time to time purchased by or on behalf
of the Issuer pursuant to the Issuer Account Bank Agreement and the Agency and
Accounts Agreement or to any moneys deriving therefrom standing to the credit of any
of the Accounts; (ii) an English law assignment by way of security of all the Issuer’s
rights, title, interest and benefit present and future in to and under the Single Series
Swap Agreement executed on or about the Signing Date and the Issuer Account Bank
Agreement and all other present and future contracts, agreements, deeds and
documents governed by English law to which the Issuer is or may become a party in
relation to the Notes, the Claims and the Portfolio including for the avoidance of doubt
all its rights, title, interest and benefit present and future in, to and under any Single
Series Swap Agreement (but excluding the collateral (either cash or securities) from
time to time provided by any Single Series Swap Counterparty to the Issuer under the
relevant Single Series Swap Agreement) that the Issuer may enter into in the future in
connection with any Additional Issue; and (iii) a floating charge over all of the Issuer’s
assets which are subject to the charge and assignments described under (i) and (ii)
above and not effectively assigned or charged by way of first fixed charge or
assignment thereunder.
The rights arising from the Note Security in favour of the holders of the Notes of all Single
Series which are incorporated in each of the Notes of the relevant Single Series are
transferred together with the transfer of any Note of the relevant Single Series at the time of
transfer of such Note. Each holder of any of the Notes of the relevant Single Series from time
to time will have the benefit of such rights.
In addition, by operation of Italian law, the Issuer’s right, title and interest in and to the
Claims is segregated from all other assets of the Issuer and amounts deriving therefrom will
be available both prior to and following a winding-up of the Issuer only to satisfy the
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obligations of the Issuer to the holders of the Notes of all Single Series and the other Issuer
Creditors in accordance with the applicable Priority of Payments.
The holders of the Notes of each Class and of each Single Series expressly acknowledge and
accept that the Claims and any of the other Issuer’s assets pertaining to this Programme will
be segregated to the benefit of (i) the holders of the Notes of each Class and of each Single
Series and (ii) any other Issuer Creditors, subject to the applicable Priority of Payments. The
Claims and any of the other Issuer’s assets pertaining to this Programme will therefore
constitute one and the same collateral for the Notes of all Single Series.
6
Covenants
(a)
Covenants
For so long as any Note of this Single Series remains outstanding or, in any event, during the
Additional Issue Period, the Issuer, save with the prior written consent of the Representative
of the Noteholders or as provided in or envisaged by these Terms and Conditions or any of
the Transaction Documents shall not, nor shall cause or permit (to the extent permitted by
Italian law), shareholders’ meetings to be convened in order to:
(i)
Negative pledge
create or permit to subsist any Security Interest whatsoever upon, or with respect to the
Claims, or any part thereof or any of its present or future business, undertaking, assets
or revenues relating to this Programme or undertakings (other than under the Note
Security) or sell, lend, part with or otherwise dispose of all or any part of the Claims,
or any part thereof or any of its present or future business, undertaking, assets or
revenues relating to this Programme, whether in one transaction or in a series of
transactions;
(ii)
(iii)
Restrictions on activities:
(A)
without prejudice to Condition 6(b) (Further securitisations and corporate
existence) below, engage in any activity whatsoever which is not incidental to or
necessary in connection with any of the activities in which the Transaction
Documents provide or envisage that the Issuer will engage;
(B)
have any subsidiary (societá controllata) or affiliate company (societá collegata)
(as defined in article 2359 of the Italian civil code) or any employees or
premises;
(C)
at any time approve or agree or consent to any act or thing whatsoever which is
materially prejudicial to the interests of the Noteholders under the Transaction
Documents or do, or permit to be done, any act or thing in relation thereto which
is materially prejudicial to the interests of the Noteholders under the Transaction
Documents; or
(D)
become the owner of any real estate asset;
Dividends or distributions
176
pay any dividend or make any other distribution or return or repay any equity capital to
its shareholder or increase its equity capital;
(iv)
Borrowings
without prejudice to Condition 6(b) (Further securitisations and corporate existence)
below, incur any indebtedness in respect of borrowed money whatsoever or give any
guarantee in respect of any indebtedness or of any obligation of any person;
(v)
Merger
consolidate or merge with any other person or convey or transfer any of its properties
or assets substantially as an entirety to any other person;
(vi)
Waiver or consent
Permit any of the Transaction Documents (i) to be amended, terminated or discharged,
if such amendment, termination or discharge may negatively affect the interests of the
holders of the Notes of any Single Series of the Most Senior Class or (ii) to become
invalid or ineffective or the priority of the Security Interests created thereby to be
reduced or consent to any variation thereof or exercise any powers of consent,
direction or waiver pursuant to the terms of any of the Transaction Documents or
permit any party to the Transaction Documents or any other person whose obligations
form part of the Note Security to be released from its respective obligations in a way
which may negatively affect the interests of the holders of the Notes of any Single
Series of the Most Senior Class;
(vii) Consumer Loans
agree to purchase any Claims unless all of the Common Criteria for the related
Subsequent Claims or Additional Claims are met or agree to any request by the
Servicer to change the rate of interest on any Consumer Loan or waive any of its rights
under any Consumer Loan;
(viii) Bank accounts
with the exception of the Equity Capital Account and such other accounts that the
Issuer may have opened or may open in the future in the context of securitisation
transactions other than this Programme and without prejudice to Condition 6(b)
(Further Securitisations and corporate existence), have an interest in any bank account
other than the Cash Accounts, the Investments Securities Accounts and the Collateral
Account(s) (if any), unless (a) the Representative of the Noteholders receives
confirmation from S&P that the opening of any such account will not prejudice any of
the ratings of the Senior Notes of any Single Series;
(ix)
Statutory Documents
amend, supplement or otherwise modify its by-laws (statuto), except where such
amendment, supplement or modification is required by any compulsory provision of
Italian law or by the competent regulatory authorities;
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(x)
Corporate records, financial statements and books of account
permit or consent to any of the following occurring:
(a)
its books and records being maintained with or co-mingled with those of any
other person or entity;
(b)
its bank accounts and the debts represented thereby being co-mingled with those
of any other person or entity;
(c)
its books and records (if any) relating to the Programme being maintained with
or co-mingled with those relating to any other securitisation transaction
perfected by the Issuer; or
(d)
its assets or revenues being co-mingled with those of any other person or entity;
and, in addition and without limitation to the above, the Issuer shall or shall procure
that, with respect to itself:
(xi)
(A)
separate financial statements in relation to its financial affairs are maintained;
(B)
all corporate formalities with respect to its affairs are observed;
(C)
separate stationery, invoices and cheques are used;
(D)
it always holds itself out as a separate entity; and
(E)
any known misunderstandings regarding its separate identity are corrected as
soon as possible; or
Residency and centre of main interests
become resident, including without limitation for tax purposes, in any country outside
Italy or cease to be managed and administered in Italy or cease to have its centre of
main interests in Italy; or
(xii) Compliance with corporate formalities
cease to comply with all necessary corporate formalities.
None of the covenants in this Condition 6(a) (Covenants) shall prohibit the Issuer from (i)
performing its obligations under the Previous Transactions Documents in accordance with
their terms or (ii) carrying out any activity which is incidental to maintaining its corporate
existence and complying with laws and regulations applicable to it.
(b)
Further securitisations and corporate existence
None of the covenants in Condition 6(a) (Covenants) shall prohibit the Issuer from:
(i)
acquiring, or financing pursuant to article 7 of the Securitisation Law, by way of
separate transactions unrelated to this Programme, further portfolios of monetary
claims in addition to the Claims either from the Originator or from any other entity (the
“Further Portfolios”) or entering into one or more bridge loans for the purposes of
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purchasing Further Portfolios provided that such bridge loans are repaid through the
proceeds arising from the Further Notes (as defined below);
(ii)
securitising such Further Portfolios (each, a “Further Securitisation”) through the
issue of further debt securities additional to the Notes of any Single Series (the
“Further Notes”);
(iii)
entering into agreements and transactions, with the Originator or any other entity, that
are incidental to or necessary in connection with such Further Securitisation including,
inter alia, the ring-fencing or the granting of security over such Further Portfolios and
any right, benefit, agreement, instrument, document or other asset of the Issuer relating
thereto to secure such Further Notes (the “Further Security”),
provided that:
(A)
the Issuer confirms in writing to the Representative of the Noteholders that such
Further Security does not comprise or extend over any of the Claims or any of
the other Issuer’s Rights;
(B)
the Issuer confirms in writing to the Representative of the Noteholders that the
terms and conditions of the Further Notes contain provisions to the effect that
the obligations of the Issuer whether in respect of interest, principal, premium or
other amounts in respect of such Further Notes, are limited recourse obligations
of the Issuer, limited to some or all of the assets comprised in such Further
Security;
(C)
the Issuer confirms in writing to the Representative of the Noteholders that each
party to such Further Securitisation agrees and acknowledges that the
obligations of the Issuer to such party in connection with such Further
Securitisation are limited recourse obligations of the Issuer, limited to some or
all of the assets comprised in such Further Security and that each creditor in
respect of such Further Securitisation or the representative of the holders of such
Further Notes has agreed to limitations on its ability to take action against the
Issuer, including in respect of insolvency proceedings relating to the Issuer, on
terms in all significant respects equivalent to those contained in the Intercreditor
Agreement;
(D)
(i) in case the up-front funding of the purchase of such Further Portfolio is made
through one or more bridge loans, S&P gives written confirmation to the Issuer
that the acquisition of such Further Portfolio would not adversely affect the then
current rating of the Senior Notes of any Single Series; or (ii) S&P gives written
confirmation to the Issuer that the issue of such Further Notes would not
adversely affect the then current rating of the Senior Notes of any Single Series;
(E)
the Issuer confirms in writing to the Representative of the Noteholders that the
Rating Agency has released the necessary confirmations for the purposes of
paragraph (D) above and that the terms and conditions of such Further Notes
will include:
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(F)
(I)
covenants by the Issuer in all significant respects equivalent to those
covenants provided in paragraphs (A) to (D) above; and
(II)
provisions which are the same as or, in the sole discretion of the
Representative of the Noteholders, equivalent to this proviso; and
the Representative of the Noteholders is satisfied that conditions (A) to (E) of
this proviso have been satisfied.
In giving any consent to the foregoing, the Representative of the Noteholders may
require the Issuer to make such modifications or additions to the provisions of any of
the Transaction Documents (as may itself consent thereto on behalf of the Noteholders)
or may impose such other conditions or requirements as the Representative of the
Noteholders may deem expedient (in its absolute discretion) in the interests of the
holders of the Notes of any Single Series and may rely on any written confirmation
from the Issuer as to the matters contained therein.
None of the covenants in Condition 6(a) (Covenants) above shall prohibit the Issuer from
carrying out any activity which is incidental to maintaining its corporate existence and
complying with laws and regulations applicable to it.
(c)
Additional Issues
During the Additional Issue Period the Issuer may engage in the issuance of other Single
Series of Notes without the prior consent of the holders of any outstanding Notes of this
Single Series but subject to certain conditions. It is a condition precedent to the issuance of
any other Single Series of Notes that:
(i)
the Class A Notes and the Class B Notes of each such Single Series obtain the Class A
Rating and the Class B Rating, respectively;
(ii)
the Rating Agency confirms that such issuance will not result in a reduction or
withdrawal of the ratings of any of the then outstanding Senior Notes of this Single
Series, if any;
(iii)
a Programme Acceleration Notice has not been served; and
(iv)
with regard to the issuance of a Single Series other than the First Single Series, the
Issuer purchases from Santander Additional Claims the purchase price of which is to
be financed by such issuance.
The Issuer will inform the Noteholders of this Single Series of the issuance of other Single
Series of Notes in accordance with Condition 18 (Notices).
7
Interest
(a)
Interest Payment Dates and Interest Periods
Each Senior Note of this Single Series bears interest on its Principal Amount Outstanding at
the applicable rate determined in accordance with this Condition 7 and the applicable Final
Terms and the Junior Notes of this Single Series bear interest in the amount determined in
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accordance with these Conditions, in each case from (and including) the Single Series Issue
Date, payable in euro in arrear on the First Interest Payment Date and, thereafter, quarterly in
arrear on each Interest Payment Date subject to the applicable Priority of Payments and
subject as provided in Condition 9 (Payments). Each period beginning on (and including) an
Interest Payment Date (or, in the case of the first Interest Period, the Single Series Issue Date)
and ending on (but excluding) the next (or, in case of the first Interest Period, the First
Interest Payment Date) is herein called an “Interest Period”.
(b)
Termination of Interest
Each Note of this Single Series shall cease to bear interest from and including its due date for
final redemption, unless payment of principal due is improperly withheld or refused or
default is otherwise made in respect of payment thereof, in which case it will continue to bear
interest in accordance with this Condition (as well after as before judgment) until whichever
is the earlier of:
(c)
(i)
the date on which all amounts due in respect of such Note up to that date are received
by or on behalf of the relevant Noteholder; and
(ii)
the Cancellation Date.
Interest on the Senior Notes
The rate of interest payable from time to time in respect of the Class A Notes of this Single
Series (the “Single Series Class A Rate of Interest”), the Class B Notes of this Single Series
(the “Single Series Class B Rate of Interest” and, together with the Single Series Class A
Rate of Interest, the “Single Series Rate of Interest”) for each Interest Period will be
determined by the Agent Bank on the following provisions:
(i)
the Agent Bank will determine the EURIBOR as defined in Condition 2 (Definitions);
and
(ii)
the Single Series Class A Rate of Interest for such Interest Period shall be the sum of:
(iii)
(d)
(A)
the Single Series Class A Margin applicable to this Single Series; and
(B)
the EURIBOR; and
the Single Series Class B Rate of Interest for such Interest Period shall be the sum of:
(A)
the Single Series Class B Margin applicable to this Single Series; and
(B)
the EURIBOR.
Single Series Junior Notes Interest Amount, Single Series Junior Notes Additional
Remuneration and Junior Notes Additional Remuneration
The Junior Notes of this Single Series will accrue interest, for each Interest Period, to the
payment of an amount equal to, respectively:
(i)
prior to the service of a Programme Acceleration Notice and prior to the service of a
Purchase Termination Event Notice, the Single Series Junior Notes Interest Amount
181
plus the Single Series Junior Notes Additional Remuneration calculated on each
Calculation Date and which will be payable on the next Interest Payment Date;
(e)
(ii)
prior to the service of a Programme Acceleration Notice but following the service of a
Purchase Termination Event Notice, the Single Series Junior Notes Interest Amount
plus the Junior Notes Additional Remuneration pertaining to this Single Series
calculated on each Calculation Date and which will be payable on the next Interest
Payment Date; and
(iii)
following the service of a Programme Acceleration Notice or in the event that the
Issuer opts for the early redemption of the Notes issued under the Programme under
Condition 8(d) (Optional redemption) or Condition 8(e) (Optional redemption in whole
for taxation, legal or regulatory reasons), the Junior Notes Additional Remuneration
calculated on each Calculation Date and which will be payable on the next Interest
Payment Date.
Calculation of Single Series Interest Amounts
The Agent Bank will, as soon as practicable after 11 a.m. (Brussels time) on each Interest
Determination Date in relation to each Interest Period, but in no event later than the third
Business Day thereafter, determine the amount of interest payable in respect of each Class of
Notes in this Single Series (other than the interest on the Junior Notes of this Single Series
due under item (xx) of the Pre-Enforcement Priority of Payments for Single Series Interest
Available Funds or item (xv) of the Post-Enforcement Priority of Payments) for the relevant
Interest Period (each such amount, a “Single Series Interest Amount”). The Single Series
Interest Amount shall be determined as follows:
(f)
(i)
in respect of the Class A Notes of this Single Series, by applying the Single Series
Class A Rate of Interest for such Interest Period to the Principal Amount Outstanding
of the Class A Notes of this Single Series during such Interest Period, multiplying the
product of such calculation by the actual number of days in the Interest Period
concerned divided by 360, and rounding the resultant figure to the nearest cent (half a
cent being rounded upwards) (such amount, from time to time calculated, the “Single
Series Class A Notes Interest Amount”); and
(ii)
in respect of the Class B Notes of this Single Series, by applying the Single Series
Class B Rate of Interest for such Interest Period to the Principal Amount Outstanding
of the Class B Notes of this Single Series during such Interest Period, multiplying the
product of such calculation by the actual number of days in the Interest Period
concerned divided by 360, and rounding the resultant figure to the nearest cent (half a
cent being rounded upwards) (such amount, from time to time calculated, the “Single
Series Class B Notes Interest Amount”).
Calculation of the Single Series Junior Notes Interest Amount, Single Series Junior Notes
Additional Remuneration and Junior Notes Additional Remuneration
The Computation Agent will, on the Calculation Date immediately preceding the Interest
Payment Date in relation to each Interest Period, calculate and communicate to the Principal
182
Paying Agent any Single Series Junior Notes Interest Amount, any Single Series Junior Notes
Additional Remuneration and Junior Notes Additional Remuneration that may be payable in
respect of the Single Series Junior Notes on such Interest Payment Date.
(g)
Publication of Single Series Rate of Interest and Single Series Interest Amount
The Agent Bank will cause each Single Series Rate of Interest and each Single Series Interest
Amount for each Interest Period and the relative Interest Payment Date, to be notified to the
Issuer, the Paying Agents, Monte Titoli, Santander, the Computation Agent, the
Representative of the Noteholders and any stock exchange or other relevant authority on
which any Class of Notes of this Single Series is at the relevant time listed and (if so required
by the rules of the relevant stock exchange) to be published in accordance with Condition 18
(Notices) as soon as practicable after their determination, but in any event not later than the
second Business Day thereafter.
(h)
Amendments to publications
The Agent Bank will be entitled to recalculate any Single Series Rate of Interest or Single
Series Interest Amount (on the basis of the foregoing provisions) without notice in the event
of an extension or shortening of the relevant Interest Period.
(i)
Determination or calculation by the Representative of the Noteholders
If the Agent Bank or, if applicable, the Computation Agent does not at any time for any
reason determine the Single Series Rate of Interest or the Single Series Interest Amount for
any Class of Senior Notes of this Single Series in accordance with this Condition 7, the
Representative of the Noteholders shall (but without incurring, in the absence of wilful
misconduct (dolo) or gross negligence (colpa grave), any liability to any person as a result):
(i)
determine the Single Series Rate of Interest for each Class of Senior Notes of this
Single Series at such rate as, in its absolute discretion (having such regard as it shall
think fit to the procedures described in this Condition 7, it shall deem fair and
reasonable in all the circumstances; and/or (as the case may be);
(ii)
calculate the relevant Single Series Interest Amount and the Single Series Junior Notes
Interest Amount in the manner specified in this Condition 7,
and any such determination and/or calculation shall be deemed to have been made by the
Agent Bank or, as applicable, the Computation Agent.
(j)
Single Series Interest Amount Arrears
Without prejudice to the right of the Representative of the Noteholders to serve a Programme
Acceleration Notice pursuant to Condition 11(a)(i) (Non-payment), prior to the service of a
Programme Acceleration Notice, in the event that on any Interest Payment Date there are any
Single Series Interest Amount Arrears, such Single Series Interest Amount Arrears shall be
deferred to the following Interest Payment Date or to the date a Programme Acceleration
Notice is served to the Issuer, whichever comes first. Any such Single Series Interest Amount
Arrear shall not accrue additional interest. A pro rata share of such Single Series Interest
Amount Arrears shall be aggregated with the amount of, and treated for the purpose of this
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Condition as if it were interest due, subject to this paragraph, on each Class A Note of this
Single Series, Class B Note of this Single Series or Junior Notes of this Single Series, as the
case may be, on the next succeeding Interest Payment Date.
(k)
Notification of Single Series Interest Amount Arrears
If, on any Calculation Date, the Computation Agent determines that any Single Series Interest
Amount Arrears in respect of one or more Classes of Notes of this Single Series will arise on
the immediately succeeding Interest Payment Date, notice to this effect shall be given or
procured to be given by the Issuer to the Representative of the Noteholders, Monte Titoli, the
Paying Agents, Monte Titoli, each stock exchange on which any Class of Notes of this Single
Series is then listed, for so long as such Notes are listed on the relevant stock exchange, and
(if so required by the rules of the relevant stock exchange) and to the Single Series
Noteholders (or to the holders of the Junior Notes of this Single Series only, with respect to
Single Series Interest Amount Arrears arising only in respect of such Junior Notes) in
accordance with Condition 18 (Notices), specifying the amount of the Single Series Interest
Amount Arrears to be deferred on such following Interest Payment Date in respect of each
Class of Notes.
8
Redemption, purchase and cancellation
(a)
Final redemption
Unless previously redeemed in full and cancelled as provided in this Condition 8, the Issuer
shall redeem the Notes of this Single Series in full at their Principal Amount Outstanding,
plus any accrued but unpaid interest, on the Single Series Maturity Date, subject as provided
in Condition 9 (Payments).
(b)
Cancellation Date
If the Notes of this Single Series cannot be redeemed in full on the relevant Single Series
Maturity Date, as a result of the Issuer having insufficient available funds for application in
or towards such redemption, any amount unpaid shall remain outstanding and these Terms
and Conditions shall continue to apply in full in respect of the Notes of this Single Series
until the Cancellation Date, at which date any amount outstanding, whether in respect of
interest, principal or other amounts in respect of the Notes of this Single Series, shall be
finally and definitively cancelled. All Notes of this Single Series redeemed in full will be
cancelled upon such redemption and may not be resold or reissued.
(c)
Mandatory pro rata redemption in whole or in part and application of Single Series Principal
Available Funds
(i)
In respect of the Notes of this Single Series, during the Single Series Amortising
Period, but starting on the Single Series Decree 239 Interest Payment Date and on each
Interest Payment Date thereafter, if no Programme Acceleration Notice has been
delivered to the Issuer by the Representative of the Noteholders and if at the close of
business on the Calculation Date immediately preceding the relevant Interest Payment
Date there are Single Series Principal Available Funds available for such purpose, the
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Issuer will apply such Single Series Principal Available Funds on the Interest Payment
Date following each such Calculation Date in or towards the mandatory redemption of
the Notes of each Class of this Single Series in the following order of priority:
(ii)
(A)
first, the Class A Notes of this Single Series until the Class A Notes of this
Single Series have been redeemed in full;
(B)
second, the Class B Notes of this Single Series until the Class B Notes of this
Single Series have been redeemed in full; and
(C)
third, the Junior Notes of this Single Series, until the Junior Notes of this Single
Series have been redeemed in full.
In respect of the Notes of this Single Series, if no Programme Acceleration Notice has
been delivered to the Issuer by the Representative of the Noteholders but a Purchase
Termination Event Notice has been delivered to the Issuer by the Computation Agent
and if at the close of business on the Calculation Date immediately preceding the
relevant Interest Payment Date there are Programme Principal Available Funds
available for such purpose, the Issuer will apply the share of the Programme Principal
Available Funds to be apportioned to this Single Series on the Interest Payment Date
following each such Calculation Date in or towards the mandatory redemption of the
Notes of each Class of Notes in the following order of priority:
(A)
first, the Class A Notes of this Single Series (pro rata and pari passu with the
Class A Notes of any other Single Series) until the Class A Notes of this Single
Series (and of any other Single Series) have been redeemed in full;
(B)
second, the Class B Notes of this Single Series (pro rata and pari passu with the
Class B Notes of any other Single Series) until the Class B Notes of this Single
Series (and of any other Single Series) have been redeemed in full; and
(C)
third, the Junior Notes of this Single Series (pro rata and pari passu with the
Junior Notes of any other Single Series), until the Junior Notes of this Single
Series (and of any other Single Series) have been redeemed in full.
(iii)
The Issuer will cause details of such mandatory redemption under (i) and (ii) above to
be published in accordance with Condition 18 (Notices) by not later than one Business
Day prior to such Interest Payment Date.
(iv)
The principal amount redeemable in respect of each Note of this Single Series on any
Interest Payment Date (each, a “Principal Payment”) shall be a pro rata share of the
Single Series Principal Available Funds or the Programme Principle Available Funds,
as the case may be, determined in accordance with the provisions of this Condition 8 to
be available to redeem Notes of the relevant Class of this Single Series on such date,
calculated by reference to the ratio borne by the then Principal Amount Outstanding of
such Note to the then Principal Amount Outstanding of the Notes of such Class of this
Single Series (or the Notes of all Single Series, as the case may be) (rounded down to
the nearest cent), provided always that no such Principal Payment may exceed the
Principal Amount Outstanding of the relevant Note.
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(d)
Optional redemption
(i)
Prior to the service of a Programme Acceleration Notice, the Issuer may redeem the
Notes of all Classes and of all Single Series including this Single Series (in whole but
not in part) at their Principal Amount Outstanding (plus any accrued but unpaid
interest) in accordance with the Post-Enforcement Priority of Payments and subject to
the Issuer having sufficient funds to redeem all the Notes of all Single Series (or the
Senior Notes of all Single Series only, if all the holders of the Junior Notes of all
Single Series consent) and to make all payments ranking in priority thereto, on any
Interest Payment Date when (aa) the Portfolio Outstanding Amount is equal to, or less
than, 10% of the Initial Portfolio Outstanding Amount and (bb) the Principal Amount
Outstanding of each Single Series then outstanding is equal to, or less than, 10% of the
Principal Amount Outstanding of such Single Series as of the relevant Single Series
Issue Date, subject to the Issuer:
(A)
giving not more than 60 days nor less than 30 days’ notice to the Representative
of the Noteholders and the holders of the Notes of all Single Series, in
accordance with Condition 18 (Notices), of its intention to redeem all Classes of
Notes of all Single Series (in whole but not in part); and
(B)
having provided, prior to giving such notice, to the Representative of the
Noteholders a certificate signed by the chairman of the board or the sole director
of the Issuer (as applicable) to the effect that it will have the funds on such
Interest Payment Date to discharge all its obligations under the Notes of all
Single Series (or the Senior Notes of all Single Series only, if all the holders of
the Junior Notes of all Single Series consent) and any obligations ranking in
priority thereto; and
(C)
giving not more than 60 days nor less than 30 days’ written notice to the Bank of
Italy of its intention to redeem all Classes of Notes of all Single Series (in whole
but not in part), if so requested by the applicable regulatory framework
provided, however, that:
(I)
pursuant to the Master Transfer Agreement, the consideration for the purchase of
the Claims to be paid by the Originator (should the Originator purchase the
Claims from the Issuer) may not exceed: (A) the Outstanding Principal of the
Claims to be repurchased, provided that none of such Claims qualify as Crediti
in Sofferenza or as Arrear Claims or (B) the aggregate of: (I) the market value of
the Claims which are classified as Crediti in Sofferenza or as Arrear Claims (if
any), as determined by one or more third-party experts independent from the
Originator and its banking group in accordance with the Master Transfer
Agreement; and (II) the Outstanding Principal of the Claims which are classified
neither as Crediti in Sofferenza or as Arrear Claims;
(II)
in the event that (a) a third-party purchaser, other than the Originator, purchases
the Claims from the Issuer; (b) any Further Notes are then outstanding; and (c)
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such Further Notes are rated by S&P, upon request from the Issuer, S&P gives
written confirmation to the Issuer and the Representative of the Noteholders that
the redemption of the Notes would not adversely affect the then current rating of
the Further Notes then outstanding.
(e)
(ii)
The Issuer is entitled, pursuant to the Intercreditor Agreement, to dispose of the Claims
in order to finance the redemption of the Notes of all Single Series in the
circumstances described in this Condition 8(d).
(iii)
For so long as any of the Senior Notes of this Single Series are listed on the
Luxembourg Stock Exchange, the Issuer will give notice of any optional redemption of
the Notes of this Single Series in accordance with this Condition to the Luxembourg
Stock Exchange.
Optional redemption in whole for taxation, legal or regulatory reasons
Prior to the service of a Programme Acceleration Notice, the Issuer may redeem the Notes of
all Single Series, including this Single Series, (in whole but not in part) at their Principal
Amount Outstanding (plus any accrued but unpaid interest) in accordance with the PostEnforcement Priority of Payments and subject to the Issuer having sufficient funds to redeem
all the Notes of all Single Series (or the Senior Notes of all Single Series only, if all the
holders of the Junior Notes of all Single Series consent) and to make all payments ranking in
priority, or pari passu, thereto, on any Interest Payment Date if, by reason of a change in law
or the interpretation or administration thereof since the First Single Series Issue Date:
(a)
the assets of the Issuer in respect of this Programme (including the Claims, the
Collections and the other Issuer’s Rights) become subject to taxes, duties, assessments
or governmental charges of whatever nature imposed, levied, collected, withheld or
assessed by the Republic of Italy or by any political sub-division thereof or by any
authority thereof or therein or by any applicable taxing authority having jurisdiction; or
(b)
either the Issuer or any paying agent appointed in respect of the Senior Notes of any
Single Series or any custodian of the Senior Notes of any Single Series is required to
deduct or withhold any amount (other than in respect of a Decree 239 Withholding) in
respect of any Class of Senior Notes of any Single Series, from any payment of
principal or interest on such Interest Payment Date for or on account of any present or
future taxes, duties, assessments or governmental charges of whatever nature imposed,
levied, collected, withheld or assessed by the Republic of Italy or by any political subdivision thereof or by any authority thereof or therein or by any other applicable taxing
authority having jurisdiction and provided that such deduction or withholding may not
be avoided by appointing a replacement paying agent or custodian in respect of such
Senior Notes before the Interest Payment Date following the change in law or the
interpretation or administration thereof; or
(c)
any amounts of interest payable on the Consumer Loans to the Issuer are required to be
deducted or withheld from the Issuer for or on account of any present or future taxes,
duties assessments or governmental charges of whatever nature imposed, levied,
187
collected, withheld or assessed by the Republic of Italy or by any political sub-division
thereof or by any authority thereof or therein or by any other applicable taxing
authority having jurisdiction; or
(d)
it is or will become unlawful for the Issuer to perform or comply with any of its
obligations under or in respect of the Notes of any Single Series or any of the
Transaction Documents to which it is a party;
subject to the Issuer:
(i)
giving not more than 60 days nor less than 30 days’ written notice (which notice shall
be irrevocable) to the Representative of the Noteholders and the holders of the Notes of
all Single Series, pursuant to Condition 18 (Notices), of its intention to redeem all (but
not some only) of the Notes of all Single Series; and
(ii)
providing to the Representative of the Noteholders:
(1)
a legal opinion (in form and substance satisfactory to the Representative of the
Noteholders) from a firm of lawyers of international repute (approved in writing
by the Representative of the Noteholders) opining on the relevant change in law
or interpretation or administration thereof;
(2)
a certificate from the chairman of the board of directors or the sole director of
the Issuer (as applicable) stating that the obligation to make such deduction or
withholding or the suffering by the Issuer of such deduction or withholding
cannot be avoided or, as the case may be, the events under paragraph (d) above
will apply on the next Interest Payment Date and cannot be avoided by the
Issuer taking reasonable endeavours; and
(3)
a certificate from the chairman of the board of directors or the sole director of
the Issuer (as applicable) to the effect that it will have the funds on such Interest
Payment Date to discharge its obligations under: (a) the Notes of all Single
Series (or the Senior Notes of all Single Series only, if all the holders of the
Junior Notes of all Single Series consent) and any obligations ranking in priority,
pari passu, thereto; and (b) any additional taxes payable by the Issuer by reason
of such early redemption of the such Notes.
The Issuer is entitled, pursuant to the Intercreditor Agreement, to dispose of the Claims in
order to finance the redemption of the Notes of all Single Series in the circumstances
described above.
For so long as any of the Senior Notes of this Single Series are listed on the Luxembourg
Stock Exchange, the Issuer will give notice of any optional redemption of the Notes of this
Single Series in accordance with this Condition to the Luxembourg Stock Exchange.
(f)
Calculation of Programme Interest Available Funds, Programme Principal Available Funds,
Principal Payments and Principal Amount Outstanding
On each Calculation Date, the Issuer shall procure that the Computation Agent determines, in
accordance (where applicable) with Condition 4 (Status, ranking and priority):
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(i)
the Programme Interest Available Funds;
(ii)
the Single Series Interest Available Funds pertaining to each Single Series of Notes;
(iii)
the Programme Principal Available Funds;
(iv)
the Single Series Principal Available Funds pertaining to each Single Series of Notes;
(v)
the Principal Payments (if any) due on the Notes of each Class of each Single Series on
the next following Interest Payment Date;
(vi)
the Single Series Interest Amount in respect of the Notes of each Class of each Single
Series;
(vii) the interest payable to the Subordinated Loan Providers, each under the Subordinated
Loan Agreements to which each of them is a party;
(viii) the Principal Amount Outstanding of (A) each Single Series, (B) each Class of Notes
of each Single Series, (C) each Class of Notes in all Single Series and (D) each Note,
on the next following Interest Payment Date (after deducting any Principal Payment to
be made on that Interest Payment Date);
(ix)
the debit balance that will be outstanding in respect of the Class A Notes Principal
Deficiency Ledger on the next Interest Payment Date;
(x)
the debit balance that will be outstanding in respect of each Single Series Class A
Notes Principal Deficiency Ledger on the next Interest Payment Date;
(xi)
the debit balance that will be outstanding in respect of the Class B Notes Principal
Deficiency Ledger on the next Interest Payment Date;
(xii) the debit balance that will be outstanding in respect of each Single Series Class B
Notes Principal Deficiency Ledger on the next Interest Payment Date;
(xiii) the debit balance that will be outstanding in respect of the Junior Notes Principal
Deficiency Ledger on the next Interest Payment Date;
(xiv) the debit balance that will be outstanding in respect of each Single Series Junior Notes
Principal Deficiency Ledger on the next Interest Payment Date;
(xv) the Portfolio Outstanding Amount;
(xvi) the Revenue Eligible Investments Amount;
(xvii) the Single Series Interest Excess in respect of each Single Series;
(xviii) the Programme Interest Excess;
(xix) the Programme Interest Shortfall and the Single Series Interest Shortfall in respect of
each Single Series;
(xx) the Applicable Ratio and the Single Series Ratio of each Single Series;
(xxi) the Cash Reserve;
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(xxii) the Programme Principal Deficiency Ledger Amount and the Single Series Principal
Deficiency Ledger Amount in respect of each Single Series;
(xxiii) the Single Series Class A Notes Interest Amount, the Single Series Class B Notes
Interest Amount and the Single Series Interest Amount, in respect of each Single
Series;
(xxiv) the Single Series Class A Rate of Interest and the Single Series Class B Rate of Interest
in respect of each Single Series;
(xxv) the Single Series Junior Notes Available Funds and the Single Series Junior Notes
Interest Amount Arrears in respect of each Single Series;
(xxvi) the Single Series Interest Amount Arrears of each Class in respect of each Single
Series;
(xxvii) the Single Series Junior Notes Interest Amount, the Single Series Junior Notes
Additional Remuneration and the Junior Notes Additional Remuneration;
(xxviii) the Single Series Outstanding PDL Amount in respect of each Single Series;
(xxix) the Single Series Senior Interest Payments in respect of each Single Series;
(xxx) the Target Cash Reserve Amount;
(xxxi) whether a Purchase Termination Event has occurred; and
(xxxii) the payments to be made to each of the parties to the Intercreditor Agreement under
the relevant Transaction Documents,
and will determine how the Issuer’s funds available for distribution pursuant to these Terms
and Conditions shall be applied, on the immediately following Interest Payment Date,
pursuant to the applicable Priority of Payments, and will deliver to the Paying Agents and the
Account Bank a report setting forth such determinations and amounts.
(g)
Calculation of Single Series Principal Available Funds
On each Calculation Date, the Issuer shall determine, or shall cause to be determined, the
Single Series Principal Available Funds pertaining to this Single Series and each other Single
Series by allocating the Programme Principal Available Funds as follows:
(i)
if there are no other Single Series of Notes outstanding, the Single Series Principal
Available Funds pertaining to this Single Series will be equal to the Programme
Principal Available Funds;
(ii)
if there are two or more Single Series of Notes outstanding (including this Single
Series), the Programme Principal Available Funds will be allocated between such
Single Series (thus constituting the relevant Single Series Principal Available Funds) as
follows:
(A)
first, to the Oldest Single Series, in an amount equal to the lower of:
190
(B)
(C)
(h)
(a)
the greater of (I) the relevant Single Series Ratio of the Programme
Principal Available Funds and (II) the difference (if positive) between (a)
the Principal Amount Outstanding of such Oldest Single Series on such
Calculation Date and (b) the relevant Single Series Target Outstanding
Amount in respect of the immediately following Interest Payment Date;
and
(b)
the difference between the Principal Amount Outstanding of such Oldest
Single Series and the relevant Single Series Outstanding PDL Amount;
second, provided that there are more than two Single Series outstanding, to each
immediately Subsequent Single Series (in chronological order, beginning with
the oldest one), in an amount equal to the lower of:
(a)
the greater of (I) the relevant Single Series Ratio of the Programme
Principal Available Funds and (II) the difference (if positive) between (a)
the Principal Amount Outstanding of such Subsequent Single Series on
such Calculation Date and (b) the relevant Single Series Target
Outstanding Amount in respect of the immediately following Interest
Payment Date; and
(b)
the difference between the Principal Amount Outstanding of such
Subsequent Single Series and the relevant Single Series Outstanding PDL
Amount;
third, the remainder, if any, to the Newest Single Series.
Programme Interest Excess
Amounts credited to and/or retained in the Collection Account under item (xiv) of the PreEnforcement Priority of Payments for Single Series Interest Available Funds, if any, relative
to any Single Series (including, where applicable, this Single Series) (such amounts, in
respect of each Single Series, the “Single Series Interest Excess” and, collectively, the
“Programme Interest Excess”) will be used to augment the Single Series Interest Available
Funds pertaining to any Single Series (including, where applicable, this Single Series)
suffering a Single Series Interest Shortfall, if any, as follows:
(a)
if the Programme Interest Excess is equal to the Programme Interest Shortfall, the
portion of Programme Interest Excess to be used to augment the Single Series Interest
Available Funds pertaining to each Single Series suffering a Single Series Interest
Shortfall will be equal to the relative Single Series Interest Shortfall; or
(b)
if the Programme Interest Excess is less than the Programme Interest Shortfall, the
portion of Programme Interest Excess to be used to augment the Single Series Interest
Available Funds pertaining to each Single Series suffering a Single Series Interest
Shortfall will be calculated by reference to the ratio borne by the Single Series Interest
Shortfall of such Single Series to the Programme Interest Shortfall on such Calculation
Date.
191
(i)
Calculations final and binding
Each determination by or on behalf of the Issuer under Condition 8(f) (Calculation of
Programme Interest Available Funds, Programme Principal Available Funds, Principal
Payments and Principal Amount Outstanding) shall in each case (in the absence of wilful
misconduct, bad faith or manifest error) be final and binding on all persons.
(j)
Notice of determination and redemption
The Issuer will cause each determination of a Principal Payment (if any), the Single Series
Interest Amount, the Single Series Interest Amount Arrears (if any) and the Principal Amount
Outstanding in relation to each Class of Notes of this Single Series to be notified immediately
after the calculation to the Representative of the Noteholders, the Paying Agents, the Agent
Bank, Monte Titoli, Santander, and, for so long as any Notes of this Single Series are listed
on any stock exchange, each stock exchange on which any Class on which any Class of
Notes is then listed is then listed and will immediately cause details of each determination of
a Principal Payment, the Single Series Interest Amount, the Single Series Interest Amount
Arrears (if any) and Principal Amount Outstanding in relation to each Class of Notes of this
Single Series to be published in accordance with Condition 18 (Notices) by not later than one
Business Day prior to such Interest Payment Date if required by the rules of the Luxembourg
Stock Exchange.
(k)
Notice of no Principal Payment
During the Single Series Amortising Period, if no Principal Payment is due to be made on the
Notes of any Class of this Single Series on an Interest Payment Date, a notice to this effect
will be given by, or on behalf of, the Issuer to the Single Series Noteholders in accordance
with Condition 18 (Notices) by not later than one Business Day prior to each Interest
Payment Date.
(l)
Notice irrevocable
Any such notice as is referred to in Condition 8(j) (Notice of determination and redemption)
or Condition 8(k) (Notice of no Principal Payment) shall be irrevocable and the Issuer shall,
in the case of a notice under Condition 8(j), be bound to redeem the relevant Notes to which
such notice refers (in whole or in part, as applicable) in accordance with this Condition 8.
(m)
Determinations by the Representative of the Noteholders
If the Issuer does not at any time for any reason determine or cause to be determined a
Principal Payment or the Principal Amount Outstanding in accordance with the preceding
provisions of this Condition, such Principal Payment and/or, as applicable, Principal Amount
Outstanding shall be determined by the Representative of the Noteholders in accordance with
this Condition 8 (but without the Representative of the Noteholders incurring any liability to
any person as a result) and each such determination shall be deemed to have been made by
the Issuer.
(n)
No purchase by the Issuer
The Issuer shall not purchase any of the Notes of this Single Series.
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(o)
Cancellation
All Notes of this Single Series redeemed in full will be cancelled upon such redemption and
may not be resold or reissued.
9
Payments
(a)
Payments through Monte Titoli, Euroclear and Clearstream, Luxembourg
Payments of principal and interest in respect of the Notes of this Single Series deposited with
Monte Titoli will be credited, according to the instructions of Monte Titoli, by or on behalf of
the Issuer to the accounts with Monte Titoli of the banks and authorised brokers whose
accounts are credited with those Notes of this Single Series, and thereafter credited by such
banks and authorised brokers from such aforementioned accounts to the accounts of the
beneficial owners of those Notes of this Single Series. Payments made by or on behalf of the
Issuer according to the instructions of Monte Titoli to the accounts with Monte Titoli of the
banks and authorised brokers whose accounts are credited with those Notes of this Single
Series will relieve the Issuer pro tanto from the corresponding payment obligations under the
Notes of this Single Series.
Alternatively, the Principal Paying Agent may arrange for payments of principal and interest
in respect of the Notes of this Single Series to be made to the Single Series Noteholders
through Euroclear and Clearstream, Luxembourg to be credited to the accounts with
Euroclear and Clearstream, Luxembourg of the beneficial owners of the Notes of this Single
Series, in accordance with the rules and procedures of Euroclear or, as the case may be,
Clearstream, Luxembourg. Payments made by or on behalf of the Issuer to the accounts with
Euroclear and Clearstream, Luxembourg of the beneficial owners of the Notes of this Single
Series, in accordance with the rules and procedures of Euroclear or, as the case may be,
Clearstream, Luxembourg will relieve the Issuer pro tanto from the corresponding payment
obligations under the Notes of this Single Series.
(b)
Payments subject to fiscal laws
Payments of principal and interest in respect of the Notes of this Single Series are subject in
all case to any fiscal or other applicable laws and regulations applicable in the place of
payment, but without prejudice to the provisions of Condition 10 (Taxation).
(c)
Payments on Business Days
If the due date for any payment of principal and/or interest in respect of any Note of this
Single Series is not a day on which banks are open for general business (including dealings in
foreign currencies) in the place in which the relevant Monte Titoli Account Holder is located
(in each case, the “Local Business Day”), the holder of the relevant Note of this Single
Series will not be entitled to payment of the relevant amount until the immediately
succeeding Local Business Day and will not be entitled to any further interest or other
payment in consequence of any such delay.
(d)
Notifications to be final
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All notifications, opinions, determinations, certificates, calculations, quotations and decisions
given, expressed, made or obtained for the purposes of Condition 7 (Interest) or Condition 8
(Redemption, purchase and cancellation), whether by the Reference Banks (or any of them),
the Paying Agents, the Agent Bank, the Computation Agent or the Representative of the
Noteholders shall (in the absence of wilful default, bad faith or manifest error) be binding on
the Issuer, the Agents, all Single Series Noteholders and all Other Issuer Creditors and (in the
absence of wilful default, bad faith or manifest error) no liability to the Representative of the
Noteholders, the Single Series Noteholders or the Other Issuer Creditors shall attach to the
Reference Banks, the Paying Agents, the Agent Bank, the Computation Agent or the
Representative of the Noteholders in connection with the exercise or non-exercise by any of
them of their powers, duties and discretions under Condition 7 (Interest) or Condition 8
(Redemption, purchase and cancellation).
10 Taxation
All payments in respect of the Notes of this Single Series shall be made free and clear of, and
without withholding or deduction for, any taxes, duties, assessments or governmental charges of
whatever nature, other than a Decree 239 Withholding, imposed, levied, collected, withheld or
assessed by or within the Republic of Italy or any authority therein or thereof having power to tax,
unless such withholding or deduction is required by law. The Issuer shall not be obliged to pay any
additional amount to any Single Series Noteholder on account of such withholding or deduction.
