OMNIBUS AMENDMENT
Exhibit 99.1
Execution Version
OMNIBUS AMENDMENT
THIS OMNIBUS AMENDMENT, dated as of October 3, 2022 (this “Amendment”), is among GM Financial Automobile Leasing Trust 2022-1 (the “Issuer”), AmeriCredit Financial Services, Inc., d/b/a GM Financial (“GM Financial”), individually and in its capacity as Servicer (in such capacity, the “Servicer”), Lender (in such capacity, the “Lender”), and Administrator (in such capacity, the “Administrator”), GMF Leasing LLC (the “Depositor”), ACAR Leasing Ltd. (the “Titling Trust”), APGO Trust (the “Settlor”), Computershare Trust Company, N.A. (“Computershare”), as Administrative Agent under and as defined in the Credit and Security Agreement (as defined below) (the “Administrative Agent”), and as successor Collateral Agent, Indenture Trustee under the Indenture (as defined below) (in such capacity, the “Indenture Trustee”) and 2022-1 Exchange Noteholder (in such capacity, the “2022-1 Exchange Noteholder”), Xxxxx Fargo Bank, N.A. (“Xxxxx Fargo”), as existing Collateral Agent (in such capacity, the “Collateral Agent”), Wilmington Trust Company, as Owner Trustee under the Trust Agreement (as defined below), and amends and supplements (i) the 2022-1 Exchange Note Supplement, dated as of January 3, 2022 (as amended to date, the “Exchange Note Supplement”), among the Titling Trust, as Borrower, the Lender, the Servicer, the Administrative Agent and Xxxxx Fargo, as Collateral Agent to the Second Amended and Restated Credit and Security Agreement, dated as of January 24, 2018 (the “Credit and Security Agreement”), among the Titling Trust, as Borrower, the Lender, the Servicer, the Administrative Agent and Xxxxx Fargo, as Collateral Agent, (ii) the Indenture, dated as of January 3, 2022 (as amended to date, the “Indenture”), among the Issuer, the Servicer and the Indenture Trustee, (iii) the Amended and Restated Trust Agreement, dated as of January 3, 2022 (as amended to date, the “Trust Agreement”), between the Depositor and the Owner Trustee and (iv) the Administration Agreement, dated as of January 3, 2022 (as amended to date, the “Administration Agreement” and collectively with the Exchange Note Supplement, the Indenture and the Trust Agreement, the “Agreements,” and each, individually, an “Agreement”), among the Issuer, the Depositor, the Administrator, and the Indenture Trustee.
PRELIMINARY STATEMENTS
WHEREAS, simultaneously with the execution hereof, Xxxxx Fargo will assign all of its rights and obligations as Collateral Agent under the Program Documents to Computershare and Computershare has accepted all rights and obligations of the Collateral Agent under the Program Documents, in each case, pursuant to the terms of the Assignment Agreement;
WHEREAS, to effectuate such transfer by Xxxxx Fargo of its rights and obligations as Collateral Agent simultaneously with the execution hereof, the applicable parties hereto will enter into (i) the Third Amended and Restated Credit and Security Agreement, dated as of October 3, 2022 (the “Amended Credit and Security Agreement”), among the Titling Trust, as Borrower, the Lender, the Servicer, Computershare, as Administrative Agent (as defined in the Credit and Security Agreement) and as Collateral Agent, and (ii) the Fourth Amended and Restated Servicing Agreement, dated as of October 3, 2022 (as the same may be further amended, restated, supplemented or otherwise modified from time to time, the “Amended Base Servicing Agreement”), among the Titling Trust, the Servicer, the Settlor, and Computershare, as Collateral Agent and Indenture Trustee;
WHEREAS, each of the parties to each Agreement wish to amend the Agreements and to make certain acknowledgements in accordance with the terms set forth in this Amendment, to evidence the acceptance of the appointment of Computershare as successor Collateral Agent; and
WHEREAS, the other parties hereto wish to provide their consent to such amendments of the Agreements in accordance with this Amendment.
