UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported)
September 24, 2024
GM Financial Automobile Leasing Trust 2024-3
(Exact name of registrant as specified in its charter)
GMF Leasing LLC
(Exact name of depositor as specified in its charter)
AmeriCredit Financial Services, Inc.
(Exact name of sponsor as specified in its charter)
| Delaware | 333-261801-09 | 99-6777524 | ||
| (State or Other Jurisdiction of Incorporation) | (Commission File Number) |
(I.R.S. Employer Identification No.) | ||
| c/o AmeriCredit Financial Services, Inc. Attention: Frank E. Brown III, Esq. 801 Cherry Street, Suite 3500 Fort Worth, Texas (Address of Principal Executive Offices) |
76102 (Zip Code) | |||
Registrant’s telephone number including area code - (817) 302-7000
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class |
Trading Symbol(s) |
Name of each exchange on which registered | ||
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
1
| Item 1.01. | Entry into a Material Definitive Agreement. |
GMF Leasing LLC, as depositor (the “Depositor”) and AmeriCredit Financial Services, Inc. d/b/a GM Financial (“GM Financial”), as sponsor, will cause a newly formed issuing entity, GM Financial Automobile Leasing Trust 2024-3 (the “Issuing Entity”), to issue $175,760,000 Class A-1 4.745% Asset Backed Notes (the “Class A-1 Notes”), $229,720,000 Class A-2-A 4.29% Asset Backed Notes (the “Class A-2-A Notes”), $265,000,000 Class A-2-B Floating Rate Notes (the “Class A-2-B Notes”), $450,000,000 Class A-3 4.21% Asset Backed Notes (the “Class A-3 Notes”), $71,500,000 Class A-4 4.22% Asset Backed Notes (the “Class A-4 Notes” and together with the Class A-1 Notes, the Class A-2-A Notes, the Class A-2-B Notes and the Class A-3 Notes, the “Class A Notes”), $65,120,000 Class B 4.49% Asset Backed Notes (the “Class B Notes” and, collectively with the Class A Notes, the “Publicly Offered Notes”) and $60,000,000 Class C 4.58% Asset Backed Notes (the “Class C Notes” and, collectively with the Publicly Offered Notes, the “Notes”), and an Asset Backed Certificate (the “Certificate”), on October 2, 2024 (the “Closing Date”). The Publicly Offered Notes will be registered under the Registration Statement filed by the Depositor with the Securities and Exchange Commission under file number 333-261801 (the “Registration Statement”). This Current Report on Form 8-K is being filed to satisfy an undertaking to file copies of certain agreements to be executed in connection with the issuance of the Publicly Offered Notes, the forms of which were filed as Exhibits to the Registration Statement.
The Notes evidence indebtedness of the Issuing Entity, the assets of which consist primarily of an exchange note, which will be backed by a designated pool of automobile, light truck and utility vehicle leases and the corresponding leased vehicles (the “Receivables”). The Publicly Offered Notes will be sold to Wells Fargo Securities, LLC (“Wells Fargo”), Credit Agricole Securities (USA) Inc. (“Credit Agricole”), MUFG Securities Americas Inc. (“MUFG”), TD Securities (USA) LLC (“TD Securities” and, collectively with Wells Fargo, Credit Agricole and MUFG, the “Representatives”), BNP Paribas Securities Corp. (“BNP Paribas”), Scotia Capital (USA) Inc. (“Scotiabank”), Siebert Williams Shank & Co., LLC (“Siebert”) and SMBC Nikko Securities America, Inc. (“SMBC Nikko” and, collectively with the Representatives, BNP Paribas, Scotiabank and Siebert, the “Underwriters”), pursuant to the Underwriting Agreement attached hereto as Exhibit 1.1, dated as of September 24, 2024 (the “Underwriting Agreement”), among GM Financial, the Depositor and the Representatives.
| Item 8.01. | Other Events. |
The Issuing Entity was formed, and the Certificate will be issued, pursuant to the Trust Agreement attached hereto as Exhibit 4.3, dated as of August 8, 2024, as amended and restated as of August 20, 2024 (the “Trust Agreement”), between the Depositor and Wilmington Trust Company, as owner trustee (the “Owner Trustee”). The Notes will be issued pursuant to the Indenture attached hereto as Exhibit 4.1, dated as of August 20, 2024 (the “Indenture”), between the Issuing Entity and Computershare Trust Company, N.A. (“Computershare”), as indenture trustee (in such capacity, the “Indenture Trustee”).
Pursuant to the 2024-3 Exchange Note Supplement attached hereto as Exhibit 4.5, dated as of August 20, 2024 (the “Exchange Note Supplement”), ACAR Leasing Ltd. (the “Titling Trust”), as borrower, GM Financial, as lender and as servicer (in such capacity, the “Servicer”) and Computershare, as collateral agent (in such capacity, the “Collateral Agent”) and as administrative agent (the “Administrative Agent”), the Titling Trust will issue an Exchange Note (the “Exchange
2
Note”) to GM Financial on the Closing Date and will designate a designated pool of collateral lease agreements and collateral leased vehicles (the “Designated Pool”) to support the Exchange Note.
Pursuant to the 2024-3 Exchange Note Sale Agreement attached hereto as Exhibit 10.1, dated as of August 20, 2024 (the “Exchange Note Sale Agreement”), between GM Financial and the Depositor, on the Closing Date, GM Financial will sell to the Depositor, and the Depositor will purchase from GM Financial, all of GM Financial’s right, title and interest in, to and under the Exchange Note and the proceeds thereof without recourse. Pursuant to the 2024-3 Exchange Note Transfer Agreement attached hereto as Exhibit 10.2, dated as of August 20, 2024 (the “Exchange Note Transfer Agreement”), between the Depositor and the Issuing Entity, on the Closing Date the Depositor will sell to the Issuing Entity and the Issuing Entity will purchase from the Depositor, all of the Depositor’s right, title and interest in, to and under the Exchange Note and the proceeds thereof without recourse. Pursuant to the Indenture, on the Closing Date the Issuing Entity will issue the Notes to the Depositor as partial payment for the Exchange Note and will grant a security interest in the Exchange Note and all other indenture collateral to the Indenture Trustee for the benefit of the Underwriters.
Pursuant to the Underwriting Agreement, the Depositor will sell the Publicly Offered Notes to the Underwriters.
GM Financial, as Servicer, will agree to perform servicing duties with regard to the Receivables pursuant to the 2024-3 Servicing Supplement attached hereto as Exhibit 10.4, dated as of August 20, 2024 (the “Servicing Supplement”), among the Titling Trust, the Servicer, APGO Trust, as settlor (the “Settlor”), the Collateral Agent and the Indenture Trustee, and will also agree to serve as custodian of the Receivables pursuant to the Servicing Supplement.
The Issuing Entity will engage Clayton Fixed Income Services LLC (“Clayton”) as Asset Representations Reviewer pursuant to the Asset Representations Review Agreement, attached hereto as Exhibit 10.5, dated as of August 20, 2024 (the “Asset Representations Review Agreement”), among the Issuing Entity, GM Financial, as Servicer, and Clayton, as asset representations reviewer (the “Asset Representations Reviewer”). The Asset Representations Reviewer will agree to perform reviews of certain Receivables for compliance with the representations and warranties made by GM Financial and the Depositor about the Receivables.
| Item 9.01. | Financial Statements, Pro Forma Financial Information and Exhibits. |
| (a) | Not applicable. |
| (b) | Not applicable. |
| (c) | Not applicable. |
| (d) | Exhibits: |
4.1 Indenture, dated as of August 20, 2024, between the Issuing Entity and the Indenture Trustee.
3
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| GM FINANCIAL AUTOMOBILE LEASING TRUST 2024-3 |
||||
| By: | AmeriCredit Financial Services, Inc. d/b/a GM Financial, as Servicer | |||
| By: /s/ Frank E. Brown III | ||||
| Name: | Frank E. Brown III | |||
| Title: | Senior Vice President, Corporate Counsel and Secretary | |||
Dated: September 26, 2024
5
Exhibit 1.1
Execution Version
GM FINANCIAL AUTOMOBILE LEASING TRUST 2024-3
UNDERWRITING AGREEMENT
Wells Fargo Securities, LLC
550 South Tryon Street, 5th Floor
Charlotte, North Carolina 28202
Credit Agricole Securities (USA) Inc.
1301 Avenue of the Americas
New York, New York 10019
MUFG Securities Americas Inc.
1221 Avenue of the Americas, 6th Floor
New York, New York 10020
TD Securities (USA) LLC
One Vanderbilt Avenue, 11th Floor
New York, New York 10017
As Joint Bookrunners and Representatives
of the several Underwriters
September 24, 2024
Ladies and Gentlemen:
GMF Leasing LLC, a Delaware limited liability company (the “Depositor”), proposes to sell to the underwriters named in Schedule 1 hereto (the “Underwriters”), pursuant to the terms of this Underwriting Agreement (this “Agreement”) the Asset-Backed Notes issued by GM Financial Automobile Leasing Trust 2024-3 (the “Trust”) of the class, and in the principal amount set forth in Schedule 1 hereto (the “Notes”), which are debt obligations of the Trust. The assets of the Trust will consist primarily of an exchange note (the “Exchange Note”) backed by a designated pool of car, light truck and utility vehicle leases and the corresponding leased vehicles (the “Lease Assets”) and certain monies due thereunder after August 20, 2024 (the “Cutoff Date”). The Lease Assets were purchased from dealers by ACAR Leasing Ltd. (the “Titling Trust”), an affiliate of the Depositor, and AmeriCredit Financial Services, Inc. (d/b/a GM Financial), a corporation organized and existing under the laws of Delaware (in such capacity, the “Sponsor”).
The Notes are to be issued pursuant to an Indenture, to be dated as of August 20, 2024 (the “Indenture”), among the Trust, as issuer, the Sponsor, as servicer (in such capacity, the “Servicer”), and Computershare Trust Company, N.A. (“Computershare”), a national banking association, as indenture trustee (in such capacity, the “Indenture Trustee”). In addition to the Notes, the Trust will also issue an Asset-Backed Certificate representing the beneficial ownership interests in the Trust (the “Certificate” and, together with the Notes, the “Securities”) pursuant to a trust agreement, dated as of August 8, 2024, as amended and restated as of August 20, 2024 (the “Trust
1
Agreement”), between the Depositor and Wilmington Trust Company, a Delaware trust company, as owner trustee (the “Owner Trustee”).
As used herein, the term “Sponsor Agreements” means (i) the Indenture, (ii) the Third Amended and Restated Credit and Security Agreement, dated as of October 3, 2022 (the “Credit and Security Agreement”), among the Titling Trust, as borrower, the Sponsor, as lender (in such capacity, the “Lender”) and as Servicer, and Computershare, as administrative agent (in such capacity, the “Administrative Agent”) and as collateral agent (in such capacity, the “Collateral Agent”), (iii) the Fourth Amended and Restated Servicing Agreement, dated as of October 3, 2022 (the “Basic Servicing Agreement”), among the Titling Trust, the Servicer, APGO Trust, as settlor (the “Settlor”), and the Collateral Agent, (iv) the 2024-3 Exchange Note Supplement, to be dated as of August 20, 2024 (the “Exchange Note Supplement”), among the Borrower, the Lender, the Servicer, the Administrative Agent and the Collateral Agent, (v) the 2024-3 Servicing Supplement, to be dated as of August 20, 2024 (the “Servicing Supplement” and, together with the Basic Servicing Agreement, the “Servicing Agreement”), among the Titling Trust, the Servicer, the Settlor, the Collateral Agent and the Indenture Trustee, (vi) the 2024-3 Exchange Note Sale Agreement, to be dated as of August 20, 2024 (the “Exchange Note Sale Agreement”), between the Lender and the Depositor, (vii) the Administration Agreement, to be dated as of August 20, 2024 (the “Administration Agreement”), among the Depositor, the Sponsor, as administrator, and the Indenture Trustee, (viii) the Asset Representations Review Agreement, to be dated as of August 20, 2024 (the “Asset Representations Review Agreement”), among the Trust, the Servicer and Clayton Fixed Income Services LLC, as asset representations reviewer (the “Asset Representations Reviewer”), and (ix) this Agreement; the term “Depositor Agreements” means (i) the Trust Agreement, (ii) the Exchange Note Sale Agreement, (iii) the 2024-3 Exchange Note Transfer Agreement, to be dated as of August 20, 2024 (the “Exchange Note Transfer Agreement”), between the Depositor, as transferor, and the Trust, as transferee, (iv) the Administration Agreement and (v) this Agreement. The Sponsor Agreements, together with the Depositor Agreements, are herein referred to as the “Agreements”.