11 Events of Default
(a)
Events of Default
Subject to the other provisions of this Condition 11, each of the following events shall be
treated as an “Event of Default”:
(i)
Non-payment: the Issuer fails to repay any amount of principal in respect of the Most
Senior Class of Notes of any Single Series (excluding the Junior Notes) within 15 days
of the due date for repayment of such principal or fails to pay any Single Series Interest
Amount in respect of the Most Senior Class of Notes of any Single Series (excluding
the Junior Notes) within five days of the relevant Interest Payment Date; or
(ii)
Breach of other obligations: the Issuer fails to perform or observe any of its other
obligations under or in respect of the Senior Notes of any Single Series, the
Intercreditor Agreement or any other Transaction Document to which it is a party and
such default is, in the sole opinion of the Representative of the Noteholders, (a)
incapable of remedy or (b) capable of remedy, but remains unremedied for 30 days or
such longer period as the Representative of the Noteholders may agree (in its sole
discretion) after the Representative of the Noteholders has given written notice of such
default to the Issuer, certifying that such default is, in the opinion of the Representative
of the Noteholders, materially prejudicial to the interests of the holders of the Senior
Notes of any Single Series and requiring the same to be remedied; or
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(iii)
Failure to take action: any action, condition or thing at any time required to be taken,
fulfilled or done in order:
(A)
to enable the Issuer lawfully to enter into, exercise its rights and perform and
comply with its obligations under and in respect of the Senior Notes of all Single
Series and the Transaction Documents to which the Issuer is a party; or
(B)
to ensure that those obligations are legal, valid, binding and enforceable,
is not taken, fulfilled or done at any time and the Representative of the Noteholders has
given written notice of such default to the Issuer, certifying that such default is, in the
opinion of the Representative of the Noteholders, materially prejudicial to the interests
of the holders of the Senior Notes of any Single Series and requiring the same to be
remedied; or
(b)
(iv)
Insolvency Event: an Insolvency Event occurs in relation to the Issuer or the Issuer
becomes Insolvent; or
(v)
Unlawfulness: it is or will become unlawful for the Issuer to perform or comply with
any of its obligations under or in respect of the Senior Notes of any Single Series or the
Transaction Documents to which the Issuer is a party.
Service of a Programme Acceleration Notice
If an Event of Default occurs, then (subject to Condition 11(c) (Consequences of service of a
Programme Acceleration Notice) the Representative of the Noteholders may, at its sole
discretion, and shall:
(i)
if so directed in writing by the holders of at least 45% of the Principal Amount
Outstanding of the Most Senior Class of Notes of all Single Series; or
(ii)
if so directed by an Extraordinary Resolution of the holders of the Most Senior Class
of Notes of all Single Series,
give written notice (a “Programme Acceleration Notice”) to the Issuer and to the Servicer
declaring the Notes of all Single Series to be due and payable provided that:
(c)
(A)
in the case of the occurrence of any of the events mentioned in Condition 11(a)(ii)
(Breach of other obligations) and Condition 11(a)(iii) (Failure to take action), the
service of a Programme Acceleration Notice has been approved either in writing by the
holders of at least 45% of the Principal Amount Outstanding of the Most Senior Class
of Notes of all Single Series or by an Extraordinary Resolution of the holders of the
Most Senior Class of Notes of all Single Series; and
(B)
in each case, the Representative of the Noteholders shall have been indemnified and/or
secured and/or pre-funded to its satisfaction against all fees, costs, expenses and
liabilities (provided that supporting documents are delivered where available) to which
it may thereby become liable or which it may incur by so doing.
Consequences of service of a Programme Acceleration Notice
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Upon the service of a Programme Acceleration Notice as described in this Condition, (i) the
Notes of each Class of all Single Series shall become immediately due and repayable at their
Principal Amount Outstanding together with any interest accrued but which has not been paid
on any preceding Interest Payment Date in accordance with Condition 7(j) (Single Series
Interest Amount Arrears) without further action, notice or formality; (ii) the Note Security
shall become immediately enforceable; and (iii) the Representative of the Noteholders may,
subject to Condition 12(b) (Restrictions on disposal of Issuer’s assets), dispose of the Claims
in the name and on behalf of the Issuer by virtue of the power of attorney granted in
accordance with the Mandate Agreement. The Single Series Noteholders hereby irrevocably
appoint, as from the date hereof and with effect on and from the date on which the Notes of
all Single Series shall become due and payable following the service of a Programme
Acceleration Notice, the Representative of the Noteholders as their exclusive agent
(mandatario esclusivo) to receive on their behalf from the Issuer any and all monies payable
by the Issuer to the Single Series Noteholders, the holders of the Notes of any other Single
Series and the Other Issuer Creditors from and including the date on which the Notes of all
Single Series shall become due and payable, such monies to be applied in accordance with
the Post-Enforcement Priority of Payments.
12 Enforcement
(a)
Proceedings
The Representative of the Noteholders may, at its discretion and without further notice,
institute such proceedings as it thinks fit at any time after the service of a Programme
Acceleration Notice to enforce repayment of the Notes of this Single Series and of any other
Single Series and payment of accrued interest thereon or at any time to enforce any other
obligation of the Issuer under the Notes of this Single Series and of any other Single Series or
any Transaction Document, but, in either case, it shall not be bound to do so unless it shall
have been:
(i)
so requested in writing by the holders of at least 25% of the Principal Amount
Outstanding of the Most Senior Class of Notes of all Single Series; or
(ii)
so directed by an Extraordinary Resolution of the holders of the Most Senior Class of
Notes of all Single Series,
and, in any such case, only if it shall have been indemnified and/or secured and/or pre-funded
to its satisfaction against all fees, costs, expenses and liabilities to which it may thereby
become liable or which it may incur by so doing.
(b)
Restrictions on disposal of Issuer’s assets
If a Programme Acceleration Notice has been served by the Representative of the
Noteholders other than by reason of non-payment of any amount due in respect of the Most
Senior Class of Notes of any Single Series (excluding the Junior Notes), the Representative
of the Noteholders will not be entitled to dispose of the assets of the Issuer or any part thereof
unless either:
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(i)
a sufficient amount would be realised to allow payment in full of all amounts owing to
the holders of each Class of Senior Notes of all Single Series after payment of all other
claims ranking in priority to the Senior Notes of all Single Series in accordance with
the Post-Enforcement Priority of Payments; or
(ii)
the Representative of the Noteholders is of the opinion, which shall be binding on the
Single Series Noteholders, the holders of the Notes of any other Single Series and the
other Issuer Secured Creditors, reached after considering at any time and from time to
time the advice of a merchant or investment bank or other financial adviser selected by
the Representative of the Noteholders (and if the Representative of the Noteholders is
unable to obtain such advice having made reasonable efforts to do so, this Condition
12(b)(ii) shall not apply) that the cash flow prospectively receivable by the Issuer will
not (or that there is a significant risk that it will not) be sufficient, having regard to any
other actual, contingent or prospective liabilities of the Issuer, to discharge in full in
due course all amounts due in respect of the Senior Notes of all Single Series after
payment of all other claims ranking in priority to the Senior Notes of all Single Series
in accordance with the Post-Enforcement Priority of Payments, and
the Representative of the Noteholders shall not be bound to make the determination contained
in Condition 12(b)(ii) unless the Representative of the Noteholders shall have been
indemnified and/or secured and/or pre-funded to its satisfaction against all fees, costs,
expenses and liabilities to which it may thereby become liable or which it may incur by so
doing.
13 Representative of the Noteholders
(a)
Legal representative
The Representative of the Noteholders is Deutsche Trustee Company Limited at its offices at
Winchester House, 1 Great Winchester Street, London EC2N 2DB, England, and is the legal
representative (rappresentante legale) of the Single Series Noteholders and of the holders of
the Notes of any other Single Series in accordance with these Terms and Conditions, the
Rules of the Organisation of Noteholders, the applicable Final Terms and the other
Transaction Documents.
(b)
Powers of the Representative of the Noteholders
The duties and powers of the Representative of the Noteholders are set forth in the Rules of
the Organisation of Noteholders.
(c)
Meetings of Noteholders
The Rules of the Organisation of Noteholders contain provisions for convening Meetings of
Noteholders as well as the subject matter of the Meetings and the relevant quorums.
(d)
Individual action
The Rules of the Organisation of Noteholders contain provisions limiting the powers of the
Single Series Noteholders and the holders of the Notes of any other Single Series, inter alia,
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to bring individual actions or take other individual remedies to enforce their rights under the
Notes. In particular, such actions will be subject to the Meeting approving by way of
Extraordinary Resolution such individual action or other remedy. No individual action or
remedy can be taken or sought by a Single Series Noteholder to enforce his or her rights
under the Notes of this Single Series before the Meeting has approved such action or remedy
in accordance with the provisions of the Rules of the Organisation of Noteholders.
(e)
Resolutions binding
Any resolution passed at a Meeting of the holders of the Relevant Class(es) of Notes (as
defined in the Rules of the Organisation of the Noteholders), duly convened and held in
accordance with such rules, shall be binding upon all the Noteholders of such Class of Notes,
whether or not present at such Meeting and whether or not voting, in accordance with the
Rules of the Organisation of the Noteholders.
(f)
Written Resolutions
A Written Resolution will take effect as if it were an Extraordinary Resolution passed at a
Meeting.
14 Modification and Waiver
(a)
Modification
The Representative of the Noteholders may, without the consent of the Single Series
Noteholders or any Other Issuer Creditors and subject to the Representative of the
Noteholders giving prior written notice thereof to the Rating Agency, concur with the Issuer
and any other relevant parties in making:
(i)
any amendment or modification to these Terms and Conditions (other than in respect of
a Basic Terms Modification) or any of the Transaction Documents which, in the
opinion of the Representative of the Noteholders, it may be proper to make and will
not be materially prejudicial to the interests of the holders of the Most Senior Class of
Notes of all Single Series;
(ii)
any amendment or modification to these Terms and Conditions or to any of the
Transaction Documents if, in the opinion of the Representative of the Noteholders,
such amendment or modification is expedient to make, is of a formal, minor or
technical nature, is made to correct a manifest error or an error which, in the opinion of
the Representative of the Noteholders, is proven or is necessary or desirable for the
purposes of clarification; or
(iii)
any amendments or modifications, in connection with each Additional Issue, to the
Intercreditor Agreement, the Italian Deed of Pledge, the English Deed of Charge and
Assignment or any other Transaction Document (including, for the avoidance of doubt,
the definitions of “Target Cash Reserve Amount” or any other definition referred to
therein), provided that the Issuer notifies the Rating Agency of such amendment or
modification.
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(b)
Waiver
In addition, the Representative of the Noteholders may, without the consent of the Single
Series Noteholders, the holders of the Notes of any other Single Series or any Other Issuer
Creditor (other than those which are a party to the relevant Transaction Document) and
subject to the Representative of the Noteholders giving prior written notice thereof to the
Rating Agency, authorise or waive any proposed breach or breach of the Notes of this Single
Series (including an Event of Default) or of the Intercreditor Agreement or of any other
Transaction Document if, in the opinion of the Representative of the Noteholders, the
interests of the holders of the Most Senior Class of Notes of all Single Series will not be
materially prejudiced by such authorisation or waiver.
(c)
Restriction on power to waive
The Representative of the Noteholders shall not exercise any powers conferred upon it by
Condition 14(b) (Waiver) in contravention of any express direction by an Extraordinary
Resolution or of a request in writing made by the holders of not less than 25% in aggregate
Principal Amount Outstanding of the Most Senior Class of Notes of all Single Series (but so
that no such direction or request shall affect any authorisation, waiver or determination
previously given or made) or so as to authorise or waive any proposed breach or breach
relating to a Basic Terms Modification.
(d)
Notification
Unless the Representative of the Noteholders agrees otherwise, any such authorisation,
waiver, modification or determination shall be notified to the Noteholders, in accordance with
Condition 18 (Notices), as soon as practicable after it has been made.
15 Representative of the Noteholders and Agents
(a)
Organisation of Noteholders
The Organisation of Noteholders is created by the issue and subscription of the Notes of the
First Single Series and will remain in force and effect until repayment in full and cancellation
of the Notes of all Single Series.
(b)
Appointment of Representative of the Noteholders
Pursuant to the Rules of the Organisation of Noteholders, for as long as any Note of any
Single Series is outstanding, there will at all times be a Representative of the Noteholders.
The appointment of the Representative of the Noteholders, as legal representative of the
Organisation of Noteholders, is made by the Noteholders subject to and in accordance with
the Rules of the Organisation of Noteholders. However, the initial Representative of the
Noteholders has been appointed at the time of issue of the Notes of the First Single Series,
who is appointed by the Initial Dealer and the First Single Series Junior Notes Underwriter
pursuant to the Intercreditor Agreement. Each Noteholder is deemed to accept such
appointment.
(c)
Agents solely agents of Issuer
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In acting under the Agency and Accounts Agreement and in connection with the Notes of this
Single Series, the Paying Agents, the Computation Agent and the Agent Bank act solely as
agents of the Issuer and (to the extent provided therein) the Representative of the Noteholders
and do not assume any obligations towards or relationship of agency or trust for or with any
of the Single Series Noteholders.
(d)
Representative of the Noteholders
The Representative of the Noteholders shall not be deemed to be a person responsible for the
collection, cash and payment services (soggetto incaricato della riscossione dei crediti ceduti
e dei servizi di cassa e pagamento) for the purposes of article 2 paragraph 6 of the
Securitisation Law and the relevant implementing regulations from time to time in force
including, without limitation, the relevant guidelines of the Bank of Italy.
(e)
Account Bank
In acting under the Issuer Account Bank Agreement and the Agency and Accounts Agreement
and in connection with the Notes of all Single Series, the Account Bank acts as agent solely
of the Issuer and (to the extent provided therein) the Representative of the Noteholders and
do not assume any obligations towards or relationship of agency or trust for or with any of
the Single Series Noteholders.
(f)
Initial Agents
The initial Paying Agents, the initial Computation Agent, the initial Account Bank and the
initial Agent Bank and their initial Specified Offices are listed in Condition 18 (Notices)
below. The Issuer reserves the right (with the prior written approval of the Representative of
the Noteholders) at any time to vary or terminate the appointment of any Paying Agent, the
Computation Agent, the Account Bank or the Agent Bank and to appoint a successor paying
agent, computation agent, account bank or agent bank and additional or successor paying
agents at any time, in accordance with these Terms and Conditions and the terms of the
Agency and Accounts Agreement and the Issuer Account Bank Agreement. In the event that
the Listing and Luxembourg Paying Agent is replaced at any time, the Issuer will provide
notice of the appointment of any replacement to the Luxembourg Stock Exchange.
(g)
Maintenance of Agents
The Issuer undertakes that it will ensure that it maintains:
(i)
at least one Paying Agent having its specified office in a European city which so long
as the Senior Notes are listed on the Luxembourg Stock Exchange shall be
Luxembourg, a paying agent having its specified office in Milan, a computation agent
and an account bank acting through an office or branch located in United Kingdom;
and
(ii)
a Paying Agent in a Member State of the European Union that is not obliged to
withhold or deduct tax pursuant to European Council Directive 2003/48/EC or any
other Directive implementing the conclusions of the ECOFIN Council meeting of 26
27 November 2000.
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Notice of any termination or appointment change in any of the Paying Agents, the Agent
Bank, the Computation Agent and the Account Bank of any changes in the Specified Offices
shall promptly be given to the Noteholders by the Issuer in accordance with Condition 18
(Notices).
16 Prescription
Claims against the Issuer for payments in respect of the Notes of this Single Series shall be
prescribed and become void unless made within 10 years (in the case of principal) or five years (in
the case of interest) from the appropriate Relevant Date in respect of them.
17 Limited recourse and non-petition
(a)
Limited recourse
Notwithstanding any other provision of these Conditions, the obligation of the Issuer to make
any payment, at any given time, under the Notes of this Single Series shall be equal to the
lesser of (i) the nominal amount of such payment which, but for the operation of this
Condition and the applicable Priority of Payments, would be due and payable at such time
and (ii) (A) prior to the service of a Programme Acceleration Notice and prior to the service
of a Purchase Termination Event Notice, the Single Series Interest Available Funds and the
Single Series Principal Available Funds of this Single Series, as at the relevant date, which
the Issuer is entitled to apply in accordance with the applicable Priority of Payments and the
terms of the Intercreditor Agreement, (B) prior to the service of a Programme Acceleration
Notice and following the service of a Purchase Termination Event Notice, the Single Series
Interest Available Funds and the share of the Programme Principal Available Funds which the
Issuer or the Representative of the Noteholders is entitled to apply in or towards satisfaction
of amounts due under the Notes of this Single Series in accordance with the Pre-Enforcement
Priority of Payments for Programme Principal Available Funds and the terms of the
Intercreditor Agreement and (C) following the service of a Programme Acceleration Notice,
the share of the Post-Enforcement Issuer Available Funds which the Issuer or the
Representative of the Noteholders is entitled to apply in or towards satisfaction of amounts
due under the Notes of this Single Series in accordance with the Post-Enforcement Priority of
Payments and the terms of the Intercreditor Agreement and neither the Representative of the
Noteholders nor any Single Series Noteholder may take any further steps against the Issuer or
any of its assets to recover any unpaid sum and the Issuer’s liability for any unpaid sum will
be extinguished.
(b)
Non-petition
Without prejudice to the right of the Representative of the Noteholders to enforce the Note
Security or to exercise any of its other rights and subject as set out in the Rules of the
Organisation of the Noteholders, no Single Series Noteholder shall be entitled to institute
against the Issuer or join any other person in instituting against the Issuer any reorganisation,
liquidation, bankruptcy, insolvency or similar proceedings until one year plus one day after
the later of (i) the expiry of the Additional Issue Period and (ii) the date on which any notes
issued or to be issued by the Issuer (including the Notes of all Single Series issued under the
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Programme, the Previous Programme 2004 Notes, the Previous Programme March 2008
Notes and the Previous Programme December 2008 Notes) have been paid in full.
18 Notices
(a)
Valid notices
All notices to the Single Series Noteholders, as long as the Notes of any Single Series are
held through Monte Titoli and/or by a common depository for Euroclear and/or Clearstream,
Luxembourg, shall be deemed to have been validly given if delivered to Monte Titoli and/or
Euroclear and/or Clearstream for communication by them to the entitled accountholders and
shall be deemed to be given on the date on which it was delivered to Monte Titoli,
Clearstream, Luxembourg and Euroclear, as applicable.
In addition, so long as the Senior Notes of any Single Series are listed on the Luxembourg
Stock Exchange and the rules of that exchange so require, all notices will be published on the
website of the Luxembourg Stock Exchange (www.bourse.lu).
The Issuer shall also ensure that notices are duly published in a manner which complies with
the rules and regulations of any stock exchange or other relevant authority on which the
Notes are for the time being listed.
So long as any Senior Notes of any Single Series are listed on the Luxembourg Stock
Exchange and the rules of that exchange so require, all notices given to holders of the Senior
Notes of any Single Series will also be given to the Luxembourg Stock Exchange.
As regards the Single Series Junior Noteholders, notice shall be deemed to have been validly
given to the Single Series Junior Noteholders if sent to the address (by delivering it by hand,
or sending it by pre-paid recorded delivery or registered post) and fax number specified in
respect of the Single Series Junior Noteholders in the relevant Single Series Junior Notes
Subscription Agreement, and, in each case, marked for the attention of the Single Series
Junior Noteholders. Notice shall be deemed to have been duly given:
(i)
in the case of delivery by hand, when delivered;
(ii)
in the case of fax, at the time of transmission; and
(iii)
in the case of pre-paid recorded delivery or registered post, on the fourth Business Day
following the date of posting,
provided that in each case where delivery by hand or fax occurs after 6.00 p.m. on a Business
Day or on a day which is not a Business Day, service shall be deemed to occur at 9.00 a.m.
on the next following Business Day.
(b)
Date of publication
Any notice shall be deemed to have been given on the date of such publication or, if
published more than once or on different dates, on the first date on which publication is
made, as provided above.
(c)
Other methods
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The Representative of the Noteholders shall be at liberty to sanction some other method of
giving notice to the Single Series Noteholders or to a Class or category of them if, in its
opinion, such other method is reasonable having regard to market practice then prevailing
and to the requirements of the stock exchange on which any of the Notes of this Single Series
are then listed and provided that notice of such other method is given to the relative
Noteholders in such manner as the Representative of the Noteholders shall require.
(d)
Initial Specified Offices
The “Specified Offices” of the Computation Agent, the Agent Bank, the Representative of
the Noteholders, the Account Bank and the Paying Agents are as follows:
(i)
in relation to the Account Bank, the Principal Paying Agent and the Agent Bank:
Deutsche Bank AG, London Branch, Winchester House, 1 Great Winchester Street,
London EC2N 2DB, United Kingdom;
(ii)
in relation to the Representative of the Noteholders: Deutsche Trustee Company
Limited, Winchester House, 1 Great Winchester Street, London EC2N 2DB, United
Kingdom;
(iii)
in relation to the Italian Paying Agent, the Programme Administrator and the
Computation Agent: Deutsche Bank S.p.A., Piazza del Calendario, 3, 20126 Milan,
Italy; and
(iv)
Listing and Luxembourg Paying Agent: Deutsche Bank Luxembourg S.A., 2,
boulevard Konrad Adenauer, L-1115 Luxembourg.
19 Governing law and jurisdiction
(a)
Governing law
The Notes of this Single Series, these Terms and Conditions, the Rules of the Organisation of
Noteholders and the Italian Law Transaction Documents are governed by, and shall be
construed in accordance with, Italian law. The English Law Transaction Documents are
governed by, and shall be construed in accordance with, English law.
(b)
Jurisdiction
(i)
The Courts of Milan are to have exclusive jurisdiction to settle any disputes that may
arise out of or in connection with the Notes of this Single Series, these Terms and
Conditions, the Rules of the Organisation of Noteholders and (with the exception of
certain disputes under the Warranty and Indemnity Agreement which are resolved
through arbitration) the Italian Law Transaction Documents and, accordingly, any legal
action or proceedings arising out of or in connection with any Notes of this Single
Series, these Terms and Conditions, the Rules of the Organisation of Noteholders or
any Italian Law Transaction Document may be brought in such courts. The Issuer has
in each of the Italian Law Transaction Documents (other than the Warranty and
Indemnity Agreement with regard to certain disputes) irrevocably submitted to the
jurisdiction of such courts.
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(ii)
(c)
The Courts of England and Wales are to have jurisdiction to settle any disputes that
may arise out of or in connection with the English Law Transaction Documents
(including a dispute relating to non-contractual obligations arising out of or in
connection with any English Law Transaction Document or a dispute regarding the
existence, validity or termination of any English Law Transaction Document) and,
accordingly, any legal action or proceedings arising out of or in connection with any
English Law Transaction Document (“Proceedings”) may be brought in such courts.
The Issuer has in each of the English Law Transaction Documents irrevocably
submitted to the jurisdiction of such courts.
Service of process
The Issuer has irrevocably appointed an agent in England to receive, for it and on its behalf,
service of process in any Proceedings in England.
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SCHEDULE TO THE TERMS AND CONDITIONS OF THE NOTES
RULES OF THE ORGANISATION OF NOTEHOLDERS
TITLE I
GENERAL PROVISIONS
Article 1
General
The Organisation of Noteholders is created by the issue and by the subscription of the Notes, and shall remain in force and in effect until
full repayment and cancellation of the Notes.
The contents of these rules are deemed to form part of each Note issued by the Issuer.
Article 2
Definitions
In these rules, the following terms shall have the following meanings:
“24 Hours” means a period of 24 hours including all or part of a day upon which banks are open for business in the place where the
Meeting of the holders of the Relevant Class(es) of Notes is to be held and in the place where the Principal Paying Agent has its
Specified Office (disregarding for this purpose the day upon which such Meeting is to be held) and such period shall be extended by one
or, to the extent necessary, more periods of 24 Hours until there is included as aforesaid all or part of a day upon which banks are open
for business as aforesaid;
“48 Hours” means two consecutive periods of 24 Hours;
“Basic Terms Modification” means:
(a)
a modification of the date of maturity of one or more Relevant Classes of Notes;
(b)
a modification which would have the effect of cancelling or postponing any date for payment of interest in respect of one or
more Relevant Classes of Notes;
(c)
a modification which would have the effect of reducing or cancelling the amount of principal payable in respect of one or more
Relevant Classes of Notes or the rate of interest applicable in respect of one or more Relevant Classes of Notes;
(d)
a modification which would have the effect of altering the method of calculating the amount of interest or such other amounts
payable in respect of one or more Relevant Classes of Notes;
(e)
a modification which would have the effect of altering the majority required to pass a specific resolution or the quorum required
at any Meeting;
(f)
a modification which would have the effect of altering the currency of payment of one or more Relevant Classes of Notes or any
alteration of the date or priority of payment or redemption of one or more Relevant Classes of Notes;
(g)
a modification which would have the effect of altering the authorisation or consent by the Noteholders, as pledges, to
applications of funds as provided for in the Transaction Documents;
(h)
the appointment and removal of the Representative of the Noteholders; and
(i)
an amendment of this definition;
“Blocked Notes” means the Notes which have been blocked in an account with the relevant clearing system, the Monte Titoli Account
Holder or the relevant custodian for the purposes of obtaining a Voting Certificate or a Block Voting Instruction and will not be released
until the conclusion of the Meeting;
“Block Voting Instruction” means, in relation to any Meeting, a document issued by the Principal Paying Agent:
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(a)
certifying that the Blocked Notes have been blocked in an account with the relevant clearing system, the Monte Titoli Account
Holder or the relevant custodian and will not be released until the conclusion of the Meeting;
(b)
certifying that the holder of each Blocked Note or a duly authorised person on its behalf has instructed the Principal Paying
Agent that the votes attributable to such Blocked Note are to be cast in a particular way on each resolution to be put to the
Meeting and that, during the period of 48 Hours before the time fixed for the Meeting, such instructions may not be amended or
revoked;
(c)
listing the total number of the Blocked Notes, distinguishing for each resolution between those in respect of which instructions
have been given to vote for, or against, the resolution; and
(d)
appointing one or more Proxies to vote in respect of the Blocked Notes in accordance with such instructions;
“Chairman” means, in relation to any Meeting, the individual who takes the chair in accordance with Article 9 (Chairman of the
Meeting);
“Extraordinary Resolution” means a resolution of a Meeting of the holders of the Relevant Class(es) of Notes, duly convened and held
in accordance with the provisions contained in these rules on any of the subjects covered by Article 21 (Powers exercisable by
Extraordinary Resolution) by a majority of at least ¾ of votes cast;
“Meeting” means a meeting of the holders of the Relevant Class(es) of Notes (whether originally convened or resumed following an
adjournment);
“Proxy” means, in relation to any Meeting, a person appointed to vote under a Block Voting Instruction;
“Relevant Class of Notes” means:
(a)
the Class A Notes of all Single Series; or
(b)
the Class B Notes of all Single Series; or
(c)
the Junior Notes of all Single Series; or
(d)
the Class A Notes of each Single Series; or
(e)
the Class B Notes of each Single Series; or
(f)
the Junior Notes of each Single Series
as the context requires;
“Relevant Fraction” means:
(a)
for all business other than voting on an Extraordinary Resolution, one-tenth of the Principal Amount Outstanding of that Class of
Notes (in case of a meeting of a particular Class of Notes), or one-tenth of the Principal Amount Outstanding of all relevant
Classes of Notes (in case of a joint Meeting of a combination of Classes of Notes);
(b)
for voting on any Extraordinary Resolution other than one relating to a Basic Terms Modification, two-thirds of the Principal
Amount Outstanding of that Class of Notes (in case of a meeting of a particular Class of Notes), or two-thirds of the Principal
Amount Outstanding of all relevant Classes of Notes (in case of a joint Meeting of a combination of Classes of Notes); and
(c)
for voting on any Extraordinary Resolution relating to a Basic Terms Modification (which must be proposed separately to each
Class of Noteholders), three-quarters of the Principal Amount Outstanding of the Notes of the relevant Class of Notes;
provided, however, that, in the case of a Meeting which has resumed after adjournment for want of a quorum, it means:
(a)
for all business other than voting on an Extraordinary Resolution relating to a Basic Terms Modification, the fraction of the
Principal Amount Outstanding of the Notes of that Class of Notes represented or held by the Voters actually present at the
Meeting (in case of a Meeting of a particular Class of Notes), or the fraction of the Principal Amount Outstanding of the Notes
of all relevant Classes represented or held by the Voters actually present at the Meeting (in case of a joint Meeting of a
combination of Classes of Notes); and
(b)
for voting on any Extraordinary Resolution relating to a Basic Terms Modification (which must be proposed separately to each
Class of Noteholders), one-third of the Principal Amount Outstanding of the Notes of the relevant Class represented or held by
the Voters actually present at the Meeting;
“Voter” means, in relation to any Meeting, the holder of a Voting Certificate or a Proxy;
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“Voting Certificate” means, in relation to any Meeting, a certificate requested by the interested Noteholder and issued by the relevant
clearing system, the Monte Titoli Account Holder or the relevant custodian, as the case may be, and dated, stating:
(a)
that the Blocked Notes have been blocked in an account with the relevant clearing system, the Monte Titoli Account Holder or
the relevant custodian and will not be released until the earlier of (i) the conclusion of the Meeting and (ii) the surrender of the
certificate to the clearing system or the Monte Titoli Account Holder or the relevant custodian who issued the same;
(b)
details of the Meeting concerned and the number of the Blocked Notes; and
(c)
that the bearer of such certificate is entitled to attend and vote at the Meeting in respect of the Blocked Notes.
Capitalised terms not defined herein shall have the meanings attributed to them in the terms and conditions of the Notes;
“Written Resolution” means a resolution in writing signed by or on behalf of the holders of all Relevant Classes of Notes who for the
time being are entitled to receive notice of a Meeting of such holders of Notes in accordance with the Rules of the Organisation of
Noteholders, whether contained in one document or several documents in the same form, each signed by or on behalf of one or more such
holders of Notes.
Article 3
Organisation purpose
Each holder of the Notes is a member of the Organisation of Noteholders.
The purpose of the Organisation of Noteholders is to co-ordinate the exercise of the rights of the Noteholders and the taking of any action
for the protection of their interests.
In these rules, any reference to Noteholders shall be considered as a reference to the Class A Noteholders and/or the Class B Noteholders
and/or the Junior Noteholders, as the case may be.
TITLE II
THE MEETING OF NOTEHOLDERS
Article 4
General
Any resolution passed at a Meeting of the holders of the Relevant Class(es) of Notes, duly convened and held in accordance with these
rules, shall be binding upon all the Noteholders of such Class of Notes, whether or not present at such Meeting and whether or not voting.
Subject to the proviso of Article 21 (Powers exercisable by Extraordinary Resolution):
(a)
any resolution passed at a Meeting of the Class A Noteholders of one or more Single Series, duly convened and held as
aforesaid, shall also be binding upon all the Class B Noteholders and the Junior Noteholders of all Single Series;
(b)
any resolution passed at a Meeting of the Class B Noteholders of one or more Single Series, duly convened and held as
aforesaid, shall also be binding upon all the Junior Noteholders of all Single Series,
and, in each case, all the Noteholders of the Relevant Class of Notes, whether or not absent or dissenting, shall be bound by such
resolution irrespective of its effect upon such Noteholders and such Noteholders shall be bound to give effect to any such resolution
accordingly and the passing of any such resolution shall be conclusive evidence that the circumstances justify the passing thereof
provided however that:
(c)
no resolution of the Junior Noteholders of one or more Single Series shall be effective unless (A) the Representative of the
Noteholders is of the opinion that it will not be materially prejudicial to the interests of the Class A Noteholders and/or the Class
B Noteholders of one or more Single Series (to the extent that there are Class A Notes and/or Class B Notes, respectively, of one
or more Single Series then outstanding) or (B) (to the extent that the Representative of the Noteholders is not of that opinion) it
is sanctioned by a resolution of the Class A Noteholders and/or the Class B Noteholders of the relevant Single Series (to the
extent that there are Class A Notes and/or Class B Notes, respectively, of one or more Single Series then outstanding);
(d)
no resolution of the Class B Noteholders of one or more Single Series shall be effective unless (A) the Representative of the
Noteholders is of the opinion that it will not be materially prejudicial to the interests of the Class A Noteholders of one or more
Single Series (to the extent that there are Class A Notes of one or more Single Series then outstanding) or (B) (to the extent that
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the Representative of the Noteholders is not of that opinion) it is sanctioned by a resolution of the Class A Noteholders of the
relevant Single Series (to the extent that there Class A Notes of one or more Single Series then outstanding); and
(e)
no resolution of the Class A Noteholders of one or more Single Series shall be effective unless (A) the Representative of the
Noteholders is of the opinion that it will not be materially prejudicial to the interests of the Class A Noteholders of any other
Single Series (to the extent that the Class A Notes of any other Single Series are then outstanding) or (B) (to the extent that the
Representative of the Noteholders is not of that opinion) it is sanctioned by a resolution of the Class A Noteholders of any other
Single Series (to the extent that the Class A Notes of any other Single Series are then outstanding.
Notice of the result of every vote on a resolution duly passed by the Noteholders shall be published by and at the expense of the Issuer in
accordance with the Conditions and given to any of the Paying Agents (with a copy to the Issuer and the Representative of the
Noteholders) within 14 days of the conclusion of the Meeting but failure to do so shall not invalidate the resolution.
Subject to the provisions of these rules and the Conditions, joint Meetings of the Class A Noteholders, the Class B Noteholders and the
Junior Noteholders of one or more Single Series may be held to consider the same resolution and/or, as the case may be, the same
Extraordinary Resolution and the provisions of these rules shall apply mutatis mutandis thereto.
The following provisions shall apply while Notes of two or more Relevant Classes of Notes are outstanding:
(a)
business which involves the passing of an Extraordinary Resolution involving a Basic Terms Modification shall be transacted at
a separate Meeting of the Noteholders of all Relevant Classes of Notes;
(b)
business which in the opinion of the Representative of the Noteholders affects only one Relevant Class of Notes shall be
transacted at a separate Meeting of the holders of Notes of such Relevant Class of Notes;
(c)
business which in the opinion of the Representative of the Noteholders affects more than one Relevant Class of Notes but does
not give rise to an actual or potential conflict of interest between the holders of one such Relevant Class of Notes and the holders
of any other Relevant Class of Notes shall be transacted either at separate Meetings of the holders of each such Relevant Class of
Notes or at a single Meeting of the holders of each of such Relevant Classes of Notes, as the Representative of the Noteholders
shall determine in its absolute discretion;
(d)
business which in the opinion of the Representative of the Noteholders affects more than one Relevant Class of Notes and gives
rise to an actual or potential conflict of interest between the holders of one such Relevant Class of Notes and the holders of any
other Relevant Class of Notes shall be transacted at separate Meetings of the holders of each Relevant Class of Notes; and
(e)
in the case of separate Meetings of the holders of each Relevant Class of Notes, these rules shall be applied as if references to
the Notes and the Noteholders were to the Notes of the Relevant Class of Notes and to the holders of such Notes and, in the case
of joint Meetings, as if references to the Notes and the Noteholders were to the Notes of each of the Relevant Classes of Notes
and to the respective holders of the Notes.
In this paragraph “business” includes (without limitation) the passing or rejection of any resolution.
For the avoidance of doubt, amendments or modifications which do not affect the payment of interest and/or the repayment of principal
in respect of any of the Senior Notes of one or more Single Series and/or any other rights of the Senior Noteholders of one or more Single
Series may be passed at a Meeting of the Junior Noteholders of one or more Single Series without any sanction being required by the
holders of any other Relevant Class of Notes.
Article 5
Issue of Voting Certificates and Block Voting Instructions
Noteholders may obtain a Voting Certificate from the relevant clearing system, the Monte Titoli Account Holder or the relevant
custodian, as the case may be, or require the Principal Paying Agent to issue a Block Voting Instruction by arranging for their Notes to be
blocked in an account with the relevant clearing system, the Monte Titoli Account Holder or the relevant custodian at least 48 Hours
before the time fixed for the Meeting of the holders of the Relevant Class(es) of Notes, providing to the Principal Paying Agent, where
appropriate, evidence that the Notes are so blocked. The Noteholders may obtain such evidence by, inter alia, requesting the relevant
clearing system, the Monte Titoli Account Holder or the relevant custodian to release a certificate in accordance with, as the case may be:
(i) the practices and procedures of the relevant clearing system; or (ii) articles 21 and 22 of the regulation issued by the Bank of Italy and
the CONSOB on 22 February 2008, as subsequently amended and supplemented. A Voting Certificate or Block Voting Instruction shall
be valid until the release of the Blocked Notes to which it relates. So long as a Voting Certificate or Block Voting Instruction is valid, the
bearer thereof (in the case of a Voting Certificate) or any Proxy named therein (in the case of a Block Voting Instruction) shall be deemed
to be the holder of the Blocked Notes to which it relates for all purposes in connection with the Meeting. A Voting Certificate and a
Block Voting Instruction cannot be outstanding simultaneously in respect of the same Note.
Article 6
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Validity of Block Voting Instructions
A Block Voting Instruction shall be valid only if it is deposited at the Specified Office of the Representative of the Noteholders, or at
some other place approved by the Representative of the Noteholders, at least 24 Hours before the time fixed for the Meeting of the
holders of the Relevant Class(es) of Notes, and if not deposited before such deadline, the Block Voting Instruction shall not be valid
unless the Chairman decides otherwise before the Meeting proceeds to business. If the Representative of the Noteholders so requires, a
notarised copy of each Block Voting Instruction and satisfactory proof of the identity of each Proxy named therein shall be produced at
the Meeting, but the Representative of the Noteholders shall not be obliged to investigate the validity of any Block Voting Instruction or
the authority of any Proxy.
Article 7
Convening of Meeting
The Issuer or the Representative of the Noteholders may convene a Meeting at any time, and the Representative of the Noteholders shall
be obliged to do so upon the request in writing of Noteholders holding not less than one-tenth of the Principal Amount Outstanding of the
Relevant Class of Notes.
Whenever the Issuer is about to convene any such Meeting, it shall immediately give notice in writing to the Representative of the
Noteholders of the date thereof and of the nature of the business to be transacted thereat.
Every Meeting shall be held at such time and place as the Representative of the Noteholders may designate or approve, provided that it is
in a EU Member State.
Unless the Representative of the Noteholders decides otherwise pursuant to Article 4 (General), each Meeting shall be attended by
Noteholders of the Relevant Class of Notes.
Article 8
Notice
At least 21 days’ notice (exclusive of the day on which the notice is given and of the day on which the Meeting is to be held) specifying
the date, time and place of the Meeting shall be given to the Noteholders and the Principal Paying Agent (with a copy to the Issuer and to
the Representative of the Noteholders). Any notice to Noteholders shall be given in accordance with Condition 18 (Notices).
The notice shall specify the nature of the resolutions to be proposed and shall explain how Noteholders may appoint Proxies, obtaining
Voting Certificates and use Block Voting Instructions and the details of the time limits applicable.
Article 9
Chairman of the Meeting
Any individual (who may, but need not, be a Voter) nominated in writing by the Representative of the Noteholders may take the chair at
any Meeting but if: (i) no such nomination is made; or (ii) the individual nominated is not present within 15 minutes after the time fixed
for the Meeting; then, the Voters shall choose one of themselves to take the chair, failing which the Issuer may appoint a Chairman. The
Chairman of an adjourned Meeting need not be the same person as the Chairman of the original Meeting.
The Chairman co-ordinates matters to be transacted at the Meeting and monitors the fairness of the Meeting’s proceedings.
Article 10
Quorum
The quorum at any Meeting shall be at least one Voter representing or holding not less than the Relevant Fraction relative to (i) that
Relevant Class of Notes (in case of a Meeting of one Relevant Class of Notes) or (ii) the Relevant Classes of Notes (in case of a joint
Meeting). No business (except choosing a Chairman, if requested) shall be transacted at a Meeting unless a quorum is present at the
commencement of business.
Article 11
Adjournment for want of quorum
If within 15 minutes after the time fixed for any Meeting a quorum is not present, then:
(a)
in the case of a Meeting requested by Noteholders, it shall be dissolved; and
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(b)
in the case of any other Meeting, it shall be adjourned (i) until such date (which shall be not less than 14 days and not more than
42 days later) and to such place as the Chairman determines or (ii) on the date and at the place indicated in the notice convening
the Meeting (if such notice sets out the date and place of any adjourned Meeting); provided, however, that in any case:
(i)
the Meeting shall be dissolved if the Issuer and the Representative of the Noteholders so decides; and
(ii)
no Meeting may be adjourned by resolution of a Meeting that represents less than the Relevant Fraction applicable in
the case of Meetings which have been resumed after adjournment for want of quorum.
Article 12
Adjourned Meeting
Without prejudice to Article 11 (Adjournement for want of quorum), the Chairman may, with the consent of (and shall if directed by) any
Meeting, adjourn such Meeting from time to time and from place to place, but no business shall be transacted at any adjourned Meeting
except business which might lawfully have been transacted at the Meeting from which the adjournment took place .
Article 13
Notice following adjournment
Article 8 (Notice) shall apply to any Meeting adjourned for want of quorum save that:
(a)
at least 10 days’ notice (exclusive of the day on which the notice is given and of the day on which the Meeting is to be resumed)
shall be given; and
(b)
the notice shall specifically set out the quorum requirements which will apply when the Meeting resumes; and
(c)
it shall not be necessary to give notice of the convening of an adjourned Meeting (i) if the notice given in respect of the first
Meeting already sets the time and place for an adjourned Meeting and specifies the quorum requirements which will apply when
the Meeting resumes; or (ii) if the Meeting has been adjourned for any other reason.
Article 14
Participation
The following may attend and speak at a Meeting:
(a)
Voters;
(b)
the Issuer or its representative and the Principal Paying Agent;
(c)
the financial advisers to the Issuer;
(d)
the Representative of the Noteholders;
(e)
the legal counsel to each of the Issuer, the Representative of the Noteholders, and the Principal Paying Agent;
(f)
each Dealer and its advisers; and
(g)
such other person as may be resolved by the Meeting and as may be approved by the Representative of the Noteholders.
Article 15
Passing of resolution
A resolution is validly passed when (i) in respect of an Extraordinary Resolution only, ¾ of votes cast by the Voters attending the
relevant Meeting have been cast in favour of it or (ii) in respect of any resolution other than an Extraordinary Resolution, the majority of
votes cast by the Voters attending the relevant Meeting have been cast in favour of it.
Article 16
Show of hands
Every question submitted to a Meeting shall be decided in the first instance by a show of hands. Unless a poll is validly demanded before
or at the time that the result of the show of hands is declared, the Chairman’s declaration that on a show of hands a resolution has been
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passed, passed by a particular majority, rejected or rejected by a particular majority, shall be conclusive, without proof of the number of
votes cast for, or against, the resolution.
Article 17
Poll
A demand for a poll shall be valid if it is made by the Chairman, the Issuer, the Representative of the Noteholders or one or more Voters
holding or representing at least 2% of (i) the Principal Amount Outstanding of that Relevant Class of Notes (in case of a meeting of a
particular Relevant Class of Notes), or (ii) the Principal Amount Outstanding of the Relevant Classes of Notes (in case of a joint
Meeting). The poll may be taken immediately or after such adjournment as the Chairman directs, but any poll demanded on the election
of the Chairman or on any question of adjournment shall be taken at the Meeting without adjournment. A valid demand for a poll shall
not prevent the continuation of the Meeting for any other business.
Article 18
Votes
Every Voter shall have:
(a)
on a show of hands, one vote; and
(b)
on a poll, one vote in respect of each €1,000 in principal amount of Note(s) represented by the Voting Certificate produced by
such Voter or in respect of which he is a Proxy.
In the case of equality of votes, the Chairman shall both on a show of hands and on a poll have a casting vote in addition to the votes (if
any) to which he may be entitled as a Voter.
Unless the terms of any Block Voting Instruction state otherwise, a Voter shall not be obliged to exercise all the votes to which he is
entitled or to cast all the votes which he exercises in the same manner.
Article 19
Vote by Proxies
Any vote cast by a Proxy in accordance with the relevant Block Voting Instruction shall be valid even if such Block Voting Instruction or
any instruction pursuant to which it was given has been amended or revoked, provided that the Representative of the Noteholders or the
Issuer has not been notified by the Principal Paying Agent in writing of such amendment or revocation by the time being 24 Hours before
the time fixed for the Meeting. Unless revoked, any appointment of a Proxy under a Block Voting Instruction in relation to a Meeting
shall remain in force in relation to any Meeting resumed following an adjournment.
Article 20
Exclusive powers of the Meeting
The Meeting shall have exclusive powers on the following matters:
(a)
to approve any Basic Terms Modification;
(b)
to approve any proposal by the Issuer for any alteration, abrogation, variation or compromise of the rights of the Representative
of the Noteholders or the Noteholders under any Transaction Document, the Notes or the Conditions or any arrangement in
respect of the obligations of the Issuer under or in respect of the Notes;
(c)
to approve the substitution of any person for the Issuer (or any previous substitute) as principal obligor under the Notes;
(d)
to direct the Representative of the Noteholders to serve a Programme Acceleration Notice under Condition 11(b) (Service of a
Programme Acceleration Notice);
(e)
to waive any breach or authorise any proposed breach by the Issuer of its obligations under or in respect of the Notes or any
Transaction Document or any act or omission which might otherwise constitute an Event of Default;
(f)
to direct the Representative of the Noteholders to concur in and execute and do all such documents, acts and things as may be
necessary to carry out and give effect to any resolution of the Noteholders;
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(g)
to exercise, enforce or dispose of any right and power on payment and application of funds deriving from any claims on which a
pledge or other security interest is created in favour of the Noteholders, other than in accordance with the Transaction
Documents; and
(h)
to appoint and remove the Representative of the Noteholders.