NOW THEREFORE, in consideration of the mutual covenants herein contained, and other good and valuable consideration, the receipt and adequacy of which are hereby expressly acknowledged, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms used but not otherwise defined herein shall have the meanings given to them in this Section 1 or in Appendix 1 to the Exchange Note Supplement (“Appendix 1”). The following terms used in this Amendment shall have the following meanings:
“Assignment Agreement” means the Assignment and Assumption Agreement, dated as of October 3, 2022, among Xxxxx Fargo, Computershare and GM Financial, as it may be amended, supplemented or otherwise modified from time to time in accordance with the terms thereof.
“Effective Date” means October 3, 2022.
SECTION 2. Amendments to the Exchange Note Supplement. The Exchange Note Supplement is hereby amended as follows:
2.01 All references in the Exchange Note Supplement to Xxxxx Fargo as Collateral Agent are hereby amended to mean Computershare as Collateral Agent.
2.02 Criterion (2) of Exhibit A to Appendix 1 is amended and restated in its entirety as follows:
“(2) Good Title. The Titling Trust has good title, or the Servicer has commenced procedures that will result in good title, to each 2022-1 Lease Agreement and each 2022-1 Leased Vehicle, free and clear of any Liens (other than the Liens in favor of the Collateral Agent granted in accordance with the Credit and Security Agreement); and the Collateral Agent has a security interest in each 2022-1 Lease Agreement and the related 2022-1 Leased Vehicle which was validly created and is a perfected, first priority
2
security interest, and is noted as lienholder on the related Certificate of Title; provided, that, with respect to any 2022-1 Lease Agreement and 2022-1 Leased Vehicle pledged to the 2022-1 Designated Pool on or prior to December 31, 2022, a Certificate of Title may list Xxxxx Fargo Bank, N.A. as lienholder on such Certificate of Title, provided, further, that Xxxxx Fargo Bank, N.A. has validly assigned the lien to the Collateral Agent; and all transfer and similar taxes imposed in connection with the transfer of such 2022-1 Leased Vehicle have been paid.”
2.03 Criterion (12) of Exhibit A to Appendix 1 is amended and restated in its entirety as follows:
“(12) Security Interest in Financed Vehicle. The related 2022-1 Leased Vehicle is titled in the name of a Titling Trust Permissible Name and the Collateral Agent is listed as the recorded lienholder or recorded holder of a security interest in such 2022-1 Leased Vehicle, or the Servicer has commenced procedures that will result in such 2022-1 Leased Vehicle being titled in the name of a Titling Trust Permissible Name and the Collateral Agent being listed as recorded lienholder or recorded holder of a security interest in such 2022-1 Leased Vehicle; provided, that, with respect to any 2022-1 Lease Agreement and 2022-1 Leased Vehicle pledged to the 2022-1 Designated Pool on or prior to December 31, 2022, a Certificate of Title may list Xxxxx Fargo Bank, N.A. as lienholder on such Certificate of Title provided that Xxxxx Fargo Bank, N.A. has validly assigned the lien to the Collateral Agent;”
SECTION 3. Amendments to the Indenture. The Indenture is hereby amended as follows:
3.01 All references in the Indenture to Xxxxx Fargo as Collateral Agent are hereby amended to mean Computershare as Collateral Agent.