The Notes are being purchased by the Underwriters, and the Underwriters are purchasing severally, and not jointly, only the Notes set forth opposite their names in Schedule 1, except that the amounts purchased by the Underwriters may change in accordance with Section 9 of this Agreement. Wells Fargo Securities, LLC, Credit Agricole Securities (USA) Inc., MUFG Securities Americas Inc. and TD Securities (USA) LLC are acting as representatives of the Underwriters and, in such capacity, are hereinafter referred to as the “Representatives”.
In exchange for valuable consideration received by the Sponsor and the Depositor from the Underwriters, the receipt and sufficiency of which both parties hereby acknowledge, the Underwriters, the Sponsor and the Depositor hereby agree to the terms of this Agreement as follows:
Section 1. Representations and Warranties. The Sponsor and the Depositor (together, the “Companies” and, collectively with the Titling Trust and APGO Trust, the “GMF Companies”) represent, warrant and agree with the Underwriters that, as of the date and time that this Agreement is executed and delivered by the parties hereto, as of the Applicable Time and as of the Closing Date (each as defined below):
2
(i) The Depositor (the “Registrant”) has filed with the Securities and Exchange Commission (the “Commission”) a registration statement (Registration No. 333-261801) on Form SF-3, including a form of prospectus, for the registration under the Securities Act of 1933, as amended (the “Securities Act”), of the offering and sale of the Notes. The Registrant may have filed one or more amendments thereto, each of which amendments has previously been furnished to you. The Registrant has filed the Time of Sale Information (as hereinafter defined) with the Commission. Promptly after execution and delivery of this Agreement, the Registrant will prepare and file with the Commission a final prospectus relating to the Notes in accordance with the provisions of Rule 430D and Rule 424(b). Any information included in such prospectus that was omitted from such registration statement at the time it became effective but that is deemed to be part of and included in such registration statement pursuant to Rule 430D is referred to as “Rule 430D Information.” Such registration statement, at any given time, including the amendments thereto to such time, the exhibits and any schedules thereto at such time, the documents incorporated therein by reference pursuant to the Securities Act at such time and documents otherwise deemed to be a part thereof or included therein by the rules and regulations (the “Rules and Regulations”) of the Commission under the Securities Act, is herein called the “Registration Statement;” provided, that references to the Effective Date (as hereinafter defined) or other matters relating to the Registration Statement shall be deemed to be references to the Effective Date or such other matters relating to the registration statement included in the Registration Statement. The Registration Statement at the time it originally became effective is herein called the “Original Registration Statement.”
“Free Writing Prospectus” means, collectively, the free writing prospectus, filed with the Commission on September 19, 2024 relating to the ratings on the Notes (the “Ratings FWP”) and each other free writing prospectus used in connection with the offering of the Notes. “Preliminary Prospectus” means the preliminary prospectus used in connection with the offering of the Notes, dated as of September 19, 2024, and filed with the Commission on September 19, 2024, that omitted certain Rule 430D Information. “Time of Sale Information” means the Preliminary Prospectus, together with the Ratings FWP. “Prospectus” means the prospectus that is first filed after the Execution Time pursuant to Rule 424(b), including the documents incorporated by reference therein pursuant to the Securities Act at the time of execution of this Agreement. “Road Show Information” means, a “road show for an offering that is a written communication” within the meaning of Rule 433(d)(8)(i), whether or not required to be filed with the Commission, including without limitation the road show presentation entitled “GM Financial Automobile Leasing Trust 2024-3”, dated September 2024.
(ii) The Registrant has included in the Registration Statement, as amended at the Effective Date, all information required by the Securities Act and the Rules and Regulations to be included in the Prospectus with respect to the Notes and the offering thereof and as of the Effective Date the Registration Statement complied in all material respects with the Rules and Regulations. As filed, the Time of Sale Information includes all information with respect to the Notes and the offering thereof required by the Securities Act and the Rules and Regulations with respect to a free writing prospectus and a preliminary prospectus and complies in all material respects with the Rules and Regulations. As filed, the Prospectus shall include all information with respect to the Notes and the offering thereof required by the Securities Act and the Rules and Regulations, shall comply in all material respects with the Rules and Regulations and, except to the extent that the Underwriters shall agree in writing to a modification, shall be in all substantive respects in the
3
form furnished to the Underwriters prior to the Execution Time or, to the extent not completed at the Execution Time, shall contain only such specific additional information and other changes (beyond that contained in the Time of Sale Information) as the Registrant has advised the Underwriters, prior to the Execution Time, will be included or made therein.
For purposes of this Agreement, “Applicable Time” means 1:35 p.m., New York City time, on September 24, 2024, or such other time as agreed by the Sponsor and the Representatives. “Effective Time” means, with respect to the Registration Statement, the date and time as of which the Registration Statement, or the most recent post-effective amendment thereto, if any, was declared effective by the Commission, or, if later, the earlier of the date of filing of a prospectus required under Rule 424 deemed to be part of the Registration Statement or the date and time of the first sale of the Notes and “Effective Date” means the date of the Effective Time. “Execution Time” shall mean the date and time that this Agreement is executed and delivered by the parties hereto. “Rule 405,” “Rule 415,” “Rule 424,” “Rule 430D,” “Rule 433” and “Regulation S-K” refer to such rules or regulations under the Securities Act. Any reference herein to the Registration Statement, the Time of Sale Information or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 10 of Form SF-3 which were filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on or before the Effective Date of the Registration Statement or the date of first use of a Free Writing Prospectus, the Preliminary Prospectus or the Prospectus, as the case may be; and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, a Free Writing Prospectus, the Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act after the Effective Date of the Registration Statement or the issue date of such Free Writing Prospectus, the Preliminary Prospectus or the Prospectus, as the case may be, deemed to be incorporated therein by reference or otherwise deemed by the Rules and Regulations to be a part thereof or included therein. For purposes of this Agreement, all references to the Registration Statement, a Free Writing Prospectus, the Preliminary Prospectus, the Prospectus, or any amendment or supplement to any of the foregoing shall be deemed to refer to the copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system (“EDGAR”).
(iii) The Registrant meets the requirements for use of Form SF-3 under the Securities Act. The Registration Statement, at the Execution Time, meets the requirements set forth in Rule 415(a)(1)(x). At the time of filing the Original Registration Statement, at the earliest time thereafter that the Registrant or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Notes and at the date hereof, the Registrant was not and is not an “ineligible issuer,” as defined in Rule 405 of the Rules and Regulations. The conditions to the use by the Depositor of a registration statement on Form SF-3 under the Securities Act, as set forth in the Registrant Requirements in the General Instructions to Form SF-3, have been satisfied with respect to the Registration Statement and the Prospectus as of the date of this Agreement and will be satisfied as of the Closing Date. The conditions to the offering of the Notes under a registration statement on Form SF-3 under the Securities Act, as stated in the Transaction Requirements in the General Instructions to Form SF-3, will be satisfied as of the Closing Date. The Depositor has paid the registration fee for the Notes according to Rule 456 of the Securities Act.
(iv) The Original Registration Statement became effective on March 14, 2022, and any post-effective amendment thereto also has become effective and is effective as of the date hereof.
4
No stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Sponsor, are contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with. Prior to the issuance of the Notes, the Indenture will have been duly qualified under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”).
(v) Except as otherwise permitted herein, neither the Sponsor nor any of its affiliates has distributed or otherwise used or will distribute or otherwise use any free writing prospectus (as defined in Rule 405) relating to the Notes; provided, that the Sponsor and its affiliates shall be permitted to issue press releases regarding the Notes after the Applicable Time.
(vi) At the respective times the Original Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to the Underwriters pursuant to Rule 430D(f)(2) and at the Closing Date, the Registration Statement complied and will comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act, the Trust Indenture Act and the respective rules and regulations of the Commission thereunder and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Time of Sale Information, as of the respective dates of the components thereof and the Applicable Time, did not, and at the Closing Date, will not, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; and none of the Prospectus or any amendment or supplement thereto, at the respective times that the Prospectus or any such amendment or supplement was issued and at the Closing Date, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Sponsor makes no representations or warranties as to the information contained in or omitted from the Registration Statement, the Time of Sale Information or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with information furnished in writing to the Sponsor by the Underwriters as Underwriter Information specifically for use therein.
The term “Underwriter Information” means, with respect to the Preliminary Prospectus and the Prospectus, (i) the first sentence in the sixth paragraph (except for statements therein relating to the issuing entity) appearing under the heading “Underwriting” and (ii) the second sentence in the twelfth paragraph appearing under the heading “Underwriting”.
To the extent that the Underwriters have provided to the Depositor any Other Offering Document (as defined below), the Depositor has filed such Other Offering Document as required by, and within the time frames prescribed by, the Rules and Regulations; provided, that the Depositor shall not be required to have filed any Other Offering Document that consists solely of information (A) contemplated by Rule 134 of the Rules and Regulations and included or to be included in the Preliminary Prospectus, or the Prospectus, (B) contemplated by Rule 172(a) of the Rules and Regulations or (C) that is not otherwise required to be filed pursuant to the Rules and Regulations.
5
The Preliminary Prospectus and the Prospectus delivered to the Underwriters for use in connection with the offering of the Notes will, at the time of such delivery, be identical to any electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(vii) The documents incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus, when they were filed with the Commission, conformed in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and the Rules and Regulations of the Commission thereunder, and none of such documents contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; any further documents so filed and incorporated by reference in the Registration Statement, the Time of Sale Information or the Prospectus, when such documents are filed with the Commission will conform in all material respects to the requirements of the Exchange Act and the Rules and Regulations of the Commission thereunder and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(viii) Since the respective dates as of which information is given in the Registration Statement, the Preliminary Prospectus, each Free Writing Prospectus and the Prospectus, or the Registration Statement, the Preliminary Prospectus, each Free Writing Prospectus or the Prospectus as amended or supplemented, (i) there has not been any material adverse change, or any developments involving a prospective material adverse change, in or affecting the general affairs, business, management, financial condition, stockholders’ equity, results of operations, regulatory situation or business prospects of the Sponsor, and (ii) the Sponsor has not entered into any transaction or agreement (whether or not in the ordinary course of business) material to the Sponsor that, in either case, would reasonably be expected to materially adversely affect the interests of the holders of the Notes, otherwise than as set forth or contemplated in the Registration Statement, the Preliminary Prospectus, each Free Writing Prospectus or the Prospectus, as so amended or supplemented.
(ix) The Sponsor is not aware of (i) any request by the Commission for any further amendment of the Registration Statement, the Preliminary Prospectus, any Free Writing Prospectus or the Prospectus or for any additional information, (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose or (iii) any notification with respect to the suspension of the qualification of the Notes for the sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(x) As of its date and at the Applicable Time, the Road Show Information did not, and at the Closing Date will not, contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(xi) Each of the GMF Companies has been duly incorporated or formed and is validly existing as a corporation, limited liability company or statutory trust, as the case may be, in good standing under the laws of the jurisdiction of its formation or incorporation, as the case may be, with corporate, limited liability company or statutory trust power and authority to own its
6
properties and conduct its business as described in the Registration Statement, the Preliminary Prospectus, each Free Writing Prospectus and the Prospectus and to enter into and perform its obligations under the applicable Agreements, and is duly qualified to do business and is in good standing as a foreign corporation or organization in each jurisdiction in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the general affairs, business, management, financial condition, stockholders’ equity, results of operations, regulatory situation or business prospects of such GMF Company, and has all power and authority necessary to own or hold its properties, to conduct the business in which it is engaged and to enter into and perform its obligations under each Agreement to which it is a party and, in the case of the Companies, to cause the Securities to be issued.
(xii) There are no actions, proceedings or investigations pending before or threatened by any court, administrative agency or other tribunal to which any of the GMF Companies is a party or of which any of its properties is the subject (i) which if determined adversely to it is likely to have a material adverse effect individually, or in the aggregate, on the general affairs, business, management, financial condition, stockholders’ equity, results of operations, regulatory situation or business prospects of such GMF Company, (ii) asserting the invalidity of any Agreement, to which it is a party, in whole or in part, or the Securities, (iii) seeking to prevent the issuance of the Securities or the consummation by the GMF Companies of any of the transactions contemplated by any Agreements, in whole or in part, or (iv) which if determined adversely is likely to materially and adversely affect the performance by any of the GMF Companies of its obligations under, or the validity or enforceability of, any Agreement to which it is a party, in whole or in part, or the Securities.