Article 21
Powers exercisable by Extraordinary Resolution
Without limitation to the exclusive powers of the Meeting listed in Article 20 (Exclusive powers of the Meeting), each Meeting shall have
the following powers exercisable only by way of an Extraordinary Resolution:
(a)
approval of any Basic Terms Modification;
(b)
approval of any proposal by the Issuer for any alteration, abrogation, variation or compromise of, or arrangement in respect of,
the rights of the Representative of the Noteholders or the Noteholders against the Issuer or against any of its property or against
any other person whether such rights shall arise under these rules, the Notes, the Conditions, or otherwise;
(c)
approval of any scheme or proposal for the exchange or substitution of any of the Notes for, or the conversion of the Notes into,
or the cancellation of the Notes in consideration of, shares, stock, notes, bonds, debentures, debenture stock and/or other
obligations and/or securities of the Issuer or of any other body corporate formed or to be formed, or for or into or in
consideration of cash, or partly for or into or in consideration of such shares, stock, notes, bonds, debentures, debenture stock
and/or other obligations and/or securities as aforesaid and partly for or into or in consideration of cash;
(d)
to appoint and remove the Representative of the Noteholders;
(e)
approval of the substitution of any person for the Issuer (or any previous substitute) as principal obligor under the Notes;
(f)
without prejudice to the Conditions, approval of any alteration of the provisions contained in these rules, the Notes, the
Conditions, the Intercreditor Agreement or any other Transaction Document which shall be proposed by the Issuer and/or the
Representative of the Noteholders or any other party thereto;
(g)
discharge or exoneration of the Representative of the Noteholders from any liability in respect of any act or omission for which
the Representative of the Noteholders may have become responsible under or in relation to these rules, the Notes, the Conditions
or any other Transaction Document;
(h)
giving any direction or granting any authority or sanction which under the provisions of these rules, the Conditions or the Notes
is required to be given or granted by Extraordinary Resolution;
(i)
authorisation and sanctioning of actions of the Representative of the Noteholders under these rules, the Notes, the Conditions,
the terms of the Intercreditor Agreement or any other Transaction Documents and in particular power to sanction the release of
the Issuer by the Representative of the Noteholders;
(j)
authorising and directing the Representative of the Noteholders to concur in and execute and do all such documents, acts and
things as may be necessary to carry out and give effect to any Extraordinary Resolution;
provided, however, that:
(k)
no Extraordinary Resolution involving a Basic Terms Modification passed by the holders of the Relevant Class of Notes shall be
effective unless it is sanctioned by an Extraordinary Resolution of the holders of each of the other Relevant Classes of Notes (to
the extent that Notes of each such Relevant Classes of Notes are then outstanding);
(l)
no Extraordinary Resolution of the Junior Noteholders of one or more Single Series shall be effective unless (A) the
Representative of the Noteholders is of the opinion that it will not be materially prejudicial to the interests of the Class A
Noteholders and/or the Class B Noteholders of one or more Single Series (to the extent that there are Class A Notes and/or Class
B Notes, respectively, of one or more Single Series then outstanding) or (B) (to the extent that the Representative of the
Noteholders is not of that opinion) it is sanctioned by an Extraordinary Resolution of the Class A Noteholders and/or the Class B
Noteholders of the relevant Single Series (to the extent that there are Class A Notes and/or Class B Notes, respectively, of one or
more Single Series then outstanding);
(m)
no Extraordinary Resolution of the Class B Noteholders of one or more Single Series shall be effective unless (A) the
Representative of the Noteholders is of the opinion that it will not be materially prejudicial to the interests of the Class A
Noteholders of one or more Single Series (to the extent that there are Class A Notes of one or more Single Series then
outstanding) or (B) (to the extent that the Representative of the Noteholders is not of that opinion) it is sanctioned by an
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Extraordinary Resolution of the Class A Noteholders of the relevant Single Series (to the extent that there are Class A Notes of
one or more Single Series then outstanding);
(n)
no Extraordinary Resolution of the Class A Noteholders of one or more Single Series shall be effective unless (A) the
Representative of the Noteholders is of the opinion that it will not be materially prejudicial to the interests of the Class A
Noteholders of any other Single Series (to the extent that the Class A Notes of any other Single Series are then outstanding) or
(B) (to the extent that the Representative of the Noteholders is not of that opinion) it is sanctioned by an Extraordinary
Resolution of the Class A Noteholders of any other Single Series (to the extent that the Class A Notes of any other Single Series
are then outstanding).
Article 22
Challenge of resolution
Any Noteholder can challenge a resolution which is not passed in conformity with the provisions of these rules.
Article 23
Minutes
Minutes shall be made of all resolutions and proceedings at each Meeting. The Chairman shall sign the minutes, which shall be
conclusive evidence of the resolutions and proceedings recorded therein. Unless and until the contrary is proved, every such Meeting in
respect of the proceedings of which minutes have been made and signed shall be deemed to have been duly convened and held and all
resolutions passed or proceedings transacted at such meeting shall be deemed to have been duly passed or transacted.
Article 24
Written Resolution
A Written Resolution shall take effect as if it were an Extraordinary Resolution.
Article 25
Individual actions and remedies
The right of each Noteholder to bring individual actions or seek other individual remedies to enforce his or her rights under the Notes will
be subject to the Meeting passing an Extraordinary Resolution authorising such individual action or other remedy. In this respect, the
following provisions shall apply:
(a)
the Noteholder intending to enforce his or her rights under the Notes will notify the Representative of the Noteholders in writing
of his or her intention;
(b)
the Representative of the Noteholders will within 30 days of receiving such notification convene a Meeting of the Noteholders
of the Relevant Class(es) of Notes in accordance with these rules at the expense of such Noteholder;
(c)
if the Meeting does not pass an Extraordinary Resolution authorising the individual enforcement or remedy, the Noteholder will
be prevented from seeking such enforcement or remedy (provided that the same matter can be submitted again to a further
Meeting after a reasonable period of time has elapsed); and
(d)
if the Meeting does pass an Extraordinary Resolution authorising the individual enforcement or remedy, the Noteholder will be
permitted to seek such individual enforcement or remedy in accordance with the terms of the Extraordinary Resolution.
No individual action or remedy can be sought by a Noteholder to enforce his or her rights under the Notes unless a Meeting of
Noteholders has been held to resolve on such action or remedy and in accordance with the provisions of this Article 25.
TITLE III
THE REPRESENTATIVE OF THE NOTEHOLDERS
Article 26
Appointment, removal and remuneration
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Each appointment of a Representative of the Noteholders must be approved by an Extraordinary Resolution of the holders of each
Relevant Class of Notes in accordance with the provisions of this Article 26, save in respect of the appointment of the first Representative
of the Noteholders, which will be Deutsche Trustee Company Limited.
Save for Deutsche Trustee Company Limited as first Representative of the Noteholders, the Representative of the Noteholders shall be:
(a)
a bank incorporated in any jurisdiction of the European Union or a bank incorporated in any other jurisdiction, in either case
provided it is licensed to conduct banking business in Italy; or
(b)
a financial institution registered under article 107 of the Banking Act; or
(c)
any other entity which may be permitted to act in such capacity by any specific provisions of Italian law applicable to the
securitisation of monetary rights and/or by any regulations, instructions, guidelines and/or specific approvals issued by the
competent Italian supervising authorities.
It is further understood and agreed that directors, auditors, employees (if any) of the Issuer and those who fall in any of the conditions set
out in article 2399 of the Italian civil code cannot be appointed as the Representative of the Noteholders.
The Representative of the Noteholders shall be appointed for an unlimited term and can be removed by way of an Extraordinary
Resolution of the holders of each Relevant Class of Notes at any time.
In the event of a termination of the appointment of the Representative of the Noteholders for any reason whatsoever, such Representative
of the Noteholders shall remain in office until acceptance of the appointment by the Issuer of a substitute Representative of the
Noteholders designated among the entities indicated in (a), (b) or (c) above, and, provided that a Meeting of the holders of each Relevant
Class of Notes has not appointed such a substitute within 60 days of such termination, such Representative of the Noteholders may
appoint such a substitute. The powers and authority of the Representative of the Noteholders whose appointment has been terminated
shall be limited to those necessary for the performance of the essential functions which are required to be complied with in connection
with the Notes.
Each of the Noteholders, by reason of holding the relevant Note(s), will recognise the power of the Representative of the Noteholders,
hereby granted, to appoint its own successor and recognise the Representative of the Noteholders so appointed as its representative.
The Issuer shall pay to the Representative of the Noteholders an annual fee for its services as Representative of the Noteholders as from
the date hereof. Such remuneration shall be payable in accordance with the Intercreditor Agreement and the Priority of Payments up to
(and including) the date when the Notes have been repaid in full and cancelled in accordance with the Conditions.
Article 27
Duties and powers
The Representative of the Noteholders is the legal representative of the Organisation of Noteholders, subject to and in accordance with
the Conditions, these rules, the Intercreditor Agreement and the other Transaction Documents to which it is a party (together, the
“Relevant Provisions”).
Subject to the Relevant Provisions, the Representative of the Noteholders is responsible for implementing the directions of a Meeting of
Noteholders and for representing the interests of the Noteholders as a class of Notes vis-à-vis the Issuer. The Representative of the
Noteholders has the right to attend Meetings. The Representative of the Noteholders may convene a Meeting in order to obtain the
authorisation or directions of the Meeting in respect of any action proposed to be taken by the Representative of the Noteholders.
All actions taken by the Representative of the Noteholders in the execution and exercise of its powers and authorities and of the
discretions vested in it shall be taken by duly authorised officer(s) for the time being of the Representative of the Noteholders. The
Representative of the Noteholders may also, whenever it considers it expedient, whether by power of attorney or otherwise, delegate to
any person(s) all or any of its duties, powers, authorities or discretions vested in it as aforesaid. Any such delegation may be made upon
such terms and conditions, and subject to such regulations (including power to sub-delegate), as the Representative of the Noteholders
may think fit in the interests of the Noteholders. The Representative of the Noteholders shall not be bound to supervise the proceedings of
any such delegate or sub-delegate and shall not be responsible for any loss, liability, cost, claim, action, demand or expense incurred by
reason of such delegate’s misconduct or default, unless the Representative of the Noteholders has been negligent in the selection of the
delegate or sub-delegate. The Representative of the Noteholders shall, as soon as reasonably practicable, give notice to the Issuer of the
appointment of any delegate and of any renewal, extension or termination of such appointment, and shall make it a condition of any such
delegation that any delegate shall also, as soon as reasonably practicable, give notice to the Issuer of any sub-delegate.
The Representative of the Noteholders shall be authorised to represent the Organisation of Noteholders in judicial proceedings, including
proceedings involving the Issuer in creditors’ agreement (concordato preventivo), forced liquidation (fallimento) or compulsory
administrative liquidation (liquidazione coatta amministrativa).
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The Representative of the Noteholders shall have regard to the interests of all the Issuer Secured Creditors as regards the exercise and
performance of all powers, authorities, duties and discretions of the Representative of the Noteholders under these rules, the Intercreditor
Agreement or under the Mandate Agreement (except where expressly provided otherwise), but, notwithstanding the foregoing, the
Representative of the Noteholders shall have regard to the interests only: (i) of the Most Senior Class of Notes outstanding, and (ii)
subject to item (i), of whichever Issuer Secured Creditor ranks higher in the Priority of Payments hereof for the payment of the amounts
therein specified if, in its opinion, there is or may be a conflict between all or any of the interests of the holders of one or more Relevant
Class of Notes or between the holders of one or more Relevant Class of Notes and any other Issuer Secured Creditors. The foregoing
provision shall not affect the payment order set forth in the applicable Priority of Payments.
Each Noteholder by acquiring title to a Note is deemed to agree and acknowledge that:
(a)
the Representative of the Noteholders has entered into the Italian Deed of Pledge and the English Deed of Charge and
Assignment for itself and as agent in the name of and on behalf of each Noteholder from time to time and each of the other
Issuer Secured Creditors thereunder;
(b)
by virtue of the transfer to it of the relevant Note, each Noteholder shall be deemed to have granted to the Representative of the
Noteholders, as its agent, the right (i) to exercise in such manner as the Representative of the Noteholders in its sole opinion
deems appropriate, on behalf of such Noteholder, all of that Noteholder’s rights under the Securitisation Law in respect of the
Portfolio and all amounts and/or other assets of the Issuer arising from the Portfolio and the Transaction Documents not subject
to the Note Security and (ii) to enforce its rights as an Issuer Secured Creditor for and on its behalf under the Italian Deed of
Pledge and the English Deed of Charge and Assignment and in relation to the Note Security;
(c)
the Representative of the Noteholders, in its capacity as agent in the name of and on behalf of the holders of each Relevant Class
of Notes, shall be the only person entitled under the Conditions and under the Transaction Documents to institute proceedings
against the Issuer and/or to enforce or to exercise any rights in connection with the Note Security or to take any steps against the
Issuer or any of the other parties to the Transaction Documents for the purposes of enforcing the rights of the holders of each
Relevant Class of Notes with respect to the other Transaction Documents and recovering any amounts owing under the Notes or
under the Transaction Documents;
(d)
the Representative of the Noteholders shall have exclusive rights under the Italian Deed of Pledge and the English Deed of
Charge and Assignment to make demands, give notices, exercise or refrain from exercising any rights and to take or refrain from
taking any action (including, without limitation, the release or substitution of security) in respect of the Note Security;
(e)
no Noteholder shall at any time exercise any right of netting, set-off or counterclaim in respect of its rights against the Issuer
such rights being expressly waived or exercise any right of claim of the Issuer by way of a subrogation action (azione
surrogatoria) pursuant to article 2900 of the Italian civil code; and
(f)
the provisions of this Clause 27 shall survive and shall not be extinguished by the redemption (in whole or in part) and/or
cancellation of the Notes and waives to the greatest extent permitted by law any rights directly to enforce its rights against the
Issuer.
Article 28
Resignation of the Representative of the Noteholders
The Representative of the Noteholders may resign at any time, upon giving not less than three calendar months’ notice in writing to the
Issuer, without assigning any reason therefor and without being responsible for any costs incurred as a result of such resignation. The
resignation of the Representative of the Noteholders shall not become effective until a Meeting of the holders of each Relevant Class of
Notes has appointed a new Representative of the Noteholders, provided that, if a new Representative of the Noteholders has not been so
appointed within 60 days of the date of such notice of resignation, the Representative of the Noteholders may appoint a new
Representative of the Noteholders.
Article 29
Exoneration of the Representative of the Noteholders
The Representative of the Noteholders shall not assume any other obligations in addition to those expressly provided herein and in the
other Transaction Documents to which it is a party.
Without limiting the generality of the foregoing, the Representative of the Noteholders:
(a)
shall not be under any obligation to take any steps to ascertain whether a Swap Trigger, an Event of Default, a Purchase
Termination Event or any other event, condition or act, the occurrence of which would cause a right or remedy to become
exercisable by the Representative of the Noteholders or any Noteholder hereunder or under any of the other Transaction
Documents, has happened and, until it shall have actual knowledge or express notice to the contrary, the Representative of the
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Noteholders shall be entitled to assume that no Swap Trigger, no Event of Default, no Purchase Termination Event or such other
event, condition or act has occurred;
(b)
shall not be under any obligation to monitor or supervise the observance or performance by the Issuer or any other party to the
Transaction Documents of the provisions of, and its obligations under, these rules, the Notes, the Conditions or any other
Transaction Document, and, until it shall have actual knowledge or express notice to the contrary, it shall be entitled to assume
that the Issuer and each such other party is observing and performing all such provisions and obligations;
(c)
shall not be under any obligation to give notice to any person of the execution of these rules, the Notes, the Conditions or any of
the Transaction Documents or any transaction contemplated hereby or thereby;
(d)
shall not be responsible for, or for investigating, the legality, validity, effectiveness, adequacy, suitability or genuineness of these
rules, the Notes, the Conditions, any Transaction Document or any other document, or any obligation or rights created or
purported to be created hereby or thereby or pursuant hereto or thereto, and (without prejudice to the generality of the foregoing)
it shall not have any responsibility for, or have any duty to make any investigation in respect of, or in any way be liable
whatsoever for: (i) the nature, status, creditworthiness or solvency of the Issuer or any other party to the Transaction Documents;
(ii) the existence, accuracy or sufficiency of any legal or other opinions, searches, reports, certificates, valuations or
investigations delivered or obtained, or required to be delivered or obtained, at any time in connection herewith or with any
Transaction Document; (iii) the suitability, adequacy or sufficiency of any collection or recovery procedures operated by the
Servicer or compliance therewith; (iv) the failure by the Issuer to obtain or comply with any licence, consent or other authority
in connection with the purchase or administration of the Claims; or (v) any accounts, books, records or files maintained by the
Issuer, the Servicer, the Principal Paying Agent or any other person in respect of the Claims;
(e)
shall not be responsible for the receipt or application by the Issuer of the proceeds of the issue of the Notes, or the distribution of
any of such proceeds, to the persons entitled thereto;
(f)
shall have no responsibility for the maintenance of any rating of the Notes by the Rating Agency or any other credit or rating
agency or any other person;
(g)
shall not be responsible for, or for investigating any matter which is the subject of, any recitals, statements, warranties or
representations of any party, other than the Representative of the Noteholders, contained herein or in any Transaction Document;
(h)
shall not be bound or concerned to examine, or enquire into, or be liable for, any defect or failure in the right or title of the Issuer
to the Claims or any part thereof, whether such defect or failure was known to the Representative of the Noteholders or might
have been discovered upon examination or enquiry, or whether capable of remedy or not;
(i)
shall not be liable for any failure, omission or defect in registering or filing, or procuring registration or filing of, or otherwise
protecting or perfecting, these rules, the Notes or any Transaction Document;
(j)
shall not be under any obligation to insure the Claims or any part thereof;
(k)
shall not be responsible for (except as otherwise provided in the Conditions or in the Transaction Documents) making or
verifying any determination or calculation in respect of the Claims, the Notes and any other payment to be made in accordance
with the Priority of Payments;
(l)
shall not have regard to the consequences of any modification or waiver of these rules, the Notes, the Conditions or any of the
Transaction Documents for individual Noteholders or any relevant persons resulting from their being for any purpose domiciled
or resident in, or otherwise connected with, or subject to, the jurisdiction of any particular territory; and
(m)
shall not (unless and to the extent ordered so to do by a court of competent jurisdiction) be under any obligation to disclose to
any Noteholder, any Other Issuer Creditor or any other person any confidential, financial, price sensitive or other information
made available to the Representative of the Noteholders by the Issuer or any other person in connection with these rules, the
Notes or any other Transaction Document, and none of the Noteholders, Other Issuer Creditors nor any other person shall be
entitled to take any action to obtain from the Representative of the Noteholders any such information.
The Representative of the Noteholders notwithstanding anything to the contrary contained in these rules:
(i)
may, without the consent of the Noteholders or any Other Issuer Creditors and subject to the Representative of the Noteholders
giving prior written notice thereof to the Rating Agency, concur with the Issuer and any other relevant parties in making any
amendment or modification to these rules, the Conditions (other than a Basic Terms Modification) or to any of the Transaction
Documents which, in the opinion of the Representative of the Noteholders, it is expedient to make, or is of a formal, minor or
technical nature to correct a manifest error or an error which is, in the opinion of the Representative of the Noteholders, proven
or is necessary or desirable for the purposes of clarification. Any such amendment or modification shall be binding on the
Noteholders and, unless the Representative of the Noteholders otherwise agrees, the Issuer shall cause such amendment or
modification to be notified to the Noteholders as soon as practicable thereafter;
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(ii)
may, without the consent of the Noteholders, concur with the Issuer and any other relevant parties in making any amendment or
modification (other than in respect of a Basic Terms Modification) to these rules, the Conditions or to any of the Transaction
Documents which, in the opinion of the Representative of the Noteholders, it may be proper to make, provided that the
Representative of the Noteholders is of the opinion that such amendment or modification will not be materially prejudicial to the
interests of the holders of the Most Senior Class;
(iii)
may, without the consent of the Noteholders or any Other Issuer Creditor, authorise or waive any proposed breach or breach of
the Notes (including an Event of Default) or of the Intercreditor Agreement or any other Transaction Document if, in the opinion
of the Representative of the Noteholders, the interests of the Most Senior Class will not be materially prejudiced by such
authorisation or waiver; provided that the Representative of the Noteholders shall not exercise any of such powers in
contravention of any express direction by an Extraordinary Resolution, or of a request in writing made by the holders of not less
than 25% in aggregate Principal Amount Outstanding of the Most Senior Class (but so that no such direction or request shall
affect any authorisation, waiver or determination previously given or made) or so as to authorise or waive any proposed breach
or breach relating to a Basic Terms Modification;
(iv)
may act on the advice, certificate, opinion (whether or not such opinion is addressed to the Representative of the Noteholders
and whether or not such opinion contains a monetary or other limit on the liability of the provider of such opinion) or
information (whether or not addressed to the Representative of the Noteholders) obtained from any lawyer, accountant, banker,
broker, credit or rating agency or other expert, whether obtained by the Issuer, the Representative of the Noteholders or
otherwise, and shall not, in the absence of fraud (frode), gross negligence (colpa grave) or wilful misconduct (dolo) on the part
of the Representative of the Noteholders, be responsible for any loss incurred by so acting. Any such advice, certificate, opinion
or information may be sent or obtained by letter, telex, telegram, facsimile transmission or cable and, in the absence of gross
negligence (colpa grave) or wilful misconduct (dolo) on the part of the Representative of the Noteholders, the Representative of
the Noteholders shall not be liable for acting on any advice, certificate, opinion or information contained in, or purported to be
conveyed by, any such letter, telex, telegram, facsimile transmission or cable, notwithstanding any error contained therein or the
non-authenticity of the same;
(v)
may call for, and shall be at liberty to accept as sufficient evidence of any fact or matter or as to the expediency of any dealing,
transaction, step or thing, a certificate duly signed by or on behalf of the sole director or the chairman of the board of directors of
the Issuer, as the case may be, and the Representative of the Noteholders shall not be bound, in any such case, to call for further
evidence or be responsible for any loss that may be occasioned as a result of acting on such certificate;
(vi)
save as expressly otherwise provided herein, shall have absolute and unfettered discretion as to the exercise, or non-exercise, of
any right, power and discretion vested in the Representative of the Noteholders by these rules, the Notes, any Transaction
Document or by operation of law, and the Representative of the Noteholders shall not be responsible for any loss, costs,
damages, expenses or other liabilities that may result from the exercise, or non-exercise thereof except insofar as the same are
incurred as a result of its gross negligence (colpa grave) or wilful misconduct (dolo);
(vii)
shall be at liberty to leave in custody these rules, the Transaction Documents and any other documents relating thereto or to the
Notes in any part of the world with any bank, financial institution or company whose business includes undertaking the safe
custody of documents, or with any lawyer or firm of lawyers considered by the Representative of the Noteholders to be of good
repute, and the Representative of the Noteholders shall not be responsible for, or required to insure against, any loss incurred in
connection with any such custody, and may pay all sums required to be paid on account of, or in respect of, any such custody;
(viii)
in connection with matters in respect of which the Representative of the Noteholders is entitled to exercise its discretion
hereunder, is entitled to convene a Meeting of the Noteholders of any or all Relevant Classes of Notes in order to obtain
instructions as to how the Representative of the Noteholders should exercise such discretion provided that nothing herein shall
be construed so as to oblige the Representative of the Noteholders to convene such a Meeting. The Representative of the
Noteholders shall not be obliged to take any action in respect of these rules, the Notes, the Conditions or any Transaction
Document unless it is indemnified and/or provided with security and/or pre-funded to its satisfaction against all actions,
proceedings, claims and demands which may be brought against it and against all costs, charges, damages, expenses and
liabilities (provided that supporting documents are delivered) which it may incur by taking such action;
(ix)
in connection with matters in respect of which the Noteholders are entitled to direct the Representative of the Noteholders, the
Representative of the Noteholders shall not be liable for acting upon any resolution purported to have been passed at any
Meeting of holders of any Relevant Class of Notes in respect of which minutes have been drawn up and signed notwithstanding
that subsequent to so acting, it transpires that the Meeting was not duly convened or constituted, such resolution was not duly
passed or that the resolution was otherwise not valid or binding upon the relevant Noteholders;
(x)
may call for, and shall be at liberty to accept and place full reliance on as sufficient evidence of the facts stated therein, a
certificate or letter of confirmation certified as true and accurate and signed on behalf of any common depository as the
Representative of the Noteholders considers appropriate, or any form of record made by any such depository, to the effect that at
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any particular time or throughout any particular period any particular person is, was, or will be, shown in its records as entitled
to a particular principal amount of Notes;
(xi)
may certify whether or not an Event of Default is, in its opinion, materially prejudicial to the interests of the Noteholders or the
holders of the Most Senior Class of Notes and any such certificate shall be conclusive and binding upon the Issuer, the
Noteholders, the Other Issuer Creditors and any other relevant person;
(xii)
may determine whether or not a default in the performance by the Issuer of any obligation under the provisions of these rules,
the Notes, the Conditions or any other Transaction Document is capable of remedy and, if the Representative of the Noteholders
certifies that any such default is, in its opinion, not capable of remedy, such certificate shall be conclusive and binding upon the
Issuer, the Noteholders, the Other Issuer Creditors and any relevant person;
(xiii)
may assume, without enquiry, that no Notes are for the time being held by, or for the benefit, of the Issuer;
(xiv)
shall be entitled to call for, and to rely upon, a certificate or any letter of confirmation or explanation reasonably believed by it to
be genuine, of any party to the Intercreditor Agreement, any Other Issuer Creditor or the Rating Agency in respect of any matter
and circumstance for which a certificate is expressly provided for hereunder or under any Transaction Document or in respect of
the ratings of the Notes and it shall not be bound, in any such case, to call for further evidence or be responsible for any loss,
liability, costs, damages, expenses or inconvenience that may be incurred by its failing to do so; and
(xv)
may, in determining whether the exercise of any power, authority, duty or discretion under or in relation hereto or to the Notes,
the Conditions or any Transaction Document, is materially prejudicial to the interests of the Noteholders, contact the Rating
Agency so to assess whether the then current ratings of the Senior Notes would not be downgraded, withdrawn or qualified and
have regard to any other confirmation which it considers, in its sole and absolute discretion, as necessary and/or appropriate.
Any consent or approval given by the Representative of the Noteholders under these rules, the Notes, the Conditions or any other
Transaction Document may be given on such terms and subject to such conditions (if any) as the Representative of the Noteholders
thinks fit and, notwithstanding anything to the contrary contained herein, in the Conditions or in any Transaction Document, such consent
or approval may be given retrospectively.
No provision of these rules, the Notes, the Conditions or any Transaction Document shall require the Representative of the Noteholders
to do anything which may be illegal or contrary to applicable law or regulations, or expend or risk its own funds, or otherwise incur any
financial liability in the performance of any of its duties, or in the exercise of any of its powers or discretions, and the Representative of
the Noteholders may refrain from taking any action if it has reasonable grounds to believe that it will not be reimbursed for any funds, or
that it will not be indemnified or pre-funded against any loss or liability which it may incur as a result of such action.
Article 30
Note Security
The Representative of the Noteholders shall be entitled to exercise all the rights granted by the Issuer in favour of the Representative of
the Noteholders on behalf of the Noteholders and the other Issuer Secured Creditors under the Note Security.
The Representative of the Noteholders, acting on behalf of the Issuer Secured Creditors, may:
(a)
prior to enforcement of the Note Security, appoint and entrust the Issuer to collect, in the interest of the Issuer Secured Creditors
and on their behalf, any amounts deriving from the Note Security and may instruct, jointly with the Issuer, the obligors whose
obligations form part of the Note Security to make any payments to be made thereunder to an Account of the Issuer;
(b)
agree that the Accounts shall be operated in compliance with the provisions of the Agency and Accounts Agreement and the
Intercreditor Agreement;
(c)
agree that all funds credited to the Accounts from time to time shall be applied prior to the enforcement of the Note Security, in
accordance with the Conditions and the Intercreditor Agreement;
(d)
agree that cash deriving from time to time from the Note Security and the amounts standing to the credit of the Accounts shall be
applied prior to enforcement of the Note Security, in and towards satisfaction not only of amounts due to the Issuer Secured
Creditors, but also of such amounts due and payable to the other Issuer Creditors that rank pari passu with, or higher than, the
Issuer Secured Creditors, according to the applicable Priority of Payments and, to the extent that all amounts due and payable to
the Issuer Secured Creditors have been paid in full, also towards satisfaction of amounts due to the other Issuer Creditors that
rank below the Issuer Secured Creditors. The Issuer Secured Creditors irrevocably waive any right which they may have
hereunder in respect of cash deriving from time to time from the Note Security and amounts standing to the credit of the
Accounts which is not in accordance with the foregoing. The Representative of the Noteholders shall not be entitled to collect,
withdraw or apply, or issue instructions for the collection, withdrawal or application of, cash deriving from time to time from the
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Note Security, under the Note Security, except in accordance with the foregoing, the Conditions and the Intercreditor
Agreement; and
(e)
agree that (i) prior to the occurrence of an Early Termination Date (as defined in the relevant Single Series Swap Agreement) for
the Single Series Swap Transaction relating to each Single Series, the amounts and/or securities standing to the credit (if any) of
the relevant Collateral Account may only be withdrawn from the relevant Collateral Account and paid exclusively in or towards
satisfaction of the amounts (if any) that are due and payable to the relevant Single Series Swap Counterparty pursuant to the
relevant Credit Support Annex, irrespective of whether such amounts are set forth in the applicable Priority of Payments, and the
Issuer Secured Creditors (other than the relevant Single Series Swap Counterparty) irrevocably waive any right which they may
have hereunder in respect of such amounts and/or securities which is not in accordance with the foregoing; and (ii) following the
date on which the Single Series Swap Transaction relating to each Single Series is terminated, amounts and/or securities (if any)
standing to the credit of the relevant Collateral Account (if any) may be withdrawn from the relevant Collateral Account in an
amount equal to the relevant Excess Swap Collateral (if any) and paid exclusively in or towards satisfaction of the amounts (if
any) that are due and payable to the relevant Single Series Swap Counterparty pursuant to the relevant Single Series Swap
Agreement, irrespective of whether such amounts are set forth in the applicable Priority of Payments and the Issuer Secured
Creditors (other than the relevant Single Series Swap Counterparty) irrevocably waive any right which they may have hereunder
in respect of such amounts which is not in accordance with the foregoing.
The Representative of the Noteholders, on behalf of the Issuer Secured Creditors, acknowledges and agrees that the sums credited to the
Expense Account on each Single Series Issue Date, other than the First Single Series Issue Date, representing the net subscription price of
the Notes of the relevant Single Series will be applied in and towards satisfaction of the purchase price of the relevant Additional Claims
on such Single Series Issue Date in accordance with the Master Transfer Agreement.
Article 31
Indemnity
It is hereby acknowledged that the Issuer has covenanted and undertaken under the Intercreditor Agreement to reimburse, pay or
discharge (on a full indemnity basis) all costs, liabilities, losses, charges, expenses (provided, in each case, that supporting documents are
delivered where available), damages, actions, proceedings, claims and demands (including, without limitation, legal fees and any
applicable value added tax or similar tax) properly incurred by or made against (as the case may be) the Representative of the
Noteholders or by any person to whom the Representative of the Noteholders has delegated any power, authority or discretion or any
appointee thereof, in relation to the preparation and execution of, the exercise or the purported exercise of its powers, authority and
discretion and performance of its duties under and in any other manner in relation to, these rules, the Notes, the Conditions, the
Intercreditor Agreement or any other Transaction Document, including but not limited to legal and travelling expenses and any stamp,
issue, registration, documentary and other taxes or duties paid by the Representative of the Noteholders in connection with any action
and/or legal proceedings brought or contemplated by the Representative of the Noteholders pursuant to these rules, the Notes, the
Conditions or any Transaction Document, against the Issuer or any other person for enforcing any obligations under these rules, the
Notes or the Transaction Documents, except insofar as the same are incurred as a result of gross negligence (colpa grave) or wilful
misconduct (dolo) on the part of the Representative of the Noteholders.
TITLE IV
THE ORGANISATION OF NOTEHOLDERS UPON SERVICE OF A PROGRAMME
ACCELERATION NOTICE
Article 32
Powers
It is hereby acknowledged that, upon service of a Programme Acceleration Notice and/or failure by the Issuer to exercise its rights, the
Representative of the Noteholders shall, pursuant to the Mandate Agreement, be entitled, in its capacity as legal representative of the
Organisation of Noteholders, also in the interest and for the benefits of the Other Issuer Creditors, pursuant to articles 1411 and 1723 of
the Italian civil code, to exercise certain rights in relation to the Claims. Therefore, the Representative of the Noteholders, in its capacity
as legal representative of the Organisation of Noteholders, will be authorised, also pursuant to the terms of the Mandate Agreement, to
exercise, in the name and on behalf of the Issuer and as mandatario in rem propriam of the Issuer, all and any of the Issuer’s Rights,
including the right to give directions and instructions to the relevant parties to the Transaction Documents.
In particular and without limiting the generality of the foregoing, following the service of a Programme Acceleration Notice, the
Representative of the Noteholders will be entitled, until the Notes have been repaid in full or cancelled in accordance with the
Conditions:
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(a)
to request the Account Bank to transfer all monies standing to the credit of the Collection Account, the Cash Reserve Account
and the Expenses Account to, respectively, a replacement Collection Account, a replacement Cash Reserve Account and a
replacement Expenses Account opened for such purpose by the Representative of the Noteholders with a replacement Account
Bank which is an Eligible Institution;
(b)
to request the Account Bank to transfer all units of money markets funds, debt securities or other debt instruments from time to
time purchased by or on behalf of the Issuer pursuant to the Agency and Accounts Agreement standing to the credit of the
Eligible Investments Securities Account and/or the Additional Eligible Investments Securities Account, as the case may be, to,
respectively, a replacement Eligible Investments Securities Account or a replacement Additional Eligible Investments Securities
Account, as applicable, opened for such purpose by the Representative of the Noteholders with a replacement Account Bank
which is an Eligible Institution;
(c)
to require performance by any Issuer Creditor of its obligations under the relevant Transaction Document to which such Issuer
Creditor is a party, to bring any legal actions and exercise any remedies in the name and on behalf of the Issuer that are available
to the Issuer under the relevant Transaction Document against such Issuer Creditor in case of failure to perform and generally to
take such action in the name and on behalf of the Issuer as the Representative of the Noteholders may deem necessary to protect
the interests of the Issuer, the Noteholders and the Other Issuer Creditors in respect of the Portfolio, the Claims and the Issuer’s
Rights;
(d)
to instruct the Servicer in respect of the recovery of the Issuer’s Rights;
(e)
to take possession, as an agent of the Issuer and to the extent permitted by applicable laws, of all Collections (by way of a power
of attorney granted hereunder in respect of the relevant Accounts) and of the Claims and to sell or otherwise dispose of the
Claims or any of them in such manner and upon such terms and at such price and such time or times as the Representative of the
Noteholders shall, in its discretion, deem appropriate and to apply the proceeds in accordance with the Post-Enforcement
Priority of Payments; provided however that if the amount of the monies at any time available to the Issuer or to the
Representative of the Noteholders for the payments above shall be less than 10% of the Principal Amount Outstanding of all
Classes of Notes of all Single Series, the Representative of the Noteholders may at its discretion invest such monies (or cause
such monies to be invested) in some or one of the investments authorised pursuant to this Intercreditor Agreement. The
Representative of the Noteholders at its discretion may vary such investments (or cause such investments to be varied) and may
accumulate such investments and the resulting income until the immediately following Accumulation Date. Any monies, which
under this Intercreditor Agreement or the Conditions may be invested, may be invested, or caused to be invested, by the
Representative of the Noteholders in the name or under the control of the Representative of the Noteholders in any investments
or other assets in any part of the world whether or not they produce income or by placing the same on deposit in the name or
under the control of the Representative of the Noteholders at such bank or other financial institution and in such currency as the
Representative of the Noteholders may think fit. The Representative of the Noteholders may at any time vary any such
investments, or cause any such investment to be varied, for or into other investments or convert any monies so deposited, or
cause any such monies to be converted, into any other currency and shall not be responsible for any loss resulting from any such
investments or deposits, whether due to depreciation in value, fluctuations in exchange rates or otherwise, except insofar as such
loss is incurred as a result of its gross negligence (colpa grave) or wilful misconduct (dolo); and
(f)
(i) to distribute the monies from time to time standing to the credit of the Accounts and such other accounts as may be opened by
the Representative of the Noteholders pursuant to paragraphs (a) and (b) above to the Noteholders in accordance with the
applicable Priority of Payments and (ii) with specific regard to payments due to each Single Series Swap Counterparty in respect
of any return of the Collateral payable to it in accordance with the relevant Single Series Swap Agreement, to return such
Collateral to the relevant Single Series Swap Counterparty in accordance with clause 14.5 of the Intercreditor Agreement. For
the purposes of this Article 32, all the Noteholders irrevocably appoint, as from the date hereof and with effect on the date on
which the Notes will become due and payable following the service of a Programme Acceleration Notice, the Representative of
the Noteholders as their exclusive agent (mandatario esclusivo) to receive on their behalf from the Issuer any and all monies
payable by the Issuer to the Noteholders from and including the date on which the Notes will become due and payable and to
apply such monies in accordance with the applicable Priority of Payments provided however that, with specific regard to
payments due to each Single Series Swap Counterparty in respect of any return of the Collateral payable to it in accordance with
the relevant Single Series Swap Agreement, the Representative of the Noteholders will return of such Collateral to the relevant
Single Series Swap Counterparty in accordance with clause 14.5 of the Intercreditor Agreement.
TITLE V
GOVERNING LAW AND JURISDICTION
Article 33
Governing law and jurisdiction
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These rules are governed by, and will be construed in accordance with, the laws of Italy.
All disputes arising out of or in connection with these rules, including those concerning their validity, interpretation, performance and
termination, shall be exclusively settled by the Courts of Milan.
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FORM OF FINAL TERMS
Set out below is the form of Final Terms which will be completed for each Single Series of Notes
issued under the Programme.
[Date]
Golden Bar (Securitisation) S.r.l.
(incorporated with limited liability under the laws of the Republic of Italy)
Issue of
€[°°°°°°°°°°°°] Series [°°°°°°°°°°°°] GB IV Class A limited recourse asset-backed notes due
[°°°°°°°°°°°°]
€[°°°°°°°°°°°°] Series [°°°°°°°°°°°°] GB IV Class B limited recourse asset-backed notes due
[°°°°°°°°°°°°]
€[°°°°°°°°°°°°] Series [°°°°°°°°°°°°] GB IV Class C limited recourse asset-backed notes due
[°°°°°°°°°°°°] under the €2,500,000,000
Euro Medium Term Asset-Backed Notes Programme
This document constitutes the Final Terms relating to the issue of Notes described herein.
Terms used herein shall be deemed to be defined as such for the purposes of the Conditions set forth
in the Prospectus dated [°°°°°°°°°°°°°] [and the Prospectus Supplement dated [°°°°°°°°°°°°°]] which
[together] constitutes a base prospectus for purposes of the Prospectus Directive (Directive
2003/71/EC) (the “Prospectus Directive”). This document constitutes the Final Terms of the Notes
of this Single Series described herein for the purposes of article 5.4 of the Prospectus Directive and
must be read in conjunction with such Prospectus [as so supplemented]. Full information on the
Issuer and the offer of the Notes of this Single Series described herein is only available on the basis
of the combination of these Final Terms and the Prospectus [as so supplemented].
Copies of the Prospectus [and the Prospectus Supplement] may be obtained without charge from the
website of the Luxembourg Stock Exchange (www. bourse.lu) and, during usual office hours on any
weekday from the registered office of the Issuer, the registered office of the Representative of the
Noteholders and the Specified Offices of the Paying Agents (as set forth in Condition 18 (Notices)).
For a summary of certain risks and other factors that should be considered by prospective
Noteholders in connection with an investment in the Notes of this Single Series, see the section of
the Prospectus entitled “Risk Factors”. The section entitled “Risk Factors” contained in the
Prospectus is a summary of certain aspects of the issue of the Notes of this Single Series of which
prospective Noteholders should be aware. Such summary is not intended to be exhaustive, and
prospective Noteholders should also read the detailed information set out elsewhere in the
Prospectus, these Final Terms and the Transaction Documents and reach their own views prior to
making any investment decision.
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[Include whichever of the following apply or specify as “Not Applicable” (N/A). Note that the
numbering should remain as set out below, even if “Not Applicable” is indicated for individual
paragraphs or subparagraphs. Italics denote directions for completing the Final Terms.]
[When completing final terms or adding any other final terms or information consideration should
be given as to whether such terms or information constitute “significant new factors” and
consequently trigger the need for a supplement to the Prospectus under article 16 of the Prospectus
Directive.]
1
Issuer:
Golden Bar (Securitisation) S.r.l.
2
Series number:
[°°°°°°°°°°°°°]
3
Currency:
Euro
4
Nominal amount of the Notes of this
Single Series
(i) aggregate of the Principal Amount
Outstanding of the Notes of this
Single Series as at the applicable
Single Series Issue Date:
[°°°°°°°°°°°°°]
(ii) tranching and Principal Amount
Outstanding of the Notes of this
Single Series as at the applicable
Single Series Issue Date:
5
(1)
Class A Notes
€[°°°°°°°°°°°°°]
(2)
Class B Notes
€[°°°°°°°°°°°°°]
(3)
Junior Notes
€[°°°°°°°°°°°°°]
(i) Issue Price:
(1)
Class A Notes
[°°°°°°°°°°°°°]
(2)
Class B Notes
[°°°°°°°°°°°°°]
(3)
Junior Notes
[°°°°°°°°°°°°°]
(ii) Principal Amount Outstanding of the
Notes of this Single Series being
admitted to trading:
(1)
Principal Amount Outstanding
of the Class A Notes of this
Single Series being admitted to
trading
€[°°°°°°°°°°°°°]
(2)
Principal Amount Outstanding
€[°°°°°°°°°°°°°]
223
of the Class B Notes of this
Single Series being admitted to
trading
(3)
6
7
8
Principal Amount Outstanding
of the Junior Notes of this
Single Series being admitted to
trading
€[°°°°°°°°°°°°°]
Specified denomination of the Notes of
this Single Series (€50,000 or such other
higher denomination as may be specified
in the applicable Final Terms):
(a) Class A Notes
€[°°°°°°°°°°°°°]
(b) Class B Notes
€[°°°°°°°°°°°°°]
(c) Junior Notes
€[°°°°°°°°°°°°°]
(i) Single Series Issue Date:
(1)
Class A Notes
[°°°°°°°°°°°°°]
(2)
Class B Notes
[°°°°°°°°°°°°°]
(3)
Junior Notes
[°°°°°°°°°°°°°]
(ii) Interest commencement date:
[Specify/Single
applicable]
Series
Issue
Date/Not
Single Series Maturity Date:
(a) Class A Notes
Interest
Payment
[°°°°°°°°°°°°°]
Date
falling
in
(b) Class B Notes
Interest
Payment
[°°°°°°°°°°°°°]
Date
falling
in
(c) Junior Notes
Interest
Payment
[°°°°°°°°°°°°°]
Date
falling
in
relating
to
9
Interest basis:
EURIBOR
10
Redemption basis:
Redemption at par.
11
Put/call options:
See section “Provisions
redemption” below.
12
(i) Status of the Notes of this Single
Series:
As per Condition 4(a).
224
(ii) Ranking of the Notes:
In respect of the obligations of the Issuer to
pay interest on the Notes, prior to the service
of a Programme Acceleration Notice:
(A) the Class A Notes of this Single Series
rank pari passu and without any
preference
or
priority
amongst
themselves and in priority to the Class B
Notes and the Junior Notes of this
Single Series;
(B) the Class B Notes of this Single Series
rank pari passu and without any
preference
or
priority
amongst
themselves and in priority to the Junior
Notes of this Single Series, but
subordinate to the Class A Notes of this
Single Series; and
(C) the Junior Notes of this Single Series
rank pari passu and without any
preference
or
priority
amongst
themselves, but subordinate to the
Senior Notes of this Single Series,
it being understood that payments of interest
on the Notes of this Single Series will be
funded exclusively out of the Single Series
Interest Available Funds ([subject to
Condition 4(d) (Pre-Enforcement Priority of
Payments for Single Series Interest Available
Funds])) and that therefore: (a) interest on the
Class B Notes and the Junior Notes of any
other Single Series may be paid in priority to
payment of interest on the Class A Notes of
this Single Series; and (b) interest on the
Junior Notes of any other Single Series may
be paid in priority to payment of interest on
the Class B Notes of this Single Series.