3.02 Section 2.10(i)(ii) is amended and restated in its entirety as follows:
“(ii) Each such authoritative copy (A) is unique, identifiable and unalterable (other than with the participation of the custodian thereof on behalf of the Indenture Trustee in the case of an addition or amendment of an identified assignee and other than a revision that is readily identifiable as an authorized or unauthorized revision), and (B) has been communicated to and is maintained by or on behalf of the custodian thereof for the benefit of the Indenture Trustee. The Issuer has confirmed that the authoritative copy of each contract that constitutes or evidences electronic chattel paper does not have any marks or notations indicating that it has been pledged, assigned or otherwise conveyed to any Person other than the Indenture Trustee or, with respect to the authoritative copy of a contract originated on or prior to December 31, 2022, Xxxxx Fargo Bank, N.A. (provided that Xxxxx Fargo Bank, N.A. has validly assigned the lien on such contract to the Indenture Trustee);”
3
3.03 Section 2.10(n) is amended and restated in its entirety as follows:
“(n) None of the instruments, certificated securities or tangible chattel paper that constitute or evidence the Indenture Collateral has any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Indenture Trustee or, with respect to instruments, certificated securities or tangible chattel paper evidencing Indenture Collateral originated on or prior to December 31, 2022, Xxxxx Fargo Bank, N.A. (provided that Xxxxx Fargo Bank, N.A. has validly assigned the lien on such instruments, certificated securities or tangible chattel paper, as applicable, to the Indenture Trustee)”
SECTION 4. Amendments to the Trust Agreement. The Trust Agreement is hereby amended as follows:
4.01 All references in the Trust Agreement to Xxxxx Fargo as Collateral Agent are hereby amended to mean Computershare as Collateral Agent.
SECTION 5. Amendments to the Administration Agreement. The Administration Agreement is hereby amended as follows:
5.01 All references in the Administration Agreement to Xxxxx Fargo as Collateral Agent are hereby amended to mean Computershare as Collateral Agent.
SECTION 6. Acknowledgement of Computershare Trust Company, N.A. as Collateral Agent.
6.01 Acknowledgment and Acceptance. Each party to this Amendment acknowledges and agrees that, as of the Effective Date:
(a) Xxxxx Fargo has assigned all of its rights and obligations as Collateral Agent to Computershare pursuant to the terms of the Assignment Agreement and Xxxxx Fargo has relinquished its rights and is released from its obligations as Collateral Agent under the Program Documents, except as otherwise set forth in the Assignment Agreement; and
(b) (i) In accordance with the Assignment Agreement, Computershare has been assigned, and has accepted, all of the rights and obligations of the Collateral Agent under the Program Documents, (ii) Computershare is appointed successor Collateral Agent and (iii) all references in the Program Documents to the Collateral Agent shall mean Computershare in such capacity.
6.02 Notices. Each party hereto agrees that all notices required or permitted to be given to the Collateral Agent pursuant to any Program Document shall be provided in accordance with the notice provisions set forth in the applicable Program Document to Computershare Trust Company, N.A., as Collateral Agent, at the following address: 000 Xxxxx 0xx Xxxxxx, XXX X0000-000, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Corporate Trust Administration or at such other address as Computershare may designate from time to time in accordance with the terms of the Program Documents.
4
SECTION 7. Confirmation of Security Interests.
7.01 The Borrower hereby confirms its Grant under the Credit and Security Agreement of a security interest in the Collateral to Computershare, as Collateral Agent. In addition, the Borrower hereby confirms its Grant under the 2022-1 Exchange Note Supplement to Computershare, as Collateral Agent on behalf of the 2022-1 Secured Parties, of a security interest in the Collateral and acknowledges and agrees that such Grant includes (but is not limited to) a Grant to Computershare, as Collateral Agent on behalf of the 2022-1 Exchange Noteholder, of a security interest in the Collateral Assets included in the 2022-1 Designated Pool.
7.02 The Issuer hereby confirms its Grant under the Indenture of a security interest in the Indenture Collateral to Computershare, as Collateral Agent on behalf of the 2022-1 Secured Parties.
SECTION 8. Consents.
8.01 Trust Certificateholder Consent. GMF Leasing LLC, as sole Trust Certificateholder, holding Trust Certificates evidencing 100% of the Percentage Interests, hereby consents to this Amendment pursuant to Section 11.1(b) of the Trust Agreement.
SECTION 9. Accounts.