(xiii) This Agreement has been duly authorized, validly executed and delivered by the Companies. At or prior to the Closing Date, each of the Agreements will have been duly authorized, validly executed and delivered by each of the applicable GMF Companies, and constitutes a legal, valid and binding agreement of the applicable GMF Companies, enforceable against the respective GMF Companies in accordance with its respective terms, except to the extent that the enforceability hereof and thereof may be subject (i) to insolvency, reorganization, moratorium, receivership, conservatorship, or other similar laws, regulations or procedures of general applicability now or hereafter in effect relating to or affecting creditors’ rights generally, (ii) to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), and (iii) with respect to rights of indemnity under this Agreement, to limitations of public policy under applicable securities laws.
(xiv) The issuance and delivery of the Securities, and the execution, delivery and performance of each Agreement by each of the GMF Companies party hereto or thereto, and the consummation of the transactions contemplated hereby and thereby by each of the GMF Companies party hereto and thereto, do not and will not conflict with or result in a breach of or violate any term or provision of or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, or other agreement or instrument to which any of the GMF Companies is a party, by which the GMF Companies may be bound or to which any of the property or assets of the GMF Companies or any of their subsidiaries may be subject, nor will such actions result in any violation of the provisions of the articles of incorporation, by-laws, limited liability company agreement, trust agreement or other organizational documents of the GMF Companies or any law,
7
statute or any judgment, order, decree, rule or regulation of any court or governmental agency or body having jurisdiction over any of the GMF Companies or any of their respective properties or assets.
(xv) The third party referenced in Section 6(O) is independent from the GMF Companies.
(xvi) No consent, approval, authorization, order, registration or qualification of or with any federal or state court or governmental agency or body of the United States is required for the issuance and sale of the Notes or the consummation by the GMF Companies of the other transactions contemplated by, or the performance of the GMF Companies of their respective obligations under, the Agreements, except for such consents, approvals, authorizations, orders, registrations or qualifications as may have been obtained or effected or as may be required under securities or “blue sky” laws in connection with the purchase and distribution of the Notes by the Underwriters.
(xvii) Each of the GMF Companies possesses (and have caused the Trust to possess) all material licenses, certificates, authorities or permits issued by the appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct the business now conducted by it and as described in the Preliminary Prospectus and the Prospectus (or is exempt therefrom) and none of the GMF Companies has received notice of any proceedings relating to the revocation or modification of such license, certificate, authority or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, is likely to materially and adversely affect the conduct of its respective business, operations, financial condition or income.
(xviii) None of the GMF Companies will conduct its operations while any of the Securities are outstanding in a manner that would require the Sponsor, the Depositor, the Trust or the Titling Trust to be registered as an “investment company” under the Investment Company Act of 1940, as amended (the “1940 Act”). It is not necessary to register the Sponsor, the Depositor, the Trust or the Titling Trust under the 1940 Act. The Trust will rely on an exclusion or exemption from the definition of “investment company” under the 1940 Act contained in Rule 3a-7 of the 1940 Act, although there may be additional exclusions or exemptions available to the Trust. The Trust is not a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (such statutory provision together with such implementing regulations, the “Volcker Rule”).
(xix) Any taxes, fees and other governmental charges in connection with the execution and delivery of the Agreements, and the execution, delivery and issuance of the Notes, that are required to be paid by the GMF Companies at or prior to the Closing Date, have been paid or will be paid at or prior to the Closing Date by the GMF Companies.
(xx) At the Closing Date, each of the representations and warranties made by the GMF Companies in the Agreements will be true and correct.
(xxi) The Sponsor has executed and delivered a written representation (the “17g-5 Representation”) to each of Fitch Ratings, Inc. (“Fitch”) and S&P Global Ratings (“S&P” and, together with Fitch, the “Engaged NRSROs”), which satisfies the requirements of paragraph
8
(a)(3)(iii) of Rule 17g-5 (“Rule 17g-5”) of the Exchange Act and a copy of which has been delivered to the Representatives. The Sponsor has complied, and has caused the Depositor to comply, with the 17g-5 Representation.
(xxii) At the Closing Date, no Lending Facility Default (as defined in the Credit and Security Agreement), Exchange Note Default (as defined in the Credit and Security Agreement), Event of Default (as defined in the Indenture), 2024-3 Exchange Note Default (as defined in the Exchange Note Supplement), Lending Facility Servicer Default (as defined in the Basic Servicing Agreement), Exchange Note Servicer Default (as defined in the Basic Servicing Agreement) or Servicer Default (as defined in the Servicing Supplement) shall have occurred or be continuing.
(xxiii) Any certificate signed by an officer of any of the GMF Companies and delivered to the Representatives or the Representatives’ counsel in connection with an offering of the Notes shall be deemed, and shall state that it is, a representation and warranty as to the matters covered thereby to each person to whom the representations and warranties in this Section 1 are made.
(xxiv) Since the respective dates as of which information is given in the Preliminary Prospectus and the Prospectus, (i) there has not been any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, business, management, financial condition, stockholders’ equity, results of operations, regulatory situation or business prospects of any of the GMF Companies, and (ii) none of the GMF Companies has entered into any transaction or agreement (whether or not in the ordinary course of business) material to any of the GMF Companies, that, in either case, would reasonably be expected to materially adversely affect the interests of the holders of the Securities, other than as set forth or contemplated in the Preliminary Prospectus and the Prospectus.
(xxv) (i) At the time of execution and delivery of the Exchange Note Sale Agreement, (1) the Sponsor will own the Exchange Note, free and clear of any lien, mortgage, pledge, charge, encumbrance, adverse claim or other security interest (collectively, “Liens”), and will not have assigned to any person other than the Depositor any of its right, title or interest in the Exchange Note, and (2) the Sponsor will have the power and authority to transfer the Exchange Note to the Depositor, (ii) at the time of execution and delivery of the Exchange Note Transfer Agreement, (1) the Depositor will own the Exchange Note, free and clear of any Liens, and will not have assigned to any person other than the Trust any of its right, title or interest in the Exchange Note, and (2) the Depositor will have the power and authority to transfer the Exchange Note to the Trust and to transfer the Notes to the Underwriters, (iii) at the time of execution and delivery of the Indenture, and at the time of execution, delivery and issuance of the Notes to the Depositor, the Trust will own the Exchange Note free of any Liens, (iv) at the time of execution and delivery of the Exchange Note Supplement, the Titling Trust will own the Lease Assets and will have marketable title to the related leased vehicles, together with all related rights thereto, in each case free and clear of any Liens (except as permitted by the Agreements), and (v) as of the Closing Date, the Titling Trust has not assigned to any person any of its right, title or interest in any of the Lease Assets, or has obtained releases of each such prior assignment.
(xxvi) As of the Cutoff Date, each of the Lease Assets met the eligibility criteria described in the Exchange Note Supplement, the Preliminary Prospectus and the Prospectus. At or prior to the Closing Date, each of the Lease Assets has been designated under the Credit and Security
9
Agreement to a pool securing the Exchange Note.
(xxvii) The Notes, the Exchange Note and the Agreements conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus.
(xxviii) The direction by the Depositor to the Owner Trustee to execute, authenticate, issue and deliver the Certificate will be duly authorized by the Depositor and, assuming the Owner Trustee has been duly authorized to do so, when executed, authenticated, issued and delivered by the Owner Trustee in accordance with the Trust Agreement, the Certificate will be validly issued and outstanding and will be entitled to the benefits of the Trust Agreement.
(xxix) At or prior to the Closing Date, the direction by the Depositor to the Indenture Trustee to execute, authenticate and deliver the Notes will have been duly authorized by the Depositor, and the Notes, when executed and authenticated in accordance with the Indenture, and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will be duly and validly issued and outstanding and entitled to the benefits of the Indenture.
(xxx) The Exchange Note has been duly and validly authorized and, when executed and authenticated in accordance with the Credit and Security Agreement and the Exchange Note Supplement, and delivered to and paid for by the Depositor in accordance with the terms of Exchange Note Supplement and the Exchange Note Sale Agreement, will be duly and validly issued and outstanding and entitled to the benefits of the Credit and Security Agreement and the Exchange Note Supplement.
(xxxi) Neither the Sponsor nor the Depositor has engaged any person to provide third-party “due diligence services” (as defined in Rule 17g-10 of the Exchange Act) relating to the Notes, other than the independent accountants engaged to perform certain agreed upon procedures in respect of the Lease Assets, and which accountants delivered to the Sponsor and the Underwriters a signed report entitled “Report of Independent Accountants on Applying Agreed-Upon Procedures” dated September 12, 2024 (the “Third-Party Diligence Report”). The Sponsor or the Depositor has complied with Rule 15Ga-2 of the Exchange Act with respect to the Third-Party Diligence Report, other than any breach arising from a breach by any Underwriter of the representation set forth in Section 19(D) of this Agreement, and the Sponsor or the Depositor has furnished to the Commission pursuant to EDGAR the Form ABS-15G (together with any revision or amendment thereof or any supplement thereto, the “Form ABS-15G”).
(xxxii) To the best of the Sponsor’s knowledge, the Asset Representations Reviewer satisfies the requirements in the definition of “asset representations reviewer” set forth in Item 1101(m) of Regulation AB under the Securities Act.
(xxxiii) The Sponsor has complied, and is the appropriate entity to comply, with all requirements imposed on the “sponsor of a securitization transaction” in accordance with the final rules contained in Regulation RR, 17 C.F.R. §246.1, et seq. (the “Credit Risk Retention Rules”) in the manner described in the Preliminary Prospectus under the heading “Credit Risk Retention.” The Sponsor determined the fair value of the “eligible horizontal residual interest” (the “Retained Interest”) (as defined in the Credit Risk Retention Rules) disclosed in the Preliminary Prospectus under the heading “Credit Risk Retention,” and will determine the fair value of the Retained
10
Interest on the Closing Date as required by Rule 4(c)(1)(ii) of the Credit Risk Retention Rules, based on its own valuation methodology, inputs and assumptions and is solely responsible therefor.
Section 2. Purchase and Sale. The Underwriters’ commitment to purchase the Notes pursuant to this Agreement shall be deemed to have been made on the basis of the representations, warranties and agreements of the Companies herein contained and shall be subject to the terms and conditions herein set forth. The Sponsor agrees to instruct the Trust to issue the Notes to the Underwriters, and the Underwriters agree to purchase, on the Closing Date, severally and not jointly, only the Notes set forth opposite their names in Schedule 1, except that the amounts purchased by the Underwriters may change in accordance with Section 9 of this Agreement. The purchase prices for the Notes shall be as set forth on Schedule 1 hereto.
Section 3. Delivery and Payment. Payment of the purchase price for, and delivery of, any Notes to be purchased by the Underwriters shall be made at the office of Katten Muchin Rosenman LLP, 50 Rockefeller Plaza, New York, New York, at 10:00 a.m. New York City time on October 2, 2024 (or at such other time and place as shall be agreed upon by the Representatives and the Companies, the “Closing Date”). Payment shall be made by wire transfer of same day funds payable to the account designated by the Sponsor. Each of the Notes so to be delivered shall be represented by one or more global certificates registered in the name of Cede & Co., as nominee for The Depository Trust Company.
The Companies agree to have authentic copies of the Notes available for inspection and checking by the Representatives in New York, New York, not later than 12:00 p.m. New York City time on the Business Day prior to the Closing Date. The original global certificated Notes will be held by the Indenture Trustee in Minneapolis, Minnesota.
Section 4. Offering by Underwriters. It is understood that the Underwriters propose to offer the Notes for sale to the public as set forth in the Prospectus.
Section 5. Covenants of the Companies. Each of the Companies covenants with the Underwriters as follows:
A. Subject to Section 5(B), it will comply with the requirements of Rules 424(b) and 430D and will notify the Representatives immediately, and confirm the notice in writing, of (i) the effectiveness of any post-effective amendment to the Registration Statement or the filing of any supplement or amendment to the Prospectus, (ii) the receipt of any comments from the Commission relating to the Registration Statement, any Free Writing Prospectus, the Preliminary Prospectus, or the Prospectus, (iii) any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or any document incorporated by reference therein or otherwise deemed to be a part thereof or for additional information, (iv) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Free Writing Prospectus or the Preliminary Prospectus, or of the suspension of the qualification of the Notes for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes, and (v) the happening of any event during the period referred to in Section 5(D) which, in the judgment of the Sponsor, makes the Registration Statement or the Prospectus contain an untrue statement of a material fact or omit to state a material fact required to be stated therein
11
or necessary in order to make the statements therein not misleading. The Companies will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain as soon as possible the lifting thereof.