In respect of the obligations of the Issuer to
repay principal on the Notes, prior to the
service of either a Programme Acceleration
Notice or a Purchase Termination Event
Notice:
(A) the Class A Notes of this Single Series
225
rank pari passu and without any
preference
or
priority
amongst
themselves and in priority to repayment
of principal on the Class B Notes and
the Junior Notes of this Single Series;
(B) the Class B Notes of this Single Series
rank pari passu and without any
preference
or
priority
amongst
themselves
but
subordinate
to
repayment of principal on the Class A
Notes of this Single Series and in
priority to the Junior Notes of this
Single Series and no amount of principal
in respect of the Class B Notes of this
Single Series shall become due and
payable or be repaid until redemption in
full of the Class A Notes of this Single
Series; and
(C) the Junior Notes of this Single Series
rank pari passu and without any
preference
or
priority
amongst
themselves,
but
subordinate
to
repayment of principal on the Senior
Notes of this Single Series and no
amount of principal in respect of the
Junior Notes of this Single Series shall
become due and payable or be repaid
until redemption in full of the Senior
Notes of this Single Series,
it being understood that repayment of
principal on the Notes of this Single Series
will be funded exclusively out of the Single
Series Principal Available Funds (subject to
Condition 4(e) (Pre-Enforcement Priority of
Payments for Single Series Principal
Available Funds)) and that therefore: (a) the
Class B Notes and the Junior Notes of any
other Single Series may be redeemed prior to
the redemption of the Class A Notes of this
Single Series; and (b) the Junior Notes of any
other Single Series may be redeemed prior to
the redemption of the Senior Notes of the
relevant Single Series.
226
In respect of the obligations of the Issuer (a)
to repay principal on the Notes, prior to the
service of a Programme Acceleration Notice
but following the service of a Purchase
Termination Event Notice or (b) to pay
interest and repay principal on the Notes,
following the service of a Programme
Acceleration Notice:
(A) the Class A Notes of all Single Series
will rank pari passu and without any
preference
or
priority
amongst
themselves and in priority to the Class B
Notes and the Junior Notes of all Single
Series;
(B) the Class B Notes of all Single Series
will rank pari passu and without any
preference
or
priority
amongst
themselves,
but
subordinate
to
repayment in full of the Class A Notes
of all Single Series and in priority to the
Junior Notes of all Single Series and no
amount of principal in respect of the
Class B Notes of all Single Series shall
become due and payable or be repaid
until redemption in full of the Class A
Notes of all Single Series; and
(C) the Junior Notes of all Single Series will
rank pari passu and without any
preference
or
priority
amongst
themselves,
but
subordinate
to
repayment in full of the Senior Notes of
all Single Series and no amount of
principal in respect of the Junior Notes
of all Single Series shall become due
and payable or be repaid until
redemption in full of the Senior Notes of
all Single Series.
13
(iii) Date of the resolutions of the Issuer
by virtue of which the Notes of this
Single Series have been issued:
[°°°°°°°°°°°°°]
Method of distribution:
[Syndicated/Non-syndicated]
227
PROVISIONS RELATING TO YIELD (IF ANY) PAYABLE ON THE NOTES
(i)
Interest Periods:
As per Condition 7 (Interest).
(ii)
Specified Interest Payment Dates:
[●], [●], [●] and [●] in each year subject to
adjustment in accordance with the Business
Day convention and subject as provided in
Condition 9 (Payments).
(iii)
First Interest Payment Date:
[°°°°°°°°°°°°°]
(iv)
Business Day convention:
Modified Following
(v)
Business centre(s):
Milan, London and Luxembourg
(vi)
Manner in which the Single Series Rate of
Interest and the Single Series Interest
Amount is to be determined:
Screen Rate determination as per Condition 2
(Definitions).
(vii) Party responsible for calculating the Single
Series Rate of Interest and the Single
Series Interest Amount (if not the Agent
Bank):
[°°°°°°°°°°°°°]
(viii) Screen Rate determination:
(ix)
(x)
(a) reference rate
EURIBOR
(b) Interest Determination Date(s)
The second Business Day immediately
preceding each Interest Period.
(c) Relevant screen page
Reuters-EuriborØ1 page or (A) such other
page as may replace the Reuters-EuriborØ1
page on that service for the purpose of
displaying such information or (B) if that
service ceases to display such information,
such page as displays such information on
such equivalent service (or, if more than one,
that one which is approved by the
Representative of the Noteholders) as may
replace the Reuters-EuriborØ1 page.
Margins:
(a) Single Series Class A Margin
[+/-][°°°°°°°°°°°°°]
(b) Single Series Class B Margin
[+/-][°°°°°°°°°°°°°]
Minimum Single Series Rate of Interests:
228
(xi)
(a) Single Series Class A Rate of
Interest
N/A
(b) Single Series Class B Rate of
Interest
N/A
Actual/360
Day count fraction:
(xii) Fall back provisions, rounding provisions
and any other terms relating to the method
of calculating interest on the Notes (if
other than as set out in the Terms and
Conditions of the Notes):
[°°°°°°°°°°°°°]
(xiii) Fixing of EURIBOR for the first Interest
Period:
For the first Interest Period, the EURIBOR
will be obtained upon linear interpolation of
EURIBOR
for
[°°°°°°°°°°°°°]and
[°°°°°°°°°°°°°]-month deposits in euro.
PROVISIONS RELATING TO REDEMPTION
(i)
Single Series Decree 239 Interest Payment
Date:
Interest
Payment
[°°°°°°°°°°°°°]
(ii)
Single Series Revolving Period
Termination Date:
The earlier of: (i) [°°°°°°°°°°°°°] and (ii) the
day on which a Purchase Termination Event
Notice is delivered by the Computation Agent
to the Issuer.
(iii)
Single Series Target Outstanding Amount:
[°°°°°°°°°°°°°]
(iv)
Notice period (if other than as set out in
the Terms and Conditions):
[°°°°°°°°°°°°°]
(v)
Date
falling
in
(N.B. If setting notice periods which are
different to those provided in the Terms and
Conditions, the Issuer is advised to consider
the practicalities of distribution of
information through intermediaries, for
example, clearing systems and custodians, as
well as any other notice requirements which
may apply, for example, as between the
Issuer, the Agents and the Representative of
the Noteholders)
Optional redemption of the Notes:
(a) Issuer call:
–
optional redemption (in whole
229
As per Condition 8(d) (Optional Redemption)
but not in part)
–
(vi)
optional redemption for taxation,
legal or regulatory reason (in
whole but not in part)
As per Condition 8(e) (Optional Redemption
in whole for taxation, legal or regulatory
reason)
(b) Noteholders call:
Not Applicable
(c) Optional redemption amount:
Par
(d) Notice period for optional
redemption (if other than as set
out in the Terms and Conditions
of the Notes):
[°°°°°°°°°°°°°]
Final redemption amount:
Par
(vii) Final redemption amount following service
of a Programme Acceleration Notice:
Par
GENERAL PROVISIONS APPLICABLE TO THE NOTES OF THIS SINGLE SERIES
(i)
Form of Notes of this Single Series:
The Notes of this Single Series are in bearer
form, will be issued dematerialised form
(emesse in forma dematerializzata) and will
be wholly and exclusively deposited with
Monte Titoli in accordance with article 28 of
Italian legislative decree No. 213 of 24 June
1998, through the authorised institutions
listed in article 30 of such legislative decree.
The Notes of this Single Series will be held
by Monte Titoli on behalf of the holders of
the Notes of this Single Series until
redemption and cancellation for the account
of each relevant Monte Titoli Account Holder.
Monte Titoli shall act as depository for
Clearstream, Luxembourg and Euroclear. The
Notes of this Single Series will at all times be
in book entry form and title to the Notes of
this Single Series will be evidenced by book
entries in accordance with the provisions of
(i) article 28 of Italian legislative decree No.
213 of 24 June 1998; and (ii) regulation
issued by the Bank of Italy and the CONSOB
on 22 February 2008, as subsequently
amended and supplemented. No physical
document of title will be issued in respect of
230
the Notes of this Single Series.
(ii)
Governing law of the Notes:
Laws of Italy
(iii)
Other terms or special conditions:
[Not Applicable/give details]
DISTRIBUTION
(i)
(a) If
syndicated,
Managers:
names
of
(b) Stabilising Manager (if any):
[Not Applicable/give names]
[Not Applicable/give name]
(ii)
If non-syndicated, name of relevant
Dealer:
[°°°°°°°°°°°°°]
(iii)
U.S. selling restrictions:
[Reg. S Compliance Category;
D/TEFRA C/TEFRA not applicable]
(iv)
Additional selling restrictions:
[Not Applicable/give details]
TEFRA
PURPOSE OF FINAL TERMS
This Final Terms comprises the final terms required for issue and admission to trading on the
[specify relevant regulated market] of the Notes of this Single Series described herein pursuant to
the €2,500,000,000 Euro Medium Term Asset-Backed Notes Programme of Golden Bar
(Securitisation) S.r.l.
[DETAILS OF INITIAL PORTFOLIO
The details of the Initial Portfolio as at the Initial Valuation Date are described in schedule 1
hereto.]1
[DETAILS OF THE ADDITIONAL PORTFOLIO
The details of the Additional Portfolio and the Portfolio as a whole as at the relevant Valuation Date
are described in schedule 1 hereto.]2 [In addition, on tenth day following each Interest Payment
Date, or if such day is not a Business Day, the immediately following Business Day, the
Computation Agent will prepare and deliver an Investor Report. The Issuer will make the Investors
Reports available for inspection by Noteholders at the office of the Listing and Luxembourg Paying
Agent as soon as reasonably practicable after its publication so long as any Senior Notes are listed
on the Luxembourg Stock Exchange.]
RESPONSIBILITY
The Issuer accepts responsibility for the information contained in this Final Terms.
Signed on behalf of the Issuer:
1
To be completed only in respect of the Initial Portfolio and the First Single Series.
2
To be completed only in respect of Additional Issues of Notes.
231
By: …..…..…..…..…..…..…..…..……….
Duly authorised
232
PART B – OTHER INFORMATION
1
2
3
LISTING AND ADMISSION TO TRADING
(i) Admission to trading:
[Application has been made by the Issuer (or
on its behalf) for the Senior Notes of this
Single Series to be admitted to trading on
[specify regulated market] with effect from
[[°°°°°°°°°°°°°].]/[Not Applicable]
(ii) Listing on the Official List:
[Yes]/[No]//[Not Applicable]
(iii) Estimate of total expenses related to
admission to trading:
[°°°°°°°°°°°°°]
RATINGS
(i) Class A Notes:
[°°°°°°°°°°°°°] by S&P/specify other]
(ii) Class B Notes:
[°°°°°°°°°°°°°] by S&P/specify other]
(iii) Junior Notes:
[None/specify other]
INTEREST OF NATURAL AND LEGAL PERSONS INVOLVED IN THE ISSUE
Except as discussed in the section “Subscription and sale” in the Prospectus dated
[°°°°°°°°°°°°°] [and the Prospectus Supplement dated [°°°°°°°°°°°°°]], so far as the Issuer is
aware, no person involved in the offer of the Senior Notes has an interest material to the offer,
except that one or more of the Dealers may intend to purchase one or more Classes of Senior
Notes of this Single Series.
4
REASONS FOR THE OFFER, ESTIMATED NET PROCEEDS AND TOTAL
EXPENSES
(i) Reasons for the offer:
[°°°°°°°°°°°°°]
(See [“Use of Proceeds”] wording in
Prospectus if reasons for offer different from
making profit and/or hedging certain risks
will need to include those reasons here.)]
(ii) Estimated net proceeds:
[°°°°°°°°°°°°°]
(If proceeds are intended for more than one
use will need to split out and present in order
of priority. If proceeds insufficient to fund all
proposed uses state amount and sources of
other funding.)
(iii) Estimated total expenses:
5
[°°°°°°°°°°°°°]
OTHER INFORMATION CONCERNING THE ISSUE OF THIS SINGLE SERIES
AND THE UNDERLYING
233
Single Series Swap Counterparty/ies:
[°°°°°°°°°°°°°]
First Collection Period:
From [°°°°°°°°°°°°°] to [°°°°°°°°°°°°°]
Target Cash Reserve Amount (if other than
as set out in the Terms and Conditions of
the Notes):
6
Subordinated Loan Provider:
[°°°°°°°°°°°°°]
Single Series Subordinated Loan:
€[°°°°°°°°°°°°°]
Additional Portfolio Purchase Price:
€[°°°°°°°°°°°°°]
Method of calculation of the Additional
Portfolio Purchase Price (if substantially
different from the method used to calculate
the Initial Portfolio Purchase Price
described in the Prospectus):
[°°°°°°°°°°°°°]
Common Criteria and Specific Criteria (if
substantially different from the Common
Criteria and Specific Criteria described in
the Prospectus):
[°°°°°°°°°°°°°]
Single Series Amortising Period:
The period from and including: (a)
[°°°°°°°°°°°°°] or, if earlier, (b) the date on
which a Purchase Termination Event Notice is
delivered by the Computation Agent to the
Issuer
OPERATIONAL INFORMATION
Any clearing system(s) other than Monte
Titoli, Euroclear and Clearstream,
Luxembourg and the relevant identification
number(s):
[Not Applicable/give name(s) and number(s)]
Delivery:
Delivery [against/free of] payment
Names and addresses of initial Paying
Agents:
Principal Paying Agent:
Deutsche Bank AG, London Branch,
Winchester House, 1 Great Winchester Street,
London EC2N 2DB, United Kingdom.
Italian Paying Agent:
Deutsche Bank S.p.A., Piazza del Calendario,
3, 20121 Milan, Italy.
234
Listing and Luxembourg Paying Agent:
Deutsche Bank Luxembourg S.A., 2
Boulevard Konrad Adenauer, L-1115
Luxembourg, Luxembourg.
Names and addresses of additional Paying
Agent(s):
[Not Applicable/give details]
ISIN Codes:
(a) Class A Notes
[°°°°°°°°°°°°°]
(b) Class B Notes
[°°°°°°°°°°°°°]
(c) Junior Notes
[°°°°°°°°°°°°°]
Common Codes:
(a) Class A Notes
[°°°°°°°°°°°°°]
(b) Class B Notes
[°°°°°°°°°°°°°]
(c) Junior Notes
[Not Applicable/give details]
Representative of the Noteholders:
Deutsche
Trustee
Company Limited,
Winchester House, 1 Great Winchester Street,
London EC2N 2DB, United Kingdom.
235
Schedule 1
The Initial Portfolio
[insert description of the Initial Portfolio as at Initial Valuation Date]3 OR
Schedule 1
The Additional Portfolio and the Portfolio
[insert description of the Additional Portfolio and the Portfolio as at [°°°°°°]]4.
[Governing law of the Additional Claims]
[General description of the Borrowers under the Consumer Loans]
[Maturity date of the Additional Claims]
[Principal amount outstanding of the Additional Claims as at the relevant Valuation Date]
[Loan to value ratio or level of collateralisation]
[Insurance policies relating to the Consumer Loans]
3
Select as appropriate.
4
Select as appropriate.
236
THE ISSUER
Introduction
Golden Bar (Securitisation) S.r.l. (the “Issuer”) is a limited liability company (società a
responsabilità limitata) incorporated in the Republic of Italy under article 3 of the Securitisation
Law on 12 September 2000. In accordance with the Issuer’s by-laws, the corporate duration of the
Issuer is limited to 31 December 2050 and may be extended by shareholders’ resolution. The Issuer
is registered with the companies’ register of Turin under number 13232920150, with the register
(elenco generale) pursuant to article 106 of the Italian legislative decree No. 385 of
1 September 1993 (the “Banking Act”) under number 31975 and its tax identification number
(codice fiscale) is 13232920150.
The legal and commercial name of the Issuer is Golden Bar (Securitisation) S.r.l. The registered
office of the Issuer is at via Principe Amedeo, 11, 10123 Turin, Italy. The Issuer has no principal
office different from the registered office. The telephone number of its registered office is +39 011
812 6939. The Issuer has no employees. The Issuer is a special purpose vehicle established for the
purposes of issuing asset backed securities and, accordingly, it may carry out other securitisation
transactions in addition to the one contemplated in this Prospectus, subject to certain conditions.
Past securitisation transactions
In accordance with the Securitisation Law, the Issuer has already engaged in:
(a)
a first securitisation transaction carried out in accordance with the Securitisation Law,
completed on 22 December 2000 and involving (i) the acquisition of monetary claims and
other connected rights arising from a portfolio of consumer loans acquired on a revolving
basis from Santander (formerly Finconsumo Banca S.p.A.) and (ii) the issue of asset-backed
notes in an aggregate amount of €361,540,000; and
(b)
a second securitisation transaction carried out in accordance with the Securitisation Law
completed on 28 June 2001 and involving (i) the acquisition of monetary claims and other
connected rights arising from a portfolio of consumer loans acquired on a revolving basis
from Santander (formerly Finconsumo Banca S.p.A.) and (ii) the issue of asset-backed notes
in an aggregate amount of €258,300,000.
All the notes set out above have been fully reimbursed by the Issuer.
Previous Programme 2004
The Issuer has also engaged in a securitisation transaction named “€2,500,000,000 Euro Medium
Term Asset-Backed Notes Programme” structured in the form of a programme and established by
the Issuer in accordance with the Securitisation Law in March 2004 (the “Previous Programme
2004”). Under the Previous Programme 2004, the Issuer has issued the notes of the following single
series:
237
(a)
on 17 March 2004, the “€188,000,000 Series 1 2004 — Class A Limited Recourse AssetBacked Notes due 2020”, the “€8,000,000 Series 1 2004 — Class B Limited Recourse AssetBacked Notes due 2020”, the “€3,000,000 Series 1-2004 — Class C Limited Recourse AssetBacked Notes due 2020” and the “€1,000,000 Series 1-2004 — Class D Limited Recourse
Asset-Backed Notes due 2020”, for an aggregate amount of €200,000,000;
(b)
on 9 December 2004, the “€470,000,000 Series 2 2004 — Class A Limited Recourse AssetBacked Notes due 2021”, the “€20,000,000 Series 2 2004 — Class A Limited Recourse AssetBacked Notes due 2021”, the “€7,500,000 Series 2 2004 — Class A Limited Recourse AssetBacked Notes due 2021” and the “€2,500,000 Series 2 2004 — Class A Limited Recourse
Asset-Backed Notes due 2021”, for an aggregate amount of €500,000,000;
(c)
on 8 February 2006, the “€658,000,000 Series 3 2006 - Class A limited recourse
backed notes due 2022”, the “€28,000,000 Series 3 2006 - Class B limited recourse
backed notes due 2022”, the “€10,500,000 Series 3 2006 - Class limited recourse
backed notes due 2022”, the “€3,500,000 Series 3 2006 - Class D limited recourse
backed notes due 2022”, for an aggregate amount of €700,000,000; and
(d)
on 31 January 2007, the “€658,000,000 Series 4 2007 - Class A limited recourse assetbacked notes due 2023”, the “€28,000,000 Series 4 2007 - Class B limited recourse assetbacked notes due 2023”, the “€10,500,000 Series 4 2007 - Class C limited recourse assetbacked notes due 2023” and the “€3,500,000 Series 4 2007 - Class D limited recourse assetbacked notes due 2023”, for an aggregate amount of €700,000,000.
assetassetassetasset-
In connection with the issuance of the Previous Programme 2004 Notes listed above, four
subordinated loans were extended to the Issuer, namely:
(i)
a subordinated loan for an amount of €3,500,000 under a subordinated loan agreement
entered into between the Issuer and Santander as subordinated loan provider on
11 March 2004;
(ii)
a subordinated loan for an amount of €8,750,000 under a subordinated loan agreement
entered into between the Issuer and Santander as subordinated loan provider on
6 December 2004;
(iii)
a subordinated loan for an amount of €25,200,000 under a subordinated loan agreement
entered into between the Issuer and Santander as subordinated loan provider on
3 February 2006; and
(iv)
a subordinated loan for an amount of €21,000,000 under a subordinated loan agreement
entered into between the Issuer and Santander as subordinated loan provider on
26 January 2007.
The subordinated loans listed in (i), (ii), (iii) and (iv) above have been fully reimbursed by the
Issuer.
Previous Programme March 2008
238
The Issuer has also engaged in a further securitisation transaction named “€2,500,000,000 Euro
Medium Term Asset-Backed Notes Programme” structured in the form of a programme and
established by the Issuer in accordance with the Securitisation Law in March 2008 (the “Previous
Programme March 2008”). Under the Previous Programme March 2008, the Issuer has issued the
notes of the following single series: “€631,750,000 Series 1 2008 Class A limited recourse assetbacked notes due 2024”, “€49,000,000 Series 1 2008 Class B limited recourse asset-backed notes
due 2024”, “€15,750,000 Series 1 2008 Class C limited recourse asset-backed notes due 2024” and
“€3,500,000 Series 1 2008 Class D limited recourse asset-backed notes due 2024” for an aggregate
amount of €700,000,000.
In connection with the issuance of the Previous Programme March 2008, one subordinated loan was
extended to the Issuer, namely a subordinated loan for an amount of €21,000,000 under a
subordinated loan agreement entered into between the Issuer and Santander as subordinated loan
provider on 5 March 2008.
The subordinated loan above has been fully reimbursed by the Issuer.
Previous Programme December 2008
The Issuer has also engaged in a further securitisation transaction named “€2,500,000,000 Euro
Medium Term Asset-Backed Notes Programme” structured in the form of a programme and
established by the Issuer in accordance with the Securitisation Law in December 2008 (the
“Previous Programme December 2008”). Under the Previous Programme December 2008, the
Issuer has issued the notes of the following single series: “€691,850,000 Series 1 2008 Class A
limited recourse asset-backed notes due 2025”, “€31,500,000 Series 1 2008 Class B limited
recourse asset-backed notes due 2025”, “€21,400,000 Series 1 2008 Class C limited recourse assetbacked notes due 2025” and “€5,250,000 Series 1 2008 Class D limited recourse asset-backed notes
due 2025” for an aggregate amount of €750,000,000.
In connection with the issuance of the Previous Programme December 2008, one subordinated loan
was extended to the Issuer, namely a subordinated loan for an amount of €22,500,000 under a
subordinated loan agreement entered into between the Issuer and Santander as subordinated loan
provider on 22 December 2008.
Pursuant to the Securitisation Law the assets relating to each securitisation transaction will
constitute assets segregated for all purposes from assets of the Issuer and from the assets relating to
other securitisation transactions. The assets relating to a particular securitisation transaction will not
be available to the holders of notes issued to finance any other securitisation transaction or to the
general creditors of the Issuer.
Quotaholders
The authorised equity capital of the Issuer is €10,000. The issued and paid-up equity capital of the
Issuer is €10,000. No other amount of equity capital has been agreed to be issued. The quotaholders
of the Issuer (the “Quotaholders”) and their equity interests are as follows:
239
Quotaholding in the Issuer
expressed in €
Quotaholders
Stichting Po River ........................................................................................................
3,000
Stichting Turin .............................................................................................................
7,000
To the best of its knowledge, the Issuer is not aware of direct or indirect ownership or control apart
from its Quotaholders. Italian company law combined with the holding structure of the Issuer,
covenants made by the Issuer and its Quotaholders in the Transaction Documents and the role of the
Representative of the Noteholders are together intended to prevent any abuse of control of the
Issuer.
Accounting treatment of the Claims
Pursuant to Bank of Italy regulations, the accounting information relating to the securitisation of the
Claims will be contained in the explanatory notes to the Issuer’s accounts (nota integrativa). The
explanatory notes, together with the balance sheet and the profit and loss statements, form part of
the financial statements of Italian limited liability companies (società a responsabilità limitata).
Accounts of the Issuer
The fiscal year of the Issuer begins on 1 January of each calendar year and ends on 31 December of
the same calendar year with the exception of the first fiscal year which started on
12 September 2000, and ended on 31 December 2000. Consequently, the first statutory accounts of
the Issuer are those relating to the fiscal year ended in December 2000 and approved on
15 June 2001. The second statutory accounts are those relating to the fiscal year ended in
December 2001 and approved on 24 June 2002. The third statutory accounts are those relating to
the fiscal year ended in December 2002 and approved on 27 June 2003. The fourth statutory
accounts are those relating to the fiscal year ended in December 2003 and approved on
27 April 2004. The fifth statutory accounts are those relating to the fiscal year ended in
December 2004 and approved on 29 April 2005. The sixth statutory accounts are those relating to
the fiscal year ended in December 2005 and approved on 24 April 2006. The seventh statutory
accounts are those relating to the fiscal year ended in December 2006 and approved on 20 April
2007. The eight statutory accounts are those relating to the fiscal year ended in December 2007 and
approved on 22 April 2008. The ninth statutory accounts are those relating to the fiscal year ended
in December 2008 and approved on 24 April 2009.
Principal activities
The principal corporate objectives of the Issuer, as set out in article 4 of its by-laws (statuto),
include the acquisition of monetary receivables for the purposes of securitisation transactions and
the issuance of asset-backed securities or the obtaining of loans.
So long as any of the Notes remain outstanding, the Issuer shall not, without the consent of the
Representative of the Noteholders and as provided in the Conditions and the Transaction
240
Documents, incur any other indebtedness for borrowed monies, engage in any activities except
pursuant to the Transaction Documents, pay any dividends, repay or otherwise return any equity
capital, have any subsidiaries, employees or premises, consolidate or merge with any other person,
convey or transfer its property or assets to any person, or increase its equity capital.
The Issuer will covenant to observe, inter alia, those restrictions which are detailed in Condition 6
(Covenants).
Directors and statutory auditors of the Issuer
The current sole director (amministratore unico) of the Issuer is:
Name
Address
Principal activities
Mr Tito Musso
sole director
Corso Soleri, 3
12100 Cuneo (CN)
Republic of Italy
registered accountant in the
Republic of Italy
(commercialista)
Mr Tito Musso was appointed on 12 September 2000 for an undetermined period of time.
The Issuer has no statutory auditors.
Capitalisation and indebtedness statement
The capitalisation and indebtedness of the Issuer as at the date of this Prospectus, adjusted for the
issue of the Notes of the First Single Series taking place in December 2008, are as follows:
(€)
Issued equity capital
€10,000 fully paid up ...............................................................................................................
10,000
10,000
Indebtedness
Notes issued under the Previous Programme 2004
€188,000,000 series 1 2004 – class A limited recourse asset-backed notes due 2020 ..............
26,400,000
€8,000,000 series 1 2004 – class B limited recourse asset-backed notes due 2020 .................
8,000,000
€3,000,000 series 1 2004 – class C limited recourse asset-backed notes due 2020 .................
3,000,000
€1,000,000 series 1 2004 – class D limited recourse asset-backed notes due 2020 .................
1,000,000
€470,000,000 series 2 2004 – class A limited recourse asset-backed notes due 2021
158,841,809,81
€20,000,000 series 2 2004 – class B limited recourse asset-backed notes due 2021
20,000,000
€7,500,000 series 2 2004 – class C limited recourse asset-backed notes due 2021
7,500,000
€2,500,000 series 2 2004 – class D limited recourse asset-backed notes due 2021
2,500,000
€658,000,000 series 3 2006 – class A limited recourse asset-backed notes due 2022
€28,000,000 series 3 2006 – class B limited recourse asset-backed notes due 2022
241
451,999,388.26
28,000,000
(€)
€10,500,000 series 3 2006 – class C limited recourse asset-backed notes due 2022
10,500,000
€3,500,000 series 3 2006 – class D limited recourse asset-backed notes due 2022
3,500,000
€658,000,000 series 4 2007 – class A limited recourse asset-backed notes due 2023
658,000,000
€28,000,000 series 4 2007 – class B limited recourse asset-backed notes due 2023
28,000,000
€10,500,000 series 4 2007 – class C limited recourse asset-backed notes due 2023
10,500,000
€3,500,000 series 4 2007 – class D limited recourse asset-backed notes due 2023
3,500,000
Notes issued under the Previous Programme March 2008
€631,750,000 Series 1 2008 Class A Limited Recourse Asset-Backed Notes due 2024 ..........
631,750,000
€49,000,000 Series 1 2008 Class B Limited Recourse Asset-Backed Notes due 2024 ............
49,000,000
€15,750,000 Series 1 2008 Class C Limited Recourse Asset-Backed Notes due 2024 ............
15,750,000
€3,500,000 Series 1 2008 Class D Limited Recourse Asset-Backed Notes due 2024
3,500,000
Notes issued under the Previous Programme December 2008
€691,850,000 Series 1 2008 Class A Limited Recourse Asset-Backed Notes due 2025
691,850,000
€31,500,000 Series 1 2008 Class B Limited Recourse Asset-Backed Notes due 2025
31,500,000
€21,400,000 Series 1 2008 Class C Limited Recourse Asset-Backed Notes due 2025
21,400,000
€5,250,000 Series 1 2008 Class D Limited Recourse Asset-Backed Notes due 2025
5,250,000
Notes to be issued on the First Single Issue Date
€648,000,000 Series 1 2009 Class A Limited Recourse Asset-Backed Notes due 2026
648,000,000
€124,000,000 Series 1 2009 Class B Limited Recourse Asset-Backed Notes due
2026
124,000,000
€28,000,000 Series 1 2009 Class C Limited Recourse Asset-Backed Notes due 2026
28,000,000
Subordinated loans granted to the Issuer in the context of the Previous Programme
2004
€3,500,000 subordinated loan ..................................................................................................
0
€8,750,000 subordinated loan ..................................................................................................
0
€25,200,000 subordinated loan ................................................................................................
0
€21,000,000 subordinated loan ................................................................................................
0
Subordinated loans granted to the Issuer in the context of the Previous Programme
March 2008
€21,000,000 Subordinated Loan
0
Subordinated loans granted to the Issuer in the context of the Previous Programme
December 2008
€22,500,000 Subordinated Loan
0
Subordinated Loan to be granted to the Issuer on or around the First Single Series
Issue Date
€20,000,000 Subordinated Loan
20,000,000
Total notes and subordinated loans outstanding ....................................................................... 3,691,241,198.07
242
Save for the foregoing and the Issuer’s costs and expenses of incorporation and operation that have
been incurred by the Issuer to date, as at the First Single Series Issue Date, the Issuer will not have
borrowings or indebtedness in the nature of borrowings (including loan capital issued or created but
unissued), term loans, liabilities under acceptances or acceptance credits, mortgages, charges or
guarantees, or other contingent liabilities.
Financial information relative to the Issuer as at 31 December 2007 and as at 31 December
2008
Balance Sheet
31 December
2007
2008
11,202
11,444
Other assets ...........................................................
226,817
215,247
Accrued income and prepaid expenses .................
65,733
102,697
Total Assets ..........................................................
303,752
329,388
Other liabilities .....................................................
292,386
317,685
Shareholders’ equity .............................................
10,000
10,000
Legal reserve.........................................................
1,074
1,366
Net income (Losses) .............................................
292
337
Total Liabilities and Shareholders’ Equity ...........
303,752
329,388
Due from banks ....................................................
Intangible fixed assets ...........................................
Subscribed share capital proceeds to be
received.................................................................
Accrued expenses and deferred incomes ..............
Provisions for risks and charges ...........................
Profit and Loss
31 December
2007
2008
Interest income and similar revenues ....................
378
428
Other operating income ........................................
70,789
150,838
(65,017)
(145,880)
Extraordinary expenses .........................................
(1,069)
(1,580)
Income from operating activities .......................
5,081
3,806
Income taxes .........................................................
(4,789)
3,469
Net Income (Losses) for the year .......................
292
337
Extraordinary revenue ..........................................
Administrative costs .............................................
Adjustments to intangible assets ...........................
243
Review report for the period from 1 January 2009 to 30 September 2009
The following is the text of a review report received, as the Issuer’s request, by the sole director of
the Issuer from Deloitte & Touche S.p.A., the external auditors to the Issuer. Deloitte & Touche
S.p.A. has no interest in the Issuer. The review report is included in this Prospectus, in the form and
context in which it is included, with the consent of Deloitte & Touche S.p.A.
“To the Sole Director of
GOLDEN BAR (SECURITISATION) S.r.l.
Via Principe Amedeo, 11
10123 TURIN
Italy
(the “Company” or “Golden Bar (Securitisation) S.r.l.”)
and
BANCO SANTANDER S.A.
Ciudad Grupo Santander
Edificio Encinar
Planta Baja
28660 BOADILLA DEL MONTE
Spain
Dear Sirs,
We have audited the items included in the accompanying schedule of financial information (ANNEX
I) of Golden Bar (Securitisation) S.r.l. (the “Company”) as at September 30, 2009. This schedule of
financial information has been prepared for inclusion in the Prospectus dated 22 December 2009
relating to the “€ 2,500,000,000 Euro Medium Term Asset-Backed Notes Programme” under which
Golden Bar (Securitisation) S.r.l. (the “Issuer”) will issue from time to time asset backed notes
denominated in Euro and governed by Italian law (the “Notes”) to finance the purchase of the
monetary claims and other connected rights arising from Italian consumer loans transferred, and to
be transferred, by Santander Consumer Bank S.p.A. This financial information has been prepared
on the basis described in Note 2.1 (Accounting Policy) for the period from January 1, 2009 to
September 30,2009. The financial information is the responsibility of the Sole Director of the
Company. The Company is also responsible for the contents of the Prospectus in which this report is
included. Our responsibility is to express an opinion on the items included in the schedule of
financial information based on our audit.
We conducted our audit in accordance with International Standards on Auditing applicable to
reports on components of financial statements. Those Standards require that we plan and perform
the audit to obtain reasonable assurance about whether the schedule of financial information is free
of material misstatement. An audit includes examining, on a test basis, evidence supporting the
amounts and disclosures in the schedule of financial information. An audit also includes assessing
244
the accounting principles used and significant estimates made by management. We believe that our
audit provides a reasonable basis for our opinion.
In our opinion, the items included in the accompanying schedule of financial information of Golden
Bar (Securitisation) S.r.l. as of September 30,2009 have been determined, in all material respects,
in accordance with the International Accounting Standards.
DELOITTE & TOUCHE S.p.A.
Mario M. Busso
Partner
Turin, Italy,
December 11, 2009”
"
1.
ANNEX I
FINANCIAL INFORMATION
Financial Statements items as at September 30, 2009
Due from Banks
11.479
Other asset
318.331
Other liabilities
318.059
Share Capital
10.000
Reserves
1.703
Administrative costs
92.194
Other costs
1.044
Income taxes
4.130
Net profit
47
Interest income
135
Other income
2.
Euro
97.280
NOTES TO THE FINANCIAL INFORMATION
The financial information is based on the non statutory financial statements of the Issuer as at
30 September 2009 (the “Financial Statements”).
2.1 Accounting policy
The financial information set out above has been prepared in accordance with International
Accounting Standards generally accepted in Italy.
245
According to Bank of Italy regulation of 14 February 2007 the acquisition of loans portfolio as
well as the notes issued have been accounted as a segregated net worth off-balance- sheet.
2.2 Equity
The authorized equity capital of the Company is Euro 10.000 divided into 2 quotas.
3.
OTHER INFORMATION
3.1 Registration
The Company has applied for and obtained registrations as follows:
•
companies' register of Turin with the number 13232920150;
•
the Italian Exchange Office (Ufficio Italiano dei Cambi) pursuant to article 106 of
the Italian legislative decree No. 385 of 1st September 1993, with number 31975.
3.2 Trading activity
The Issuer has already engaged in: (a) a first securitisation transaction carried out in
accordance with the Securitisation Law, completed on 22nd December, 2000 and involving (i)
the acquisition of monetary claims and other connected rights arising from a portfolio of
consumer loans acquired on a revolving basis from Santander Consumer Bank S.p.A. and (ii)
the issue of asset-backed notes in an aggregate amount of Euro 361.540.000; and (b) a second
securitisation transaction carried out in accordance with the Securitisation Law completed on
28th June, 2001 and involving (i) the acquisition of monetary claims and other connected
rights arising from a portfolio of consumer loans acquired on a revolving basis from Santander
Consumer Bank and (ii) the issue of asset-backed notes in an aggregate amount of Euro
258.300.000; and (c) a third securitisation transaction under the € 2,500,000,000 Euro
Medium Terms Asset-Backed Notes Programme (the “Programme I”), and involving (i) four
acquisition of monetary claims and other connected rights arising from a portfolio of
consumer loans acquired on a revolving basis from Santander Consumer Bank S.p.A. and (ii)
four issue of asset-backed notes, that occurred in March 2004 (Series1 for € 200.000.000),
December 2004 (Series2 for € 500.000.000), January 2006 (Series3 for €700.000.000) and
February 2007 (for € 700.000.000), for an aggregate amount of Euro 2,100,000,000; and (d) a
fourth securitisation transaction carried out in accordance with the Securitisation Law under
the € 2,500,000,000 Euro Medium Terms Asset-Backed Notes Programme II (the “Programme
II”), and involving (i) the acquisition of monetary claims and other connected rights arising
from a portfolio of consumer loans acquired on a revolving basis from Santander Consumer
Bank S.p.A. and (ii) the issue on March 2008 of asset-backed notes in an aggregate amount of
Euro 700.000.000; and (e) a fifth securitisation transaction carried out in accordance with the
Securitisation Law under the € 2,500,000,000 Euro Medium Terms Asset-Backed Notes
Programme III (the “Programme III”), and involving (i) the acquisition of monetary claims
and other connected rights arising from a portfolio of consumer loans acquired on a revolving
basis from Santander Consumer Bank S.p.A. and (ii) the issue on December 2008 of assetbacked notes in an aggregate amount of Euro 750.000.000 (together with the asset-backed
246
notes under (a), (b), (c) and (d) above, the "Previous Securitisation Notes"). The Notes under
(a) and (b) have been fully reimbursed by the Issuer.
The Issuer started the redemption under the Programme I of the first Series of notes on
November 2007, the second Series of notes on August 2008 and the third Series of notes on
August 2009. The principal amount outstanding at September 30th, 2009, is equal to €
3,011,865,822.61.
The information related to the portfolio of the previous securitisations, the Previous
Securitisation Notes, according to the accounting standards currently applicable in Italy, have
been disclosed only in the notes to the Financial Statements of the Issuer as of December 31,
2008.”
247
INFORMATION ABOUT OWNERSHIP OR CONTROL
BETWEEN THE PARTIES OF THE PROGRAMME
Issuer
The equity capital of the Issuer is held by Stichting Turin
and Stichting Po River. See “The Issuer”, above.
Stichting Turin
See “General Description of the Programme — The
Principal Parties”, above and “The Issuer”, above. It
owns 70% of the Issuer’s equity capital.
Stichting Po River
See “General Description of the Programme — The
Principal Parties”, above and “The Issuer”, above. It
owns 30% of the Issuer’s equity capital.
Originator
See “General Description of the Programme — The
Portfolio”, above, “The Originator and Servicer”, above,
“The Master Transfer Agreement” and “The Warranty and
Indemnity Agreement”, below.
It has no relationship of direct or indirect ownership or
control with the Issuer or any other parties to the
Programme except the Servicer, the Initial Dealer, the
First Single Series Junior Notes Underwriter and the First
Subordinated Loan Provider, which are the same entity,
the Single Series Swap Counterparty of the First Single
Series which is a member of the SCH Group (each a
“SCH Party” and, together, the “SCH Parties”).
Representative of the Noteholders
See “General Description of the programme — The
Principal Parties”, above and “Transaction Documents”,
below. It has no relationship of direct or indirect
ownership or control with the Issuer or any other parties
to the Programme except the Computation Agent, the
Account Bank, the Principal Paying Agent, the Italian
Paying Agent, the Listing and Luxembourg Paying Agent,
the Agent Bank and the Programme Administrator, which
are members of the Deutsche Bank Group (each a “DB
Party” and, together, the “DB Parties”).
Corporate Services Provider
See “General Description of the programme — The
Principal Parties”, above and “Transaction Documents”,
below. It has no relationship of direct or indirect
ownership or control with the Issuer or any other parties
to the Programme.
Stichtingen Corporate Services
Provider
See “General Description of the programme — The
Principal Parties”, above and “Transaction Documents”,
248
below. It has no relationship of direct or indirect
ownership or control with the Issuer or any other parties
to the Programme.
Subordinated Loan Provider
See “Transaction Documents”, below. Santander is the
First Subordinated Loan Provider, the Servicer and the
Initial Dealer. With regard to each Single Series other
than the First Single Series, the applicable Final Terms
will indicate the name of the relevant Subordinated Loan
Provider. Santander has no relationship of direct or
indirect ownership or control with the Issuer or any other
parties to the Programme except the SCH Parties as
described above.
Servicer
See “General Description of the Programme — The
Portfolio”, above, “The Originator and Servicer” and
“The Servicing Agreement”, below. The Servicer is the
Originator. It has no relationship of direct or indirect
ownership or control with the Issuer or any other parties
to the Programme except the SCH Parties as described
above.
Computation Agent
See “General Description of the Programme — The
Principal Parties”, above and “The Agency and Accounts
Agreement”, below. It has no relationship of direct or
indirect ownership or control with the Issuer or any other
parties to the Programme except the DB Parties, as
described above.
Account Bank
See “General Description of the Programme — The
Principal Parties”, above, the “Issuer Account Bank
Agreement” and “The Agency and Accounts Agreement”,
below. It has no relationship of direct or indirect
ownership or control with the Issuer or any other parties
to the Programme except the DB Parties, as described
above.
Principal Paying Agent
See “General Description of the Programme — The
Principal Parties”, above, and “The Agency and Accounts
Agreement”, below. It has no relationship of direct or
indirect ownership or control with the Issuer or any other
parties to the Programme except the DB Parties, as
described above.
Italian Paying Agent
See “General Description of the Programme — The
Principal Parties”, above, and “The Agency and
Accounts Agreement”, below. It has no relationship of
direct or indirect ownership or control with the Issuer or
249
any other parties to the Programme except the DB Parties,
as described above.
Listing and Luxembourg Paying
Agent
See “General Description of the Programme — The
Principal Parties”, above, and “The Agency and Accounts
Agreement”, below. It has no relationship of direct or
indirect ownership or control with the Issuer or any other
parties to the Programme except the DB Parties, as
described above.
Agent Bank
See “General Description of the Programme — The
Principal Parties”, above, and “The Agency and Accounts
Agreement”, below. It has no relationship of direct or
indirect ownership or control with the Issuer or any other
parties to the Programme except the DB Parties, as
described above.
Programme Administrator
See “General Description of the Programme — The
Principal Parties”, above, “The Agency and Accounts
Agreement”, below and “The Master Transfer
Agreement”, below. It has no relationship of direct or
indirect ownership or control with the Issuer or any other
parties to the Programme except the DB Parties, as
described above.
Single Series Swap Counterparty
See “General Description of the Programme — The
Principal Parties”, above. Each Final Terms will indicate
the name of the Single Series Swap Counterparty acting
as such in connection with the relevant Single Series.
Banco Santander, S.A. will be the Single Series Swap
Counterparty in respect of the First Single Series: Banco
Santander, S.A. has no relationship of direct or indirect
ownership or control with the Issuer or any other parties
to the Programme except the SCH Parties, as described
above.
250
THE ACCOUNT BANK
Deutsche Bank Aktiengesellschaft
Deutsche Bank Aktiengesellschaft (“Deutsche Bank” or the “Bank”) originated from the
reunification of Norddeutsche Bank Aktiengesellschaft, Hamburg, Rheinisch-Westfälische Bank
Aktiengesellschaft, Duesseldorf and Süddeutsche Bank Aktiengesellschaft, Munich; pursuant to the
Law on the Regional Scope of Credit Institutions, these had been disincorporated in 1952 from
Deutsche Bank which was founded in 1870. The merger and the name were entered in the
Commercial Register of the District Court Frankfurt am Main on 2 May 1957. Deutsche Bank is a
banking institution and a stock corporation incorporated under the laws of Germany under
registration number HRB 30 000. The Bank has its registered office in Frankfurt am Main,
Germany. It maintains its head office at Theodor-Heuss-Allee 70, 60486 Frankfurt am Main and
branch offices in Germany and abroad including in London, New York, Sydney, Tokyo and an AsiaPacific Head Office in Singapore which serve as hubs for its operations in the respective regions.
The Bank is the parent company of a group consisting of banks, capital market companies, fund
management companies, a real estate finance company, instalment financing companies, research
and consultancy companies and other domestic and foreign companies (the “Deutsche Bank
Group”).
“Deutsche Bank AG London” is the London branch of Deutsche Bank AG. On 12 January 1973,
Deutsche Bank AG filed in the United Kingdom the documents required pursuant to section 407 of
the Companies Act 1948 to establish a place of business within Great Britain. On 14 January 1993,
Deutsche Bank registered under Schedule 21A to the Companies Act 1985 as having established a
branch (Registration No. BR000005) in England and Wales. Deutsche Bank AG London is an
authorized person for the purposes of section 19 of the Financial Services and Markets Act 2000. In
the United Kingdom, it conducts wholesale banking business and through its Private Wealth
Management division, it provides holistic wealth management advice and integrated financial
solutions for wealthy individuals, their families and selected institutions
As of 30 September 2009, Deutsche Bank’s issued share capital amounted to Euro
1,589,399,078.40 consisting of 620,859,015 ordinary shares without par value. The shares are fully
paid up and in registered form. The shares are listed for trading and official quotation on all the
German Stock Exchanges. They are also listed on the New York Stock Exchange.