9.01 Notice of Account Transfer. Except as otherwise set forth in Section 2.3 of the 2022-1 Servicing Supplement, if the Indenture Trustee transfers any Account to another Eligible Institution, it shall provide no less than sixty (60) days prior written notice to GM Financial and shall consult with GM Financial no less than sixty (60) days in advance of any change in who shall be such Eligible Institution.
9.02 Agreements Regarding Accounts. Xxxxx Fargo Bank, N.A. hereby agrees to (i) comply with the obligations of the Securities Intermediary set forth in Section 2.3(g) of the 2022-1 Servicing Supplement and (ii) subordinate any claim or interests of Xxxxx Fargo Bank, N.A. in the Accounts to the interests of the Indenture Trustee. If the Indenture Trustee transfers any Account to another Eligible Institution, other than Xxxxx Fargo Bank, N.A., the Indenture Trustee hereby agrees to cause such Eligible Institution to agree with the Indenture Trustee, in writing, to subordinate any claim or interests of such Eligible Institution in the Accounts to the interest of the Indenture Trustee.
SECTION 10. Conditions Precedent. The parties to this Amendment, by executing and delivering this Amendment, intend to amend the Agreements, on the terms and conditions set forth in this Amendment, as of the date hereof, and this Amendment shall become effective on the date on which the following conditions have been satisfied:
10.01 the Administrative Agent or its counsel shall have received counterpart signature pages to this Amendment, the Amended Credit and Security Agreement, the Amended Base Servicing Agreement and each other document, certificate and opinion to be executed or delivered by or among some or all of the parties hereto in connection with this Amendment, as more fully described on the closing list attached as Exhibit A hereto; and
5
10.02 the representations and warranties of the Issuer, the Depositor, the Titling Trust, GM Financial and the Settlor set forth or referred to in Section 11 hereof shall be true and correct in all material respects on the date hereof as though made on and as of the date hereof (except for representations and warranties which relate to a specific date, which shall be true and correct as of such date);
SECTION 11. Covenants, Representation and Warranties of the Issuer, the Depositor, the Titling Trust, GM Financial and the Settlor.
11.01 Upon the effectiveness of this Amendment, each of the Issuer, the Depositor, the Titling Trust, GM Financial and the Settlor hereby (i) reaffirms all covenants, representations and warranties made by it in the Program Documents to which it is a party to the extent the same are not amended hereby and (ii) agrees that all such covenants, representations and warranties shall be deemed to have been re-made as of the Effective Date of this Amendment.
11.02 Each of the Issuer, the Depositor, the Titling Trust, GM Financial and the Settlor hereby represents and warrants that this Amendment constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms.
SECTION 12. Ratification. Each Agreement, as amended hereby, is hereby ratified, approved and confirmed in all respects.
SECTION 13. Reference to and Effect on the Agreements.
13.01 Upon the effectiveness of this Amendment, (i) each reference in an Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import shall mean and be a reference to such Agreement as amended hereby, and (ii) each reference to an Agreement in any document, instrument or agreement executed and/or delivered in connection therewith, shall mean and be a reference to such Agreement as amended hereby.
13.02 Except as specifically amended above, the terms and conditions of each Agreement and any other documents, instruments and agreements executed and/or delivered in connection therewith, shall remain in full force and effect and are hereby ratified and confirmed.
13.03 The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of the Administrative Agent or the Agents under any of the Agreements or any other document, instrument or agreement executed in connection therewith, nor constitute a waiver of any provision contained therein, in each case except as specifically set forth herein.
SECTION 14. Execution in Counterparts. This Amendment may be executed in multiple counterparts, each of which shall be deemed to be an original, but together they shall constitute one and the same instrument. Facsimile and .pdf signatures shall be deemed valid and binding to the same extent as the original and the parties affirmatively consent to the use thereof, with no such consent having been withdrawn. Each party agrees that this Amendment and any
6
documents to be delivered in connection with this Amendment may be executed by means of an electronic signature that complies with the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, and/or any other relevant electronic signatures law, in each case to the extent applicable. Any electronic signatures appearing on this Amendment and such other documents are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility. Each party hereto shall be entitled to conclusively rely upon, and shall have no liability with respect to, any electronic signature or faxed, scanned, or photocopied manual signature of any other party and shall have no duty to investigate, confirm or otherwise verify the validity or authenticity thereof.