B. Prior to the termination of the offering of the Notes, the Sponsor will not file any amendment to the Registration Statement or any amendment, supplement or revision to either the Preliminary Prospectus, any Free Writing Prospectus or to the Prospectus, unless the Sponsor has furnished the Underwriters with a copy for their review prior to such proposed filing or use, as the case may be, and will not file or use any such document to which the Underwriters shall reasonably object.
C. It has furnished or will deliver to the Underwriters and counsel for the Underwriters, without charge, a signed copy of the Original Registration Statement and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein or otherwise deemed to be a part thereof) and a signed copy of all consents and certificates of experts, and will also deliver to the Underwriters, without charge, a conformed copy of the Original Registration Statement and of each amendment thereto (without exhibits) for the Underwriters. The copies of the Original Registration Statement and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
D. The Sponsor will deliver to the Underwriters, without charge, electronic copies of the Preliminary Prospectus, each Free Writing Prospectus and the Prospectus, and hereby consents to the use of such electronic copies for purposes permitted by the Securities Act. The Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to any electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
E. It will comply with the Securities Act and the Rules and Regulations, the Exchange Act and the rules and regulations thereunder and the Trust Indenture Act and the rules and regulations thereunder so as to permit the completion of the distribution of the Notes as contemplated in this Agreement and the other Agreements, the Registration Statement, any Free Writing Prospectus and the Prospectus. If at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Notes, any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of counsel to the Companies, to amend the Registration Statement or amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the Securities Act or the Rules and Regulations, the Sponsor will promptly prepare and file with the Commission, subject to the review and approval provisions afforded to the Underwriters described in Section 5(B), such amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement, the Preliminary Prospectus or the Prospectus comply with such requirements, the Sponsor will use its best efforts to have such amendment or new registration
12
statement declared effective as soon as practicable and the Depositor will furnish to the Underwriters, without charge, such number of copies of such amendment or supplement as the Underwriters may reasonably request. Any such filing shall not operate as a waiver or limitation of any right of the Underwriters hereunder.
F. The Depositor will use its best efforts, in cooperating with the Sponsor and the Underwriters, to qualify the Notes for offering and sale under the applicable securities laws of such states and other jurisdictions of the United States as the Underwriters may designate, and maintain or cause to be maintained such qualifications in effect for as long as may be required for the distribution of the Notes. The Depositor will cause the filing of such statements and reports as may be required by the laws of each jurisdiction in which the Notes have been so qualified.
G. The Depositor will not, without the prior written consent of the Representatives, contract to sell any automobile receivables-backed certificates, automobile receivables-backed notes or other similar securities either directly or indirectly (as through the Sponsor) for a period of five (5) business days after the later of the termination of the syndicate or the Closing Date.
H. So long as the Notes remain outstanding, the Companies will, upon the request of any Underwriter, deliver to such Underwriter as soon as such statements are furnished to the Indenture Trustee: (i) any annual statements as to compliance of the Servicer (and any subservicer) and any annual assessments of compliance with the terms of the Servicing Agreement delivered to the Indenture Trustee pursuant to the Servicing Agreement, (ii) the annual accountants’ attestations in respect of the annual assessments of compliance and any other statement of a firm of independent public accountants furnished to the Indenture Trustee pursuant to the terms of the Servicing Agreement, and (iii) the monthly reports furnished to the Noteholders pursuant to the Servicing Agreement.
I. So long as any of the Notes are outstanding, the Companies will, upon request of any Underwriter, furnish to such Underwriter (i) all documents distributed or required to be distributed by it to the holders of the Notes pursuant to the Indenture as soon as such statements and reports are furnished to such holders, (ii) any filings with the Commission pursuant to the Exchange Act, or any order of the Commission thereunder, with respect to any securities issued by any of the GMF Companies or the Trust that are either the Notes or non-structured equity or debt offered by any of the GMF Companies, and (iii) from time to time, any other information concerning the GMF Companies or the Trust as the Underwriters may reasonably request in writing.
J. It will apply the net proceeds from the sale of the Notes in the manner set forth in the Preliminary Prospectus and the Prospectus.
K. If, between the date hereof or, if earlier, the dates as of which information is given in the Preliminary Prospectus and the Closing Date, to the knowledge of the Depositor or the Sponsor, there has been any material change, or any development involving a prospective material change in or affecting the general affairs, management, financial position, shareholders’ equity or results of operations of the Sponsor or the Depositor, the Sponsor will give prompt written notice thereof to the Underwriters.
13
L. To the extent, if any, that the ratings provided with respect to the Notes by the rating agency or agencies that initially rate the Notes are conditional upon the furnishing of documents or the taking of any other actions by the Companies, the Companies will use their best efforts to furnish or cause to be furnished such documents and take any such other actions.
M. Each of the GMF Companies will comply with the 17g-5 Representations made by the Sponsor to Fitch and S&P with respect to the Notes. The GMF Companies and the Trust will timely comply with all requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act to the satisfaction of the Representatives.
N. The Depositor, as registrant, will file a certification executed by the chief executive officer of GMF Leasing LLC (the “CEO Certification”) with the Commission in accordance with Item 601(b)(36) of Regulation S-K.
O. The Sponsor will comply with all requirements imposed on the “sponsor of a securitization transaction” in accordance with the Credit Risk Retention Rules, and will cause the Depositor and each other affiliate of GM Financial to comply with all applicable requirements of the Credit Risk Retention Rules, in each case with respect to the transactions contemplated by the Agreements and for the period of time required by the Credit Risk Retention Rules, and without any impermissible sale, transfer, financing, hedging or pledging of the Retained Interest. The Sponsor is and will be solely responsible for the disclosure requirements of the Credit Risk Retention Rules, including the contents of all such disclosures and ensuring that any required post-closing disclosures are timely provided to investors by an appropriate method that does not require any involvement of the Underwriters.
Section 6. Conditions of the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes pursuant to this Agreement are subject to (i) the accuracy on and as of the Closing Date of the representations and warranties on the part of the Companies herein contained, (ii) the accuracy of the statements of officers of the Companies made pursuant hereto, (iii) the performance by the Companies of all of their respective obligations hereunder, and the performance by the Companies of all of their respective obligations under the Agreements and (iv) the following conditions as of the Closing Date:
A. The Underwriters shall have received the Agreements, the Exchange Note and the Notes in form and substance satisfactory to the Underwriters and duly executed by the signatories required pursuant to the respective terms thereof.
B. The Underwriters shall have received from in-house counsel for the GMF Companies, favorable opinions, dated the Closing Date and satisfactory in form and substance to the Underwriters and counsel for the Underwriters.
C. The Underwriters shall have received from Katten Muchin Rosenman LLP, counsel for the GMF Companies, favorable opinions, dated the Closing Date and satisfactory in form and substance to the Underwriters and counsel for the Underwriters, and the Underwriters shall be addressees of any opinions of counsel supplied to any rating organizations relating to the Notes.
D. The Underwriters shall have received from Katten Muchin Rosenman LLP, counsel for the GMF Companies, a negative assurance letter with respect to the Preliminary Prospectus
14
and the Prospectus, dated the Closing Date and satisfactory in form and substance to the Underwriters and counsel for the Underwriters.
E. The Underwriters shall have received from Dorsey & Whitney LLP, counsel for Computershare, a favorable opinion, dated the Closing Date and satisfactory in form and substance to the Underwriters and counsel for the Underwriters.
F. The Underwriters shall have received from Richards, Layton & Finger, P.A., counsel for the Owner Trustee, a favorable opinion, dated the Closing Date and satisfactory in form and substance to the Underwriters and counsel for the Underwriters.
G. The Underwriters shall have received from Richards, Layton & Finger, P.A., special Delaware counsel to the Trust and other applicable GMF Companies, a favorable opinion, dated the Closing Date and satisfactory in form and substance to the Underwriters and counsel for the Underwriters.
H. The Underwriters shall have received from Morgan, Lewis & Bockius LLP, counsel to the Underwriters, a negative assurance letter with respect to the Preliminary Prospectus and the Prospectus, dated the Closing Date and satisfactory in form and substance to the Underwriters and counsel for the Underwriters.
I. Each of the Companies shall have delivered to the Underwriters a certificate, dated the Closing Date, of an authorized officer of such Company, to the effect that the signer of such certificate has carefully examined each Agreement, the Preliminary Prospectus and the Prospectus and that: (i) the representations and warranties of such Company in each Agreement to which it is a party are true and correct in all material respects at and as of the Closing Date with the same effect as if made on the Closing Date, (ii) such Company has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the Closing Date, (iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to such officer’s knowledge, threatened, (iv) there has been no material adverse change in the general affairs, business, management, financial condition, stockholders’ equity, results of operations, regulatory situation or business prospects of such Company, whether or not arising from transactions in the ordinary course of business, except as set forth or contemplated in the Preliminary Prospectus, each Free Writing Prospectus and the Prospectus and (v) nothing has come to such officer’s attention that would lead such officer to believe that the Time of Sale Information, the Road Show Information or the Prospectus contains any untrue statement of a material fact required to be stated therein or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Each of the Companies shall deliver a secretary’s certificate to which is attached a true and correct copy of its certificate of incorporation, by-laws, limited liability agreement, trust agreement or other organizational documents, which are in full force and effect on the date of such certificate and a certified true copy of the resolutions of its Board of Directors with respect to the transactions contemplated in this Agreement.
J. Computershare shall have furnished to the Underwriters a certificate of Computershare, dated the Closing Date, signed by one or more duly authorized officers of
15
Computershare, as to the due authorization, execution and delivery of the Agreements to which it is a party, and the acceptance by the Indenture Trustee of the trust created by such Agreements and the due execution and delivery of the Notes by the Indenture Trustee thereunder and such other matters as the Underwriters shall reasonably request.
K. The Owner Trustee shall have furnished to the Underwriters a certificate of the Owner Trustee, dated the Closing Date, signed by one or more duly authorized officers of the Owner Trustee, as to the due authorization, execution and delivery of the Trust Agreement by the Owner Trustee and the acceptance by the Owner Trustee of the trust created thereby and the due execution and delivery of the Certificate by the Owner Trustee thereunder and such other matters as the Underwriters shall reasonably request.
L. The Underwriters shall have received from counsel to the Asset Representations Reviewer a favorable opinion dated the Closing Date and satisfactory in form and substance to the Underwriters and counsel for the Underwriters, about certain corporate matters relating to the Asset Representations Reviewer.
M. On the Closing Date, the Notes shall have received the ratings set forth in the Ratings FWP.
N. All proceedings in connection with the transactions contemplated by this Agreement, and all documents incident thereto and hereto, shall be reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters, and the Underwriters and counsel for the Underwriters shall have received such other information, opinions, certificates and documents as they may reasonably request in writing.
O. On the Closing Date the Underwriters shall have received from a third party that is a nationally recognized accounting firm reasonably satisfactory to the Underwriters a letter in the form heretofore agreed to regarding static pool information, the Preliminary Prospectus and the Prospectus, each dated as of the review date, the date of the Preliminary Prospectus or the Prospectus, as applicable.
P. No stop order suspending the effectiveness of the Registration Statement shall have been issued, and no proceeding for that purpose shall have been initiated or threatened by the Commission. Any request of the Commission for inclusion of additional information in the Registration Statement, the Preliminary Prospectus, any Free Writing Prospectus or the Prospectus shall have been complied with.
Q. All proceedings in connection with the transactions contemplated by this Agreement, and all documents incident hereto, shall be reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters, and the Underwriters and counsel for the Underwriters shall have received such other information, opinions, certificates and documents as they may reasonably request in writing.
R. The Preliminary Prospectus, a Form ABS-EE containing initial asset-level data with respect to the Lease Assets, each Free Writing Prospectus, the Prospectus and any amendments and supplements thereto, and the CEO certification shall have been filed (if required) with the Commission in accordance with the rules and regulations under the Securities Act and
16
Section 1 hereof, and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be contemplated by the Commission or by any authority administering any state securities or “blue sky” law.
S. If not previously provided in a calendar year with respect to such state, the Underwriters shall have received from local counsel, in each state where there is a concentration of 10% or more of the Lease Assets, an opinion dated as of the Closing Date (or as of any other date as specified by the rating agencies to maintain the required ratings on the Notes) as to the perfection of security interests in automobiles in such state.