The consolidated financial statements for the fiscal years starting 1 January 2007 are prepared in
compliance with International Financial Reporting Standards (IFRS). As of 30 September 2009,
Deutsche Bank Group had total assets of EUR 1,659,557 million, total liabilities of EUR 1,623,900
million and total equity of EUR 35,657 million on the basis of IFRS.
Deutsche Bank’s long-term senior debt has been assigned a rating of A+ (outlook stable) by S&P,
Aa1 (outlook negative) by Moody's Investors Services and AA- (outlook rating watch negative) by
Fitch Ratings.
251
BANCO SANTANDER, S.A.
Banco Santander, S.A. is the parent bank of Grupo Santander. It was established on 21 March 1857
and incorporated in its present form by a public deed executed in Santander, Spain, on 14 January
1875. Grupo Santander is a financial group operating principally in Spain, the United Kingdom,
Portugal, other European countries, Latin America and the United States, offering a wide range of
financial products.
At 30 September 2009 Grupo Santander was the eighth largest banking group in the world by
market capitalisation and the largest banking group in the euro zone with a stock market
capitalisation of 89.7 billion, stockholders equity of 67.0 billion and total assets of 1,082.4 billion. It
had an additional 128.8 billion in mutual funds, pension funds and other assets under management
at that date. As of 30 September 2009, it had 50,041 employees and 5,888 branch offices in
Continental Europe, 23,046 employees and 1,331 branches in the United Kingdom, 86,267
employees and 5,754 branches in Latin America, 9,082 employees and 723 branches in Sovereign
Bancorp (United States) and 1,720 employees in other geographic regions.
Abbey National plc, a wholly owned subsidiary of Grupo Santander, is a significant financial
services provider in the United Kingdom, being the second largest residential mortgage lender and
the third largest savings brand measured by outstanding balances, following the combinations in
2008 with Alliance & Leicester plc and Bradford and Bingley plc’s retail deposits, branch network
and its related employees. It also provides a wide range of retail savings accounts, and operates
across the full range of personal financial services.
At 30 September 2009 Grupo Santander had in Latin America majority shareholdings in banks in
Argentina, Brazil, Chile, Colombia, Mexico, Puerto Rico and Uruguay. Grupo Santander's
significant position in Latin America is attributable to its financial strength, high degree of
diversification (by countries, businesses, products, etc.), breadth and depth of its franchise.
On 30 January 2009 Banco Santander completed the acquisition of Sovereign which became a
wholly-owned subsidiary of Grupo Santander. Sovereign gives Grupo Santander the possibility to
operate in the northeast of the US, one of the country’s most attractive and stable areas and less
prone to cyclical changes and where six of the 26 largest cities are located. Its business model,
focused on retail customers and small companies, fits Santander’s profile perfectly and offers a
notable growth potential in earnings in coming years, both via business as well as through
synergies.
252
THE AGENCY AND ACCOUNTS AGREEMENT
The description of the Agency and Accounts Agreement set out below is a summary of certain
features of such Transaction Document and is qualified in its entirety by reference to the detailed
provisions of such Agency and Accounts Agreement. Prospective Noteholders may inspect a copy of
the Agency and Accounts Agreement upon request at the registered office of the Representative of
the Noteholders and at the Specified Office of the Principal Paying Agent and the Listing and
Luxembourg Paying Agent.
Pursuant to the Agency and Accounts Agreement, the Issuer has appointed:
(a)
the Principal Paying Agent, for the purpose of, inter alia, supervising payments in respect of
the Notes made by the Italian Paying Agent;
(b)
the Italian Paying Agent, for the purpose of, inter alia, making payments in respect of the
Notes;
(c)
the Agent Bank, for the purpose of, inter alia, determining the rate of interest payable in
respect of the Notes;
(d)
the Computation Agent, for the purpose of, inter alia, determining certain of the Issuer’s
liabilities and the funds available to pay the same (subject to the receipt of certain
information and in reliance thereon) and instructing the Account Bank to make certain
payments into and out of the Accounts;
(e)
the Listing and Luxembourg Paying Agent, as listing and Luxembourg paying agent in
respect of the Senior Notes; and
(f)
the Programme Administrator for the purpose of verifying the criteria utilised to select any
Subsequent Claims and/or Additional Claims. For a description of the duties of the Account
Bank, the operation of the Cash Accounts and the Investments Securities Accounts, including
the investment in Eligible Investments, see also “The Issuer Account Bank Agreement”,
below.
Duties of the Agent Bank
On each Interest Determination Date, the Agent Bank will, in accordance with Condition 7
(Interest), determine EURIBOR and each Single Series Rate of Interest applicable to each Class of
each Single Series of the Notes during the following Interest Period, as well as the Single Series
Interest Amount and the Interest Payment Date in respect of such following Interest Period, all
subject to and in accordance with the Conditions, and will notify such amounts to the Issuer, the
Representative of the Noteholders, the Corporate Services Provider, the Principal Paying Agent, the
Italian Paying Agent, the Arranger, the Dealers, the Computation Agent, the Servicer, each Single
Series Swap Counterparty and, with exclusive regard to the Senior Notes of all Single Series, the
Listing and Luxembourg Paying Agent and the Luxembourg Stock Exchange.
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Duties of the Computation Agent
The duties of the Computation Agent include the making of certain calculations in respect of the
Programme. The Computation Agent will make such calculations based on:
(a)
the Statements of the Cash Accounts in relation to the Cash Accounts prepared by the
Account Bank on the Quarterly Reporting Dates;
(b)
the Statements of the Investments Securities Accounts in relation to the Investments
Securities Accounts prepared by the Account Bank on the Quarterly Reporting Dates;
(c)
the Quarterly Servicer Reports prepared by the Servicer on the Quarterly Reporting Date;
(d)
the determinations received from the Agent Bank concerning the Single Series Rate of
Interest, Single Series Interest Amount and Interest Payment Date;
(e)
the calculation made by each of the calculation agents under each of the relevant Single
Series Swap Agreements; and
(f)
the instructions and determinations of the Issuer, Monte Titoli and the Corporate Services
Provider,
and the Computation Agent shall not be liable for any omission or error in so doing save as caused
by its own gross negligence (colpa grave) or wilful misconduct (dolo).
The Computation Agent will calculate, inter alia, on each Calculation Date:
(i)
the Programme Interest Available Funds;
(ii)
the Single Series Interest Available Funds pertaining to each Single Series of Notes;
(iii)
the Programme Principal Available Funds;
(iv)
the Single Series Principal Available Funds pertaining to each Single Series of Notes;
(v)
the Principal Payments (if any) due on the Notes of each Class of each Single Series on the
next following Interest Payment Date;
(vi)
the Single Series Interest Amount in respect of the Notes of each Class of each Single Series;
(vii) the interest payable to the Subordinated Loan Providers, each under the Subordinated Loan
Agreements to which each of them is a party;
(viii) the Principal Amount Outstanding of (A) each Single Series, (B) each Class of Notes of each
Single Series, (C) each Class of Notes in all Single Series and (D) each Note, on the next
following Interest Payment Date (after deducting any Principal Payment to be made on that
Interest Payment Date);
(ix)
the debit balance that will be outstanding in respect of the Class A Notes Principal Deficiency
Ledger on the next Interest Payment Date;
(x)
the debit balance that will be outstanding in respect of each Single Series Class A Notes
Principal Deficiency Ledger on the next Interest Payment Date;
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(xi)
the debit balance that will be outstanding in respect of the Class B Notes Principal Deficiency
Ledger on the next Interest Payment Date;
(xii) the debit balance that will be outstanding in respect of each Single Series Class B Notes
Principal Deficiency Ledger on the next Interest Payment Date;
(xiii) the debit balance that will be outstanding in respect of the Junior Notes Principal Deficiency
Ledger on the next Interest Payment Date;
(xiv) the debit balance that will be outstanding in respect of each Single Series Junior Notes
Principal Deficiency Ledger on the next Interest Payment Date;
(xv) the Single Series Interest Amount Arrears, if any, that will arise in respect of one or more
Classes of Notes of each Single Series on the immediately following Interest Payment Date;
(xvi) the Portfolio Outstanding Amount;
(xvii) the Revenue Eligible Investments Amount;
(xviii) the Single Series Interest Excess in respect of each Single Series;
(xix) the Programme Interest Excess;
(xx) the Programme Interest Shortfall and the Single Series Interest Shortfall in respect of each
Single Series;
(xxi) the Applicable Ratio and the Single Series Ratio of each Single Series;
(xxii) the Cash Reserve;
(xxiii) the Programme Principal Deficiency Ledger Amount and the Single Series Principal
Deficiency Ledger Amount in respect of each Single Series;
(xxiv) the Single Series Class A Rate of Interest and the Single Series Class B Rate of Interest, in
respect of each Single Series;
(xxv) the Single Series Class A Notes Interest Amount, the Single Series Class B Notes Interest
Amount and the Single Series Interest Amount, in respect of each Single Series;
(xxvi) the Single Series Junior Notes Available Funds, the Single Series Junior Notes Interest
Amount and the Single Series Junior Notes Interest Amount Arrears in respect of each Single
Series;
(xxvii)
the Single Series Junior Notes Interest Amount, the Single Series Junior Notes
Additional Remuneration and the Junior Notes Additional Remuneration;
(xxviii)
the Single Series Outstanding PDL Amount in respect of each Single Series;
(xxix) the Single Series Senior Interest Payments in respect of each Single Series;
(xxx) the Target Cash Reserve Amount; and
(xxxi) the payments to be made to each of the parties to the Intercreditor Agreement under the
relevant Transaction Documents,
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and will determine how the Issuer’s funds available for distribution pursuant to the Conditions will
be applied, on the immediately following Interest Payment Date pursuant to the applicable Priority
of Payments, and will deliver to the Issuer, the Servicer, Santander, the Arranger, the Dealers, the
Corporate Services Provider, the Rating Agency, the Paying Agents, each Single Series Swap
Counterparty, the Account Bank and the Representative of the Noteholders a report (the “Payments
Report”) setting forth such determinations and amounts.
In addition, the Computation Agent will prepare and deliver to, among others, the Issuer, the
Representative of the Noteholders, the Luxembourg Stock Exchange, the Dealers and the Rating
Agency, on the tenth day immediately following each Interest Payment Date, or if such day is not a
Business Day, the immediately following Business Day, a report substantially in the form set out in
the Agency and Accounts Agreement (the “Investor Report”).
The Investor Report will contain summaries of the following items in respect of the preceding
Collection Period: (i) the Principal Amounts Outstanding under the Notes and the interest rates
applicable thereto; (ii) the revenues received by the Issuer; (iii) the payments of principal, interest
and other costs and expenses paid by the Issuer; (iv) an analysis of the amounts outstanding under
the Consumer Loans; (v) the Subsequent Claims and/or Additional Claims, if any, purchased by the
Issuer on the immediately preceding Subsequent Transfer Date; and (vi) an analysis of the
performance of the Claims, including information on Defaulted Claims and the relative recoveries.
Copies of the Investor Reports will be available, free of charge, at the office of the Listing and
Luxembourg Paying Agent.
There is no corporate relationship between the Computation Agent and the Originator.
Duties of the Paying Agents
The Italian Paying Agent will, on the Business Day immediately preceding each Interest Payment
Date, receive from the Account Bank, acting in the name and on behalf of the Issuer, the monies
necessary to make the payments due on the Notes on the immediately following Interest Payment
Date and will apply such funds in or towards such payments as specified in the Payments Report.
The Principal Paying Agent will provide, for the benefit of the Issuer, the Corporate Services
Provider with the data necessary to maintain and update the Noteholders’ register (registro degli
obbligazionisti) if so requested by the Corporate Services Provider.
The Listing and Luxembourg Paying Agent will act as intermediary between the Noteholders and
the Issuer for certain purposes and make available for inspection during normal business hours at its
Specified Office such documents as may from time to time be required by the rules of the
Luxembourg Stock Exchange and, upon reasonable request, will allow copies of such documents to
be taken.
The Principal Paying Agent will keep a record of all Notes and of their redemption, purchase,
cancellation and repayment and will make such records available for inspection, and copies thereof
obtainable, during normal business hours by the Issuer, the Representative of the Noteholders and
the Computation Agent.
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In performing their obligations, the Paying Agents may rely on the instructions and determinations
of the Issuer, Monte Titoli and the Computation Agent, and will not be liable for any omission or
error in so doing, except in case of their own gross negligence (colpa grave) or wilful misconduct
(dolo).
Duties of the Programme Administrator
In accordance with the Agency and Accounts Agreement, the Programme Administrator will verify
that the criteria utilised by the Originator to select the Subsequent Claims and the Additional
Claims, if any, to be transferred on each Subsequent Transfer Date are in compliance with the
Common Criteria and the Specific Criteria listed in the Master Transfer Agreement. For an English
translation of the Common Criteria and the Specific Criteria, see “The Master Transfer Agreement”,
below.
General provisions
Each of the Principal Paying Agent, the Italian Paying Agent, the Listing and Luxembourg Paying
Agent, the Agent Bank and the Computation Agent will act as agents solely of the Issuer and will
not assume any obligation towards, or relationship of agency or trust for or with, any of the
Noteholders. Each of the Issuer and the Representative of the Noteholders has agreed that it will not
consent to any amendment to the Conditions that materially affects the obligations of any of the
Agents listed above without such Agent’s prior written consent (such consent not to be
unreasonably withheld).
The Issuer has undertaken to indemnify each of the Principal Paying Agent, the Italian Paying
Agent, the Listing and Luxembourg Paying Agent, the Agent Bank and the Computation Agent and
its respective directors, officers, employees and controlling persons against all losses, liabilities,
costs, claims, actions, damages, expenses or demands which any of them may incur or which may
be made against any of them as a result of or in connection with the appointment of or the exercise
of the powers and duties by any Agent listed above, except as may result from its gross negligence
(colpa grave) or wilful misconduct (dolo), or that of its directors, officers, employees or controlling
persons or any of them, or breach by it of the terms of the Agency and Accounts Agreement.
In return for the services so provided, each of the Principal Paying Agent, the Italian Paying Agent,
the Listing and Luxembourg Paying Agent, the Agent Bank and the Computation Agent will receive
commissions in respect of the services of such Agents agreed on or around the Signing Date
between the Issuer and the Agents listed above, payable by the Issuer in accordance with the
Priority of Payments, except that certain fees may be paid up-front on or around the First Single
Series Issue Date.
The appointment of any Agent listed above may be terminated by the Issuer (with the prior written
approval of the Representative of the Noteholders) upon a 30 days written notice or upon the
occurrence of certain events of default or insolvency or of similar events occurring in relation to
such Agent.
If any of the Agents listed above resigns, the Issuer will promptly and in any event within 30 days
appoint a successor approved by the Representative of the Noteholders. If the Issuer fails to appoint
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a successor within such period, the resigning Agent may select a leading bank approved by the
Representative of the Noteholders to act as the relevant Agent and the Issuer will appoint that bank
as the successor Agent.
The Agency and Accounts Agreement is governed by Italian law.
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THE ISSUER ACCOUNT BANK AGREEMENT
The description of the Issuer Account Bank Agreement set out below is a summary of certain
features of such Transaction Document and is qualified in its entirety by reference to the detailed
provisions of such Issuer Account Bank Agreement. Prospective Noteholders may inspect a copy of
the Issuer Account Bank Agreement upon request at the registered office of the Representative of the
Noteholders and at the Specified Office of the Principal Paying Agent and the Listing and
Luxembourg Paying Agent.
Pursuant to the Issuer Account Bank Agreement, the Issuer has appointed the Account Bank for the
purposes of (i) opening, maintaining and handling certain bank accounts and securities accounts
opened in the name of the Issuer and (ii) making Eligible Investments on behalf of the Issuer.
In accordance with the Issuer Account Bank Agreement, the Account Bank will open and maintain
in the name of the Issuer the Cash Accounts and the Investments Securities Accounts, for the
purposes of recording any Eligible Investments therein deposited.
The Account Bank will act as agent solely of the Issuer and will not assume any obligations
towards, or relationship of agency or trust for or with, any of the Noteholders.
Duties of the Account Bank
Pursuant to the Issuer Account Bank Agreement, the Issuer has opened and will maintain with the
Account Bank the Accounts. In accordance with the Agency and Accounts Agreement, the Account
Bank will operate each of the Cash Accounts in the name of and on behalf of the Issuer and will
make payments or transfer from such Cash Accounts in the amounts set out in the Payments
Reports or as otherwise permitted to do so in accordance with the terms of the Transaction
Documents.
Collections in respect of the Consumer Loans are initially paid by the Borrowers to Santander in its
capacity as Servicer of the Claims. Pursuant to the terms of the Servicing Agreement, the
Collections are required to be transferred by the Servicer into the Collection Account within one
Business Day of receipt by the Servicer, for value the day of receipt. In the case of exceptional
circumstances causing an operational delay in the transfer, the Collections are required to be
transferred into the Collection Account, in any case, within three Business Days of receipt.
Pursuant to the Issuer Account Bank Agreement, funds standing to the credit of the Collection
Account, the Expenses Account and the Cash Reserve Account will accrue interest at an annual rate.
Interest on each of the Collection Account, the Expenses Account and the Cash Reserve Account
accrued on each Collection Period will be paid to the relevant Account on the last day of each
Collection Period.
Eligible Investments
Pursuant to the Issuer Account Bank Agreement, the Issuer has established with the Account Bank
the Eligible Investments Securities Account (and may open the Additional Eligible Investments
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Securities Account) as a securities account into which it will deposit all Eligible Investments from
time to time bought by or on behalf of the Issuer by the Account Bank.
“Eligible Investments” means:
(A)
euro-denominated money market funds which have a long-term rating of “AAAm” or a shortterm rating of “AAAm-G” from S&P and permit daily liquidation of investments or have a
maturity date falling before the next following Liquidation Date provided that such money
market funds are disposable without penalty or loss; and
(B)
euro-denominated senior (unsubordinated) debt securities or other debt instruments provided
that: (i) such investments are immediately repayable on demand, disposable without penalty
or loss or have a maturity date falling on or before the next following Liquidation Date; (ii)
such investments provide a fixed principal amount at maturity (such amount not being lower
than the initially invested amount); and (iii) the debt securities or other debt instruments are
issued by, or are fully and unconditionally guaranteed on an unsubordinated basis by, an
institution whose unsecured and unsubordinated debt obligations are rated at least (A) either
“A-1” by S&P in respect of short-term debt (or “A+” by S&P if the institution does not have
a short-term rating by S&P), with regard to investments having a maturity of less than 60
calendar days, or (B) “A-1” by S&P in respect of short-term debt (or “A+” by S&P if the
institution does not have a short-term rating by S&P), with regard to investments having a
maturity longer than 60 calendar days provided that if the short-term debt rating of the
relevant institution falls below “A-1” by S&P (or “A+” by S&P if the institution does not
have a short-term rating by S&P), such investments are repayable or disposable without
penalty or loss within 60 calendar day of the relevant downgrading; and
(C)
repurchase transactions between the Issuer and an Eligible Repo Counterparty in respect of
euro-denominated debt securities or other debt instruments provided that (i) title to the
securities underlying such repurchase transactions (in the period between the execution of the
relevant repurchase transactions and their respective maturity) effectively passes to the Issuer,
(ii) such repurchase transactions are immediately repayable on demand, disposable without
penalty or loss or have a maturity date falling on or before the next following Liquidation
Date (provided that, in respect of such investments, their maturity must be, in any case,
shorter than 60 calendar days) and (iii) such repurchase transactions provide a fixed principal
amount at maturity (such amount not being lower than the initially invested amount).
Pursuant to the Issuer Account Bank Agreement and the Agency and Accounts Agreement, the
Account Bank is obliged to invest, if so instructed in writing by Santander on behalf of the Issuer,
amounts standing to the credit of the Cash Reserve Account and the Collection Account as follows:
(i)
the balance of the Cash Reserve Account or a portion thereof will be invested in Eligible
Investments on the Business Day immediately following each Interest Payment Date or, if
different, on the Business Day when the payments executed by the Issuer on the Interest
Payment Date will be effectively credited to the Cash Reserve Account; and
(ii)
the balance of the Collection Account or a portion thereof will be invested in Eligible
Investments on a weekly basis on the last Business Day of each week,
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each such date, an “Investment Date”.
On the day which is one Business Day before each Calculation Date (each, a “Liquidation Date”)
or, in relation to the repurchase transactions, on the relevant maturity date (if different from the
Liquidation Date) the Account Bank will liquidate the financial instruments constituting Eligible
Investments and the proceeds will be applied as follows:
(i)
an amount equal to the monies invested in Eligible Investments (if any) from the Cash
Reserve Account during the preceding Collection Period will be re-credited to the Cash
Reserve Account;
(ii)
an amount equal to the monies invested in Eligible Investments (if any) from the Collection
Account during the preceding Collection Period will be re-credited to the Collection Account;
and
(iii)
any surplus (i.e., any interest or other return on the Eligible Investments) (the “Revenue
Eligible Investments Amount”) will be credited to the Collection Account.
For the purposes of holding and managing the Eligible Investments, the Account Bank may, with
the prior consent of the Issuer (not to be unreasonably withheld or delayed), appoint a sub-custodian
(each a “Sub-Custodian”) and delegate, at its own costs and expenses, to a Sub-Custodian such
duties and powers as are, in the opinion of the Account Bank, necessary or desirable for the SubCustodian to fulfil some or all of the obligations and functions of the Account Bank in relation to
the holding and management of the Eligible Investments under the Issuer Account Bank Agreement.
The Account Bank has appointed Deutsche Bank S.p.A. as its first Sub-Custodian in relation to the
holding and management of the Eligible Investments. Deutsche Bank AG, London Branch, in its
role as Account Bank, represents that, as at the date of this Prospectus, Deutsche Bank S.p.A.
qualifies as an Eligible Institution.
By the appointment of, and delegation of any of its duties and powers to, a Sub-Custodian,
including Deutsche Bank S.p.A., the Account Bank shall not be released or discharged from, and
remains responsible for, the performance of such duties and powers by any Sub-Custodian and any
breach in the performance of such duties or powers by a Sub-Custodian shall be treated as a breach
by the Account Bank. The Account Bank shall be liable for any losses incurred by the Issuer as a
direct consequence of the appointment of a Sub-Custodian by the Account Bank pursuant to the
Issuer Account Bank Agreement. Any Sub-Custodian must at all times be an Eligible Institution,
save as otherwise agreed by the Issuer, Deutsche Bank AG, London Branch and the Representative
of the Noteholders provided that a prior written notice is given to S&P.
If the Account Bank ceases to be an Eligible Institution,
(a)
the Account Bank will notify the Rating Agency thereof and use, by no later than 30 (thirty)
calendar days from the date on which the relevant downgrading occurs, commercially
reasonable efforts to select a leading bank:
(i)
approved by the Representative of the Noteholders; and
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(ii)
(b)
which is (i) an English depository institution or an English branch of a depository
institution and (ii) an Eligible Institution, willing to act as successor Account Bank
hereunder; and
the Issuer will, by no later than 30 (thirty) calendar days from the date on which the relevant
downgrading occurs,
(i)
appoint that bank specified above as successor Account Bank (and will promptly after
so doing notify the Representative of the Noteholders and the Rating Agency thereof);
(ii)
open a replacement Collection Account, a replacement Cash Reserve Account, a
replacement Expenses Account and replacement Investments Securities Accounts with
the successor Account Bank specified in (i) above;
(iii)
transfer (A) the units of money market funds, the debt securities and the other debt
instruments, purchased from time to time on behalf of the Issuer, held on the
Investments Securities Accounts and (B) the balance standing to the credit of,
respectively, the Collection Account, the Cash Reserve Account and the Expenses
Account to the credit of each of the relevant replacement accounts set out above;
(iv)
terminate the appointment of the Account Bank (and will promptly after so doing
notify the Representative of the Noteholders and the Rating Agency thereof);
(v)
close the Collection Account, the Cash Reserve Account, the Expenses Account and
the Investments Securities Accounts once the steps under (i), (ii), (iii) and (iv) are
completed,
provided that the administrative costs incurred with respect to the selection of a successor Account
Bank (which, for the avoidance of doubt, shall not include any fees payable to, or costs and
expenses of, the successor Account Bank) under (a) above and the transfer of funds referred under
(b) above shall be borne by the Account Bank.
“Eligible Institution” means (A) any depository institution organised under the laws of any state
which is a member of the European Union or of the United States of America (i) whose short-term,
unsecured and unsubordinated debt obligations are rated at least “A-1” by S&P or (ii) whose
obligations under the Transaction Documents to which it is a party are guaranteed, in a manner that
is in accordance with S&P’s rating criteria, by a depository institution organised under the laws of
any state which is a member of the European Union or of the United States of America, whose
short-term, unsecured and unsubordinated debt obligations are rated at least “A-1” by S&P and (B)
Deutsche Bank S.p.A., acting as initial Sub-Custodian under the terms of the Issuer Account Bank
Agreement, for so long as (I) Deutsche Bank AG’s short-term, unsecured and unsubordinated debt
obligations are rated at least “A-1” by S&P; (II) Deutsche Bank S.p.A. continues to be owned
(directly and indirectly) by Deutsche Bank AG; (III) there are no material changes in the ownership
structure of Deutsche Bank AG which would result in the downgrading of any of the Senior Notes;
and (IV) the words “Deutsche Bank” are contained in its legal name and, in any case, only until
such date when S&P notifies the Issuer that Deutsche Bank S.p.A. no longer qualifies as an Eligible
Institution.
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In performing its obligations, the Account Bank may rely on the instructions and determinations of
the Issuer, Santander and the Computation Agent and will not be liable for any error or omission in
doing so save as are caused by its own gross negligence (colpa grave) or wilful misconduct (dolo).
The Issuer has undertaken to indemnify the Account Bank and its respective directors, officers,
employees and controlling persons against all losses, liabilities, costs, claims, actions, damages,
expenses or demands which any of them may incur or which may be made against any of them as a
result of or in connection with its appointment or the exercise of its powers, except as may result
from its wilful default or negligence, or that of its directors, officers, employees or controlling
persons, or breach by any of them of the terms of the Issuer Account Bank Agreement.
In return for the services so provided, the Account Bank will receive a fee, as agreed with the Issuer
on or around the Signing Date, payable by the Issuer in accordance with the Priority of Payments.
The appointment of the Account Bank may be terminated by the Issuer (with the prior written
approval of the Representative of the Noteholders) upon a 30 (thirty) days written notice or upon
the occurrence of certain events of default, insolvency or similar events occurring in relation to the
Account Bank.
The Account Bank may, at any time, cease to operate the Accounts on giving not less than 30 (thirty)
days prior written notice thereof to each of the other parties hereto without assigning any reason
therefor and without being responsible for any costs occasioned by such cessation.
In each of the circumstances above, the Accounts will not be moved to another bank until (i) the Issuer
has appointed a new Account Bank and the replacement Accounts have been opened, the relevant
Eligible Investments and cash held in the original Accounts have been transferred to that new Account
Bank, and (ii) security equivalent to the existing security interests created under the English Deed of
Charge and Assignment has been created in favour of Representative of the Noteholders for the
benefit of the Noteholders and the other Issuer Secured Creditors in relation to the new Accounts and
the Eligible Investments and cash held in such new Accounts.
The Issuer Account Bank Agreement is governed by English law.
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THE MASTER TRANSFER AGREEMENT
The description of the Master Transfer Agreement set out below is a summary of certain features of
such Transaction Document and is qualified in its entirety by reference to the detailed provisions of
such Master Transfer Agreement. Prospective Noteholders may inspect a copy of the Master
Transfer Agreement upon request at the registered office of the Representative of the Noteholders
and at the Specified Office of the Principal Paying Agent and the Listing and Luxembourg Paying
Agent.
Transfer of the Claims
Under a master transfer agreement entered into on 27 November 2009 (the “Initial Execution
Date”) between Santander and the Issuer (as from time to time amended and/or supplemented, the
“Master Transfer Agreement”), (a) Santander has assigned to the Issuer, and the Issuer has
purchased, without recourse (pro soluto) and as a pool (in blocco), pursuant to the Securitisation
Law, the Initial Claims, (b) Santander and the Issuer have agreed that Santander shall offer to sell
and the Issuer may accept to purchase the Subsequent Claims on each Subsequent Transfer Date (as
defined below), and (c) Santander and the Issuer have agreed that the Issuer may purchase from
Santander, in connection with any issuance of Notes (each an “Additional Issue”), additional pools
of monetary claims and connected rights (the “Additional Claims”). The Initial Claims are listed
with details of, inter alia, outstanding principal and applicable rate of interest as at 4 November
2009 (the “Initial Valuation Date”) in schedule 2 to the Master Transfer Agreement. The
Subsequent Claims and the Additional Claims will be listed in a schedule to the letter of offer to sell
(the “Offer to Sell”) which shall be sent (i) during any Single Series Revolving Period in relation to
Subsequent Claims by Santander to the Issuer by the third Business Day of each Collection Period
and (ii) during the Additional Issue Period in relation to Additional Claims by Santander to the
Issuer on the date agreed between the Issuer and Santander.
Initial Portfolio Purchase Price, Subsequent Portfolio Purchase Price and Additional Portfolio
Purchase Price
As consideration for the acquisition of the Initial Claims pursuant to the Master Transfer
Agreement, the Issuer will pay to Santander the Initial Portfolio Purchase Price equal to
€800,000,000 calculated as the Outstanding Principal (rounded down to €10,000) of the Initial
Claims as of the Initial Valuation Date, in full on the First Single Series Issue Date.
As consideration for the acquisition of each portfolio of Subsequent Claims, pursuant to the relevant
Offer to Sell, the Issuer shall pay to Santander the Subsequent Portfolio Purchase Price equal to the
Outstanding Principal of all the Subsequent Claims of such portfolio as at the relevant Valuation
Date in full on the relevant Subsequent Transfer Date, pursuant to the Priority of Payments for
Single Series Principal Available Funds and subject to the availability of Single Series Principal
Available Funds.
As consideration for the acquisition of the Additional Claims pursuant to the relevant Offer to Sell,
the Issuer shall pay to Santander the Additional Portfolio Purchase Price equal to the Outstanding
Principal of all the Additional Claims of such portfolio as at the relevant Valuation Date in full on
the later of (i) the relevant Single Series Issue Date and (ii) the later of (a) the date of publication in
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the Italian Official Gazette (Gazzetta Ufficiale della Repubblica Italiana) of a notice of assignment
of the relevant Additional Claims and (b) the date of publication of a notice of assignment in the
competent companies’ register, as described in the Master Transfer Agreement in accordance with
the Banking Act. Any Additional Portfolio Purchase Price will be funded by the proceeds of the
issue of the Notes of the relevant Single Series. The Issuer and the Originator may change the
calculation modalities of the Subsequent Portfolio Purchase Price and the Additional Portfolio
Purchase Price in relation to any Additional Issue provided that the Issuer notifies S&P of such
change. Such new calculation method will be disclosed in the applicable Final Terms.
Schedule 4 part 1 of the Master Transfer Agreement contains the form of the Offer to Sell to be used
in connection with the purchase of Subsequent Claims and schedule 4 part 2 of the Master Transfer
Agreement contains the form of the Offer to Sell to be used in connection with the purchase of
Additional Claims.
Single Series Revolving Period
The obligation of the Originator to offer for sale to the Issuer Subsequent Claims will be valid
during any Single Series Revolving Period.
“Single Series Revolving Period” means, in relation to each Single Series, the period starting on
and including the relevant Single Series Issue Date and ending on but excluding the relevant Single
Series Revolving Period Termination Date.
“Single Series Revolving Period Termination Date” means, in relation to each Single Series, the
earlier of:
(a)
the date defined as such in the applicable Final Terms; and
(b)
the date on which a Purchase Termination Event Notice is delivered by the Computation
Agent to the Issuer.
“Subsequent Transfer Date” means (i) in relation to the Subsequent Claims, during any Single
Series Revolving Period, each Interest Payment Date, or, if later, the later of (a) the date on which
the relevant notice is published in the Gazzetta Ufficiale della Repubblica Italiana and (b) the date
on which the relevant notice is published in the relevant companies register and (ii) in relation to the
Additional Claims, the second Business Day following the relevant Acceptance Date or the different
date indicated in the Offer to Sell.
“Acceptance Date” means (i) in relation to the Subsequent Claims, during any Single Series
Revolving Period, the fourth Business Day of each Collection Period, the first Acceptance Date
being 6 April 2010, and (ii) in relation to the Additional Claims, the fourth Business Day following
the relevant Offer Date or the different date indicated in the relevant Offer to Sell.
“Offer Date” means (i) in relation to the Subsequent Claims, during any Single Series Revolving
Period, the third Business Day of each Collection Period, the first Offer Date being 5 April 2010,
and (ii) in relation to the Additional Claims, the Business Day agreed as between the Originator and
the Issuer.
“Retail Distributors” means the person and/or the entity which, in relation to Personal Loans, New
Car Loans and Used Car Loans directs to the Originator its own customers so the Originator may
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grant, if it deems it opportune, the relevant Consumer Loan, following the purchase of the relevant
financed asset by the Borrower.
“Rateo Amounts” means (i) in relation to the Initial Claims, interest accrued on the relevant
Consumer Loans, up to the Initial Valuation Date but not yet due, for an overall amount equal to
€1,538,644.93; and (ii) in relation to the Subsequent Claims and/or Additional Claims, interest
accrued on the relevant Consumer Loans up to the relevant Valuation Date but not yet due, the
overall amount of which will be provided in the relevant Offer to Sell.
Additional provisions
The Master Transfer Agreement further provides an adjustment mechanism to reflect any amounts
incorrectly deducted when the nominal value of the Initial Claims was calculated as at the Initial
Valuation Date. In this respect, Santander has undertaken in the Master Transfer Agreement that any
amount received in respect of the relevant Initial Claims:
(i)
prior to the Initial Valuation Date, included, in the event that such amount was not correctly
deducted when the nominal value of the relevant Initial Claims was calculated as at the Initial
Valuation Date; and
(ii)
between the Initial Valuation Date, excluded, and the Initial Execution Date, to the extent that
such amount was not credited to the Collection Account pursuant to the Servicing Agreement,
had to be paid to the Issuer, on the First Single Series Issue Date.
With reference to the Subsequent Claims and the Additional Claims, Santander has undertaken in
the Master Transfer Agreement that any amount received in respect of the relevant Subsequent
Claims and/or Additional Claims:
(i)
prior to and including the relevant Valuation Date in the event that such amount was not
correctly deducted when the nominal value of the relevant Subsequent Claims and/or
Additional Claims was calculated as at the Valuation Date, plus the interest accrued on such
amount from the relevant Valuation Date to the date when such amount was received,
calculated at a rate equal to EURIBOR; and
(ii)
between the Valuation Date (excluded) and the relevant Offer Date in the event that such
amount was not credited to the Collection Account pursuant to the Servicing Agreement, plus
the interest accrued on such amount from the date when such amounts were received to the
date when such amount was credited to the Collection Account, calculated at a rate equal to
EURIBOR,
had to be paid to the Issuer.
In addition, the Master Transfer Agreement provides that if, after the Initial Execution Date or after
a Subsequent Transfer Date, it transpires that any of the Initial Claims specified in schedule 2 to the
Master Transfer Agreement, or any of the Subsequent Claims and/or Additional Claims specified in
the schedule to the relevant Offer to Sell, does not meet the relevant Criteria, then such Claims will
be deemed not to have been assigned and transferred to the Issuer pursuant to the Master Transfer
Agreement. In such event, Santander will pay to the Issuer an amount equal to:
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(a)
the transfer price of the Claim; plus
(b)
interest accrued on the amount under (a) above, at a rate equal to average weighted spread on
the Senior Notes plus 0,15% from the date on which the relevant purchase price is paid;
minus
(c)
an amount equal to the monies received by the Issuer in respect of such Claim from the Initial
Execution Date with reference to the Initial Claims, or from the relevant Subsequent Transfer
Date, with reference to Subsequent Claims and Additional Claims; minus
(d)
interest accrued on the amount under (c) above, at a rate equal to EURIBOR, from the date of
collection of such amounts to the date of the order to credit the amount under (a) above net of
any withholding in accordance with applicable laws.
If, after the Initial Execution Date or after a Subsequent Transfer Date, it transpires that any initial
claim which meets the Criteria has not been included in the list of Initial Claims specified in
schedule 2 to the Master Transfer Agreement or that any subsequent claim or additional claim
which meets the relevant Criteria has not been included in the list of Subsequent Claims and
Additional Claims specified in the schedule to the relevant Offer to Sell, then such Initial Claims,
Subsequent Claims or Additional Claims shall be deemed to have been assigned and transferred to
the Issuer by Santander on the Initial Execution Date or on the relevant Subsequent Transfer Date,
as applicable. In respect of such claims, the Issuer shall pay to Santander, in accordance with the
Priority of Payments, an amount equal to:
(i)
the transfer price of such claims, calculated adopting the same method used to calculate the
transfer price of the Claims; minus
(ii)
any amount recovered or collected from the Initial Execution Date, or from the relevant
Subsequent Transfer Date under the relevant consumer loan; minus
(iii)
interest accrued on the amount under (ii) above, at an interest rate equal to EURIBOR, from
the date of collection of any such amount to the date of the order to credit the amount under
(i) above, net of any withholding in accordance with applicable laws,
(such amount, at any time due to the Originator, the “Additional Consumer Loans Purchase
Price”).
The Additional Consumer Loans Purchase Price (if ever due), the Subsequent Portfolio Purchase
Price, the relevant Rateo Amounts and any other amount owed to Santander from time to time by
the Issuer pursuant to the terms of the Master Transfer Agreement (with the exception of the Initial
Portfolio Purchase Price and the Additional Portfolio Purchase Price) will be paid by the Issuer to
Santander in accordance with the applicable Priority of Payments and subject to the Intercreditor
Agreement.
Should any amount due by Santander to the Issuer pursuant to the Master Transfer Agreement not
be paid by the due date for payment provided in the Master Transfer Agreement, default interest
shall accrue on that amount at a rate equal to EURIBOR plus two basis points per annum starting
from and including the due date for payment but excluding the date of receipt by the Issuer of the
amount due.
267
The Common Criteria
The Originator has represented that the Subsequent Claims and the Additional Claims will meet the
following Common Criteria:
(a)
each Consumer Loan:
(i)
is advanced pursuant to consumer credit legislation;
(ii)
is governed by Italian law;
(iii)
is entered into and fully advanced by Santander Consumer Bank S.p.A.;
(iv)
provides for the repayment of principal in several instalments in accordance with the
so-called “French method” (as agreed either on the relevant execution date of the
relevant consumer loan) whereby instalments consist of (i) a principal component
which increases over time according to a pre-determined schedule agreed at the date of
disbursement and (ii) a variable interest component which decreases over time;
(v) has borrowers which are individuals (persone fisiche) residing in Italy as at the
execution of the relevant consumer loan agreement;
(vi)
provides for loans denominated in Euros;
(vi)
is a fixed rate consumer loan;
(vii) has a monthly amortisation plan;
(viii) falls within one of the following four categories of consumer credit agreements:
(A)
non-purpose loans (finanziamenti senza vincolo di destinazione) granted and
advanced directly to the borrower or to a person specified by that borrower, but
different from a Retail Distributor (Convenzionato), and defined as “personal
loans”;
(B)
purpose loans granted for the exclusive purchase of assets different from those
referred to in items (C) and (D) below or disbursed for the supply of services,
granted to the borrower and advanced to the Retail Distributors (Convenzionati);
(C)
purpose loans granted for the purchase of (i) vehicles (including cars,
motorbikes, caravans and commercial vehicles with a weight not exceeding
3,500 kilograms) registered with the Car Registration Board (P.R.A. - Pubblico
Registro Automobilistico) for not more than 12 months as at the date of
execution of the relevant consumer loan agreement or of (ii) boats registered
with R.I.D. (Registro Imbarcazioni Diporto) for not more than 12 months as at
the date of execution of the relevant consumer loan agreement and in both cases
granted to the Borrower and advanced to the relevant Retail Distributor
(Convenzionato); and
(D)
purpose loans granted for the purchase of (i) vehicles (including cars,
motorbikes, caravans and commercial vehicles with a weight not exceeding
3,500 kilograms) registered with the Car Registration Board (P.R.A. - Pubblico
268
Registro Automobilistico) for more than 12 months as at the date of execution of
the relevant consumer loan agreement or of (ii) boats registered with R.I.D.
(Registro Imbarcazioni Diporto) for more than 12 months as at the date of
execution of the relevant consumer loan agreement and in both cases granted to
the Borrower and advanced to the relevant Retail Distributor (Convenzionato);
(ix)
(b)
has at least one due Instalment, including both payment of interest and repayment of
principal, which was duly paid;
no Consumer Loan:
(i)
has a different amortisation plan from the one initially provided for in the relevant
contract;
(ii)
has at least one outstanding instalment, that is an instalment that fell due and was not
fully paid on the due payment date and that remained unpaid for at least one solar
month as of that date;
(iii)
has had since the date of its execution more than three outstanding instalments, that are
instalments, even non-consecutive ones, that fell due and were not fully paid on the
due payment date and that remained unpaid for at least one calendar month as of that
date;
(iv)
was disbursed to borrowers which entered into other consumer loans agreement with
Santander Consumer Bank S.p.A., even in the past, pursuant to which Santander
Consumer Bank S.p.A. exercised the right to declare them accelerated (decaduti dal
beneficio del termine);
(v)
was advanced to individuals who, at the time of the advance of the relevant consumer
loan, were employees, agents or attorneys in fact of Santander Consumer Bank S.p.A.
or of other companies belonging to the Santander Consumer Bank S.p.A. group
(Gruppo Bancario Santander Consumer Bank);
(vi)
requires the specific consent of the borrower for the transfer of the relevant claims
pursuant to the relevant agreements;
(vii) is secured by the assignment of one fifth of the salary;
(viii) other than “personal loans”, relates to a financed asset which has not yet been delivered
to the relevant borrower;
(ix)
has a borrower which has applied for prepayment.
The Specific Criteria
The Originator has represented that the Subsequent Claims and the Additional Claims will also
meet, in addition to the Common Criteria, the following Specific Criteria to be compiled by the
Issuer and the Originator prior to the relevant Valuation Date:
each Consumer Loan:
(i)
has at least one due Instalment, which was duly paid up as of [
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];
(ii)
has a principal outstanding amount which, together with the principal outstanding amount
(net of any instalments due and not paid) of any other consumer loan borrowed by same
individual from Santander, will not exceed €[
];
(iii)
falls within one of the following four categories of consumer loans:
(A)
non-purpose loans (finanziamenti senza vincolo di destinazione) granted and advanced
directly to the borrower, and defined as “personal loans”, whose outstanding principal
(net of any instalments due and not paid) is comprised between €[
] and €[
]
and having an annual nominal rate of return (tasso nominale annuo) equal to, or
higher, than [
]%;
(B)
purpose loans granted for the exclusive purchase of assets different from those referred
to in items (C) and (D) below or disbursed for the supply of services, granted to the
borrower and advanced to the Retail Distributors (Convenzionati), whose outstanding
principal (net of any instalments due and not paid) is comprised between €[
] and
€[
] and having an annual nominal rate of return (tasso nominale annuo) equal to,
or higher, than [
]%;
(C)
purpose loans granted for the purchase of (i) vehicles (including cars, motorbikes,
caravans and commercial vehicles with a weight not exceeding 3,500 kilograms)
registered with the Car Registration Board (P.R.A. - Pubblico Registro
Automobilistico) for not more than 12 months as at the date of execution of the
relevant consumer loan agreement or of (ii) boats registered with R.I.D. (Registro
Imbarcazioni Diporto) for not more than 12 months as at the date of execution of the
relevant consumer loan agreement and in both cases issued to the Borrower and
advanced to the relevant Retail Distributor (Convenzionato) whose outstanding
principal (net of any instalments due and not paid) is comprised between €[
] and
€[
] and having an annual nominal rate of return (tasso nominale annuo) equal to,
or higher, than [
]%;
(D)
purpose loans granted for the purchase of (i) vehicles (including cars, motorbikes,
caravans and commercial vehicles with a weight not exceeding 3,500 kilograms)
registered with the Car Registration Board (P.R.A. - Pubblico Registro
Automobilistico) for more than 12 months as at the date of execution of the relevant
consumer loan agreement or of (ii) boats registered with R.I.D. (Registro Imbarcazioni
Diporto) for more than 12 months as at the date of execution of the relevant consumer
loan agreement and in both cases issued to the Borrower and advanced to the relevant
Retail Distributor (Convenzionato) whose outstanding principal (net of any instalments
due and not paid) is comprised between €[
] and €[
] and having an annual
nominal rate of return (tasso nominale annuo) equal to, or higher, than [
]%;
(iv)
was entered into by Santander Consumer Bank S.p.A. from [
(inclusive);
(v)
has instalments falling due by [
immediately following business day;
] (inclusive) to [
]
] or, if such date is not a business day, on the
270
(vi)
has a global annual rate, referred to in article 122 of the Banking Act, which will not exceed
[
]%
(the “Specific Criteria”).