SECTION 15. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO OTHERWISE APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW); PROVIDED, THAT, NOTWITHSTANDING THE FOREGOING, ANY PROVISION OF THIS AMENDMENT RELATING TO THE TRUST AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS.
SECTION 16. Headings. Section headings in this Amendment are included herein for convenience of reference only and shall not constitute a part of this Amendment for any other purpose.
SECTION 17. Limitation of Liability of Wilmington Trust Company. It is expressly understood and agreed by the parties hereto that (a) this Amendment is executed and delivered by Wilmington Trust Company, not individually or personally but solely as (i) owner trustee of the Titling Trust, in the exercise of the powers and authority conferred and vested in it under the Titling Trust Agreement, (ii) owner trustee of the Issuer, in the exercise of the powers and authority conferred and vested in it under the Issuer Trust Agreement, and (iii) owner trustee of the Settlor, in the exercise of the powers and authority conferred and vested in it under the trust agreement of the Settlor, (b) each of the representations, undertakings and agreements herein made on the part of the Titling Trust, the Settlor and the Issuer is made and intended not as personal representations, undertakings and agreements by Wilmington Trust Company but is made and intended for the purpose for binding only the Titling Trust, the Settlor or the Issuer, as applicable, (c) nothing herein contained shall be construed as creating any liability on Wilmington Trust Company, individually or personally, to perform any covenant either express or implied contained herein, all such liability, if any, being expressly waived by the parties hereto and any Person claiming by, through or under the parties hereto, (d) Wilmington Trust Company has made no investigation as to the accuracy or completeness of any representations and warranties made by the Titling Trust, the Settlor or the Issuer in this Amendment and under no circumstances shall Wilmington Trust Company be personally liable for the payment of any indebtedness or expenses of the Titling Trust, the Settlor or the Issuer or be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Titling Trust, the Settlor or the Issuer under this Amendment or the other related documents.
7
SECTION 18. Fees and Expenses. Computershare hereby agrees to pay, promptly upon its receipt of an invoice therefor, the reasonable fees and out-of-pocket expenses of (i) Xxxxxx, & Xxxxxxx LLP, counsel to Computershare, (ii) Xxxxxx Xxxxxx Xxxxxxxx LLP, counsel to GM Financial and its Affiliates, (iii) Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Administrative Agent and the Agents, and (iv) Xxxxxxxx, Xxxxxx & Finger P.A., counsel to Wilmington Trust Company, in each case, in connection with the preparation, execution, and delivery of this Amendment and the other documents to be delivered hereunder or in connection herewith, and the reasonable fees and out-of-pocket expenses incurred by each rating agency then rating the Notes issued under the Indenture.
SECTION 19. Amendment as a Program Document. Each of the parties hereto acknowledges and agrees that this Amendment constitutes a “Program Document.”
[Signatures to Follow]
8
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective officers as of the date first above written.