T. The CEO Certification shall have been filed with the Commission in accordance with Item 601(b)(36) of Regulation S-K.
If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, (i) this Agreement may be terminated by the Representatives by notice to both of the Companies at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 7 and (ii) the provisions of Section 7, the indemnity set forth in Section 8, the contribution provisions set forth in Section 8 and the provisions of Sections 11 and 14 shall remain in effect.
Section 7. Payment of Expenses. The Companies agree to pay all expenses incident to the performance of their respective obligations under this Agreement, including without limitation, (i) expenses incident to the filing of the Registration Statement and all amendments thereto, (ii) the duplication and delivery to the Underwriters, in such quantities as the Underwriters may reasonably request, of copies of the Agreements, (iii) expenses incident to the preparation, issuance and delivery of the Notes and the Exchange Note, (iv) the fees and disbursements of Katten Muchin Rosenman LLP, counsel to the Companies, (v) the fees and disbursements of the third party referenced in Section 6(O) above, (vi) expenses incident to the qualification of the Notes under securities and “blue sky” laws and the determination of the eligibility of the Notes for investment in accordance with the provisions hereof, including filing fees and the fees and disbursements of Morgan, Lewis & Bockius LLP, counsel to the Underwriters, in connection therewith and in connection with the preparation of any “blue sky” survey, (vii) the printing and delivery to the Underwriters in such quantities as the Underwriters may reasonably request, of copies of the Registration Statement and the Prospectus and all amendments and supplements thereto, and of any “blue sky” survey, (viii) the duplication and delivery to the Underwriters, in such quantities as the Underwriters may reasonably request, of copies of the Agreements and the other transaction documents, (ix) the fees charged by nationally recognized statistical rating agencies for rating the Notes, (x) the fees and expenses of the Indenture Trustee and its counsel, (xi) the fees and expenses of the Owner Trustee and its counsel, (xii) the fees and expenses of the Asset Representations Reviewer and its counsel and (xiii) the costs and expenses (including any damages or other amounts payable in connection with legal or contractual liability) associated with the reforming of any contracts for sale of the Notes made by the Underwriters caused by a breach of any representations or warranties of the Companies contained in Section 1(vi), (vii), (xx) and (xxv).
If this Agreement is terminated by the Representatives in accordance with the provisions
17
of Section 6, the Companies shall reimburse the Underwriters for all reasonable out-of-pocket expenses, including the reasonable fees and disbursements of Morgan, Lewis & Bockius LLP, counsel to the Underwriters. Except as described in the immediately preceding sentence, the Underwriters agree to pay the reasonable fees and disbursements of Morgan, Lewis & Bockius LLP incident to the performance of the Underwriters’ obligations under this Agreement.
Section 8. Indemnification and Contribution.
A. Each of the Companies agrees to severally and jointly indemnify and hold harmless each Underwriter, its directors, officers, employees, agents and each person, if any, who controls such Underwriter within the meaning of the Securities Act or the Exchange Act, from and against any and all loss, claim, damage or liability, joint or several, or any action in respect thereof (including, but not limited to, any loss, claim, damage, liability or action relating to purchases and sales of the Notes), to which such Underwriter, director, officer, employee, agent or any such controlling person may become subject, under the Securities Act or the Exchange Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (including the 430D Information), the Preliminary Prospectus, each Free Writing Prospectus, the Road Show Information, the Prospectus or the related CDI Intex file (other than any Derived Information included therein), any issuer free writing prospectus, the Form ABS-15G or any amendment, exhibit or supplement to any of the foregoing (in each case, other than in the Underwriter Information), or (ii) the omission or alleged omission to state in the Registration Statement (including the 430D Information), the Preliminary Prospectus, each Free Writing Prospectus, the Road Show Information, the Prospectus or the related CDI Intex file (other than any Derived Information included therein), any issuer free writing prospectus, the Form ABS-15G or any amendment, exhibit or supplement to any of the foregoing (in each case, other than in the Underwriter Information), a material fact required to be stated or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and shall reimburse each Underwriter and any such director, officer, employee, agent and each such controlling person promptly upon demand for any documented legal or documented other expenses reasonably incurred by such Underwriter or any such director, officer, employee, agent or such controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred.
The foregoing indemnity agreement is in addition to any liability which the Companies may otherwise have to the Underwriters or any director, officer, employee, agent or controlling person of any of the Underwriters.
B. Each of the Underwriters agrees to severally and not jointly indemnify and hold harmless the Companies, the directors and the officers of the Sponsor and the Depositor who signed the Registration Statement, and each person, if any, who controls the Sponsor or the Depositor within the meaning of the Securities Act or the Exchange Act, against any and all loss, claim, damage or liability, or any action in respect thereof, to which the Sponsor, the Depositor or any such director, officer or controlling person may become subject, under the Securities Act or the Exchange Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material fact relating to such Underwriter contained in the Underwriter Information, or (ii) the omission or alleged
18
omission to state in the Underwriter Information a material fact relating to such Underwriter required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and shall reimburse the Sponsor or the Depositor, as applicable, promptly on demand, and any such director, officer or controlling person for any documented legal or other documented expenses reasonably incurred by the Sponsor, the Depositor or any director, officer or controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred, except as expressly limited herein.
Except as otherwise expressly provided, the foregoing indemnity agreement is in addition to any liability which the Underwriters may otherwise have to the Sponsor, the Depositor or any such director, officer or controlling person.
C. Promptly after receipt by any indemnified party under this Section 8 of notice of any claim or the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against any indemnifying party under this Section 8, promptly notify the indemnifying party in writing of the claim or the commencement of that action; provided however, that the failure to notify an indemnifying party shall not relieve it from any liability which it may have under this Section 8 except to the extent it has been materially prejudiced by such failure; and provided, further, that the failure to notify any indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under this Section 8.
If any such claim or action shall be brought against an indemnified party, and it shall notify the indemnifying party thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof with counsel reasonably satisfactory to the indemnified party, unless such indemnified party reasonably objects to such assumption on the ground that there may be legal defenses available to it which are different from or in addition to those available to such indemnifying party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to participate in, or assume the defense of, any such claim or action against an indemnified party brought by a governmental agency, regulatory authority or self-regulatory authority having or claiming to have jurisdiction over the business or financial affairs of such indemnified party or any of its affiliates, unless such indemnified party consents to such participation or assumption. After notice from the indemnifying party to the indemnified party of its election to assume the defense of such claim or action, except to the extent provided in the next following paragraph, the indemnifying party shall not be liable to the indemnified party under this Section 8 for any fees and expenses of counsel subsequently incurred by the indemnified party in connection with the defense thereof other than reasonable costs of investigation.
Any indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless: (i) the employment thereof has been specifically authorized by the indemnifying party in writing; (ii) such indemnified party shall have been advised by such counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the indemnifying party and in the reasonable judgment of such counsel it is advisable for such indemnified party to employ separate counsel; or (iii) the indemnifying party has failed to assume the defense of such action and employ counsel
19
reasonably satisfactory to the indemnified party, in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action on behalf of such indemnified party, it being understood, however, the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to local counsel) at any time for all such indemnified parties, which firm shall be designated in writing by the Representatives, if the indemnified parties under this Section 8 consist of the Underwriters or any of their controlling persons, or by the Companies, if the indemnified parties under this Section 8 consist of either of the Companies or any of the Companies’ directors, officers or controlling persons, but in either case reasonably satisfactory to the indemnified party.
Each indemnified party, as a condition of the indemnity agreements contained in Sections 8(A), 8(B) and 8(E), shall use its reasonable efforts to cooperate with the indemnifying party in the defense of any such action or claim. No indemnifying party shall be liable for any settlement of any such action effected without its written consent (which consent shall not be unreasonably withheld), but if settled with its written consent or if there be a final judgment for the plaintiff in any such action, the indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without prior written consent of the indemnified party, effect any settlement of any pending or threatened action in respect of which such indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party unless such settlement (i) includes an unconditional release of such indemnified party from all liability on any claims that are the subject matter of such action and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
D. Each Underwriter, severally and not jointly, covenants and agrees that it has not and will not distribute any Other Offering Document unless (i) it has notified the Companies of its intention to distribute such Other Offering Document prior to its distribution thereof and (ii) it provides the Companies with a copy of such Other Offering Document in an electronic format prior to or simultaneously with its initial distribution of such Other Offering Document. “Other Offering Document” means any “written communication” (as defined in Rule 405 of the Rules and Regulations) relating to the offer and sale of the Notes that would constitute a “free writing prospectus” (as defined in Rule 405 of the Rules and Regulations), including but not limited to any “ABS information and computational materials” (as defined in Item 1101(a) of Regulation AB under the Securities Act), for the avoidance of doubt, written communication will include CDI Intex files that do not contain any Issuer Information other than Issuer Information included in the Preliminary Prospectus, but will exclude any such written communication that consists solely of postings that are initially made by any Underwriter on the Bloomberg system, or otherwise via e-mail and that contains only identifying information regarding the Trust and the Notes; the expected closing date and first payment date for the Notes; the expected principal amount, expected weighted average life, expected ratings, expected periods for payments of principal, expected final payment date, expected legal final payment date and expected interest rate index for each class of Notes; preliminary guidance as to the interest rate and/or yield for each class of Notes (but not final interest rate or yield information); information regarding the principal amount of the Notes
20
being offered by each Underwriter; other similar or related information such as expected pricing parameters, status of subscriptions and Underwriter’s retentions and ERISA eligibility; and/or any legends regarding the contents of such written communication.
E. (i) Each Underwriter agrees, assuming all Issuer Information (defined below) is accurate and complete in all material respects, to severally and not jointly indemnify and hold harmless the Sponsor, each of the Sponsor’s officers, directors and each person who controls the Sponsor within the meaning of Section 15 of the Securities Act against any and all losses, claims, damages or liabilities, joint or several, to which they may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement of a material fact contained in the Derived Information (as defined below) provided by such Underwriter, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and agrees to reimburse each such indemnified party for any legal or other expenses reasonably incurred by him, her or it in connection with investigating or defending or preparing to defend any such loss, claim, damage, liability or action as such expenses are incurred; provided, however, that in no case shall any Underwriter be responsible for any amount in excess of the underwriting discount applicable to the Notes purchased by such Underwriter; provided, further, that no Underwriter shall be liable to the extent that any such loss, claim, damage or liability arises out of or is based upon any statement in or omission from any Derived Information in reliance upon and in conformity with (A) any written information furnished to the related Underwriter by the Companies expressly for use therein, which information was not corrected by information subsequently provided by the Companies to the related Underwriter prior to the time of use of such Derived Information, (B) information accurately extracted from the Preliminary Prospectus or the Prospectus, which information was not corrected by information subsequently provided by the Companies to the related Underwriter prior to the time of use of such Derived Information, or (C) Issuer Information (as defined in Section 8(F)). The obligations of each of the Underwriters under this Section 8(E)(i) shall be in addition to any liability which such Underwriter may otherwise have.
(ii) The Sponsor agrees to indemnify and hold harmless each Underwriter, each of such Underwriter’s officers, directors, employees, agents and each person who controls such Underwriter within the meaning of Section 15 of the Securities Act against any and all losses, claims, damages or liabilities, joint or several, to which they may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement of a material fact contained in the Issuer Information, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and agrees to reimburse each such indemnified party for any legal or other expenses reasonably incurred by him, her or it in connection with investigating or defending or preparing to defend any such loss, claim, damage, liability or action as such expenses are incurred. The Sponsor’s obligation under this Section 8(E)(ii) shall be in addition to any liability which it may otherwise have to the Underwriters.
The procedures set forth in Section 8(C) shall be equally applicable to this Section 8(E).
21
F. For purposes of this Section 8, the term “Derived Information” means such information, if any, contained in any Other Offering Document that:
(i) is not contained in the Registration Statement, the Preliminary Prospectus or the Prospectus, taking into account information incorporated into the Registration Statement, the Preliminary Prospectus or the Prospectus by reference; and
(ii) does not constitute Issuer Information.
“Issuer Information” means (i) any computer tape furnished to the Underwriters by the Companies concerning the Lease Assets (including any such information intended for use or incorporation in any Other Offering Document), (ii) the Registration Statement, the Preliminary Prospectus, the Prospectus and the Road Show Information (in each case, other than in the Underwriter Information) and (iii) any other textual information furnished by the Companies to the Underwriters for inclusion in any Other Offering Document that constitutes “issuer information” (as defined in Rule 433(h)(2) of the Rules and Regulations and footnote 271 of the Securities Act Release No. 33-8591).