The Issuer and the Originator may amend, in relation to any Single Series Issue Date, the Common
Criteria and/or the Specific Criteria, provided that the Issuer sends a prior notification to S&P in
respect of such amendment. Such new Common Criteria and/or Specific Criteria will be disclosed
in the applicable Offer to Sell and Final Terms.
The Master Transfer Agreement is governed by Italian law.
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THE SERVICING AGREEMENT
The description of the Servicing Agreement set out below is a summary of certain features of such
Transaction Document and is qualified in its entirety by reference to the detailed provisions of such
Servicing Agreement. Prospective Noteholders may inspect a copy of the Servicing Agreement upon
request at the registered office of the Representative of the Noteholders and at the Specified Office
of the Principal Paying Agent and the Listing and Luxembourg Paying Agent.
On the Initial Execution Date, the Issuer and Santander Consumer Bank S.p.A. (in such capacity,
the “Servicer”) entered into a servicing agreement (the “Servicing Agreement”), pursuant to which
the Servicer has agreed to administer and service the Consumer Loans, including the collection of
the related Initial Claims, the Subsequent Claims and the Additional Claims, on behalf of the Issuer
and, following the giving of a Programme Acceleration Notice, the Representative of the
Noteholders.
Duties of the Servicer
The Servicer is responsible for the receipt of cash collections in respect of the Consumer Loans and
Claims and for cash and payment services (soggetto incaricato della riscossione dei crediti ceduti e
dei servizi di cassa e pagamento) pursuant to the Securitisation Law. Within the limits of article 2,
paragraph 6, of the Securitisation Law, the Servicer is also responsible for ensuring that such
activities comply with the provisions and regulations of Italian law. The Servicer has undertaken in
relation to each of the Consumer Loans and related Claims, inter alia:
(a)
to collect the Collections and to credit them to the Collection Account within one Business
Day of such collection for value the day of receipt by the Servicer, provided that, in the case
of exceptional circumstances causing an operational delay in the transfer, the relevant
Collections will be transferred in any case into the relevant Collection Account within three
Business Days of receipt;
(b)
to strictly comply with the Servicing Agreement and the collection policy described in “The
Credit and Collection Policies” above (the “Collection Policy”);
(c)
to carry out the administration and management of such Claims and to manage any possible
legal proceedings (procedura giudiziale) against the relevant Borrower or related guarantor in
respect thereof (the “Judicial Proceedings”), and any possible bankruptcy or insolvency
proceedings against any Borrower (“Debtor Insolvency Proceedings”, and, together with
Judicial Proceedings, the “Proceedings”) in accordance with the best professional standards
(massima diligenza e correttezza professionale);
(d)
to initiate any Proceedings in respect of such Claims, if necessary;
(e)
to comply with the laws and regulations applicable in the Republic of Italy in carrying out
activities under the Servicing Agreement;
(f)
to maintain effective accounting and auditing procedures so as to ensure compliance with the
provisions of the Servicing Agreement;
272
(g)
save where otherwise provided for in the Collection Policy or other than in certain limited
circumstances specified in the Servicing Agreement (as for example in the case of out-ofcourt settlements), not to consent to any waiver or cancellation of or other change prejudicial
to the Issuer’s interests in or to the Claims and any other real or personal security or remedy
under or with respect to such Consumer Loan unless it is ordered to do so by an order of a
competent judicial or other authority or authorised to do so by the Issuer and the
Representative of the Noteholders; and
(h)
whereas the Debtors claim the right of set-off in relation to those Claims arising after the
publication of the notice in the Italian Official Gazette (Gazzetta Ufficiale della Repubblica
Italiana), to dispute the validity of that exception pursuant to article 1248, paragraph 2, of the
Italian civil code.
Furthermore, pursuant to the Servicing Agreement, the Servicer is responsible for interpreting,
considering and managing autonomously the issues arising out of the application of the Usury
Regulations, by using professional due diligence. Likewise, the Servicer, in the performance of the
relative collection and recovery activities, must not breach the Usury Regulations.
The Issuer has the right to inspect and take copies of the documentation and records relating to the
Claims in order to verify the activities undertaken by the Servicer, provided that the Servicer has
been informed reasonably in advance of any such inspection.
The Servicer has acknowledged and accepted that, pursuant to the terms of the Servicing
Agreement, it will not have any recourse against the Issuer for any damages, claims, liabilities or
costs incurred by it as a result of the performance of its activities under the Servicing Agreement
except as may result from the Issuer’s wilful default (dolo) or gross negligence (colpa grave).
Sale of Defaulted Claims
Pursuant to the Servicing Agreement, as far as it results in an advantage for the Noteholders and
provided that the conditions set forth in the Servicing Agreement are met, the Servicer may sell
either to third parties or to Santander Consumer Finanzia S.r.l. (formerly FC Factor S.r.l.), on behalf
and in the name of the Issuer, those Claims which have become Defaulted Claims, with no approval
by the Representative of the Noteholders being necessary. The minimum consideration for the
transfer of the Defaulted Claims on behalf of the Issuer is 30% of all amounts due under the
relevant Defaulted Claims.
Delegation of activities
The Servicer is entitled to delegate, to one or more companies fulfilling the prerequisites set forth in
the Servicing Agreement, certain activities entrusted to it as Servicer pursuant to the Servicing
Agreement, as far as Defaulted Claims and Arrear Claims (as defined below) are concerned. The
Servicer will remain directly responsible for the performance of all duties and obligations delegated
to any such company and will be liable for the conduct of all of them.
Reporting requirements
The Servicer has undertaken to prepare and submit to, inter alios, the Issuer, the Representative of
the Noteholder, the Dealers, each Single Series Swap Counterparty, the Rating Agency, the
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Arranger, the Account Bank and the Computation Agent, on each Quarterly Reporting Date, the
Quarterly Servicer Report in the form set out in the Servicing Agreement. The Quarterly Servicer
Reports will contain information as to the Portfolio and the Claims.
Moreover, the Servicer has undertaken to furnish to the Issuer, the Rating Agency, the
Representative of the Noteholders, the Arranger, the Account Bank, each Single Series Swap
Counterparty, and the Computation Agent such further information as any of them may reasonably
request with respect to the relevant Claims and/or the related Proceedings.
Certification of the Quarterly Servicer Reports
A primary firm of auditors acceptable to the Issuer and appointed by the Servicer will certify in
writing that (i) the information and figures contained in the Quarterly Servicer Report related to the
immediately preceding Collection Period reflect the accounting records kept by the Servicer and
that (ii) the procedures applied by the Servicer in monitoring the collections are such as to ensure
that the collections are properly and accurately recorded and applied in accordance with the
Servicing Agreement.
Remuneration of the Servicer
In return for the services provided by the Servicer in relation to the ongoing management of the
Portfolio and as reimbursement of expenses, on each Interest Payment Date and in accordance with
the applicable Priority of Payments, the Issuer will pay the Servicer the following amounts:
(a)
a quarterly fee equal to 0.125% (inclusive of VAT, where applicable) of the principal amount
outstanding of the Claims (with the exception of those Claims which qualify as Defaulted
Claims) on the first Business Day of the immediately preceding Collection Period, according
to the information contained in the Quarterly Servicer Report;
(b)
a fee equal to 6% (inclusive of VAT, where applicable) of the Collections deriving from the
Claims classified as Defaulted Claims (excluding any purchase price received in relation to
the sale of any Defaulted Claims) during the immediately preceding Collection Period,
according to the information contained in the Quarterly Servicer Report; and
(c)
an annual fee of €13,000 plus value added tax (to the extent applicable) payable by the Issuer
on the first Interest Payment Date of each year in connection with certain compliance and
consultancy services provided by the Servicer pursuant to the Servicing Agreement.
Subordination and limited recourse
The Servicer has agreed that the obligations of the Issuer under the Servicing Agreement are
subordinated and limited recourse obligations and will be payable only in accordance with the
applicable Priority of Payments.
Termination and resignation of the Servicer and withdrawal of the Issuer
The Issuer may terminate the appointment of the Servicer (revocare il mandato), pursuant to article
1725 of the Italian civil code, or withdraw from the Servicing Agreement (recesso unilaterale),
pursuant to article 1373 of the Italian civil code, upon the occurrence of one of any of the following
events:
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(a)
the Bank of Italy has proposed to the Minister of Economy and Finance to admit the Servicer
to any insolvency proceeding or a request for the judicial assessment of the insolvency of the
Servicer has been filed with the competent office or the Servicer has been admitted to the
procedures set out in articles 74 and 76 of the Banking Act, or a resolution is passed by the
Servicer with the intention of applying for such proceedings to be initiated;
(b)
failure on the part of the Servicer to deliver and pay any amount due under the Servicing
Agreement within five Business Days of the date on which such amount became due and
payable;
(c)
failure on the part of Santander Consumer Bank S.p.A., in its capacity as Servicer or
otherwise, once a ten Business Day notice period has elapsed, to observe or perform in any
respect any of its obligations under the Servicing Agreement, the relevant Warranty and
Indemnity Agreement, the Master Transfer Agreement or any of the Transaction Documents
to which Santander Consumer Bank S.p.A. is a party, which could jeopardise the fiduciary
relationship between the Servicer and the Issuer;
(d)
a representation given by Santander Consumer Bank S.p.A., in its capacity as Servicer or
otherwise, pursuant to the terms of the Servicing Agreement, is verified to be inaccurate, and
this could have a substantial negative effect on the Issuer and/or the Programme;
(e)
there is a change in the ownership structure of Santander Consumer Bank S.p.A. in
accordance with article 23 of the Banking Act;
(f)
the Issuer does not receive from the auditors within sixty Business Days of the date set for
the approval of the Issuer’s annual accounts the certification in writing that the information
and the figures contained in the most recent Quarterly Servicer Report are true, accurate and
correct, save in the event the certification has not been received because of a delay by the
auditors. In this case the Issuer may terminate the Servicing Agreement if the Servicer does
not procure the provision of such certification within the following sixty Business Days;
(g)
the Servicer changes significantly the departments and/or the resources dedicated to the
recovery of the Claims and the management of the Proceedings and such change, in the
reasonable opinion of the Representative of the Noteholders and the Issuer, leads to the belief
that the fiduciary relationship between the Servicer and the Issuer concerning the possibility
or ability of the Servicer to perform the obligations it has assumed under the Servicing
Agreement has been terminated; or
(h)
the Servicer does not meet the requirements provided by law or by the Bank of Italy for the
entities appointed as servicer in a securitisation transaction or the Servicer does not meet any
further requirement which may be requested in the future by either the Bank of Italy or any
other competent authority.
Upon the occurrence of the events listed under (b), (c), (d) or (f) above, the Issuer is also entitled to
rescind (risolvere) the Servicing Agreement in accordance with article 1456 of the Italian civil code.
The termination of the appointment of a Servicer, prior to being communicated to the Servicer, shall
be communicated by the Issuer in writing to the Rating Agency and the Representative of the
Noteholders.
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Moreover, the Servicer is entitled to withdraw from the Servicing Agreement, at any time after 12
months of the Initial Execution Date, by giving at least 12 months’ prior written notice to that effect
to the Issuer, the Representative of the Noteholders and the Rating Agency. Following the
withdrawal of the Servicer, the Issuer shall promptly commence procedures necessary to appoint a
substitute servicer.
The termination and the withdrawal of the Servicer shall be deemed to have become effective after
ten days have elapsed from the date specified in the notice of the termination or of the withdrawal
or from the date falling on the day after a twelve months period has elapsed since the notice given
by the Servicer to the Issuer, the Representative of the Noteholders and the Rating Agency to resign
from the servicing agreement, or from the date, if later, of the appointment of the substitute servicer.
The Issuer may appoint a substitute servicer only with the prior written approval of the
Representative of the Noteholders and the Servicer provided that the Issuer notifies S&P of such
appointment. The substitute servicer is required to have the following characteristics:
(a)
it must be a bank that has been operating in the Republic of Italy for at least three years and
having one or more branches in the territory of the Republic of Italy; or
(b)
it must be a financial intermediary registered pursuant to article 107 of the Banking Act
which has:
(i)
proven experience in the management of consumer loans (credito al consumo) in the
Republic of Italy;
(ii)
software that is compatible with that used by the replaced Servicer; and
(iii)
the financial capability to perform the role of servicer.
The Representative of the Noteholders has no obligation to assume the role or responsibilities of the
Servicer or to appoint a substitute servicer thereof.
The Servicing Agreement is governed by Italian law.
276
THE WARRANTY AND INDEMNITY AGREEMENT
The description of the Warranty and Indemnity Agreement set out below is a summary of certain
features of such Transaction Document and is qualified in its entirety by reference to the detailed
provisions of such Warranty and Indemnity Agreement. Prospective Noteholders may inspect a copy
of the Warranty and Indemnity Agreement upon request at the registered office of the Representative
of the Noteholders and at the Specified Office of the Principal Paying Agent and the Listing and
Luxembourg Paying Agent.
On the Initial Execution Date, the Issuer and the Originator entered into a warranty and indemnity
agreement, as subsequently amended on the Signing Date (the “Warranty and Indemnity
Agreement”), pursuant to which the Originator has made certain representations and warranties and
agreed to give certain indemnities in favour of the Issuer in relation to the Portfolio and the Claims.
The Warranty and Indemnity Agreement contains representations and warranties by the Originator
in respect of, inter alia, the following categories:
(i)
the Consumer Loans, the Claims and the Guarantee;
(ii)
the consumer credit legislation (credito al consumo);
(iii)
disclosure of information;
(iv)
the Securitisation Law and article 58 of the Banking Act; and
(v)
other representations.
In the representations and warranties below and in addition to terms defined elsewhere in this
Prospectus, the following terms have the following meanings:
“Arranger” means Banco Santander, S.A. in its capacity as arranger of the Programme;
“Initial Individual Purchase Price” means the price of the Initial Claims relating to each
Consumer Loan, as indicated in schedule 2 to the Master Transfer Agreement;
“Insolvency Proceedings” means any bankruptcy or other insolvency or compulsory liquidation
procedure under Italian law; and
“Subsequent Individual Purchase Price” means the price of the Subsequent Claims or Additional
Claims relating to each Consumer Loan as indicated in schedule 2 to the relevant Offer to Sell.
Specifically, the Originator has represented and warranted as of the Initial Execution Date, inter
alia, as follows:
(a)
Consumer Loans, Claims and Securities
(i)
The Consumer Loans from which the Initial Claims arise, which are listed in schedule
2 to the Transfer Agreement, are and have always been performing (in bonis), i.e.
Claims which have no Unpaid Instalments, which have never had more than three
Unpaid Instalments, also non consecutive ones, and that as at the Initial Valuation Date
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are and have never been prior to such date classified as “delinquent claims” (incagli) or
as “defaulted claims” (sofferenze) pursuant to the Bank of Italy’s supervisory
regulations. The Consumer Loans from which the Subsequent Claims will arise, listed
from time to time under schedule 2 to the relevant Offer to Sell, will be and have
always been performing (in bonis), i.e. Claims which will have no Unpaid Instalments,
which will never have more than three Unpaid Instalments, also non-consecutive ones,
and that will not be and will never have been classified as “delinquent claims” (incagli)
or as “defaulted claims” (sofferenze) pursuant to the Bank of Italy’s supervisory
regulations, as at the applicable Valuation Date. The Consumer Loans from which the
Initial Claims arise and from which the Subsequent Claims and the Additional Claims
will arise from time to time have been granted or will be granted, as the case may be,
according to the “Credit Policy” (Procedure di Credito) analytically detailed in
schedule 2 to the Warranty and Indemnity Agreement.
(ii)
The Borrowers, the grantors of Guarantee and, in each case, each party to any
agreement, deed or document relating thereto had, as at the date of execution thereof,
full power and authority to enter into and execute the relevant agreement, deed or
document relating to such Consumer Loans, Claims or Guarantee.
(iii)
Each of the Claims under the Consumer Loans arises from agreements duly entered
into. Each Consumer Loan and each other agreement, deed or document relating
thereto is valid and enforceable and the obligations undertaken by each of the parties
are valid and enforceable in their entirety.
(iv)
Each Consumer Loan has been entered into, executed and performed and the advance
of each Consumer Loan has been made in compliance with all applicable laws, rules
and regulations, including, without limitation, all laws, rules and regulations relating to
consumer credit protection, usury, personal data protection and disclosure, consumers’
rights protection and transparency of contractual conditions, as well as in accordance
with lending policies and procedures adopted by the Originator from time to time as
specified in the “Credit Policy” (Procedure di Credito).
(v)
Each authorisation, approval, consent, licence, registration, recording, presentation or
attestation or any other action which is required or desirable to ensure the validity,
legality, enforceability or priority of the rights and obligations of the relevant parties to
each Consumer Loan and to each other relevant agreement, deed or document, as well
as in respect of each Guarantee, was duly and unconditionally obtained, made or taken
by the time of the execution of each Consumer Loan or at the time of execution or of
perfection of each Guarantee and of the making of any advances thereunder or when
otherwise required under the law or whenever deemed appropriate for the above
purposes.
(vi)
Each Consumer Loan has been fully advanced, disbursed and paid directly, as
evidenced by disbursement receipts to the relevant Borrower or on its behalf, and there
is no obligation on the part of the Originator to advance or disburse further amounts in
connection therewith.
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(vii) Each Consumer Loan has been entered into substantially in the form of the
Originator’s standard form agreement as adopted from time to time. No Consumer
Loan has been amended after its execution other than to change the method of payment
from direct debit (RID) to a postal payment order or vice versa. The current method of
payment appears in schedule 2 to the Master Transfer Agreement and, in relation to the
Subsequent Claims and the Additional Claims, in schedule 2 of the relevant Offer for
Sale.
(viii) Each Consumer Loan, each Guarantee and each other related agreement, deed or
document was entered into and executed without any error, undue influence or wilful
misconduct by or on behalf of the Originator or any of its managers, directors, officers
and/or employees, so that the relevant Borrower(s) and/or the grantor(s) of the relevant
Guarantee(s) are not entitled to initiate any action against the Originator for error,
undue influence or wilful misconduct or to repudiate any of the obligations under or in
respect of such Consumer Loan or of any other agreement, deed or document relating
thereto.
(ix)
Each Guarantee is existing and has been duly granted, created, perfected and
maintained and remains valid and enforceable in accordance with the terms upon
which it was granted, meets all requirements under all applicable laws and regulations
and is not affected by any material defect whatsoever.
(x)
The Originator has not (whether in whole or in part) cancelled, released or reduced or
consented to cancel, release or reduce any Guarantee except to the extent that such
cancellation, release or reduction was in compliance with legal requirements or
regulations in force in Italy. No Consumer Loan contains any provisions entitling the
relevant Debtor(s) to any cancellation, release or reduction of the relevant Guarantee
other than where and to the extent that this is required under any applicable law and/or
regulation.
(xi)
The Originator has not (whether in whole or in part) cancelled, released, reduced or
waived or consented to reduce, waive or cancel any Guarantee, existing as of the Initial
Valuation Date with reference to the Initial Claims and as of the applicable Valuation
Date with reference to the Subsequent Claims and the Additional Claims, except as a
result of the full or partial repayment of the Consumer Loan.
(xii) Each Claim is fully and unconditionally owned by and available to the Originator and
is not subject to any attachment, seizure or other charge in favour of any third party
and is freely transferable to the Issuer. The Originator holds sole and unencumbered
legal title to each of the Consumer Loans and the Claims and has not assigned
(whether absolutely or by way of security), participated, transferred or otherwise
disposed of any of the Consumer Loans or the Claims or otherwise created or allowed
for the creation or constitution of any lien, pledge, encumbrance or other right, claim
or beneficial interest of any third party on or to any of the Consumer Loans or the
Claims. There are no clauses or provisions in the Consumer Loans, nor in any other
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agreement, deed or document, pursuant to which the Originator is prevented from
transferring, assigning or otherwise disposing of the Claims or of any of them.
(xiii) The amount of each Initial Claim relating to each Consumer Loan as of the Initial
Valuation Date is correctly set forth in schedule 2 to the Master Transfer Agreement
and represents the principal amount outstanding for such Initial Claim as at that date.
The list of Consumer Loans attached as schedule 2 to the Master Transfer Agreement is
an accurate list of all of the Consumer Loans from which the Initial Claims arise and
contains the indication of any Guarantee granted and of the Initial Individual Purchase
Price, and all the information contained therein is true and correct in all material
respects. The amount of each Subsequent Claim and each Additional Claim relating to
each Consumer Loan as at the applicable Valuation Date shall be correctly set forth in
schedule 2 to the relevant Offer to Sell and will represent the principal amount
outstanding for such Claim as of that date. The list of Consumer Loans attached as
schedule 2 to the Offer to Sell shall be an accurate list of all of the Consumer Loans
from which the Subsequent Claims or the Additional Claims (as applicable) arise and
will contain the indication of any Guarantee granted and of the Subsequent Individual
Purchase Price for each Subsequent Claim or Additional Claims, and all the
information contained therein will be true and correct in all material respects. The
Outstanding Principal Amount for each Debtor does not exceed €75,152.23 in relation
to the Initial Claims.
(xiv) Without prejudice to the representations and warranties under (xv) below, the
Originator did not, prior to the Initial Valuation Date with reference to the Initial
Claims and will not, prior to the applicable Valuation Date with reference to the
Subsequent Claims and the Additional Claims, relieve or discharge any Debtor of its
obligations, or subordinate the Originator’s rights to the rights of other creditors
thereof, or waive any of the Originator’s rights, except in relation to payments made in
a corresponding amount to satisfy the relevant Claims or in case, and to the extent, that
this is required under any applicable law or regulation in order to preserve the
Originator’s position as owner of the relevant Consumer Loans.
(xv) The Originator did not, as from and including the Initial Valuation Date, with reference
to the Initial Claims, and will not, as from and including the applicable Valuation Date
with reference to the Subsequent Claims and Additional Claims, relieve or discharge
any Debtor of its obligations, and did not subordinate, with reference to the Initial
Claims, or will subordinate, with reference to the Subsequent Claims and Additional
Claims, the Originator’s rights to the rights of other creditors thereof, and did not
waive, with reference to the Initial Claims, or will waive, with reference to the
Subsequent Claims and Additional Claims, any rights, except as in relation to
payments made in a corresponding amount to satisfy the relevant Claims.
(xvi) The transfer of the Claims to the Issuer under the Master Transfer Agreement does not
prejudice or impair the obligations of the Debtors concerning the payment of the
outstanding amounts of the Claims.
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(xvii) Each Consumer Loan and each Claim exists and is denominated in Euros.
(xviii) Each Consumer Loan and each Claim is governed by Italian law.
(xix) The Claims are not indirectly secured by any security other than those included in the
Claims or in the Guarantee or that is anyway not transferred to the Issuer pursuant to
the Master Transfer Agreement.
(xx) None of the Debtors is an entity of the public administration or an ecclesiastical entity.
(xxi) With the exception of the Servicing Agreement, no servicing or pooling agreement has
been entered into by the Originator in relation to any of the Consumer Loans and/or the
Claims which are binding on the Issuer or which may otherwise impair or affect in any
manner whatsoever the exercise of any of its rights in respect of the Claims and the
Guarantee.
(xxii) As at the Initial Valuation Date, with reference to the Initial Claims, and as at the
applicable Valuation Date, with reference to the Subsequent Claims and the Additional
Claims, (a) each Initial Claim arises and each Subsequent Claim and Additional Claim
will arise from consumer loan agreements and (b) each Initial Claim is, and each
Subsequent Claims or each Additional Claims will be, classified as a performing
Consumer Loan (crediti in bonis) in accordance with the definition contained in the
guidelines set by the Bank of Italy.
(xxiii) The Consumer Loans do not include:
(A)
loans originating claims classified as “delinquent claims” (incagli) or “defaulted
claims” (sofferenze) pursuant to the Bank of Italy’s supervisory regulations;
(B)
loans originating claims classified, at any time, as Arrear Claims (Crediti in
Ritardo);
(C)
loans originating claims classified at any time as Defaulted Claims;
(D)
loans in relation to which there have ever been more than three Unpaid
Instalments, even non-consecutive ones;
(E)
loans granted to employees, agents or attorneys-in-fact (mandatari) of the
Originator;
(F)
loans under which the Borrowers have outstanding loans with the Originator
other than the Consumer Loans, banking contracts (including, without
limitation, deposit or current account contracts) or have other legal relationships
with the Originator under which a claim towards the Originator could arise to
the Borrowers;
(G)
loans in relation to which the Originator has or had at the time of the relevant
execution an exclusive relationship with the relevant Retail Distributors
(Convenzionati); and
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(H)
loans where the financed asset, with the exception of the Personal Loans, has not
been delivered to the relevant Borrower yet.
(xxiv) No Consumer Loan falls within the definition of a restructured debt (credito
ristrutturato) or is in the process of being restructured (credito in corso di
ristrutturazione) under, and within the meaning of, the Bank of Italy’s supervisory
regulations.
(xxv) The Originator has kept books, records, data and documents complete in all material
respects in relation to the Consumer Loans and to all instalments and any other
amounts to be paid or repaid thereunder, and all such books, records, data and
documents are kept by the Originator.
(xxvi) The disbursement, servicing, administration, and collection procedures adopted by the
Originator with respect to each of the Consumer Loans, the Guarantee and the Claims
have been carried out in all respects in compliance with all applicable laws and
regulations and with care, skill and diligence and in a prudent manner and in
accordance with the credit management and collection policies adopted from time to
time by the Originator, as well as in accordance with all prudent and customary
banking practice, and they are described by the Originator in schedule 2 to the
Warranty and Indemnity Agreement.
(xxvii) All taxes, duties and fees of any kind required to be paid by the Originator under
each Consumer Loan from the time such Consumer Loan was disbursed up to the
Initial Execution Date with reference to the Initial Claims and up to the applicable
Subsequent Transfer Date with reference to the Subsequent Claims and the Additional
Claims, as well as with respect to the creation and preservation of any Guarantee and
to the execution of any other agreement, deed or document or the performance and
fulfilment of any action or formality relating thereto, have been and will be duly and
timely paid by the Originator.
(xxviii) The interest rates indicated opposite each Consumer Loan in schedule 2 to the Master
Transfer Agreement with reference to the Initial Claims and in schedule 2 to the Offer
to Sell with reference to the Subsequent Claims and the Additional Claims are and will
be true and correct, and, except as provided by the Usury Law, the criteria on the basis
of which the same have been computed are not subject to any reductions or variations
throughout the term of the relevant Consumer Loan.
(xxix) The interest rates relating to the Consumer Loans, as specified in schedule 2 to the
Master Transfer Agreement with reference to the Initial Claims and in schedule 2 to the
Offer to Sell with reference to the Subsequent Claims and the Additional Claims have
been and will be applied and received at all times in accordance with the applicable
laws in force from time to time (including, especially, the Usury Law, as applicable).
(xxx) Each Consumer Loan constitutes a fixed rate loan and the relevant rate is not subject to
any reductions or variations throughout the term of the relevant Consumer Loan, save
as provided by the Usury Law.
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(xxxi) The Consumer Loan provides for the payment of the Instalments (a) through direct
debit (RID) of the relevant amount from the current account of the relevant Debtor or
(b) through postal transfer order.
(xxxii) The insurance policies covering against the risk of the Borrowers’ death and personal
accident, if existing in relation to one or more Consumer Loan, have been issued with
insurance companies with a lien in favour of the Originator and the premiums due
under the relevant insurance policies were fully advanced by the Originator. The
benefits arising from the insurance policies have been transferred to the Issuer pursuant
to the Transfer Agreement and the Originator has undertaken all the activities
necessary for such purpose pursuant to the Transfer Agreement.
(xxxiii) No Debtor is entitled to exercise any right of withdrawal (except where contractually
provided for), rescission, termination, counterclaim, set-off or grounded defence in
respect of the operation of any of the terms of any of the Consumer Loans or of the
Guarantee or of any agreement, deed or document connected therewith, or in respect of
any amount payable or repayable thereunder, it being understood that no such right has
been asserted and no such claim has been raised against the Originator.
(xxxiv) The Originator has no knowledge of any fact or matter which might cause the nonrepayment or the delayed repayment of any of the Consumer Loans.
(xxxv) Without prejudice to paragraph (xxiii)(D) above, each obligation arising from the
Consumer Loans has been duly and punctually performed by each of the Debtors.
(xxxvi) With reference to the Consumer Loans in relation to which the Debtor has
transferred, or had the intention to transfer, to the Originator some claims, by way of
security or for any other purpose, at the same time as the granting of the Consumer
Loan or afterwards, such transfer is valid and enforceable among the parties.
(xxxvii) Under the Master Transfer Agreement, the Initial Claims meet and the Subsequent
Claims and the Additional Claims will meet the following Common Criteria as at the
relevant Valuation Date:
(i)
consumer loans advanced pursuant to consumer credit legislation;
(ii)
consumer loans governed by Italian law;
(iii)
consumer loans which are entered into and fully advanced by Santander
Consumer Bank S.p.A.;
(iv)
consumer loans providing for the repayment of principal in several instalments
in accordance with the so-called “French method” (as agreed either on the
relevant execution date of the relevant consumer loan) whereby instalments
consist of (i) a principal component which increases over time according to a
pre-determined schedule agreed at the date of disbursement and (ii) a variable
interest component which decreases over time;
(v)
consumer loans having borrowers which are individuals (persone fisiche)
residing in Italy as at the execution of the relevant consumer loan agreement;
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(vi)
consumer loans providing for loans denominated in Euros;
(vii) consumer loans which are fixed rate consumer loans;
(viii) consumer loans having monthly amortisation plan;
(ix)
(x)
consumer loans falling within one of the following four categories of consumer
credit agreements:
(A)
non-purpose loans (finanziamenti senza vincolo di destinazione) granted
and advanced directly to the borrower or to a person specified by that
borrower, but different from a Retail Distributor (Convenzionato), and
defined as “personal loans”;
(B)
purpose loans granted for the exclusive purchase of assets different from
those referred to in items (C) and (D) below or disbursed for the supply of
services, granted to the borrower and advanced to the Retail Distributors
(Convenzionati); purpose loans granted for the purchase of (i) vehicles
(including cars, motorbikes, caravans and commercial vehicles with a
weight not exceeding 3,500 kilograms) registered with the Car
Registration Board (P.R.A. - Pubblico Registro Automobilistico) for not
more than 12 months as at the date of execution of the relevant consumer
loan agreement or of (ii) boats registered with R.I.D. (Registro
Imbarcazioni Diporto) for not more than 12 months as at the date of
execution of the relevant consumer loan agreement and in both cases
granted to the Borrower and advanced to the relevant Retail Distributor
(Convenzionato); and
(C)
purpose loans granted for the purchase of (i) vehicles (including cars,
motorbikes, caravans and commercial vehicles with a weight not
exceeding 3,500 kilograms) registered with the Car Registration Board
(P.R.A. - Pubblico Registro Automobilistico) for more than 12 months as
at the date of execution of the relevant consumer loan agreement or of (ii)
boats registered with R.I.D. (Registro Imbarcazioni Diporto) for more
than 12 months as at the date of execution of the relevant consumer loan
agreement and in both cases granted to the Borrower and advanced to the
relevant Retail Distributor (Convenzionato);
consumer loans having at least one due Instalment, including both payment of
interest and repayment of principal, which was duly paid;
however, the claims arising from consumer loans having one or more of the following
characteristics are excluded from the transfer:
(i)
consumer loans having different amortisation plan from the one initially
provided for in the relevant contract;
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(ii)
consumer loans having at least one outstanding instalment, that is an instalment
that fell due and was not fully paid on the due payment date and that remained
unpaid for at least one solar month as of that date;
(iii)
consumer loans which have had since the date of its execution more than three
outstanding instalments, that are instalments, even non-consecutive ones, that
fell due and were not fully paid on the due payment date and that remained
unpaid for at least one calendar month as of that date;
(iv)
consumer loans disbursed to borrowers which entered into other consumer loans
agreement with Santander Consumer Bank S.p.A., even in the past, pursuant to
which Santander Consumer Bank S.p.A. exercised the right to declare them
accelerated (decaduti dal beneficio del termine);
(v)
consumer loans advanced to individuals who, at the time of the advance of the
relevant consumer loan, were employees, agents or attorneys in fact of
Santander Consumer Bank S.p.A. or of other companies belonging to the
Santander Consumer Bank S.p.A. group (Gruppo Bancario Santander
Consumer Bank);
(vi)
consumer loans requiring the specific consent of the borrower for the transfer of
the relevant claims pursuant to the relevant agreements;
(vii) consumer loans which are secured by the assignment of one fifth of the salary;
(viii) consumer loans, other than “personal loans”, relating to a financed asset which
has not yet been delivered to the relevant borrower;
(ix)
consumer loans the borrowers of which has applied for prepayment.
(xxxviii)
The Specific Criteria for the Subsequent Claims and the Additional Claims,
which, together with the Common Criteria, will identify the Subsequent Claims and the
Additional Claims, respectively, will not alter the nature of the Common Criteria.
(xxxix) The Consumer Loans do not violate any provision under articles 1283, 1345 and
1346 of the Italian civil code.
(xl)
No Debtor is subject to any Insolvency Proceeding.
(xli) No Retail Distributor (Convenzionato) is subject to any Insolvency Proceeding as at
the date of advance of the relevant Consumer Loan.
(xlii) All the Consumer Loans from which the Initial Claims arise and will arise have and
will have no instalments falling due after 31 December 2016.
(xliii) The Originator will not open bank accounts to any of the Debtors and will not enter
into any legal relationship with any of them from which it could arise a claim of the
relevant Debtor vis-à-vis the Originator.
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(xliv) All the Consumer Loan agreements from which the Initial Claims arise and the
Consumer Loan agreements from which the Subsequent Claims will arise have been
and/or will be entered into by the Originator and the relevant Debtor.
(xlv) Each Consumer Loan contains the obligation of the relevant Borrower to pay to the
lender an additional amount referred to as “importo a copertura degli oneri postali
sostenuti” or “importo a copertura degli oneri bancari sostenuti” (the “Additional
Amount”). Such Additional Amount constitutes a una tantum reimbursement of
expenses, agreed between the Originator and the relevant Borrower and is
proportionate with the expenses actually borne by the Originator;
(xlvi) The Debtors are not in breach of any terms and conditions of the relevant Consumer
Loans.
(b)
Consumer credit
Without prejudice to and in addition to the representations and warranties referred to in (a)
above, the Originator has represented and warranted as follows:
(i)
article 42 of the legislative decree No. 206 of 6 September 2005, is not applicable to
the Initial Claims and will not be applicable to the Subsequent Claims and the
Additional Claims.
(ii)
The Originator has complied with all the required disclosure requirements provided for
by articles 123 and 116 of the Banking Act, specifying in particular the T.A.E.G. and
its validity period.
(iii)
The T.A.E.G. specified by the Originator has been calculated by the Originator in
compliance with article 122 of the Banking Act.
(iv) The Consumer Loan agreements have been drawn up in compliance with the
provisions of article 117, paragraphs 1 and 3, of the Banking Act.
(v)
The Consumer Loan agreements are in compliance with the provisions of article 124 of
the Banking Act.
(vi)
The Consumer Loans provide for prepayment fees which comply with the applicable
laws and regulations and with the measures adopted by the Italian interministerial
committee for credit and savings (CICR) and are legally binding on the Debtors.
(vii) The Consumer Loan agreements do not contain any unfair terms pursuant to articles
33, paragraphs 1 and 2, and 36, paragraph 2, of the legislative decree 6 September
2005, No. 206 and all the conditions contained therein are enforceable against the
Debtors.
(c)
Disclosure of information
All the information and documents supplied by the Originator to the Arranger, to the Issuer
and/or to their respective affiliates, agents (mandatari con rappresentanza) and advisers, for
the purposes of, or in connection with, the Warranty and Indemnity Agreement, the Master
Transfer Agreement, the Servicing Agreement and/or any transaction contemplated herein or
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therein, or otherwise for the purposes of, or in connection with, the Programme, the
Consumer Loans, the Claims, the insurance policies, the Guarantee, and with respect to the
application of the Criteria, is true, accurate and complete in every material respect and no
material information available to the Originator has been omitted.
(d)
(e)
Securitisation Law and article 58 of the Banking Act
(i)
The Claims are transferred to the Issuer in accordance with the Securitisation Law and
with article 58 of the Banking Act.
(ii)
The Claims have specific objective common elements so as to constitute homogenous
monetary claims identifiable as a pool (crediti pecuniari omogenei individuabili in
blocco) pursuant to the Securitisation Law and to the ministerial decree dated 4 April
2001 and the relevant Criteria are capable of identifying such homogenous monetary
rights also vis-à-vis third-parties.
(iii)
The Originator has selected the Initial Claims on the basis of, and in accordance with,
the Initial Criteria. There are: (i) no loans to which the Originator holds legal title
which meet the Initial Criteria and should, accordingly, have been included in the
Initial Claims listed in schedule 2 to the Master Transfer Agreement and have not been
included therein and (ii) no Consumer Loans listed in schedule 2 to the Master
Transfer Agreement which do not meet the Initial Criteria.
(iv)
The Originator shall select, from time to time, the Subsequent Claims and the
Additional Claims on the basis of, and in accordance with, the Criteria. There will be:
(i) no Consumer Loans to which the Originator holds legal title which meet the Criteria
and should, accordingly, be included in the Subsequent Claims and Additional Claims
listed in schedule 2 to the applicable Offer to Sell and will not be included therein and
(ii) no Consumer Loans listed in schedule 2 to the applicable Offer to Sell which will
not meet the Criteria.
(v)
All the Consumer Loans and the related Initial Claims, Subsequent Claims and
Additional Claims were identified and will be identified on the basis of, and in
complete accordance with, the Criteria.
Other Representations
(i)
The Originator is a joint stock company (società per azioni) duly incorporated and
validly existing under the laws of the Republic of Italy and has full corporate powers
and the authority to enter into and perform the obligations undertaken by it under or
pursuant to the Warranty and Indemnity Agreement, the Master Transfer Agreement
and all the other Transaction Documents to which it is a party. The principal place of
business, as well as the registered office, of the Originator is in Turin, Italy, via Nizza,
262. The shareholding structure of the Originator is accurately described in schedule 3
to the Warranty and Indemnity Agreement. All the Originator’s books, records and
documentation relating to the Claims, the original executed copies of the Consumer
Loan Contracts and the related documents are kept by the Originator at its registered
office, in Turin, at via Nizza, 262, and at the other offices and/or subsidiaries of the
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Originator, at the offices of Comdata Bis, a limited liability consortium company
(società consortile a responsabilità limitata) in Asti at via A. Guerra No. 4 and/or third
parties the addresses of which the Originator shall communicate to the Issuer with the
modalities specified in clause 17 (Notices) of the Warranty and Indemnity Agreement.
The Originator shall communicate to the Issuer, the Rating Agency and the
Representative of the Noteholders any modification to the provisions of this paragraph
(i).
(ii)
The Originator has taken all corporate, shareholder and other actions required, and
obtained and all necessary consents and licences to: (i) authorise the entry into and the
performance of the Warranty and Indemnity Agreement, of the Master Transfer
Agreement and of all the other Transaction Documents to which it is a party, according
to the terms hereof and thereof, including, without limitation, those concerning the
transfer of the Claims; and (ii) ensure that the obligations undertaken by it under the
Warranty and Indemnity Agreement, under the Master Transfer Agreement and under
all the other Transactions Documents to which it is a party are legal, valid and binding
on it.
(iii)
The execution and performance by the Originator of the Warranty and Indemnity
Agreement, of the Master Transfer Agreement and of all the other Transaction
Documents to which it is a party do not entail any claim that might be enforced by any
third parties against or in relation to the Originator’s rights and do not contravene or
constitute a default under: (i) its articles of association and by-laws; (ii) any law, rule
or regulation applicable to it; (iii) any contract, deed, agreement, document or other
instrument binding on it; or (iv) any order, writ, judgment, award, injunction or decree
binding on or affecting the Originator or its assets.
(iv)
The Warranty and Indemnity Agreement, the Master Transfer Agreement and all the
other Transaction Documents to which the Originator is a party constitute legal, valid
and binding obligations of the Originator and are fully and immediately enforceable
against the Originator in accordance with their terms and conditions.
(v)
The monetary obligations of the Originator under the Warranty and Indemnity
Agreement, under the Master Transfer Agreement and under all the other Transaction
Documents to which it is a party constitute claims against it which rank at least pari
passu with the claims of all the other unsecured and unsubordinated creditors under the
laws of the Republic of Italy, save those claims which are preferred solely under any
applicable laws, and only to the extent provided for by such laws.
(vi)
There are no disputes or arbitration or administrative proceedings or complaints
already served or actions in progress, pending or (to the Originator’s knowledge)
threatened against it before any courts or competent authority which may adversely
affect the Originator’s ability to transfer the Claims or the Guarantee absolutely,
irrevocably and without possibility of claw-back or voidance pursuant to the Master
Transfer Agreement or which might affect the Originator’s ability to observe and
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perform its obligations under the Warranty and Indemnity Agreement, under the Master
Transfer Agreement or under the other Transaction Documents.
(vii) The Originator is solvent and there are no facts or circumstances which might render it
insolvent, unable to perform its obligations or subject to any Insolvency Proceedings,
nor has any corporate action been taken for its winding-up or dissolution, nor has any
other action been taken against or in respect of it which might adversely affect its
ability to effect the sale and transfer of the Claims or to perform its obligations under
the Warranty and Indemnity Agreement, nor will it be rendered insolvent as a
consequence of its entering into the Warranty and Indemnity Agreement, into the
Master Transfer Agreement and/or into any other Transaction Document. The
Originator is not in breach of any of its current or past obligations. Within each Offer
Date, the Originator shall deliver to the Issuer a solvency certificate in the form
specified in schedule 4 to the Warranty and Indemnity Agreement, duly signed by a
director of the board of directors, by way of proxy, or by the general manager and, on a
six-month basis, a certificate of existence issued by the competent Court, bearing a
date as near as possible to the relevant Offer Date and specifying that Santander
Consumer Bank S.p.A. is not subject to any bankruptcy, composition with creditors or
extraordinary administration proceeding.
(viii) The certified report of the Originator as at 31 December 2008 is a true and correct
report on the financial condition of the Originator as at that date and on the results of
the activity of the Originator for the corporate year ended on that date, in compliance
with the Italian generally accepted and consistently applied accounting principles. As
from 31 December 2008 no material economic or financial change has occurred that
could adversely affect the capacity of the Originator to fulfil its obligation under the
Warranty and Indemnity Agreement and under the other Transaction Documents to
which it is a party or the transactions contemplated herein or therein.
(ix)
The Originator has not appointed any financial intermediary or similar person in
connection with the subject matter of the Warranty and Indemnity Agreement, of the
Master Transfer Agreement or of the other Transaction Documents to which it is a
party, except pursuant to any such agreement or document.
(x)
In the administration and management of the Claims, of the Judicial Proceedings and
of the Debtor Insolvency Proceedings, the Originator has fully complied and will fully
comply with all the applicable laws and rules on data protection and privacy
protection, including, without limitation, all of the provisions of law No. 196 of 30
June 2003, as subsequently amended and supplemented and all implementing decrees
and regulations related thereto.
Times for the making of the representations and warranties
All the representations and warranties referred to above shall be deemed made or repeated:
(i)
on the Initial Valuation Date;
(ii)
on the Initial Execution Date;
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(iii)
on the First Single Series Issue Date,
in relation to the Initial Claims; and
(iv)
on the applicable Valuation Date;
(v)
on the applicable Offer Date and on the relating Subsequent Transfer Date,
in relation to the Subsequent Claims and Additional Claims which such Valuation Date, Offer Date
and Subsequent Transfer Date refer to, with reference to the then existing facts and circumstances,
as if they had been made on such dates, provided, however, that the representations and warranties
referring to a Transaction Document entered into after the date hereof are deemed made or repeated
on the date of execution of such Transaction Document and on each Single Series Issue Date, in any
case with reference to the then existing facts and circumstances, as if they had been made on such
dates.
Pursuant to the Warranty and Indemnity Agreement, the Originator has agreed to indemnify and
hold harmless the Issuer, its officers, agents or employees or any of its permitted assignees or the
Representative of the Noteholders from and against any and all damages, losses, claims, liabilities,
costs and expenses awarded against or incurred by the Issuer or any of the other foregoing persons
arising from, inter alia, any default by the Originator in the performance of any of its obligations
under the Warranty and Indemnity Agreement or any of the other Transaction Documents or any
representations and/or warranties made by the Originator thereunder or being false, incomplete or
incorrect.
The Originator has also agreed to indemnify and hold harmless the Issuer, its officers, agents or
employees or any of its permitted assignees or the Representative of the Noteholders from and
against any and all damages, losses, claims, liabilities, costs and expenses awarded against or
incurred by it arising out of, inter alia, the application of the Usury Law to any interest accrued on
any Consumer Loans. If the contractual provisions obliging the Debtor to pay interest on any
Consumer Loan at any time become null and void as a result of a breach, of the provisions of the
Usury Law, then the Originator’s obligation to indemnify the Issuer shall also cover the amount of
any interest (including default interest) which would have accrued on such Consumer Loans up to
full repayment of the same.