| GM FINANCIAL AUTOMOBILE LEASING TRUST 2022-1 | ||
| By: | Wilmington Trust Company, not in its individual capacity, but solely as Owner Trustee of the Issuer | |
| By: | /s/ Xxxxxxx Xxxxxx | |
| Name: Xxxxxxx Xxxxxx | ||
| Title: Vice President | ||
| AMERICREDIT FINANCIAL SERVICES, INC. d/b/a GM FINANCIAL, individually, as Lender, as Servicer and as Administrator | ||
| By: | /s/ Xxxxxx X. Xxxxxx XXX | |
| Name: | Xxxxxx X. Xxxxxx XXX | |
| Title: | Senior Vice President, Corporate Treasury | |
| Address for Notices: | ||
| GM Financial 000 Xxxxxx Xxxxxx | ||
| Xxxxx 0000 | ||
| Xxxx Xxxxx, Xxxxx 00000 | ||
| Attention: Chief Financial Officer | ||
| GMF LEASING LLC, individually, as Seller, as Depositor and as sole Trust Certificateholder | ||
| By: | /s/ Xxxxxxxx X. Xxxxxxx | |
| Name: | Xxxxxxxx X. Xxxxxxx | |
| Title: | Vice President, Corporate Treasury | |
| Address for Notices: | ||
| GM Financial 000 Xxxxxx Xxxxxx | ||
| Xxxxx 0000 | ||
| Xxxx Xxxxx, Xxxxx 00000 | ||
| Attention: Chief Financial Officer | ||
[Signature Page to Omnibus Amendment (GMALT 2022-1)]
| ACAR LEASING LTD. | ||
| By: | Wilmington Trust Company, not in its individual capacity, but solely as Owner Trustee of the Titling Trust | |
| By: | /s/ Xxxxxxx Xxxxxx | |
| Name: Xxxxxxx Xxxxxx | ||
| Title: Vice President | ||
| Address for Notices: | ||
| GM Financial 000 Xxxxxx Xxxxxx | ||
| Xxxxx 0000 | ||
| Xxxx Xxxxx, Xxxxx 00000 | ||
| Attention: Chief Financial Officer | ||
| APGO TRUST | ||
| By: | Wilmington Trust Company, not in its individual capacity, but solely as Owner Trustee of the Settlor | |
| By: | /s/ Xxxxxxx Xxxxxx | |
| Name: Xxxxxxx Xxxxxx | ||
| Title: Vice President | ||
| Address for Notices: | ||
| GM Financial 000 Xxxxxx Xxxxxx | ||
| Xxxxx 0000 | ||
| Xxxx Xxxxx, Xxxxx 00000 | ||
| Attention: Chief Financial Officer | ||
[Signature Page to Omnibus Amendment (GMALT 2022-1)]
| COMPUTERSHARE TRUST COMPANY, N.A., as Administrative Agent (under the Credit and Security Agreement), Collateral Agent, Indenture Trustee and 2022-1 Exchange Noteholder | ||
| By: | /s/ Xxxxxxx Xxxxxxx | |
| Name: | Xxxxxxx Xxxxxxx | |
| Title: | Vice President | |
| Address for Notices: | ||
| 000 Xxxxx 0xx Xxxxxx, MAC X0000-000 | ||
| Xxxxxxxxxxx, Xxxxxxxxx 00000 | ||
| Attention: Corporate Trust Services/Asset Backed Administration | ||
[Signature Page to Omnibus Amendment (GMALT 2022-1)]
| XXXXX FARGO BANK, N.A., as existing Collateral Agent | ||
| By: Computershare Trust Company, N.A., as attorney-in-fact and agent | ||
| By: | /s/ Xxxxxxx Xxxxxxx | |
| Name: | Xxxxxxx Xxxxxxx | |
| Title: | Vice President | |
| Address for Notices: | ||
| c/o Computershare Trust Company, N.A. 000 Xxxxx 0xx Xxxxxx, MAC X0000-000 | ||
| Xxxxxxxxxxx, Xxxxxxxxx 00000 | ||
| Attention: Corporate Trust Services/Asset Backed Administration | ||
[Signature Page to Omnibus Amendment (GMALT 2022-1)]
| Solely with respect to Section 4: | ||
| WILMINGTON TRUST COMPANY, as Owner Trustee | ||
| By: | /s/ Xxxxxxx Xxxxxx | |
| Name: | Xxxxxxx Xxxxxx | |
| Title: | Vice President | |
[Signature Page to Omnibus Amendment (GMALT 2022-1)]
EXHIBIT A
CLOSING LIST
[On file with GM Financial]