For the avoidance of doubt, “Derived Information” will include any information that would otherwise constitute Issuer Information but that was not accurately extracted or transcribed by any Underwriter for use or incorporation in any Other Offering Document.
G. If the indemnification provided for in this Section 8 shall for any reason be unavailable or insufficient to hold harmless an indemnified party under Section 8(A), 8(B) or 8(E) in respect of any loss, claim, damage or liability, or any action in respect thereof, referred to therein, then each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute severally and not jointly to the amount paid or payable by such indemnified party as a result of such loss, claim, damage or liability, or action in respect thereof, (i) in such proportion as shall be appropriate to reflect the relative benefits received by the Sponsor and the Depositor on the one hand and the Underwriters on the other from the offering of the Notes or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Sponsor and the Depositor on the one hand and the Underwriters on the other with respect to the statements or omissions which resulted in such loss, claim, damage or liability, or action in respect thereof, as well as any other relevant equitable considerations.
The relative benefits of the Underwriters, the Depositor and the Sponsor shall be deemed to be in such proportion so that the Underwriters are responsible for that portion represented by the percentage that the underwriting discount appearing on the cover page of the Prospectus bears to the public offering price appearing on the cover page of the Prospectus.
The relative fault of the Underwriters, the Depositor and the Sponsor shall be determined by reference to whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Sponsor, the Depositor or by one of the Underwriters, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such statement or omission and other equitable considerations.
22
The Sponsor, the Depositor and the Underwriters agree that it would not be just and equitable if contributions pursuant to this Section 8(G) were to be determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to herein. The amount paid or payable by an indemnified party as a result of the loss, claim, damage or liability, or action in respect thereof, referred to above in this Section 8(G) shall be deemed to include, for purposes of this Section 8(G), any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim.
Each director and officer of the Underwriters, and each person, if any, who controls an Underwriter within the meaning of the Securities Act or the Exchange Act, shall have the same rights to contribution as each of the Underwriters. Each director and officer of the Sponsor and the Depositor who signed the Registration Statement, and each person, if any, who controls the Sponsor or the Depositor within the meaning of the Securities Act or the Exchange Act, shall have the same rights to contribution as the Depositor and Sponsor.
In no case shall any Underwriter be responsible for any amount in excess of the underwriting discount applicable to the Notes purchased by such Underwriter hereunder. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
Section 9. Default by One or More of the Underwriters. If one or more of the Underwriters participating in the public offering of the Notes shall fail at the Closing Date to purchase the Notes which it is obligated to purchase hereunder (the “Defaulted Securities”), then the non-defaulting Underwriters shall have the right, within 24 hours thereafter, to make arrangements to purchase all, but not less than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms herein set forth. If, however, the Underwriters have not completed such arrangements within such 24-hour period, then:
A. if the aggregate principal amount of Defaulted Securities does not exceed 10% of the aggregate principal amount of the Notes to be purchased pursuant to this Agreement, the non-defaulting Underwriters shall be obligated, pro rata in the proportion shown in the attached Schedule 1 as to each non-defaulting Underwriter (“Pro Rata”) (unless the non-defaulting Underwriters agree among themselves to a different allocation) to purchase the full amount thereof, or
B. if the aggregate principal amount of Defaulted Securities exceeds 10% of the aggregate principal amount of the Notes to be purchased pursuant to this Agreement, (a) no non-defaulting Underwriters shall be required to purchase any Notes which were to be purchased by the defaulting Underwriter, (b) the non-defaulting Underwriters may elect to purchase the remaining amount Pro Rata (unless the non-defaulting Underwriters agree among themselves to a different allocation) provided that if the non-defaulting Underwriters have not agreed to purchase the entire aggregate principal amount of the Notes, then this Agreement shall terminate, without any liability on the part of the non-defaulting Underwriters.
No action taken pursuant to this Section shall relieve the defaulting Underwriter from the
23
liability with respect to any default of such Underwriter under this Agreement.
In the event of a default by any Underwriter as set forth in this Section, each of the Underwriters and the Depositor shall have the right to postpone the Closing Date for a period not exceeding five (5) Business Days in order that any applicable changes in the Registration Statement, the Preliminary Prospectus, the Prospectus or in any other documents or arrangements may be effected.
Section 10. Termination. This Agreement shall be subject to termination in the absolute discretion of the Representatives, by notice given to the Sponsor and the Depositor prior to delivery of and payment for the Notes if prior to such time (i) any change, or any development involving a prospective change, would have a material adverse effect on the general affairs, business, management, financial condition, stockholders’ equity, results of operations, regulatory situation or business prospects of the GMF Companies or the Trust which, in the reasonable judgment of the Representatives, materially impairs the investment quality of the Notes or makes it impractical or inadvisable to market the Notes; (ii) the Notes have been placed on credit watch or review by either of the Engaged NRSROs with negative implications; (iii) trading in securities generally on the New York Stock Exchange or the National Association of Securities Dealers National Market System shall have been suspended or limited, or minimum prices shall have been established on such exchange or market system; (iv) a banking moratorium shall have been declared by either federal or New York State authorities; (v) there shall have occurred any outbreak or material escalation of hostilities or other calamity or crisis or change in the financial markets, the effect of which is a material adverse effect on the practicality or advisability of proceeding with the completion of the sale and payment for the Notes; or (vi) any material disruption in securities settlement, payment or clearance services shall have occurred in the United States. Upon such notice being given, the parties to this Agreement shall (except for any liability arising before or in relation to such termination) be released and discharged from their respective obligations under this Agreement.
Section 11. Representations, Warranties and Agreements to Survive Delivery. All representations, warranties and agreements contained in this Agreement or contained in certificates of officers of the Companies submitted pursuant hereto, shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of the Underwriters or any officers, directors or controlling persons of any of the Underwriters, or by or on behalf of the Companies or any officers, directors or controlling persons of either of the Companies and shall survive delivery of any Notes to the Underwriters.
Section 12. Absence of Fiduciary Relationship. The Sponsor and the Depositor acknowledge and agree that:
A. The Underwriters have been retained solely to act as Underwriters in connection with the sale of the Notes and that no fiduciary, advisory or agency relationship between the Sponsor and/or the Depositor and the Underwriters has been created in respect of any of the transactions contemplated by this Agreement, irrespective of whether the Underwriters have advised or are advising the Sponsor, the Depositor and/or any of their respective affiliates on other matters;
24
B. No Underwriter is advising the Sponsor, the Depositor or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Sponsor and the Depositor shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and no Underwriter shall have any responsibility or liability to the Sponsor or the Depositor with respect thereto. Any review by any Underwriter of the Sponsor, the Depositor, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of such Underwriter and shall not be on behalf of the Sponsor or the Depositor;
C. The price of the Notes set forth in this Agreement was established by the Depositor following discussions and arms-length negotiations with the Representatives and the Sponsor and the Depositor are capable of evaluating and understanding, and understand and accept, the terms, risks and conditions of the transactions contemplated by this Agreement;
D. The Sponsor and the Depositor have been advised that the Underwriters and their affiliates are engaged in a broad range of transactions which may involve interests that differ from those of the Sponsor and/or the Depositor and that the Underwriters have no obligation to disclose such interests and transactions to the Sponsor and/or the Depositor by virtue of any fiduciary, advisory or agency relationship; and
E. Each of the Sponsor and the Depositor waives, to the fullest extent permitted by law, any claims it may have against the Underwriters for breach of fiduciary duty or alleged breach of fiduciary duty and agrees that the Underwriters shall have no liability (whether direct or indirect) to the Sponsor or the Depositor in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or in right of the Sponsor or the Depositor, including stockholders, employees or creditors of the Sponsor or the Depositor.
Section 13. Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of electronic or facsimile communication to:
| The Representatives: |
Wells Fargo Securities, LLC | |
| 550 South Tryon Street, 5th Floor | ||
| Charlotte, North Carolina 28202 | ||
| Credit Agricole Securities (USA) Inc. | ||
| 1301 Avenue of the Americas | ||
| New York, New York 10019 | ||
| MUFG Securities Americas Inc. | ||
| 1221 Avenue of the Americas, 6th Floor | ||
| New York, New York 10020 | ||
| TD Securities (USA) LLC | ||
| One Vanderbilt Avenue, 11th Floor | ||
| New York, New York 10017 | ||
25
| The Sponsor: |
AmeriCredit Financial Services, Inc. | |
| 801 Cherry Street, Suite 3500 | ||
| Fort Worth, Texas 76102 | ||
| Attention: Chief Financial Officer | ||
| Fax: (817) 302-7915 | ||
| The Depositor: |
GMF Leasing LLC | |
| c/o AmeriCredit Financial Services Inc. | ||
| 801 Cherry Street, Suite 3500 | ||
| Fort Worth, Texas 76102 | ||
| Attention: Chief Financial Officer | ||
| Fax: (817) 302-7915 | ||
Section 14. Parties. This Agreement shall inure to the benefit of and be binding upon the Representatives and the Companies, and their respective successors or assigns. Nothing expressed or mentioned in this Agreement is intended nor shall it be construed to give any person, firm or corporation, other than the parties hereto or thereto and their respective successors and the controlling persons and officers and directors referred to in Section 8 and their heirs and legal representatives, any legal or equitable right, remedy or claim under or with respect to this Agreement or any provision herein contained. This Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the parties and their respective successors and said controlling persons and officers and directors and their heirs and legal representatives (to the extent of their rights as specified herein and therein) and except as provided above for the benefit of no other person, firm or corporation. No purchaser of Notes from the Representatives shall be deemed to be a successor by reason merely of such purchase.
Section 15. GOVERNING LAW; VENUE. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT, THE RELATIONSHIPS OF THE PARTIES AND/OR THE INTERPRETATIONS AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF THE PARTIES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW). EACH OF THE PARTIES HERETO HEREBY AGREES TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK. EACH OF THE PARTIES HERETO HEREBY WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS, AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER IN ANY OF THE AFOREMENTIONED COURTS AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT.
Section 16. WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE BETWEEN THE PARTIES
26
HERETO ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP BETWEEN ANY OF THEM IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. INSTEAD, ANY SUCH DISPUTE RESOLVED IN COURT WILL BE RESOLVED IN A BENCH TRIAL WITHOUT A JURY.
Section 17. Counterparts and Electronic Signatures. This Agreement may be executed in counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same instrument. The words “executed,” “signed,” “signature,” and words of like import in this Agreement or in any other certificate, agreement or document related to this transaction shall include, in addition to manually executed signature pages, images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf”, “tif” or “jpg”) and other electronic signatures (including, without limitation, any electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.
Section 18. Headings. The headings herein are inserted for convenience of reference only and are not intended to be part of or affect the meaning or interpretation of, this Agreement.
Section 19. Underwriter Representations and Covenants.
A. The Underwriters severally and not jointly agree that, without the prior consent of the Sponsor, they will not provide to any “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) (a “NRSRO”) any information, written or oral, related to the Trust, the Notes, the Lease Assets, the transactions contemplated by this Agreement or the other Agreements, or any other information that could be reasonably determined to be relevant to (x) determining an initial credit rating for the Notes (as contemplated by Rule 17g-5(a)(3)(iii)(C)) or (y) undertaking credit rating surveillance for the Notes (as contemplated by Rule 17g-5(a)(3)(iii)(D)); provided, however, that if an Underwriter receives any communication from a NRSRO with respect to the Notes, such Underwriter is authorized to inform such NRSRO that it will respond to the communication only with a designated representative from the Sponsor or refer such NRSRO to the Sponsor so that the Sponsor may respond to such communication.
B. Each Underwriter severally and not jointly represents and agrees that (i) in the United Kingdom, 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, as amended (the “FSMA”)), received by it in connection with the issue or sale of any Notes in circumstances in which Section 21(1) of the FSMA does not apply to the Trust and/or the Depositor, and (ii) it has complied and will comply with all applicable provisions of the FSMA
27
with respect to anything done by it in relation to the Notes in, from or otherwise involving the United Kingdom.
C. Prior to entering into any “contract of sale” (within the meaning of Rule 159 under the Securities Act), each Underwriter agrees that it will, at any time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Securities Act) with respect to the Notes, convey the Time of Sale Information to each investor to whom Notes are sold by it prior to the filing of the Prospectus with the Commission.