The Originator will also indemnify the Issuer for any loss deriving from the failure of the terms and
conditions of any Consumer Loan to comply with the provisions of articles 1345 and 1283 or article
1346 of the Italian civil code.
Moreover, the Warranty and Indemnity Agreement provides that, in the event of a misrepresentation
or a breach of any of the representations and warranties made by the Originator under the Warranty
and Indemnity Agreement, which materially and adversely affects the value of one or more Claims
or the interest of the Issuer in such Claims, and such misrepresentation or breach is not cured,
whether by payment of damages or indemnification or otherwise, by the Originator within a period
of 30 days of receipt of a written notice from the Issuer to that effect (the “Cure Period”), the
Issuer has the option, pursuant to article 1331 of the Italian civil code, to assign and transfer to the
Originator all of the Claims affected by any such misrepresentation or breach (the “Affected
Claims”). The Issuer will be entitled to exercise the put option by giving to the Originator, at any
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time during the period commencing on the Business Day immediately following the last day of the
Cure Period and ending on the day which is 120 days after such Business Day, written notice to that
effect (the “Put Option Notice”).
The Originator will be required to pay to the Issuer, within 10 Business Days of the date of receipt
by the Originator of the Put Option Notice, an amount equal to:
(a)
the purchase price of the Affected Claims (as indicated in the Master Transfer Agreement);
less
(b)
the amounts collected or recovered by the Issuer in relation to the Affected Claims; plus
(c)
interest on such amounts calculated at a rate equal to EURIBOR, from the Initial Execution
Date, with reference to the Initial Claims, and from the Subsequent Transfer Date with
reference to the Subsequent Claims and the Additional Claims, to the date on which the
relevant payment is made by the Originator.
The Warranty and Indemnity Agreement provides that, notwithstanding any other provision of such
agreement, the obligations of the Issuer to make any payment thereunder shall be equal to the lesser
of the nominal amount of such payment and the amount which may be applied by the Issuer in
making such payment in accordance with the Priority of Payments. The Originator acknowledges
that the obligations of the Issuer contained in the Warranty and Indemnity Agreement will be
limited to such sums as aforesaid and that it will have no further recourse to the Issuer in respect of
such obligations.
The Warranty and Indemnity Agreement is governed by Italian law.
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THE SINGLE SERIES SWAP AGREEMENTS
The description of the Single Series Swap Agreements set out below is a summary of certain
features that those agreements are expected to contain and is qualified in its entirety by reference to
the detailed provisions of the relevant Single Series Swap Agreement. Prospective Noteholders may
inspect a copy of such Single Series Swap Agreements upon request at the registered office of the
Representative of the Noteholders and at the Specified Office of the Paying Agents.
General
In order to hedge the interest rate exposure of the Issuer in relation to its floating rate obligations
under the Senior Notes of the First Single Series, the Issuer will enter into a swap transaction (the
“First Single Series Swap Transaction”) with Banco Santander, S.A. immediately prior to the
First Single Series Issue Date.
The First Single Series Swap Transaction will be documented as a confirmation under the 1992
ISDA Master Agreement (Multicurrency-Cross Border), the Schedule and the credit support annex
thereto, as published by the International Swaps and Derivatives Association, Inc., each governed
by English law (collectively, the “First Single Series Swap Agreement”).
In order to hedge the interest rate exposure of the Issuer in relation to its floating rate obligations
under the Senior Notes of any Single Series subsequent to the First Single Series, the Issuer will
enter into a Single Series Swap Transaction with the relevant Single Series Swap Counterparty on
or prior to the relevant Single Series Issue Date. It is expected, although no assurance is given by
the Issuer, that the Single Series Swap Transactions and Single Series Swap Agreements relative to
the second and subsequent Single Series will be substantially similar to the First Single Series Swap
Transaction and the First Single Series Swap Agreement described in this section. However,
prospective Noteholders’ attention is drawn to the fact that the Single Series Swap Transactions and
Single Series Swap Agreements relative to the second and subsequent Single Series may differ
substantially from those executed in connection with the First Single Series and described in this
section.
If the Single Series Swap Transactions and Single Series Swap Agreements that the Issuer will
execute in connection with the second or any subsequent Single Series will differ materially from
the First Single Series Swap Transaction and the First Single Series Swap Agreement, the Issuer
will prepare a prospectus supplement as required by article 13 of the Luxembourg Act on or around
the relevant Single Series Issue Date.
No authorisation or consent from the Noteholders will be required to allow the Issuer to enter into a
Single Series Swap Transaction or Single Series Swap Agreement which is materially different from
the First Single Series Swap Transaction or First Single Series Swap Agreement. However, the
execution of such Single Series Swap Transactions and Single Series Swap Agreements will be
subject to the same conditions precedent applicable to the issuance of any Single Series of Notes
under Condition 6(c) (Additional Issues).
The first Single Series Swap Transaction
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Under the terms of the First Single Series Swap Transaction, which will be effective as of the First
Single Series Issue Date:
(a) the Issuer agrees to pay to the relevant Single Series Swap Counterparty on a quarterly basis an
amount equal to the product of (i) the Applicable Floating Rate 1 and (ii) the applicable
notional amount multiplied by (iii) the number of days elapsed in the relevant Interest Period
divided by 360; and
(b) the relevant Single Series Swap Counterparty agrees to pay to the Issuer on a quarterly basis an
amount equal to the product of (i) the Applicable Floating Rate 2 and (ii) the applicable
notional amount multiplied by (iii) the number of days elapsed in the relevant Interest Period
divided by 360.
In respect of each Calculation Period, the applicable notional amount is equal to the Average
Monthly Outstanding Principal of the Performing Claims in respect of the relevant Collection
Period.
Where the net payment is due to be made by the Single Series Swap Counterparty, the Single Series
Swap Counterparty will make the relevant payment to the Issuer on the date that is two Business
Days immediately preceding the relevant Interest Payment Date. Where the net payment is due to
be made by the Issuer, the Issuer will make the relevant payment to the Single Series Swap
Counterparty on the relevant Interest Payment Date in accordance with the applicable Priority of
Payments.
For the purposes of the Swap Transaction:
“Applicable Floating Rate 1” ” means the floating rate per annum calculated on the basis of the
following formula:
(C divided by D) multiplied by 360 divided by E and expressed as a percentage,
where:
“C” means, in respect of each Calculation Period, the aggregate of the Interest Components
received by the Issuer in respect of the Performing Claims in the Portfolio during the relevant
Collection Period;
“D” means, in respect of each Calculation Period, the Average Monthly Outstanding Principal
of the Performing Claims; and
“E” means, in respect of each Calculation Period, the actual number of days comprised in the
relevant Collection Period;
“Applicable Floating Rate 2” means the floating rate per annum, expressed as a percentage,
resulting from the sum of (A) the EURIBOR for the relevant Interest Period, (B) 3.75 per cent. per
annum and (C) the relevant Weighted Average Spread of the Senior Notes of the First Single Series;
“Average Monthly Outstanding Principal of the Performing Claims” means, in respect of each
Calculation Period, an amount resulting by (i) adding the aggregate of the Outstanding Principal of
the Performing Claims as at the first Business Day of each Reference Month ending in the relevant
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Collection Period and (ii) dividing such sum by the number of Reference Months ending in the
relevant Collection Period;
“Performing Claims” means, in respect of each Calculation Period, the aggregate of the Claims
owned by the Issuer that, as at the end of the relevant Collection Period, are not Defaulted Claims;
“Reference Month” means each calendar month, from and including December 2009 up to the
Termination Date. For the avoidance of doubt, the first Reference Months used to calculate the
Party B Floating Rate for the initial Calculation Period will be from December 2009 until March
2010 inclusive; and
“Weighted Average Spread of the Senior Notes of the First Single Series” means the weighted
average spread of the Senior Notes of the First Single Series calculated, in respect of each
Calculation Period, as follows: (A multiplied by X) + (B multiplied by Y) divided by (X + Y) and
expressed as a percentage,
where:
“A” means the Single Series Class A Margin applicable to the First Single Series;
“B” means the Single Series Class B Margin applicable to the First Single Series;
“X” means, in respect of each Calculation Period, the Principal Amount Outstanding of the
Class A Notes of the First Single Series as at the beginning of such Calculation Period (after
deducting any Principal Payment to be made on the Interest Payment Date falling at the
beginning of such Calculation Period, if any); and
“Y” means, in respect of each Calculation Period, the Principal Amount Outstanding of the
Class B Notes of the First Single Series as at the beginning of such Calculation Period (after
deducting any Principal Payment to be made on the Interest Payment Date falling at the
beginning of such Calculation Period, if any).
Rating downgrade provisions
The First Single Series Swap Agreement contains certain limited termination events and events of
default which will entitle either party to terminate the First Single Series Swap Transaction. Some
of these termination events are summarised here.
In particular,
following the occurrence of a First Single Series Rating Event under the First Single Series Swap
Agreement, the relevant Single Series Swap Counterparty, and unless otherwise agreed with the
Rating Agency, shall, within the time period specified in and further subject to other details as set
out in the First Single Series Swap Agreement, either:
(A)
transfer all of its rights and obligations under the First Single Series Swap Agreement to a
suitably rated entity; or
(B)
procure another suitably rated entity to become co-obligor or guarantor in respect of its
obligations under the First Single Series Swap Agreement.
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Pending compliance with the measures above, the relevant Single Series Swap Counterparty shall
transfer collateral in accordance with the credit support annex.
Subject to other details as set out in the First Single Series Swap Agreement, failure by the relevant
Single Series Swap Counterparty to take the applicable course of action following the occurrence of
a First Single Series Rating Event within the relevant time period specified in the First Single Series
Swap Agreement will constitute a termination event or an event of default under the First Single
Series Swap Agreement with the Issuer being entitled to terminate the First Single Series Swap
Transaction if certain additional conditions are met.
Moreover, the relevant Single Series Swap Counterparty will be entitled, under certain
circumstances, to terminate the First Single Series Swap Transaction in the event that (i) it is
obliged to gross up payments following any withholding or deduction for or on account of any taxes
or (ii) it receives a payment in respect of which an amount is required to be deducted or withheld
for or on account of any taxes.
Return of Excess Swap Collateral
If, following the occurrence of a First Single Series Rating Event under the First Single Series Swap
Agreement, the relevant Single Series Swap Counterparty will be required to transfer collateral in
accordance with the credit support annex, the Issuer will open a Collateral Account with an Eligible
Institution.
The Issuer’s obligation to return, from time to time, any Excess Swap Collateral to the relevant
Single Series Swap Counterparty will be met, from time to time, by utilising monies and/or
securities standing to the credit of the relevant Collateral Account. The Issuer will make these
payments and/or will return collateral to the relevant Single Series Swap Counterparty as they fall
due which may include days other than the Interest Payment Dates. These payments and/or return
of collateral will be made directly to the relevant Single Series Swap Counterparty and outside of
the applicable Priority of Payments.
The obligations of the Issuer under the First Single Series Swap Agreement (with the exclusion of
any obligation of reimbursement of any amount held by the Issuer which properly belongs to the
relevant Single Series Swap Counterparty in respect of any amount deposited in the relevant
Collateral Account and payable to the relevant Single Series Swap Counterparty pursuant to the
First Single Series Swap Agreement) shall be limited in recourse to (i) prior to the service of a
Programme Acceleration Notice, the relevant Single Series Interest Available Funds as at the
relevant date; and (ii) following the service of a Programme Acceleration Notice, the PostEnforcement Issuer Available Funds, which may be applied for the relevant purpose in accordance
with the applicable Priority of Payments.
In these section, the following events are deemed to have occurred as set out below:
a “First Single Series Rating Event” will have occurred if the unsecured and unsubordinated debt
obligations of the first Single Series Swap Counterparty (or its guarantors) cease to be rated at least
as high as:
(i)
“A-1” by S&P (in respect of short-term debt), or
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(ii) “A+” (in respect of long-term debt) by S&P if S&P has not assigned a rating in respect of such
Single Series Swap Counterparty’s (or its guarantor’s) short-term rating.
Banco Santander, S.A. will be the first Single Series Swap Counterparty and may act as Single
Series Swap Counterparty in respect of one or more subsequent Single Series. For further
information on Banco Santander, S.A., please see section headed “Banco Santander, S.A.” above.
Santander Consumer Bank S.p.A. will be the first Calculation Agent under the First Single Series
Swap Agreement to the extent it will act as Servicer and for so long as Banco Santander, S.A. will
be the Single Series Swap Counterparty.
The applicable Final Terms will include the corporate information of the relevant Single Series
Swap Counterparty.
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THE TRANSACTION DOCUMENTS
The description of the Transaction Documents set out below is a summary of certain features of
such Transaction Documents (or, in relation to the Subordinated Loan Agreements, a summary of
certain features that those agreements are expected to contain) and is qualified in its entirety by
reference to the detailed provisions of such Transaction Documents. Prospective Noteholders may
inspect a copy of such Transaction Documents upon request at the registered office of the
Representative of the Noteholders and at the Specified Office of the Paying Agents.
The Corporate Services Agreement
Under an agreement dated the Signing Date (the “Corporate Services Agreement”) between the
Issuer, Bourlot Gilardi Romagnoli e Associati as corporate services provider and the Representative
of the Noteholders, Bourlot Gilardi Romagnoli e Associati has agreed to provide certain corporate
administration and secretarial services to the Issuer. The services will include the safe-keeping of
the documents pertaining to the meetings of the Issuer’s quotaholders, directors and auditors and of
the Noteholders, maintaining the quotaholders’ register, preparing tax and accounting records,
preparing the Issuer’s annual financial statements and liaising with the Representative of the
Noteholders.
Under the Corporate Services Agreement, the Corporate Services Provider may delegate its duties
and obligations as Corporate Services Provider to a third party.
In the context of the Previous Programmes, the Issuer had already appointed Bourlot Gilardi
Romagnoli e Associati, as corporate services provider to provide, inter alia, certain corporate
administration and secretarial services to the Issuer.
The Corporate Services Agreement is governed by Italian law.
The Stichtingen Corporate Services Agreement
Pursuant to a Stichtingen corporate services agreement dated the Signing Date between the Issuer,
Wilmington Trust SP Services (London) Limited, the Representative of the Noteholders, Stichting
Turin and Stichting Po River (the “Stichtingen Corporate Services Agreement”), the Stichtingen
Corporate Services Provider has agreed to provide certain management, administrative and
secretarial services to Stichting Turin and Stichting Po River. These services will include the safekeeping of the documentation pertaining to the meetings of the Stichtingen’s directors, maintaining
the necessary registrations, preparing tax and accounting records, and preparing the Stichtingen’s
annual financial statements. The Stichtingen Corporate Services Provider may be replaced by the
Stichtingen subject to certain conditions and to the prior written consent of the Representative of the
Noteholders.
In the context of the Previous Programmes, the Issuer had already appointed Wilmington Trust SP
Services (London) Limited, as Stichtingen corporate services provider to provide, inter alia, certain
management, administrative and secretarial services to Stichting Turin and Stichting Po River.
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The Stichtingen Corporate Services Agreement is governed by Italian law.
The English Deed of Charge and Assignment
Pursuant to an English law deed of charge and assignment (the “English Deed of Charge and
Assignment”) executed on or around the First Single Series Issue Date, the Issuer will grant in
favour of the Representative of the Noteholders for itself and as security trustee for the Noteholders
and the other Issuer Secured Creditors, inter alia, an English law charge over (i) (a) the Accounts,
all its present and future right, title and interest in or to the Accounts and all amounts (including
interest) now or in the future standing to the credit of, or accrued or accruing on the Accounts and
(b) all its present (if any) and future right, title and interest in or to the cash, the units of money
markets funds, the debt securities or other debt instruments from time to time purchased by or on
behalf of the Issuer pursuant to the Issuer Account Bank Agreement and the Agency and Accounts
Agreement or to any moneys deriving therefrom standing to the credit of any of the Accounts; (ii)
an English law assignment by way of security of all the Issuer’s rights, title, interest and benefit
present and future in to and under the Single Series Swap Agreement executed on or about the
Signing Date and the Issuer Account Bank Agreement and all other present and future contracts,
agreements, deeds and documents governed by English law to which the Issuer is or may become a
party in relation to the Notes, the Claims and the Portfolio including for the avoidance of doubt all
its rights, title, interest and benefit present and future in, to and under any Single Series Swap
Agreement (but excluding the collateral (either cash or securities) from time to time provided by
any Single Series Swap Counterparty to the Issuer under the relevant Single Series Swap
Agreement) that the Issuer may enter into in the future in connection with any Additional Issue; and
(iii) a floating charge over all of the Issuer’s assets which are subject to the charge and assignments
described under (i) and (ii) above and not effectively assigned or charged by way of first fixed
charge or assignment thereunder. To the extent that any Eligible Investments from time to time
purchased by or on behalf of the Issuer pursuant to the Issuer Account Bank Agreement and the
Agency and Accounts Agreement are held for the account of the Issuer with a third party, the
English law security created by the English Deed of Charge and Assignment will not confer a
proprietary interest in such Eligible Investments so held.
The Intercreditor Agreement
Pursuant to an agreement dated the Signing Date between the Issuer, the Arranger, the
Representative of the Noteholders on its own behalf and on behalf of the Noteholders, the Paying
Agents, the Agent Bank, the Computation Agent, the Account Bank, the Programme Administrator,
the first Single Series Swap Counterparty, Santander (in any capacity), the Corporate Services
Provider, the Stichtingen Corporate Services Provider and the Servicer (as from time to time
amended and/or supplemented in connection with each Additional Issue, the “Intercreditor
Agreement”), provision has been made as to the application of the proceeds of collections in
respect of the Claims and as to the circumstances in which the Representative of the Noteholders
will be entitled to exercise certain rights in relation to the Claims. The Intercreditor Agreement also
sets out the order of priority for payments to be made by the Issuer in connection with the
securitisation transaction contemplated in this Prospectus.
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Pursuant to the Intercreditor Agreement, following the service of a Programme Acceleration Notice,
the Representative of the Noteholders will be entitled (as an agent of the Issuer and to the extent
permitted by applicable laws), until the Notes have been repaid in full or cancelled in accordance
with the Conditions, to take possession of all Collections and of the Claims and to sell or otherwise
dispose of the Claims or any of them in such manner and upon such terms and at such price and
such time or times as the Representative of the Noteholders shall, in its absolute discretion, deem
appropriate and to apply the proceeds in accordance with the Post-Enforcement Priority of
Payments.
Under the Intercreditor Agreement, the relevant parties have acknowledged and agreed that further
agreements and deeds may be entered into by the Issuer in relation to the Programme and have
accepted that other parties may automatically become party to the Intercreditor Agreement from
time to time by signing an accession letter substantially in the form attached to the Intercreditor
Agreement.
In connection with each Additional Issue, any entity appointed by the Issuer (for instance a Single
Series Swap Counterparty, a Dealer or a Subordinated Loan Provider) will be requested to accede to
the Intercreditor Agreement and be bound by it as if it were a party to it from the Signing Date, even if
such entity is already a party to the Intercreditor Agreement in any other capacity.
Under the Intercreditor Agreement, the relevant parties have acknowledged and agreed that, for so
long as the Issuer does not engage in any Additional Issue under the Programme and unless the
definition of Target Cash Reserve Amount (or any other definition referred to therein) is amended,
the maximum credit enhancement provided to the Notes of the First Single Series may not exceed
€20,000,000.
If the Issuer engages in any Additional Issue, the definition of Target Cash Reserve Amount (or any
other definition referred to therein) may be amended pursuant to Condition 14(a). Moreover, the
size of the Junior Notes of the relevant Single Series may be substantially different if compared to
the size of the Junior Notes of the First Single Series. As a result, upon completion of the Additional
Issue, the maximum credit enhancement on an aggregate basis in respect of the Notes of all Single
Series may be different from the one referred to above.
In addition to the above, the Issuer has covenanted and agreed with the Originator that it will not
engage in an Additional Issue if, considering the size of the Junior Notes to be issued in connection
with such Additional Issue as well as any proposed amendment to the definition of Target Cash
Reserve Amount (or any other definition referred to therein) the maximum credit enhancement
provided to the Notes of all Single Series (consisting of the higher Target Cash Reserve Amount
permitted under the Programme and the nominal amount of the Junior Notes of all Single Series
that would be outstanding on the expected Single Series Issue Date relative to such Additional
Issue) would be higher than 6% of the Initial Portfolio Outstanding Amount in respect of the Initial
Claims and all the Additional Claims (including the Additional Claims relative to such Additional
Issue).
The Originator may, unilaterally and without any consent being required from the Issuer, the
Representative of the Noteholders, the Noteholders or any other Issuer Secured Creditors, waive (in
part or in whole) the Issuer’s covenants set out above and therefore consent to an Additional Issue
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that would have not been permitted above provided that the Originator notifies the Bank of Italy
thereof and confirms to the Issuer that it has consulted with the Bank of Italy on the impact that this
waiver may have on its solvency ratios (coefficienti patrimoniali).
The Intercreditor Agreement is governed by Italian law.
The Italian Deed of Pledge
Pursuant to an Italian law deed of pledge (the “Italian Deed of Pledge”) executed on or around the
Signing Date and to be confirmed and novated on each Single Series Issue Date, between the Issuer
and the Representative of the Noteholders (acting on its own behalf and on behalf of the other
Issuer Secured Creditors), the Issuer will grant, concurrently with the issue of the First Single
Series, in favour of the Representative of the Noteholders for itself and on behalf of the Noteholders
and the other Issuer Secured Creditors, an Italian law pledge, to be confirmed and novated on or
around any Single Series Issue Date, over all monetary claims and rights and all the amounts
(including payment for claims, indemnities, damages, penalties, credits and guarantees) to which
the Issuer is entitled from time to time pursuant to the Italian Law Transaction Documents (other
than the Mandate Agreement, the Conditions of the Notes of each Single Series and the Italian Deed
of Pledge).
The Issuer Secured Creditors have appointed the Representative of the Noteholders as their agent
with respect to the rights and obligations arising from the Italian Deed of Pledge.
The Italian Deed of Pledge is governed by Italian law.
The Mandate Agreement
Pursuant to the terms of a mandate agreement dated the Signing Date (the “Mandate Agreement”),
the Representative of the Noteholders is empowered to take such action in the name of the Issuer,
following the delivery of a Programme Acceleration Notice, as the Representative of the
Noteholders may deem necessary to protect the interests of the Noteholders and the Other Issuer
Creditors.
The Mandate Agreement is governed by Italian law.
The Programme Shareholders’ Agreement
Pursuant to a shareholders’ agreement dated the Signing Date between Santander, the Stichtingen
and the Representative of the Noteholders (the “Programme Shareholders’ Agreement”), the
quotaholders of the Issuer have agreed certain obligations concerning the appointment of directors
and, inter alia, any disposal of the equity capital of the Issuer.
The Programme Shareholders’ Agreement, inter alia, also contains provisions in relation to the
management of the Issuer.
The Programme Shareholders’ Agreement provides that no quotaholder of the Issuer will approve
the payment of any dividends, or any repayment or return of capital by the Issuer, prior to the date
on which all amounts of principal and interest on the Notes have been paid in full.
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In the context of the Previous Programme 2004, pursuant to an agreement between the Issuer,
Santander, the Stichtingen and the Representative of the Noteholders (the “Previous Shareholders’
Agreement”), the quotaholders of the Issuer have agreed certain obligations concerning the
management of the Issuer. Pursuant to the Previous Shareholders’ Agreement, the parties agreed to
grant to Santander an option to purchase 30% of the equity capital of the Issuer, subject to certain
conditions. In accordance with the Programme Shareholders’ Agreement, the exercise by Santander
of the above-mentioned option is subject to additional conditions.
The Programme Shareholders’ Agreement is governed by Italian law.
The Programme Letter of Undertaking
Pursuant to a letter of undertaking (the “Programme Letter of Undertaking”) executed by the
Issuer, the Originator and the Representative of the Noteholders on the Signing Date, Santander has
undertaken to provide the Issuer with all necessary monies (in any form of financing agreed
between the Issuer and Santander, for example, by way of a limited recourse loan, the repayment of
which is effected in compliance with item (xvii)(B) of the Pre-Enforcement Priority of Payments for
Single Series Interest Available Funds or, as the case may be, item (xi)(B) of the Post-Enforcement
Priority of Payments), in order for the Issuer to pay any losses, costs, expenses or liabilities in
respect of:
(a)
any tax expenses or tax liability which the Issuer is at any time obliged to pay other than: (i)
any withholding tax at any time applicable in respect of either the Notes of any Single Series
or the Previous Programme Notes; (ii) any withholding tax applicable in respect of the
Accounts (other than by reason of a change in law or the interpretation or administration
thereof since the First Single Series Issue Date and provided that it cannot be avoided by the
Issuer), any other bank account opened in the context of the Previous Programmes, the
Eligible Investments (other than by reason of a change in law or the interpretation or
administration thereof since the First Single Series Issue Date and provided that it cannot be
avoided by the Issuer) and the financial instruments which meet the definition of “Eligible
Investments” in the context of the Previous Programmes and the Programme; (iii) any VAT
due in respect of the Transaction Documents (other than by reason of a change in law or the
interpretation or administration thereof since the First Single Series Issue Date) and the
Previous Transactions Documents or the purchase of services or goods by the Issuer; (iv) any
tax applicable in respect of the Transaction Documents and the Previous Transactions
Documents; and (v) any court tax applicable to the Issuer, other than those provided for by
the Servicing Agreement;
(b)
any other costs, charges or liabilities arising in connection with regulatory or supervisory
requirements (including as a result of any change of law or regulation or interpretation or
administration thereof since the First Single Series Issue Date) but excluding any amounts
payable by the Issuer under the Transaction Documents and the Previous Transactions
Documents (including, for the avoidance of doubt, any amount due and payable under the
Notes of any Single Series or the Previous Programme Notes); and
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(c)
any other costs, charges or liabilities which may affect the Issuer (other than losses, costs,
expenses or liabilities in respect of the normal day-to-day operating costs of the Issuer) and
which are not directly related to the securitisation of the Claims or the claims purchased by
the Issuer in the context of the Previous Programmes,
but, in each case, with the exception of any losses, costs, expenses or liabilities borne by the Issuer
as a consequence of events or situations caused by the fraudulent or negligent conduct of the Issuer
or of any other third party (other than Santander in its capacities in the context of the Programme
and the Previous Programmes) which provides any services in relation to any of the Transaction
Documents or any of the Previous Transactions Documents.
In addition, Santander has undertaken to ensure that the Issuer is not wound up by reason of the
Issuer’s equity capital falling below the minimum equity capital required from time to time by
Italian law, as a result of any losses, costs, expenses or liabilities arising in respect of paragraph (a),
(b) or (c) above in respect of which Santander is obliged to provide the Issuer with a financing as
indicated above.
Prospective Noteholders’ attention is drawn to the fact that the Programme Letter of Undertaking
does not and will not constitute a guarantee by Santander or any of the quotaholders of the Issuer of
any obligation of a Borrower or the Issuer.
The Programme Letter of Undertaking is governed by Italian law.
Subordinated Loan Agreements
In the context of the Programme, on or around each Single Series Issue Date, the Issuer will enter
into a Subordinated Loan Agreement substantially in the form of the Subordinated Loan Agreement
executed on the Signing Date, pursuant to clause 3.2.6 of the Intercreditor Agreement, with the
Subordinated Loan Provider specified in the applicable Final Terms.
All obligations of the Issuer to each Subordinated Loan Provider are limited recourse obligations of
the Issuer, limited to: (i) prior to the service of a Programme Acceleration Notice and of a Purchase
Termination Event Notice, the aggregate of all Single Series Interest Available Funds and of all
Single Series Principal Available Funds as at the relevant date; (ii) prior to the service of a
Programme Acceleration Notice and following the service of a Purchase Termination Event Notice,
the Programme Principal Available Funds and the aggregate of all Single Series Interest Available
Funds as at the relevant date; and (iii) following the service of a Programme Acceleration Notice,
the Post-Enforcement Issuer Available Funds, which may be applied for the relevant purpose in
accordance with the applicable Priority of Payments.
Each Subordinated Loan will be drawn down by the Issuer on the relevant Single Series Issue Date
and immediately credited to the Cash Reserve Account.
Santander is the First Subordinated Loan Provider under the terms of the First Subordinated Loan
Agreement dated on or about the Signing Date. The First Subordinated Loan Provider has agreed to
grant to the Issuer a Subordinated Loan in an amount equal to €20,000,000. The first Subordinated
Loan will be drawn down by the Issuer on the First Single Series Issue Date and immediately
credited to the Cash Reserve Account.
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Each Subordinated Loan Provider, other than Santander Consumer Bank S.p.A. as first
Subordinated Loan Provider which is an original signatory of the Intercreditor Agreement, will be
obliged to accede to the Intercreditor Agreement.
Each Subordinated Loan Agreement will be governed by Italian law.
Santander Consumer Bank S.p.A. may act as Subordinated Loan Provider also in respect of any
Single Series subsequent to the First Single Series. For further information on Santander Consumer
Bank S.p.A., please see section headed “The Originator and Servicer” above.
Each Subordinated Loan will accrue interest at a rate equal to EURIBOR plus a margin. Interest
accrued on each Subordinated Loan will be payable quarterly, in arrear and in accordance with the
applicable Priority of Payments.
If the Subordinated Loan Agreements that the Issuer will execute in connection with the second or
any subsequent Single Series will differ materially from the form of the Subordinated Loan
Agreement executed on the Signing Date and briefly described in this section, the Issuer will
prepare a prospectus supplement as required by article 13 of the Luxembourg Act on or around the
relevant Single Series Issue Date.
The applicable Final Terms will include the corporate information of the relevant Subordinated
Loan Provider.
The other Transaction Documents
For a description of the Master Transfer Agreement, see “The Master Transfer Agreement”, above.
For a description of the Servicing Agreement, see “The Servicing Agreement”, above. For a
description of the Warranty and Indemnity Agreement, see “The Warranty and Indemnity
Agreement”, above. For a description of the Agency and Accounts Agreement, see “The Agency and
Accounts Agreement”, above. For a description of the Single Series Swap Agreements, see “The
Single Series Swap Agreements” above.
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TAXATION
The statements herein regarding taxation are based on the laws in force in Italy as of the date of this
Prospectus and are subject to any changes in law occurring after such date, which changes could
be made on a retroactive basis. The following summary does not purport to be a comprehensive
description of all the tax considerations which may be relevant to a decision to subscribe for,
purchase, own or dispose of the Senior Notes and does not purport to deal with the tax
consequences applicable to all categories of investors, some of which (such as dealers in securities
or commodities) may be subject to special rules. This summary will not be updated by the Issuer
after the Issue Date to reflect changes in laws after the Issue Date and, if such a change occurs, the
information in this summary could become invalid.
Italy
Prospective purchasers of the Senior Notes are advised to consult their own tax advisers concerning
the overall tax consequences of their ownership of the Senior Notes.
Tax treatment of the Senior Notes
Italian legislative decree No. 239 of 1 April 1996, as subsequently amended (“Decree 239”),
provides for the applicable regime with respect to the tax treatment of interest, premium and other
income (including the difference between the redemption amount and the issue price) from notes
falling within the category of bonds (obbligazioni) or debentures similar to bonds (titoli similari
alle obbligazioni) issued, inter alia, by Italian companies incorporated pursuant to law No. 130 of
30 April 1999, provided that the notes are issued for an original maturity of not less than 18 months.
Italian resident Senior Noteholders
Where an Italian resident Senior Noteholder is (i) an individual (unless he has opted for the
application of the risparmio gestito regime – see under paragraph “Capital gains tax” below –
where applicable); (ii) partnerships (other than società in nome collettivo, società in accomandita
semplice or similar partnerships), de facto partnerships not carrying out commercial activities and
professional associations; (iii) public and private entities (other than companies) and trusts not
carrying out commercial activities (iv) investors exempt from Italian corporate income taxation,
interest (including the difference between the redemption amount and the issue price), premium and
other income relating to the Senior Notes, accrued during the relevant holding period, are subject to
an imposta sostitutiva, levied at the rate of 12.5per cent If the Senior Noteholders described under
(i) or (iii) above are engaged in an entrepreneurial activity to which the Senior Notes are connected,
the imposta sostitutiva applies as a provisional tax and may be deducted from the income tax due.
Where an Italian resident Senior Noteholder is a company or similar commercial entity or a
permanent establishment in Italy, to which the Senior Notes are effectively connected, of a nonItalian resident entity and the Senior Notes are deposited with an authorised intermediary, interest
(including the difference between the redemption amount and the issue price), premium and other
income from the Senior Notes will not be subject to imposta sostitutiva, but must be included in the
relevant Senior Noteholder’s income tax return and are therefore subject to ordinary Italian
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corporate taxation (and, in certain circumstances, depending on the “status” of the Senior
Noteholder, also to IRAP – the regional tax on productive activities).
Where the Senior Noteholder is an Italian S.I.I.Q. (società di investimento immobiliare quotata) the
ordinary tax regime of Italian companies will apply to any interest (including the difference
between the redemption amount and the issue price), premium or other income from the Senior
Notes, thus if the Senior Notes are deposited with an authorised Italian intermediary interest
(including the difference between the redemption amount and the issue price), premium and other
income from the Senior Notes will not be subject to imposta sostitutiva and will be included in the
taxable income of the Senior Noteholder subject to ordinary Italian corporate taxation.
Payments of interests, premiums or other proceeds in respect of the Notes, deposited with an
authorised intermediary, made to Italian resident real estate investment funds established pursuant
to article 37 of legislative decree No. 58 of 24 February 1998 or pursuant to article 14-bis of law
No. 86 of 25 January 1994 set up starting from 26 September 2001, as well as real estate funds
incorporated before 26 September 2001, the managing company of which has so requested by 25
November 2001, are subject neither to substitute tax nor to any other income tax in the hands of the
real estate investment fund. Certain Italian resident real estate investment funds may be subject to a
1per cent net wealth tax, which is calculated on the net asset value of the fund.
Where an Italian resident Senior Noteholder is an open-ended or a closed-ended investment fund
(“Fund”) or a SICAV and the Senior Notes are deposited with an authorised intermediary, interest,
premium and other income relating to the Senior Notes and accrued during the holding period will
not be subject to imposta sostitutiva, but to 12.5per cent annual substitute tax (each the “Collective
Investment Fund Tax”) which is calculated on the net result of the relevant portfolio accrued at the
end of each tax period (and which includes interest accrued on the Senior Notes).
Where an Italian resident Senior Noteholder is a pension fund (subject to the regime provided for
by article 17 of Italian legislative decree No. 252 of 5 December 2005, as subsequently amended)
and the Senior Notes are deposited with an authorised intermediary, interest, premium and other
income relating to the Senior Notes and accrued during the holding period will not be subject to
imposta sostitutiva, but must be included in the result of the portfolio accrued at the end of the tax
period, to be subject to an 11per cent substitute tax.
Pursuant to Decree 239, imposta sostitutiva is applied by banks, società di intermediazione
mobiliare (“SIMs”), fiduciary companies, società di gestione del risparmio (“SGRs”), stockbrokers
and other entities identified by a decree of the Ministry of Economy and Finance (each an
“Intermediary”).
An Intermediary must (i) be resident in Italy or be a permanent establishment in Italy of a nonItalian resident financial intermediary; and (ii) intervene, in any way, in the collection of interest or
in the transfer of the Senior Notes. For the purpose of the application of the imposta sostitutiva, a
transfer of Senior Notes includes any assignment or other act, either with or without consideration,
which results in a change in the ownership of the relevant Senior Notes or in a change of the
Intermediary with which the Senior Notes are deposited.
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Where the Senior Notes are not deposited with an Intermediary, the imposta sostitutiva is applied
and withheld by the intermediary paying interest to a Senior Noteholder (or by the Issuer should the
interest be paid directly by this latter).
Non-Italian resident Senior Noteholders
Where the Senior Noteholder is a non-Italian resident without a permanent establishment in Italy to
which the Senior Notes are effectively connected, an exemption from the imposta sostitutiva applies
provided that the non-Italian resident beneficial owner is either (i) resident, for tax purposes, in a
country which allows for a satisfactory exchange of information with Italy (the “White List
States”); or (ii) an international body or entity set up in accordance with international agreements
which have entered into force in Italy; or (iii) a Central Bank or an entity which manages, inter alia,
the official reserves of a foreign State; or (iv) an institutional investor which is incorporated in a
country which allows for a satisfactory exchange of information with Italy, even if it is not subject
to income tax therein.
White List States are currently identified by Ministerial Decree of 4 September 1996. However,
once the provisions introduced by Law 24 December 2007 No. 244 affecting the regime described
above will become effective, non-Italian resident beneficial owners of the Senior Notes, without a
permanent establishment in Italy to which the Senior Notes are effectively connected, will not be
subject to the 12.5 per cent substitute tax on interest, premium and other income, provided that the
non-Italian beneficial owners are resident in countries included in the forthcoming Ministerial
Decree (the “Decree”) that allow an adequate exchange of information with the Italian Tax
Authorities. The list of countries included in the above mentioned Decree to be issued will become
effective as from the tax period following the one in which the Decree will be enacted. For the 5
years starting on the date of publication of the Decree in the Official Gazette, States and territories
that are not included in the current black-lists set forth by Ministerial Decrees of 4 May 1999, 21
November 2001 and 23 January 2002 nor in the current white list set forth by Ministerial Decree of
4 September 1996 are deemed to be included in the new white-list.
In order to ensure gross payment, non-Italian resident Senior Noteholders must be the beneficial
owners of the payments of interest, premium or other income and (i) deposit, directly or indirectly,
the Senior Notes with a resident bank or SIM or a permanent establishment in Italy of a non-Italian
resident bank or SIM or with a non-Italian resident entity or company participating in a centralised
securities management system which is in contact, via computer, with the Ministry of Economy and
Finance; and (ii) file with the relevant depository, prior to or concurrently with the deposit of the
Senior Notes, a statement of the relevant Senior Noteholder, which remains valid until withdrawn or
revoked and in which the Senior Noteholder declares itself to be eligible to benefit from the
applicable exemption from imposta sostitutiva. Such statement, which is requested neither for the
international bodies or entities set up in accordance with international agreements which have
entered into force in Italy, nor in the case of foreign Central Banks or entities which manage, inter
alia, the official reserves of a foreign State, must comply with the requirements set forth by
ministerial decree dated 12 December 2001. In case of institutional investors which do not possess
the status of taxpayers in their own country, the institutional investor is considered the beneficial
owner and the statement under (ii) above shall be issued by the relevant management body.
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The imposta sostitutiva will be applicable at the rate of 12.5per cent (or at the reduced rate provided
for by the applicable double tax treaty, if any) to interest, premium and other income paid to Senior
Noteholders which are resident, for tax purposes, in countries which do not allow for a satisfactory
exchange of information with Italy or for which the above mentioned provisions are not met.
Early redemption
Without prejudice to the above provisions, in the event that the Notes of any Single Series are
redeemed in whole or in part prior to 18 months from the relevant Single Series Issue Date, the
Issuer will be required to pay a tax equal to 20per cent in respect of the interest and other amounts
accrued from the date of the issue up to the time of the early redemption. Such payment will be
made by the Issuer. In accordance with one interpretation of Italian tax law, also in the event of
purchase of Notes by the Issuer with subsequent cancellation thereof prior to eighteen months from
the Issue Date, the Issuer may be required to pay the above 20 per cent additional amount.
Capital gains tax
Any gain obtained from the sale or redemption of the Senior Notes would be treated as part of the
taxable income (and, in certain circumstances, depending on the “status” of the Senior Noteholder,
also as part of the net value of production for IRAP purposes) if realised by (a) Italian resident
companies; (b) Italian resident commercial partnerships; (c) permanent establishments in Italy of
foreign corporations to which the Notes are effectively connected; or (d) Italian resident individuals
carrying out a commercial activity, as to any capital gains realised within the scope of the
commercial activity carried out.
Any capital gain realized by an Italian S.I.I.Q. is taxable pursuant to the ordinary regime of Italian
resident companies and thus will be treated as part of the taxable income of the Senior Noteholder
to be subject to Italian corporate taxation.
Where an Italian resident Senior Noteholder is an individual holding the Senior Notes not in
connection with an entrepreneurial activity and certain other persons, any capital gain realised by
such Senior Noteholder from the sale or redemption of the Senior Notes would be subject to an
imposta sostitutiva, levied at the current rate of 12.5per cent pursuant to Legislative Decree number
461 of 21 November 1997 (“Decree 461”). Senior Noteholders may set off losses with gains.
In respect of the application of the imposta sostitutiva, taxpayers may opt for one of the three
regimes described below.
Under the tax declaration regime (regime della dichiarazione), which is the standard regime for
Italian resident individuals not engaged in entrepreneurial activity to which the Senior Notes are
connected, the imposta sostitutiva on capital gains will be chargeable, on a cumulative basis, on all
capital gains, net of any incurred capital loss, realised by the Italian resident individual Senior
Noteholder holding Senior Notes not in connection with an entrepreneurial activity pursuant to all
sales or redemptions of the Senior Notes carried out during any given tax year. Italian resident
individuals holding Senior Notes not in connection with an entrepreneurial activity must indicate
the overall capital gains realised in any tax year, net of any relevant incurred capital loss, in the
annual tax return and pay imposta sostitutiva on such gains together with any balance of income tax
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due for such year. Capital losses in excess of capital gains may be carried forward against capital
gains realised in any of the four succeeding tax years.
As an alternative to the tax declaration regime, Italian resident individual Senior Noteholders
holding the Senior Notes not in connection with an entrepreneurial activity may elect to pay the
imposta sostitutiva separately on capital gains realised on each sale or redemption of the Senior
Notes (the risparmio amministrato regime). Such separate taxation of capital gains is allowed
subject to (i) the Senior Notes being deposited with Italian banks, SIMs or certain authorised
financial intermediaries; and (ii) an express election for the risparmio amministrato regime being
made punctually in writing by the relevant Senior Noteholder. The depository is responsible for
accounting for imposta sostitutiva in respect of capital gains realised on each sale or redemption of
the Senior Notes, net of any incurred capital loss, and is required to pay the relevant amount to the
Italian tax authorities on behalf of the taxpayer, deducting a corresponding amount from the
proceeds to be credited to the Senior Noteholder or using funds provided by the Senior Noteholder
for this purpose. Under the risparmio amministrato regime, where a sale or redemption of the
Senior Notes results in a capital loss, such loss may be deducted from capital gains subsequently
realised, within the same securities management, in the same tax year or in the following tax years
up to the fourth. Under the risparmio amministrato regime, the Senior Noteholder is not required to
declare the capital gains in its annual tax return.
Any capital gains realised by Italian resident individuals holding the Senior Notes not in connection
with an entrepreneurial activity who have entrusted the management of their financial assets,
including the Senior Notes, to an authorised intermediary and have opted for the so-called
“risparmio gestito” regime will be included in the computation of the annual increase in value of
the managed assets accrued, even if not realised, at year end, subject to a 12.5per cent substitute tax,
to be paid by the managing authorised intermediary. Under the risparmio gestito regime, any
depreciation of the managed assets accrued at year end may be carried forward against increase in
value of the managed assets accrued in any of the four succeeding tax years. Under the risparmio
gestito regime, the Senior Noteholder is not required to declare the capital gains realised in its
annual tax return.
Any capital gains realised by a Senior Noteholder which is an Italian resident real estate investment
fund concurs to the year-end appreciation of the managed assets, which is exempt from any income
tax according to the real estate investment fund tax treatment described above. Certain Italian
resident real estate investment funds may be subject to a 1per cent net wealth tax, which is
calculated on the net asset value of the fund.
Any capital gains realised by a Senior Noteholder which is an Italian open-ended or a closed-ended
investment fund or a SICAV will be included in the result of the portfolio accrued at the end of the
tax period, to be subject to Collective Investment Fund Tax.
Any capital gains realised by a Senior Noteholder which is an Italian pension fund (subject to the
regime provided for by article 17 of Italian legislative decree No. 252 of 5 December 2005, as
subsequently amended) will be included in the result of the portfolio accrued at the end of the tax
period, to be subject to the 11per cent substitute tax.
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The 12.5 per cent. final imposta sostitutiva on capital gains may be payable on capital gains realised
upon sale for consideration or redemption of the Senior Notes by non-Italian resident individuals or
entities without a permanent establishment in Italy to which the Notes are effectively connected, if
the Notes are held in Italy.
However, any capital gains realised by non-Italian residents without a permanent establishment in
Italy to which the Senior Notes are effectively connected through the sale for consideration or
redemption of the Senior Notes are exempt from taxation in Italy if the Senior Notes are listed on a
regulated market in Italy or abroad and in certain cases subject to timely filing of required
documentation (in particular, a self-declaration not to be resident in Italy for tax purposes), even if
the Senior Notes are held in Italy and regardless of the provisions set forth by any applicable double
tax treaty.