D. Each Underwriter severally and not jointly represents that it has not engaged any person to provide third-party “due diligence services” (as defined in Rule 17g-10 under the Exchange Act) relating to the Notes.
E. The Underwriters severally and not jointly confirm that the Underwriter Information is correct in all material respects and constitutes the only information furnished in writing to the Companies by or on behalf of the Underwriters specifically for inclusion in the Preliminary Prospectus and the Prospectus.
F. Each Underwriter severally and not jointly represents and agrees that it has not offered, sold or otherwise made available, and will not offer, sell or otherwise make available, any Notes to any U.K. Retail Investor in the United Kingdom. For these purposes (a) the expression “U.K. Retail Investor” means a person who is one (or more) of the following: (i) a retail client, as defined in point (8) of Article 2 of Commission Delegated Regulation (EU) 2017/565, as it forms part of U.K. domestic law by virtue of the European Union (Withdrawal) Act 2018 (“EUWA”), and as amended; or (ii) a customer within the meaning of the provisions of the FSMA (such rules and regulations as amended) to implement Directive (EU) 2016/97, where that customer would not qualify as a professional client, as defined in point (8) of Article 2(1) of Regulation (EU) No. 600/2014, as it forms part of U.K. domestic law by virtue of the EUWA, and as amended; or (iii) not a qualified investor, as defined in Article 2 of Regulation (EU) 2017/1129, as it forms part of U.K. domestic law by virtue of the EUWA, and as amended, and (b) the expression “offer” includes 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 for the Notes.
G. Each Underwriter severally and not jointly represents and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Notes to any E.U. Retail Investor in the European Economic Area. For these purposes, the expression “E.U. Retail Investor” means a person who is one (or more) of the following: (i) a retail client, as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); or (ii) a customer within the meaning of Directive (EU) 2016/97 (as amended), where that customer would not qualify as a professional client, as defined in point (10) of Article 4(1) of MiFID II; or (iii) not a qualified investor, as defined in Article 2 of Regulation (EU) 2017/1129, as amended. In addition, for purposes of this provision, the expression “offer” includes 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 for the Notes.
Section 20. Recognition of the U.S. Special Resolution Regimes.
28
A. In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
B. In the event that any Underwriter that is a Covered Entity or any BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
C. For purposes of this Section 20, the following terms shall have the following meanings:
(i) “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
(ii) “Covered Entity” means any of the following:
(1) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(2) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(3) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
(iii) “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
(iv) “U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
[Remainder of Page Intentionally Left Blank]
29
If the foregoing is in accordance with the Representatives’ understanding of our agreement, please sign and return to us a counterpart hereof, whereupon this instrument along with all counterparts will become a binding agreement by and among the Representatives, the Sponsor and the Depositor in accordance with its terms.
| Very truly yours, | ||
| AMERICREDIT FINANCIAL SERVICES, INC. D/B/A GM FINANCIAL | ||
| By: | /s/ Robert T. Pigott III | |
| Name: Robert T. Pigott III | ||
| Title: Senior Vice President, Corporate Treasury | ||
| GMF LEASING LLC | ||
| By: | /s/ Meredith S. Dormire | |
| Name: Meredith S. Dormire | ||
| Title: Vice President, Corporate Treasury | ||
CONFIRMED AND ACCEPTED,
as of the date first above written:
| WELLS FARGO SECURITIES, LLC, acting on its own behalf and as a | ||
| Representative of the Underwriters referred to in the foregoing Agreement | ||
| By: | /s/ Leigh Poltrack | |
| Name: Leigh Poltrack | ||
| Title: Executive Director | ||
| CREDIT AGRICOLE SECURITIES (USA) INC., acting on its own behalf and as a | ||
| Representative of the Underwriters referred to in the foregoing Agreement | ||
| By: | /s/ Roger Klepper | |
| Name: Roger Klepper | ||
| Title: Managing Direction | ||
| By: | /s/ Michael Regan | |
| Name: Michael Regan | ||
| Title: Managing Director | ||
| MUFG SECURITIES AMERICAS INC., acting on its own behalf and as a | ||
| Representative of the Underwriters referred to in the foregoing Agreement | ||
| By: | /s/ Brian Chin | |
| Name: Brian Chin | ||
| Title: Director | ||
| TD SECURITIES (USA) LLC, acting on its own behalf and as a | ||
| Representative of the Underwriters referred to in the foregoing Agreement | ||
| By: | /s/ Luiz Lanfredi | |
| Name: Luiz Lanfredi | ||
| Title: Director | ||
Schedule 1
Purchase Price
|
Class A-1 |
Class A-2-A |
Class A-2-B |
Class A-3 |
Class A-4 | ||||||
| Credit Agricole Securities (USA) Inc. |
99.90000% | 99.79539% | 99.80000% | 99.73817% | 99.64230% | |||||
| MUFG Securities Americas Inc. |
99.90000% | 99.79539% | 99.80000% | 99.73817% | 99.64230% | |||||
| TD Securities (USA) LLC |
99.90000% | 99.79539% | 99.80000% | 99.73817% | 99.64230% | |||||
| Wells Fargo Securities, LLC |
99.90000% | 99.79539% | 99.80000% | 99.73817% | 99.64230% | |||||
| BNP Paribas Securities Corp. |
99.90000% | 99.79539% | 99.80000% | 99.73817% | 99.64230% | |||||
| Scotia Capital (USA) Inc. |
99.90000% | 99.79539% | 99.80000% | 99.73817% | 99.64230% | |||||
| Siebert Williams Shank & Co., LLC |
99.90000% | 99.79539% | 99.80000% | 99.73817% | 99.64230% | |||||
| SMBC Nikko Securities America, Inc. |
99.90000% | 99.79539% | 99.80000% | 99.73817% | 99.64230% | |||||
| Class B |
||||||||||
| Credit Agricole Securities (USA) Inc. |
99.58513% | |||||||||
| MUFG Securities Americas Inc. |
99.58513% | |||||||||
| TD Securities (USA) LLC |
99.58513% | |||||||||
| Wells Fargo Securities, LLC |
99.58513% | |||||||||
| BNP Paribas Securities Corp. |
- | |||||||||
| Scotia Capital (USA) Inc. |
- | |||||||||
| Siebert Williams Shank & Co., LLC |
- | |||||||||
| SMBC Nikko Securities America, Inc. |
- | |||||||||
Principal Amount(1)
|
Class A-1 |
Class A-2-A |
Class A-2-B |
Class A-3 |
Class A-4 | ||||||
| Credit Agricole Securities (USA) Inc. |
$38,668,000 | $50,537,000 | $58,300,000 | $99,000,000 | $15,730,000 | |||||
| MUFG Securities Americas Inc. |
$38,668,000 | $50,537,000 | $58,300,000 | $99,000,000 | $15,730,000 | |||||
| TD Securities (USA) LLC |
$38,668,000 | $50,537,000 | $58,300,000 | $99,000,000 | $15,730,000 | |||||
| Wells Fargo Securities, LLC |
$38,668,000 | $50,541,000 | $58,300,000 | $99,000,000 | $15,730,000 | |||||
| BNP Paribas Securities Corp. |
$5,272,000 | $6,892,000 | $7,950,000 | $13,500,000 | $2,145,000 | |||||
| Scotia Capital (USA) Inc. |
$5,272,000 | $6,892,000 | $7,950,000 | $13,500,000 | $2,145,000 | |||||
| Siebert Williams Shank & Co., LLC |
$5,272,000 | $6,892,000 | $7,950,000 | $13,500,000 | $2,145,000 | |||||
| SMBC Nikko Securities America, Inc. |
$5,272,000 | $6,892,000 | $7,950,000 | $13,500,000 | $2,145,000 | |||||
| Class B |
||||||||||
| Credit Agricole Securities (USA) Inc. |
$16,280,000 | |||||||||
| MUFG Securities Americas Inc. |
$16,280,000 | |||||||||
| TD Securities (USA) LLC |
$16,280,000 | |||||||||
| Wells Fargo Securities, LLC |
$16,280,000 | |||||||||
| BNP Paribas Securities Corp. |
- | |||||||||
| Scotia Capital (USA) Inc. |
- | |||||||||
| Siebert Williams Shank & Co., LLC |
- | |||||||||
| SMBC Nikko Securities America, Inc. |
- | |||||||||
(1) The Class C Notes will be retained by the Depositor or conveyed to an affiliate of the Depositor on the Closing Date.
Schedule 1-1
Exhibit 4.1
GM FINANCIAL AUTOMOBILE LEASING TRUST 2024-3
CLASS A-1 4.745% ASSET BACKED NOTES
CLASS A-2-A 4.29% ASSET BACKED NOTES
CLASS A-2-B FLOATING RATE ASSET BACKED NOTES
CLASS A-3 4.21% ASSET BACKED NOTES
CLASS A-4 4.22% ASSET BACKED NOTES
CLASS B 4.49% ASSET BACKED NOTES
CLASS C 4.58% ASSET BACKED NOTES
GM FINANCIAL AUTOMOBILE LEASING TRUST 2024-3,
as Issuer
GM FINANCIAL,
as Servicer
and
COMPUTERSHARE TRUST COMPANY, N.A.,
as Indenture Trustee
INDENTURE
Dated as of August 20, 2024
TABLE OF CONTENTS
| Page | ||||||
| ARTICLE I DEFINITIONS |
2 | |||||
| SECTION 1.1. |
Definitions | 2 | ||||
| SECTION 1.2. |
Incorporation by Reference of the Trust Indenture Act | 2 | ||||
| SECTION 1.3. |
Rules of Construction | 3 | ||||
| ARTICLE II THE NOTES |
3 | |||||
| SECTION 2.1. |
Form | 3 | ||||
| SECTION 2.2. |
Execution, Authentication and Delivery | 4 | ||||
| SECTION 2.3. |
Temporary Notes | 5 | ||||
| SECTION 2.4. |
Registration; Registration of Transfer and Exchange | 5 | ||||
| SECTION 2.5. |
Mutilated, Destroyed, Lost or Stolen Notes | 7 | ||||
| SECTION 2.6. |
Persons Deemed Owner | 8 | ||||
| SECTION 2.7. |
Payment of Principal and Interest | 8 | ||||
| SECTION 2.8. |
Cancellation | 9 | ||||
| SECTION 2.9. |
Tax Treatment | 9 | ||||
| SECTION 2.10. |
Representations and Warranties as to the Security Interest of the Indenture Trustee in the Indenture Collateral | 9 | ||||
| SECTION 2.11. |
Book-Entry Notes | 12 | ||||
| SECTION 2.12. |
Notices to Clearing Agency | 13 | ||||
| SECTION 2.13. |
Definitive Notes | 13 | ||||
| SECTION 2.14. |
SOFR Determination | 13 | ||||
| ARTICLE III COVENANTS |
14 | |||||
| SECTION 3.1. |
Payment of Principal and Interest | 14 | ||||
| SECTION 3.2. |
Maintenance of Office or Agency | 14 | ||||
| SECTION 3.3. |
Money for Payments To Be Held in Trust | 15 | ||||
| SECTION 3.4. |
Existence | 15 | ||||
| SECTION 3.5. |
Protection of Issuer Trust Estate | 15 | ||||
| SECTION 3.6. |
Opinions as to Issuer Trust Estate | 16 | ||||
| SECTION 3.7. |
Performance of Issuer Obligations; Servicing of 2024-3 Designated Pool | 17 | ||||
| SECTION 3.8. |
Certain Negative Covenants | 18 | ||||
| SECTION 3.9. |
Annual Statement as to Compliance | 18 | ||||
| SECTION 3.10. |
Payment of Taxes | 19 | ||||
| SECTION 3.11. |
Limitation on Fundamental Changes and Sale of Assets | 19 | ||||
| SECTION 3.12. |
No Other Business | 19 | ||||
| SECTION 3.13. |
No Borrowing | 19 | ||||
| SECTION 3.14. |
Issuer Obligations of Servicer | 19 | ||||
| SECTION 3.15. |
Guarantees, Loans, Advances and Other Liabilities | 19 | ||||
| SECTION 3.16. |
Transactions With Affiliates | 19 | ||||
i
| SECTION 3.17. |
Capital Expenditures and Payments | 20 | ||||
| SECTION 3.18. |
Compliance with Laws | 20 | ||||
| SECTION 3.19. |
Restricted Payments | 20 | ||||
| SECTION 3.20. |
Notice of Events of Default | 20 | ||||
| SECTION 3.21. |
Other Notices | 20 | ||||
| SECTION 3.22. |
Further Instruments and Acts | 20 | ||||
| SECTION 3.23. |