In case the Senior Notes are not listed on a regulated market in Italy or abroad, pursuant to the
provisions of article 5 of Decree 461, non-Italian resident beneficial owners of the Senior Notes
with no permanent establishment in Italy to which the Senior Notes are effectively connected are
exempt from imposta sostitutiva in Italy on any capital gains realised, upon sale for consideration or
redemption of the Senior Notes, if they are resident, for tax purposes, in a White List States as
defined above.
In such case, if non-Italian residents without a permanent establishment in Italy to which the Senior
Notes are effectively connected hold the Senior Notes with an Italian authorised financial
intermediary, in order to benefit from exemption from Italian taxation on capital gains such nonItalian residents may be required to timely file with the authorised financial intermediary an
appropriate self-declaration stating they are resident for tax purposes in a country which allows an
adequate exchange of information with Italy.
Exemption from Italian imposta sostitutiva on capital gains realised upon disposal of Senior Notes
not listed on a regulated market also applies to non-Italian residents who are (a) international bodies
and organizations established in accordance with international agreements ratified in Italy; (b)
certain foreign institutional investors established in countries which allow an adequate exchange of
information with Italy, even if not subject to income tax therein, and (c) Central Banks or other
entities, managing also official State reserves;
In any event, non-Italian resident individuals or entities without a permanent establishment in Italy
to which the Senior Notes are effectively connected that may benefit from a double taxation treaty
with Italy, providing that capital gains realised upon sale or redemption of Senior Notes are to be
taxed only in the country of tax residence of the recipient, will not be subject to imposta sostitutiva
in Italy on any capital gains realised upon sale for consideration or redemption of Senior Notes.
In such case, if non-Italian residents without a permanent establishment in Italy to which the Senior
Notes are effectively connected hold the Senior Notes with an Italian authorised financial
intermediary, in order to benefit from exemption from Italian taxation on capital gains such nonItalian residents may be required to timely file with the authorised financial intermediary
appropriate documents which include inter alia a certificate of residence issued by the competent
tax authorities of the country of residence of the non-Italian residents.
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The Risparmio Amministrato regime is the ordinary regime automatically applicable to non resident
persons and entities in relation to Notes deposited for safekeeping or administration at Italian banks,
SIMs and other eligible entities, but non-resident note-holders retain the right to waive this regime.
Such waiver may also be exercised by non-resident intermediaries in respect of safekeeping,
administration and deposit accounts held in their names in which third parties' financial assets are
held.
Italian inheritance and gift tax
Under Law Decree No. 262 of 3 October 2006 (converted with amendments into Law No. 286 of 24
November 2006), as subsequently amended transfers of the Senior Notes by reason of death or gift
or gratuities to (i) spouses, ascendants or descendants will be subject to inheritance and gift tax at
the rate of 4per cent on the value of the inheritance or gift exceeding €1,000,000 per beneficiary, (ii)
relatives within the fourth degree, ascendants or descendants relatives in law or other relatives in
law within the third degree will be subject to inheritance and gift tax at the rate of 6per cent (the
inheritance and gift tax will apply only on the value of the inheritance or gift exceeding €100,000
per beneficiary if the donee is a brother or sister of the donor), (iii) persons other than the ones
mentioned in (i) and (ii) above will be subject to inheritance and gift tax at the rate of 8per cent
If the transfer is made in favour of persons with severe disabilities, the tax applies on the value
exceeding €1,500,000.
Moreover, an anti-avoidance rule is provided for in case of gift of assets, such as the Senior Notes,
whose sale for consideration would give rise to capital gains to be subject to the imposta sostitutiva
provided for by legislative decree No. 461 of 21 November 1997, as subsequently amended. In
particular, if the donee sells the Notes for consideration within 5 years from their receipt as a gift,
the donee is required to pay the relevant imposta sostitutiva as if the gift had never taken place.
Transfer tax
Transfer tax has been repealed by Law Decree No. 248 of 31 December 2007, converted in law by
Law No. 31 of 28 February 2008. The transfer deed may be subject to registration tax at a fix
amount of Euro 168,00.
Luxembourg
The comments below are intended as a basic summary of certain tax consequences in relation to the
purchase, ownership and disposition of the Notes under Luxembourg law. Persons who are in any
doubt as to their tax position should consult a professional tax adviser.
Withholding tax on payments to an individual resident in another Member State or in certain
European Union dependent or associated territories
Under the Luxembourg laws dated 21 June 2005 implementing the European Council Directive
2003/48/EC on the taxation of savings income (the ‘‘Savings Directive’’) and several agreements
concluded between Luxembourg and certain dependent or associated territories of the European
Union (‘‘EU”), a Luxembourg based paying agent (within the meaning of the Savings Directive) is
required since 1 July 2005 to withhold tax on interest and other similar income paid by it to (or
under certain circumstances, to the benefit of) an individual resident in another Member State or in
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certain EU dependent or associated territories, unless the beneficiary of the interest payments elects
for an exchange of information procedure or for the tax certificate procedure. The same treatment
will apply to payments of interest and other similar income made to certain ‘‘residual entities’’
within the meaning of article 4.2 of the Savings Directive established in a Member State or in
certain EU dependent or associated territories (i.e., entities which are not legal persons (the Finnish
and Swedish companies listed in article 4.5 of the Savings Directive are not considered as legal
persons for this purpose), whose profits are not taxed under the general arrangements for the
business taxation, that are not, or have not opted to be considered as, a UCITS recognised in
accordance with the Council Directive 85/611/EEC or similar collective investment funds located in
Jersey, Guernsey, the Isle of Man, the Turks and Caicos Islands, the Cayman Islands, Montserrat or
the British Virgin Islands and have not opted to be treated as UCITS recognised in accordance with
the Council Directive 85/611/EEC).
The withholding tax rate is 20% increasing to 35% as from 1 July 2011. The withholding tax system
will only apply during a transitional period, the ending of which depends on the conclusion of
certain agreements relating to information exchange with certain third countries.
Withholding tax on payments to Luxembourg resident individuals
Under the Luxembourg law dated 23 December 2005, as of January 1, 2006, interest payments
made by Luxembourg paying agents (defined in the same way as in the Savings Directive) to
Luxembourg individual residents or to certain residual entities that secure interest payments on
behalf of such individuals (unless such entities have opted either to be treated as UCITS recognised
in accordance with the Council Directive 85/611/EEC or for the exchange of information regime)
are subject to a 10% withholding tax (“10% Luxembourg Witholding Tax”).
Pursuant to the Luxembourg law of 23 December 2005 as amended by the law of 17 July 2008,
Luxembourg resident individuals, acting in the course of their private wealth, can opt to self-declare
and pay a 10% tax (“10% Tax”) on interest payments made after 31 December 2007 by paying
agents (defined in the same way as in the Savings Directive) located in an EU Member State other
than Luxembourg, a Member State of the European Economic Area other than an EU Member State
or in a State or territory which has concluded an international agreement directly related to the
Savings Directive.
The 10% Luxembourg Withholding Tax or the 10% Tax represents the final tax liability on interest
received for the Luxembourg resident individuals receiving the interest payment in the course of
their private wealth. Individual Luxembourg resident Noteholders receiving the interest as business
income must include this interest in their taxable basis. If applicable, the 10% Luxembourg
Withholding Tax levied will be credited against their final income tax liability.
EU Savings Directive
Legislative decree No. 84 of 18 April 2005 implemented in Italy, as of 1 July 2005, the European
Council Directive No. 2003/48/EC on the taxation of savings income. Under the Directive Member
States, if a number of important conditions are met, are required to provide to the tax authorities of
another Member State details of payments of interest (or similar income) paid by a person within
their jurisdiction to an individual resident in that other Member State. However, for a transitional
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period, Belgium, Luxembourg and Austria will instead be required (unless during that period they
elect otherwise) to operate a withholding system in relation to such payments. As far as
Luxembourg and Austria are concerned, the ending of such transitional period dependents upon the
conclusion of certain other agreements relating to information exchange with certain other
countries. In Belgium, the transitional period will end on 1 January 2010. Same details of payments
of interest (or similar income) shall be provided to the tax authorities of a number of non-EU
countries and territories, which have agreed to adopt similar measures with effect from the same
date.
Italy has implemented the EU Savings Directive through Legislative Decree No. 84 of 18 April
2005 (the ‘‘Decree No. 84’’). Under Decree 84, subject to a number of important conditions being
met, in the case of interest paid to individuals which qualify as beneficial owners of the interest
payment and are resident for tax purposes in another Member State, Italian qualified paying agents
shall report to the Italian Tax Authorities details of the relevant payments and personal information
on the individual beneficial owner. Such information is transmitted by the Italian Tax Authorities to
the competent foreign tax authorities of the State of residence of the beneficial owner.
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SUBSCRIPTION AND SALE
Pursuant to the Programme Agreement the Initial Dealer has agreed with the Issuer a basis upon
which it, and any other Dealer, may from time to time agree to purchase Senior Notes. Any such
agreement will extend to those matters stated under “Terms and Conditions of the Notes”. In the
Programme Agreement, the Issuer has agreed to reimburse the Dealers for certain of their expenses
in connection with the establishment and any future update of the Programme and the issue of
Notes under the Programme and to indemnify the Dealers against certain liabilities incurred by
them in connection therewith.
United States of America
The Notes have not been and will not be registered under the Securities Act, and may not be offered
or sold within the United States or to, or for the account or benefit of, a U.S. person, except in
certain transactions exempt from the registration requirements of the Securities Act. Terms used in
this paragraph have the meaning given to them by Regulation S under the Securities Act
(“Regulation S”).
The Notes are subject to U.S. tax law requirements and may not be offered, sold or delivered within
the United States or its possessions or to a United States person, except in certain transactions
permitted by U.S. tax regulations. Terms used in this paragraph have the meanings given to them by
the U.S. Internal Revenue Code of 1986, as amended, and regulations thereunder.
Each of the Initial Dealer and the Single Series Junior Notes Underwriter of the First Single Series
has represented and agreed pursuant to, respectively, the Programme Agreement and the Single
Series Junior Notes Subscription Agreement executed on the Signing Date, and each further Dealer
appointed under the Programme and each further Single Series Junior Notes Underwriter will be
required to represent and agree pursuant to, respectively, the Programme Agreement and the Single
Series Junior Notes Subscription Agreement to which each of them will be a party, that it will not
offer, sell or deliver any Notes, (i) as part of their distribution at any time or (ii) otherwise until the
expiration of 40 days after the completion of the distribution, as determined and certified by the
relevant Dealer or the relevant Single Series Junior Notes Underwriter or, in the case of an issue of
Notes on a syndicated basis, the relevant lead manager, of all the Notes of the Single Series of
which such Notes are a part, within the United States or to, or for the account or benefit of, U.S.
persons, and it will send to each Dealer or each Single Series Junior Notes Underwriter to which it
sells Notes during the distribution compliance period a confirmation or other notice setting out the
restrictions on offers and sales of the Notes within the United States or to, or for the account or
benefit of, U.S. persons. Terms used in the preceding sentence have the meanings given to them by
Regulation S.
The Notes are being offered and sold outside the United States to non-U.S. persons in reliance on
Regulation S.
In addition, until the expiration of 40 days after the commencement of the offering of any
identifiable tranche of Notes, an offer or sale of Senior Notes within the United States by any dealer
313
(whether or not participating in the offering of such Senior Notes) may violate the requirements of
the Securities Act if such offer or sale is not made in accordance with an available exemption from
registration under the Securities Act.
European Economic Area
In relation to each Member State of the European Economic Area which has implemented the
Prospectus Directive (each, a “Relevant Member State”), each of the Initial Dealer and the Single
Series Junior Notes Underwriter of the First Single Series has represented and agreed pursuant to,
respectively, the Programme Agreement and the Single Series Junior Notes Subscription Agreement
executed on the Signing Date, and each further Dealer appointed under the Programme and each
further Single Series Junior Notes Underwriter will be required to represent and agree pursuant to,
respectively, the Programme Agreement and the Single Series Junior Notes Subscription Agreement
to which each of them will be a party, that with effect from and including the date on which the
Prospectus Directive is implemented in that Relevant Member State (the “Relevant
Implementation Date”) it has not made and will not make an offer of Notes which are the subject
of the offering contemplated by this Prospectus as completed by the final terms in relation thereto,
to the public in that Relevant Member State other than:
(a)
at any time to legal entities which are authorised or regulated to operate in the financial
markets or, if not so authorised or regulated, whose corporate purpose is solely to invest in
securities;
(b)
at any time to any legal entity which has two or more of (1) an average of at least 250
employees during the last financial year; (2) a total balance sheet of more than €43,000,000;
and (3) an annual net turnover of more than €50,000,000, as shown in its last annual or
consolidated accounts;
(c)
to fewer than 100 natural or legal persons (other than qualified investors as defined in the
Prospectus Directive); or
(d)
at any time in any other circumstances falling within article 3(2) of the Prospectus Directive,
provided that no such offer of Notes shall require the Issuer or any Dealer or any Single Series
Junior Notes Underwriter to publish a prospectus pursuant to article 3 of the Prospectus Directive or
supplement a prospectus pursuant to article 16 of the Prospectus Directive.
For the purposes of this provision, the expression an “offer of Senior Notes to the public” in relation
to any Notes in any Relevant Member State means the communication in any form and by any
means of sufficient information on the terms of the offer and the Notes to be offered so as to enable
an investor to decide to purchase or subscribe the Notes, as the same may be varied in that Member
State by any measure implementing the “Prospectus Directive” in that Member State and the
expression Prospectus Directive means Directive 2003/71/EC and includes any relevant
implementing measure in each Relevant Member State.
Republic of Italy
314
The offering of the Notes has not been registered with CONSOB pursuant to Italian securities
legislation and, accordingly, each of the Initial Dealer and the Single Series Junior Notes
Underwriter of the First Single Series has represented and agreed pursuant to, respectively, the
Programme Agreement and the Single Series Junior Notes Subscription Agreement executed on the
Signing Date, and each further Dealer appointed under the Programme and each further Single
Series Junior Notes Underwriter will be required to represent and agree that no Notes may be
offered, sold or delivered, nor may copies of this Prospectus or any other offering material relating
to the Notes be distributed in the Republic of Italy except:
(a) to “qualified investors” (investitori qualificati) pursuant to article 100 of Legislative Decree
No. 58 of 24 February 1998, as amended (the “Financial Services Act”) and Article 34-ter,
first paragraph, letter b) of CONSOB Regulation No. 11971 of 14 May 1999, as amended from
time to time (“Regulation No. 11971”); or
(b) in any other circumstances where an express exemption from compliance with the restrictions
to the offerings to the public applies, as provided under the Financial Services Act and
Regulation No. 11971.
Moreover, and subject to the foregoing, any offer, sale or distribution of the Notes or distribution of
copies of this Prospectus (as supplemented from time to time, as the case may be), any Final Terms
or any other document relating to the Notes in the Republic of Italy under (a) and (b) must be:
(i)
made by an investment firm, bank or financial intermediary permitted to conduct such
activities in the Republic of Italy in accordance with the Financial Services Act, the Banking
Act and CONSOB Regulation No. 16190 of 29 October 2007, all as amended from time to
time;
(ii)
in compliance with article 129 of the Banking Act and the implementing instructions of Bank
of Italy, as amended from time to time, pursuant to which the Bank of Italy may request
information on the issue or the offer of securities in Italy; and
(iii)
in compliance with any other applicable laws and regulations, including any all relevant
Italian securities, tax and exchange controls laws and regulations and any limitation or
requirements which may be imposed from time to time by, inter alia, CONSOB or the Bank
of Italy.
In no event may the Junior Notes of any Single Series be sold or offered for sale (on the relevant
Single Series Issue Date or at any time thereafter) to individuals (persone fisiche) residing in the
Republic of Italy, regardless their qualification as qualified investors (investitori qualificati)
pursuant to article 100 of the Financial Services Act and article 34-ter, paragraph 1, letter (b), of
CONSOB Regulation No. 11971 of 14 May 1999, all as amended and integrated from time to time,
or any other exemption from compliance with the restrictions to the offerings to the public applies.
Any investor purchasing the Notes is solely responsible for ensuring that any offer or resale of the
Notes it purchased occurs in compliance with applicable laws and regulations.
United Kingdom
315
The Initial Dealer and the Single Series Junior Notes Underwriter of the First Single Series has
represented and agreed pursuant to, respectively, the Programme Agreement and the Single Series
Junior Notes Subscription Agreement executed on the Signing Date, and each further Dealer
appointed under the Programme and each further Single Series Junior Notes Underwriter will be
required to represent and agree pursuant to, respectively, the Programme Agreement and the Single
Series Junior Notes Subscription Agreement to which each of them will be a party, that:
(a)
it has only communicated or caused to be communicated and will only communicate or cause
to be communicated an invitation or inducement to engage in investment activity (within the
meaning of Section 21 of the Financial Services and Markets Act 2000 (the “FSMA”))
received by it in connection with the issue or sale of any Notes in circumstances in which
Section 21(1) of the FSMA does not apply to the Issuer; and
(b)
it has complied and will comply with all applicable provisions of the FSMA with respect to
anything done by it in relation to any Notes in, from or otherwise involving the United
Kingdom.
General
The Initial Dealer and the Single Series Junior Notes Underwriter of the First Single Series has
represented and agreed pursuant to, respectively, the Programme Agreement and the Single Series
Junior Notes Subscription Agreement executed on the Signing Date, and each further Dealer
appointed under the Programme and each further Single Series Junior Notes Underwriter will be
required to represent and agree pursuant to, respectively, the Programme Agreement and the Single
Series Junior Notes Subscription Agreement to which each of them will be a party, that, it will (to
the best of its knowledge and belief) comply with all applicable securities laws and regulations in
force in any jurisdiction in which it purchases, offers, sells or delivers Notes or possesses or
distributes this Prospectus and will obtain any consent, approval or permission required by it for the
purchase, offer, sale or delivery by it of Notes under the laws and regulations in force in any
jurisdiction to which it is subject or in which it makes such purchases, offers, sales or deliveries and
neither the Issuer nor any of the other Dealers nor any of the other Single Series Junior Notes
Underwriter shall have any responsibility therefor.
None of the Issuer, the Dealer(s) and the Single Series Junior Notes Underwriter(s) represent(s) that
Notes may at any time lawfully be sold in compliance with any applicable registration or other
requirements in any jurisdiction, or pursuant to any exemption available thereunder, or assume(s)
any responsibility for facilitating such sale.
With regard to each Single Series, the relevant Dealer(s) and the relevant Single Series Junior Notes
Underwriter will be required to comply with such other restrictions as the Issuer, the relevant
Dealer(s) and the relevant Single Series Junior Notes Underwriter shall agree and as shall be set out
in the applicable Final Terms.
316
INDEX OF DEFINED TERMS
(1)
€ ................................................................ v, 140
Arrear Claim ................................................. 135
10% Luxembourg Witholding Tax ................ 311
Arrear Ratio ............................................ 26, 135
10% Tax ........................................................ 311
Arrear Ratio Rolling Average ................. 26, 136
24 Hours........................................................ 205
Article 65 ........................................................ 93
48 Hours........................................................ 205
Average Montly Outstanding Principal of the
Performing Claims ....................................... 293
Acceptance Date ................................... 135, 265
Bank ............................................................. 251
Account ......................................................... 135
Banking Act ............................ 1, 2, 89, 136, 237
Account Bank ................................... 6, 133, 135
Bankruptcy Law ............................................. 93
Accounts ......................................... 30, 129, 135
Basic Terms Modification .................... 136, 205
Accumulation Date ....................................... 135
Block Voting Instructions ............................. 205
Additional Amount ....................................... 286
Blocked Notes .............................................. 205
Additional Claims ................. 1, 21, 98, 132, 264
Borrower................................................. 27, 136
Additional Consumer Loans Purchase Price. 267
BP ................................................................. 125
Additional Eligible Investments Securities
Account ........................................... 30, 129, 135
Business Day .......................................... 15, 136
Additional Issue .......................... 1, 21, 132, 264
Calculation Date ..................................... 34, 136
Additional Issue Period............................. 8, 135
Cancellation Date ......................................... 136
Additional Portfolio ...................... 1, 21, 99, 132
Cash Accounts ................................ 30, 129, 136
Additional Portfolio Purchase Price.............. 135
Cash Reserve .......................................... 64, 136
Affected Claims ............................................ 290
Cash Reserve Account .................... 30, 129, 136
Agency and Accounts Agreement ............. 5, 133
CC-Holding .................................................. 104
Agent Bank ............................................... 7, 133
Chairman ...................................................... 206
Agents ........................................................... 135
CICR ............................................................... 90
applicable Final Terms .................................. 132
Claims........................................... 1, 21, 99, 132
Applicable Floating Rate 1 ........................... 293
Class ............................................................. 131
Applicable Floating Rate 2 ........................... 293
Class A Noteholders ............................... 17, 133
Applicable Ratio ..................................... 39, 135
Class A Notes........................................ 1, 8, 131
Arranger ........................................................ 277
317
Class A Notes Principal Deficiency Ledger ... 43,
136
Criteria ...................................................... 22, 99
CSSF........................................................... 1, 20
Class A Rating......................................... 10, 136
CTC .............................................................. 119
Class B Noteholders................................ 17, 133
Cure Period ................................................... 290
Class B Notes ........................................ 1, 8, 131
DB Parties..................................................... 248
Class B Notes Principal Deficiency Ledger... 43,
136
DB Party ....................................................... 248
Dealer ............................................................... 1
Class B Rating ........................................ 10, 137
Dealers ...................................................... 1, 138
Clearstream, Luxembourg......................... 1, 137
Debtor ........................................................... 138
Collateral....................................................... 137
Debtor Insolvency Proceedings .................... 272
Collateral Account ........................................ 137
Decree........................................................... 306
Collateral Ratio ....................................... 26, 137
Decree 239.............................................. 96, 304
Collection Account ............................... 129, 137
Decree 239 Withholding ......................... 17, 138
Collection Date ....................................... 28, 137
Decree 461.................................................... 307
Collection Period .................................... 28, 137
Decree No. 84 ............................................... 312
Collection Policy........................................... 272
Default Ratio .......................................... 26, 138
Collections ...................................................... 27
Default Ratio Rolling Average ............... 26, 138
Collections .................................................... 137
Defaulted Claim ..................................... 29, 138
Collective Investment Fund Tax ................... 305
Deutsche Bank.............................................. 251
Common Criteria .............................. 22, 99, 137
Deutsche Bank Group .................................. 251
Computation Agent ................................... 5, 133
Directive 2008/48/EC ..................................... 89
Condition .................................................. 9, 131
Directive 87/102/EEC .................................... 89
Conditions ............................................. 1, 9, 131
Eligible Institution .......................... 34, 138, 262
CONSOB .................................................. 1, 137
Eligible Investments ....................... 67, 138, 260
Consumer Code............................................... 90
Eligible Investments Securities Account 30, 129,
139
Consumer Loan ....................................... 27, 137
Consumer Loan Agreement .......................... 137
Eligible Repo Counterparty .................... 68, 139
Consumer Loans ............................... 27, 99, 137
EMU ............................................................... 94
Corporate Services Agreement ......... 4, 137, 297
Corporate Services Provider ..................... 4, 137
English Deed of Charge and Assignment .... 139,
298
Crediti in Sofferenza ..................................... 138
English Law Transaction Documents ........... 139
318
Equity Capital Account ................... 30, 129, 139
Guarantee...................................................... 141
EU ................................................................. 310
holders .......................................................... 131
EURIBOR ..................................................... 139
Initial Claims .................................. 1, 3, 98, 132
euro ........................................................... v, 140
Initial Consumer Loans .................................. 98
Euro........................................................... v, 140
Initial Dealer ................................................. 141
Euroclear ................................................... 1, 140
Initial Execution Copy.................................. 264
euro-zone ...................................................... 140
Initial Execution Date ............................... 3, 141
Event of Default .................................... 140, 194
Initial Individual Purchase Price .................. 277
Excess Swap Collateral ................................. 140
Initial Portfolio ............................... 1, 3, 98, 132
Expenses Account ........................... 30, 129, 141
Initial Portfolio Outstanding Amount ..... 61, 141
Extraordinary Resolution ...................... 141, 206
Initial Portfolio Purchase Price ..................... 141
Final Redemption Date ................................. 141
Initial Valuation Date ............................ 141, 264
Final Terms ............................................... 1, 131
Insolvency Event .......................................... 159
Financial Services Act .................................. 315
Insolvency Proceedings ................................ 277
First Interest Payment Date........................... 141
Insolvent ....................................................... 141
First Single Series ..................................... 1, 141
Instalment ............................................... 46, 142
First Single Series Issue Date ....................... 141
Intercreditor Agreement.................. 19, 142, 298
First Single Series Junior Notes Underwriter 141
Interest Component ................................ 46, 142
First Single Series Rating Event ................... 296
Interest Determination Date ......................... 142
First Single Series Swap Agreement ............. 292
Interest Payment Date .................................. 142
First Single Series Swap Transaction............ 292
Interest Period....................................... 142, 181
First Subordinated Loan.................................... 4
Intermediary ................................................. 305
First Subordinated Loan Agreement ................. 4
Internal Rate of Return ......................... 102, 142
First Subordinated Loan Provider ............. 4, 141
Intesa ............................................................ 104
FSMA ........................................................... 316
Investment Date ...................................... 67, 261
Fund .............................................................. 305
Investments Securities Accounts .... 30, 129, 143
Further Notes ................................................ 179
Investor Report ....................................... 35, 256
Further Portfolios .......................................... 178
Issuer ............................................ 1, 2, 131, 237
Further Securitisation.............................. 76, 179
Issuer Account Bank Agreement .................. 143
Further Security ............................................ 179
Issuer Creditors....................................... 17, 143
319
Issuer Secured Creditors ............................... 143
Offer Dates ................................................... 145
Issuer’s Rights............................................... 143
Offer to Sell .......................................... 145, 264
Italian Deed of Pledge........................... 143, 300
Official List ................................................ 1, 20
Italian Law Transaction Documents ............. 143
Oldest Single Series................................ 42, 145
Italian Paying Agent.................................. 6, 133
Organisation of Noteholders ......................... 145
Judicial Proceedings ..................................... 272
Originator ..................................... 1, 3, 104, 145
Junior Noteholders .................................. 17, 133
Originator's Claims ....................................... 145
Junior Notes .......................................... 1, 8, 131
Other Issuer Creditors ............................ 19, 145
Junior Notes Additional Remuneration......... 143
Other Purpose Loans .............................. 23, 100
Junior Notes Principal Deficiency Ledger ..... 43,
144
Outstanding Principal ............................. 45, 145
Paying Agents ........................................... 6, 133
Law No. 342 ................................................... 92
Payments Report............................. 34, 145, 256
Limited Recourse Loan................................. 144
Performing Claims ....................................... 294
Liquidation Date ................................... 144, 261
Personal Loans ....................................... 22, 100
Listing and Luxembourg Paying Agent .... 6, 133
Portfolio ........................................ 1, 21, 99, 132
Mandate Agreement ........................ 20, 144, 300
Portfolio Outstanding Amount ............... 61, 146
Master Transfer Agreement ... 1, 3, 98, 132, 144,
264
Post-Enforcement Final Redemption Date ... 146
Meeting ................................................. 144, 206
Post-Enforcement Priority of Payments 54, 146,
170
Monte Titoli .............................................. 1, 144
Pre-Enforcement Priority of Payments .. 52, 146,
169
Monte Titoli Account Holder ........................ 144
Monte Titoli Account Holders .......................... 1
Pre-Enforcement Priority of Payments for
Programme Principal Available Funds .. 52, 146,
169
Moody's......................................................... 144
Most Senior Class ......................................... 144
Pre-Enforcement Priority of Payments for
Single Series Interest Available Funds .. 46, 146,
164
New Car Loans ....................................... 22, 100
Newest Single Series .............................. 42, 144
Noteholder .................................................... 133
Pre-Enforcement Priority of Payments for
Single Series Principal Available Funds 50, 146,
167
Noteholders ..................................... 17, 131, 133
Prepayment Fees..................................... 46, 146
Notes ..................................................... 1, 8, 131
Previous Programme 2004 ................... 146, 237
Offer Date ............................................. 144, 265
Previous Programme 2004 Notes ................. 146
Note Security ........................................ 144, 175
320
Previous Programme December 2008 .. 147, 239
Proxy ............................................................ 206
Previous Programme December 2008 Notes 147
Purchase Termination Event ................... 23, 150
Previous Programme March 2008 ........ 147, 239
Purchase Termination Event Notice ....... 27, 151
Previous Programme March 2008 Notes ...... 147
Put Option Notice ......................................... 291
Previous Programme Notes .......................... 147
Quarterly Reporting Date ....................... 28, 151
Previous Programmes ..................................... 76
Quarterly Servicer Report............................... 28
Previous Shareholders’ Agreement ............... 301
Quotaholders ................................................ 239
Previous Transactions Documents ................ 147
Rateo Amounts ..................................... 151, 266
Principal Amount Outstanding................ 16, 147
Rating ............................................................. 10
Principal Component .............................. 45, 148
Rating Agency .................................... 1, 10, 152
Principal Deficiency Ledgers.................. 43, 148
Rating Event ................................................. 160
Principal Paying Agent ............................. 6, 133
Realised Loss .......................................... 45, 152
Principal Payment ................................. 148, 185
Reference Banks ........................................... 152
Priority of Payments ..................................... 148
Reference Month .......................................... 294
Proceedings ........................................... 204, 272
Regulation No. 11971 ................................... 315
Programme ................................................ 1, 131
Regulation S ................................................. 313
Programme Acceleration Notice ........... 148, 195
Relevant Class of Notes................................ 206
Programme Administrator......................... 7, 133
Relevant Date ............................................... 152
Programme Agreement ................................. 148
relevant Dealer ................................................. 1
Programme Available Funds ........................... 38
Relevant Fraction ......................................... 206
Programme Interest Available Funds ...... 36, 148
Relevant Implementation Date ..................... 314
Programme Interest Excess ............. 40, 149, 191
Relevant Member State ................................ 314
Programme Interest Shortfall .................. 40, 149
Relevant Provisions ...................................... 214
Programme Letter of Undertaking .. 69, 149, 301
Representative of the Noteholders............ 4, 133
Programme Principal Available Funds ... 37, 149
Retail Distributors ........................................ 265
Programme Principal Deficiency Ledger
Amount ................................................... 66, 150
Retention Amount................................. 129, 152
Revenue Eligible Investments Amount 152, 261
Programme Shareholders' Agreement ........... 300
RID ............................................................... 125
Prospectus ................................................. 1, 150
Rules of the Organisation of Noteholders .... 134
Prospectus Directive ..................................... 1, ii
S&P .................................................... 1, 10, 152
321
Santander ...................................... 1, 3, 132, 152
Single Series Class A Rate of Interest .. 153, 181
Santander Banking Group ................................. 3
Single Series Class B Margin ....................... 153
Savings Directive .......................................... 310
Single Series Class B Notes Interest Amount
...................................................................... 182
SCH............................................................... 104
Single Series Class B Notes Interest Amount153
SCH Group ................................................... 104
Single Series Class B Notes Interest Amount
Arrears .......................................................... 153
SCH Parties ................................................... 248
SCH Party ..................................................... 248
Single Series Class B Notes Principal
Deficiency Ledger .................................. 43, 153
Screen Rate ................................................... 140
Secured Amounts .......................................... 152
Single Series Class B Notes Principal
Deficiency Ledgers................................. 43, 153
Securities Act ................................................... iv
Single Series Class B Rate of Interest .. 153, 181
Securitisation Law ................................ 1, 2, 134
Single Series Decree 239 Interest Payment Date
...................................................................... 153
Security Interest ............................................ 152
Senior Noteholders ................................. 17, 133
Single Series First Interest Payment Date ...... 15
Senior Notes.......................................... 1, 8, 131
Single Series Interest Amount .............. 154, 182
Servicer ............................................. 5, 152, 272
Single Series Interest Amount Arrears ......... 154
Servicer’s Advance ....................................... 152
Single Series Interest Available Funds ... 38, 154
Servicing Agreement......................... 5, 153, 272
Single Series Interest Excess .......... 40, 154, 191
SGRs ............................................................. 305
Single Series Interest Shortfall ............... 40, 154
Signing Date ............................................. 4, 133
Single Series Issue Date ............................... 154
SIMs .............................................................. 305
Single Series ............................................. 1, 131
Single Series Junior Notes Additional
Remuneration ............................................... 154
Single Series Amortising Period ............. 23, 153
Single Series Junior Notes Available Funds . 155
Single Series Class A Margin........................ 153
Single Series Junior Notes Interest Amount . 155
Single Series Class A Notes Interest Amount
.............................................................. 153, 182
Single Series Junior Notes Interest Amount
Arrears .......................................................... 155
Single Series Class A Notes Interest Amount
Arrears .......................................................... 153
Single Series Junior Notes Principal Deficiency
Ledger..................................................... 43, 155
Single Series Class A Notes Principal
Deficiency Ledger................................... 43, 153
Single Series Junior Notes Principal Deficiency
Ledgers ................................................... 43, 155
Single Series Class A Notes Principal
Deficiency Ledgers ................................. 43, 153
Single Series Junior Notes Subscription
Agreement .................................................... 155
322
Single Series Junior Notes Subscription
Agreements ................................................... 156
Standard European Consumer Credit
Information ..................................................... 89
Single Series Junior Notes Underwriters ...... 156
Statement of Accounts .................................... 33
Single Series Maturity Date ................ 1, 16, 156
Statement of the Cash Accounts ..................... 31
Single Series Noteholders ..................... 156, 161
Statement of the Investments Securities
Accounts ......................................................... 33
Single Series Outstanding PDL Amount . 42, 156
Stichting Po River............................................. 3
Single Series Principal Available Funds ....... 156
Stichting Turin .................................................. 3
Single Series Principal Deficiency Ledger
Amount ................................................... 66, 156
Stichtingen ........................................................ 3
Single Series Principal Deficiency Ledgers .. 156
Stichtingen Corporate Services Agreement ..... 4,
157, 297
Single Series Rate of Interest ................ 156, 181
Stichtingen Corporate Services Provider .. 4, 158
Single Series Ratio .................................. 39, 156
Sub-Custodian .............................................. 261
Single Series Revolving Period ...... 23, 157, 265
Subordinated Loan ................................... 4, 158
Single Series Revolving Period Termination
Date ................................................. 23, 157, 265
Subordinated Loan Agreement ..................... 158
Single Series Senior Interest Payments... 39, 157
Subordinated Loan Agreements ................... 158
Single Series Senior Notes Subscription
Agreement ..................................................... 157
Subordinated Loan Providers ................... 5, 158
Subordinated Loans ...................................... 158
Single Series Senior Notes Subscription
Agreements ................................................... 157
Subsequent Claims ....................... 1, 21, 98, 132
Subsequent Consumer Loans ......................... 98
Single Series Swap Agreement ..................... 157
Subsequent Individual Purchase Price.......... 277
Single Series Swap Agreements ................... 157
Subsequent Portfolio .................... 1, 21, 98, 132
Single Series Swap Counterparties ........... 7, 157
Subsequent Portfolio Purchase Price ............ 158
Single Series Swap Counterparty ............. 7, 157
Subsequent Single Series........................ 42, 158
Single Series Swap Transaction .................... 157
Subsequent Transfer Date ............................. 265
Single Series Target Outstanding Amount ..... 42,
157
Subsequent Transfer Date ............................. 158
Southern Italy................................................ 102
T.A.N. ................................................... 102, 158
Specific Criteria ................................ 22, 99, 271
Target Cash Reserve Amount ................. 65, 158
Specified Office ............................................ 157
TARGET Settlement Day ............................. 159
Specified Offices........................................... 203
Terms and Conditions ................................... 131
Stabilising Manager(s) ...................................... v
Transaction Document .................................. 159
323
Transaction Documents ................................ 159
Valuation Date ........................................ 98, 159
Unpaid Instalment ................................... 29, 159
Voter ............................................................. 206
Used Car Loans....................................... 23, 100
Voting Certificate.......................................... 207
Usury Law ...................................................... 91
Warranty and Indemnity Agreement27, 159, 277
Usury Law Decree .......................................... 91
Weighted Average Spread of the Senior Notes
of the First Single Series............................... 294
Usury Rates ..................................................... 91
White List States........................................... 306
Usury Regulations........................................... 91
Written Resolution........................................ 207
324
GENERAL INFORMATION
Authorisations
The Issuer has obtained all necessary consents, approvals and authorisations in the Republic of Italy
in connection with the establishment of the Programme. The establishment of the Programme was
authorised by the resolution of the shareholders’ meeting of the Issuer passed on 20 November
2009.
Listing of Notes
Application has been made to the Luxembourg Stock Exchange for Notes issued under the
Programme to be admitted the Official List and to be admitted to trading on the Luxembourg Stock
Exchange’s regulated market.
However, Senior Notes may be issued under the Programme which will not be listed on the
Luxembourg Stock Exchange or any other stock exchange or which will be listed on such stock
exchange as the Issuer and the relevant Dealer(s) may agree, as specified in the applicable Final
Terms. No application has been made to list the Junior Notes of any Single Series to be issued from
time to time under the Programme.
No significant change and no material adverse change
There has been no significant change in the financial or trading position of the Issuer since 31
December 2008 and no material adverse change in the prospects of the Issuer since 31 December
2008.
Legal and arbitration proceedings
The Issuer is not nor has been involved in any governmental, legal or arbitration proceedings
(including any such proceedings which are pending or threatened of which the Issuer is aware)
during the 12 months preceding the date of this Prospectus which may have or has had in the recent
past significant effects on the financial position or profitability of the Issuer.
Clearing systems
The Notes have been accepted for clearance through Monte Titoli by Euroclear and Clearstream,
Luxembourg. Monte Titoli will act as depository for Euroclear and Clearstream, Luxembourg. The
Common Codes, the International Securities Identification Numbers (ISINs) and (where applicable)
the identification number for any other relevant clearing system for each Class of Notes of each
Single Series will be set out in the relevant Final Terms.
The address of Monte Titoli is via Mantegna, 6, 20154 Milan, Italy, the address of Euroclear is 1
Boulevard du Roi Albert II, B-1210 Brussels, Belgium and the address of Clearstream, Luxembourg
is 42 Avenue JF Kennedy, L-1855 Luxembourg. The address of any alternative clearing system will
be specified in the applicable Final Terms.
325
Borrowings
Save as disclosed in this Prospectus, as at the date of this Prospectus, the Issuer has no outstanding
loan capital, borrowings, indebtedness or contingent liabilities, nor has the Issuer created any
mortgages or charges or given any guarantees.
Information sourced from third parties
Where information in this Prospectus has been sourced from third parties this information has been
accurately reproduced and as far as the Issuer is aware and is able to ascertain from the information
published by such third parties no facts have been omitted which would render the reproduced
information inaccurate or misleading. The source of third party information is identified where
used.
Post issuance reporting
The issue price and the amount of the relevant Notes of each Single Series will be determined,
before filing of the relevant Final Terms of each Single Series, based on the prevailing market
conditions.
Under the terms of the Agency and Accounts Agreement, the Computation Agent shall submit to the
Representative of the Noteholders, the Paying Agents, the Servicer, the Listing and Luxembourg
Paying Agent and the Rating Agency (by no later than ten days after each Interest Payment Date or,
if such day is not a Business Day, on the next succeeding Business Day), the Investor Reports,
containing details of, inter alia, the Notes (and any amounts paid thereunder on the immediately
preceding Interest Payment Date), the Claims, the Subsequent Claims and/or Additional Claims, if
any, purchased by the Issuer on the immediately preceding Subsequent Transfer Date, amounts
received by the Issuer from any source during the preceding Collection Period, including any
payments received from the Single Series Swap Counterparty/ies, amounts paid by the Issuer during
such Collection Period and amounts paid by the Issuer on the immediately preceding Interest
Payment Date.
Each released Investor Report shall be available for collection at the registered office of the
Representative of the Noteholders and at the registered offices of the Paying Agents.
Documents available
For so long as Notes may be issued pursuant to this Prospectus, copies of the following documents
(and the English translations thereof, where the document is not in English) will, when published,
be available (and in respect of paragraphs (a), (b), (c), (d)(19), (d)(20) and (d)(21) below, for
collection and free of charge), during usual business hours on any weekday (Saturdays and public
holidays excepted) from the registered office of the Issuer, the registered office of the
Representative of the Noteholders and the Specified Offices of the Paying Agents (as set forth in
Condition 18 (Notices)):
(a)
the by-laws (statuto) and the deed of incorporation (atto costitutivo) of the Issuer;
326
(b)
the annual audited (to the extent required) financial statements of the Issuer for the financial
years ended 31 December 2007 and on 31 December 2008. The financial statements and the
financial reports are drafted in Italian. The Issuer does not publish statutory interim accounts;
(c)
the Quarterly Servicer Reports setting forth the performance of the Claims and Collections
made in respect of the Claims prepared by the Servicer;
(d)
copies of the following documents (and the English translations thereof, where the document
is not in English):
1.
the Programme Agreement;
2.
the Single Series Senior Notes Subscription Agreements;
3.
the Single Series Junior Notes Subscription Agreements;
4.
the Agency and Accounts Agreement;
5.
the Issuer Account Bank Agreement;
6.
the Mandate Agreement;
7.
the Single Series Swap Agreements;
8.
the Intercreditor Agreement;
9.
the Italian Deed of Pledge;
10.
the English Deed of Charge and Assignment;
11.
the Corporate Services Agreement;
12.
the Stichtingen Corporate Services Agreement;
13.
the Programme Shareholders’ Agreement;
14.
the Programme Letter of Undertaking;
15.
the Master Transfer Agreement;
16.
the Servicing Agreement;
17.
the Warranty and Indemnity Agreement;
18.
the Subordinated Loan Agreements;
19.
the Investor Reports;
20.
a copy of this Prospectus;
21.
the Final Terms for the First Single Series;
22.
any future Final Terms (save that a Final Terms relating to an unlisted Note will only
be available for inspection by a holder of such Note and such holder must produce
evidence satisfactory to the Issuer and the Paying Agents as to its holding of Notes and
identity), offering circulars, prospectuses, information memoranda and supplements to
this Prospectus and any other documents incorporated herein or therein by reference.
327
The Prospectus, the Final Terms for Notes that are listed on the Official List and admitted to trading
on the Luxembourg Stock Exchange’s regulated market will be published on the website of the
Luxembourg Stock Exchange (www. bourse.lu).
Auditors
The auditors of the Issuer are Deloitte & Touche S.p.A. with offices at Galleria San Federico, 54,
10121 Turin, Italy, belonging to ASSIREVI — Associazione Italiana Revisori Contabili and
registered in the special register (albo speciale) for auditing companies (società di revisione)
provided for by article 161 of legislative decree No. 58 of 1998. They have audited the Issuer’s
accounts, without qualification, in accordance with generally accepted auditing standards in Italy
for each of the ninth financial years ended on 31 December 2000, 31 December 2001, 31 December
2002, 31 December 2003, 31 December 2004, 31 December 2005, 31 December 2006, 31
December 2007 and 31 December 2008, respectively.
Annual fees
The estimated annual fees and expenses payable by the Issuer in connection with the issuance of
any Single Series under the Programme amount to approximately €85,000, excluding all fees
payable to the Servicer and VAT, to the extent applicable.
328
THE ISSUER
Golden Bar (Securitisation) S.r.l.
via Principe Amedeo, 11
I-10123 Turin
Italy
ORIGINATOR, INITIAL DEALER AND SERVICER
Santander Consumer Bank S.p.A.
Via Nizza, 262
I-10126 Turin
Italy
REPRESENTATIVE OF THE NOTEHOLDERS
PRINCIPAL PAYING AGENT, AGENT BANK AND
ACCOUNT BANK
Deutsche Trustee Company Limited
Winchester House
1 Great Winchester Street
London EC2N 2DB
United Kingdom
Deutsche Bank AG, London Branch
Winchester House
1 Great Winchester Street
London EC2N 2DB
United Kingdom
LISTING AND LUXEMBOURG PAYING AGENT
COMPUTATION AGENT, PROGRAMME
ADMINISTRATOR AND ITALIAN PAYING AGENT
Deutsche Bank Luxembourg S.A.
2 Boulevard Konrad Adenauer
L-1115 Luxembourg
Luxembourg
Deutsche Bank S.p.A.
Piazza del Calendario, 3
I-20121 Milan
Italy
ARRANGER
Banco Santander, S.A.
Ciudad Grupo Santander
Edificio Encinar Planta Baja
28660 Boadilla del Monte
Spain
AUDITORS TO THE ISSUER
Deloitte & Touche S.p.A.
Galleria San Federico, 54
I-10121 Turin,
Italy
LEGAL ADVISERS
To the Arranger as to Italian and English law
To the Arranger as to Italian tax law
Studio Legale Associato in associazione con Linklaters LLP
via Santa Margherita, 3
I-20121 Milan
Italy
Maisto e Associati
Piazza F. Meda, 5
I-20121 Milan
Italy
To the Originator
avv. Mario Atzori
c/o Santander Consumer Bank S.p.A.
Via Nizza, 262
I-10126 Turin
Italy
A11321289