Delivery of the 2024-3 Exchange Note | 21 | ||||
| SECTION 3.24. |
Books and Records | 21 | ||||
| SECTION 3.25. |
Income Tax Characterization | 21 | ||||
| ARTICLE IV SATISFACTION AND DISCHARGE |
21 | |||||
| SECTION 4.1. |
Satisfaction and Discharge of the Indenture | 21 | ||||
| SECTION 4.2. |
Application of Trust Money | 22 | ||||
| ARTICLE V REMEDIES |
22 | |||||
| SECTION 5.1. |
Events of Default | 22 | ||||
| SECTION 5.2. |
Acceleration of Maturity; Rescission and Annulment | 23 | ||||
| SECTION 5.3. |
Collection of Indebtedness and Suits for Enforcement by Indenture Trustee | 24 | ||||
| SECTION 5.4. |
Remedies; Priorities | 26 | ||||
| SECTION 5.5. |
Optional Preservation of the Issuer Trust Estate | 28 | ||||
| SECTION 5.6. |
Unconditional Rights of Noteholders To Receive Principal and Interest | 28 | ||||
| SECTION 5.7. |
Restoration of Rights and Remedies | 28 | ||||
| SECTION 5.8. |
Rights and Remedies Cumulative | 28 | ||||
| SECTION 5.9. |
Delay or Omission Not a Waiver | 28 | ||||
| SECTION 5.10. |
Control by Noteholders | 28 | ||||
| SECTION 5.11. |
Waiver of Past Events of Default | 29 | ||||
| SECTION 5.12. |
Waiver of Stay or Extension Laws | 29 | ||||
| SECTION 5.13. |
Action on Notes | 29 | ||||
| SECTION 5.14. |
Performance and Enforcement of Certain Issuer Obligations | 29 | ||||
| ARTICLE VI THE INDENTURE TRUSTEE |
30 | |||||
| SECTION 6.1. |
Duties of Indenture Trustee | 30 | ||||
| SECTION 6.2. |
Rights of Indenture Trustee | 32 | ||||
| SECTION 6.3. |
Individual Rights of Indenture Trustee | 33 | ||||
| SECTION 6.4. |
Indenture Trustee’s Disclaimer | 34 | ||||
| SECTION 6.5. |
Reports by Indenture Trustee to Noteholders | 34 | ||||
| SECTION 6.6. |
Compensation and Indemnity | 34 | ||||
| SECTION 6.7. |
Replacement of Indenture Trustee | 35 | ||||
| SECTION 6.8. |
Successor Indenture Trustee by Merger | 36 | ||||
| SECTION 6.9. |
Appointment of Co-Indenture Trustee or Separate Indenture Trustee | 36 | ||||
| SECTION 6.10. |
Eligibility; Disqualification | 37 | ||||
ii
| SECTION 6.11. |
Representations and Warranties of Indenture Trustee | 38 | ||||
| SECTION 6.12. |
Preferential Collection of Claims Against Issuer | 39 | ||||
| ARTICLE VII NOTEHOLDERS’ LISTS AND REPORTS |
39 | |||||
| SECTION 7.1. |
Issuer to Furnish Indenture Trustee Names and Addresses of Noteholders | 39 | ||||
| SECTION 7.2. |
Preservation of Information; Communications to Noteholders | 39 | ||||
| SECTION 7.3. |
Reports by Issuer | 41 | ||||
| SECTION 7.4. |
Reports by Indenture Trustee | 41 | ||||
| SECTION 7.5. |
Asset Review Reports | 41 | ||||
| ARTICLE VIII ACCOUNTS, DISBURSEMENTS, RELEASES, REPORTS AND NOTICES |
42 | |||||
| SECTION 8.1. |
Collection of Money | 42 | ||||
| SECTION 8.2. |
Servicer Report | 42 | ||||
| SECTION 8.3. |
Disbursement of Funds | 42 | ||||
| SECTION 8.4. |
Release of Issuer Trust Estate | 46 | ||||
| SECTION 8.5. |
Opinion of Counsel | 46 | ||||
| SECTION 8.6. |
Reports and Notices to Noteholders | 46 | ||||
| ARTICLE IX SUPPLEMENTAL INDENTURES |
48 | |||||
| SECTION 9.1. |
Supplemental Indentures Without Consent of Noteholders | 48 | ||||
| SECTION 9.2. |
Supplemental Indentures with Consent of Noteholders | 49 | ||||
| SECTION 9.3. |
Execution of Supplemental Indentures | 50 | ||||
| SECTION 9.4. |
Effect of Supplemental Indenture | 50 | ||||
| SECTION 9.5. |
Conformity With Trust Indenture Act | 50 | ||||
| SECTION 9.6. |
Reference in Notes to Supplemental Indentures | 50 | ||||
| ARTICLE X REDEMPTION OF NOTES |
51 | |||||
| SECTION 10.1. |
Redemption | 51 | ||||
| SECTION 10.2. |
Form of Redemption Notice | 51 | ||||
| SECTION 10.3. |
Notes Payable on Redemption Date | 52 | ||||
| ARTICLE XI MISCELLANEOUS |
52 | |||||
| SECTION 11.1. |
Compliance Certificates and Opinions, etc. | 52 | ||||
| SECTION 11.2. |
Form of Documents Delivered to Indenture Trustee | 54 | ||||
| SECTION 11.3. |
Acts of Noteholders | 54 | ||||
| SECTION 11.4. |
Notices, etc., to Indenture Trustee, Issuer and Rating Agencies | 55 | ||||
| SECTION 11.5. |
Notices to Noteholders; Waiver | 55 | ||||
| SECTION 11.6. |
Alternate Payment and Notice Provisions | 56 | ||||
| SECTION 11.7. |
Conflict with Trust Indenture Act | 56 | ||||
| SECTION 11.8. |
Effect of Headings and Table of Contents | 56 | ||||
| SECTION 11.9. |
Successors and Assigns | 56 | ||||
| SECTION 11.10. |
Separability | 57 | ||||
iii
| SECTION 11.11. |
Benefits of Indenture | 57 | ||||
| SECTION 11.12. |
Legal Holidays | 57 | ||||
| SECTION 11.13. |
GOVERNING LAW | 57 | ||||
| SECTION 11.14. |
Counterparts and Consent to Do Business Electronically | 57 | ||||
| SECTION 11.15. |
Recording of Indenture | 57 | ||||
| SECTION 11.16. |
Trust Obligation | 57 | ||||
| SECTION 11.17. |
No Petition the Issuer, Depositor, Settlor or Titling Trust | 58 | ||||
| SECTION 11.18. |
No Recourse | 58 | ||||
| SECTION 11.19. |
Execution of Financing Statements | 59 | ||||
| SECTION 11.20. |
[Reserved] | 59 | ||||
| SECTION 11.21. |
Indemnification | 59 | ||||
| SECTION 11.22. |
AML Law | 59 | ||||
| SECTION 11.23. |
Third Party Beneficiaries | 60 |
EXHIBIT A-1 - Form of Class A-1 Note
EXHIBIT A-2-A - Form of Class A-2-A Note
EXHIBIT A-2-B - Form of Class A-2-B Note
EXHIBIT A-3 - Form of Class A-3 Note
EXHIBIT A-4 - Form of Class A-4 Note
EXHIBIT B - Form of Class B Note
EXHIBIT C - Form of Class C Note
iv
INDENTURE dated as of August 20, 2024 (as the same may be amended, restated, supplemented or otherwise modified, this “Indenture” or this “Agreement”), among GM FINANCIAL AUTOMOBILE LEASING TRUST 2024-3, a Delaware statutory trust (the “Issuer”), AMERICREDIT FINANCIAL SERVICES, INC. D/B/A GM FINANCIAL, a Delaware corporation (“GM Financial”), as servicer (the “Servicer”), and COMPUTERSHARE TRUST COMPANY, N.A. (“Computershare”), a national banking association, as indenture trustee and not in its individual capacity (the “Indenture Trustee”).
Each party agrees as follows for the benefit of the other parties and for the equal and ratable benefit of the Holders of the Issuer’s Class A-1 4.745% Asset Backed Notes (the “Class A-1 Notes”), Class A-2-A 4.29% Asset Backed Notes (the “Class A-2-A Notes”), Class A-2-B Floating Rate Asset Backed Notes (the “Class A-2-B Notes” and, together with the Class A-2-A Notes, the “Class A-2 Notes”), Class A-3 4.21% Asset Backed Notes (the “Class A-3 Notes”), Class A-4 4.22% Asset Backed Notes (the “Class A-4 Notes” and together with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the “Class A Notes”), Class B 4.49% Asset Backed Notes (the “Class B Notes”) and Class C 4.58% Asset Backed Notes (the “Class C Notes” and together with the Class A Notes and the Class B Notes, the “Notes”).
GRANTING CLAUSE
The Issuer hereby Grants to the Indenture Trustee on the 2024-3 Closing Date, as Indenture Trustee for the benefit of the 2024-3 Secured Parties, all of the Issuer’s right, title and interest in and to (a) the 2024-3 Exchange Note, (b) the 2024-3 Exchange Note Collections Account, the Indenture Collections Account, the Note Payment Account and the Reserve Account and the rights of the Issuer to the funds on deposit from time to time in the 2024-3 Exchange Note Collections Account, the Indenture Collections Account, the Note Payment Account and the Reserve Account and any other account or accounts established pursuant to the 2024-3 Servicing Agreement and all cash, investment property and other property from time to time credited thereto and all proceeds thereof, (c) the rights of the Depositor, as transferee under the 2024-3 Exchange Note Sale Agreement, (d) the rights of the Issuer, as transferee under the 2024-3 Exchange Note Transfer Agreement, (e) the rights and benefits of the Issuer, as 2024-3 Exchange Noteholder under the 2024-3 Servicing Agreement, the 2024-3 Exchange Note Supplement and the Credit and Security Agreement (as defined in Section 1.1), (f) the rights of the Issuer as a third-party beneficiary of the 2024-3 Servicing Agreement, the 2024-3 Exchange Note Supplement and the Credit Security Agreement, and (g) all present and future claims, demands, causes of action and choses in action in respect of any or all of the foregoing and all payments on or under and all proceeds of every kind and nature whatsoever in respect of any or all of the foregoing, including all proceeds of the conversion thereof, voluntary or involuntary, into cash or other liquid property, all cash proceeds, accounts, accounts receivable, notes, drafts, acceptances, chattel paper, checks, deposit accounts, insurance proceeds, condemnation awards, rights to payment of any and every kind and other forms of obligations and receivables, instruments and other property which at any time constitute all or part of or are included in the proceeds of any of the foregoing (collectively, the “Indenture Collateral”), in each case as such terms are defined herein.
The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice,
priority or distinction, except as otherwise provided in this Indenture and to secure all other Issuer Obligations and to secure compliance with the provisions of this Indenture, all as provided in this Indenture.
The Indenture Trustee, as trustee on behalf of the Noteholders, acknowledges such Grant, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Noteholders of the Notes may be adequately and effectively protected.
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. Capitalized terms used in this Indenture that are not otherwise defined herein shall have the meanings assigned to them in Appendix 1 to the 2024-3 Exchange Note Supplement, dated as of August 20, 2024 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “2024-3 Exchange Note Supplement”), among ACAR Leasing Ltd., as Borrower (the “Borrower”), GM Financial, as Lender (in such capacity, the “Lender”) and as Servicer (in such capacity, the “Servicer”), and Computershare, as Administrative Agent (in such capacity, the “Administrative Agent”) under the Credit and Security Agreement (as defined below) and as Collateral Agent (in such capacity, the “Collateral Agent”) or, if not defined therein, in Appendix A to the Third Amended and Restated Credit and Security Agreement, dated as of October 3, 2022 (as the same may be further amended, restated, supplemented or otherwise modified from time to time, the “Credit and Security Agreement”), among the Borrower, the Lender, the Servicer, the Administrative Agent and the Collateral Agent.
SECTION 1.2. Incorporation by Reference of the Trust Indenture Act. Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used in this Indenture have the following meanings:
“indenture securities” means the Notes.
“indenture security holder” means a Noteholder.
“indenture to be qualified” means this Indenture.
“indenture trustee” or “institutional trustee” means the Indenture Trustee.
“obligor” on the indenture securities means the Issuer.
All other TIA terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by Commission rule have the meaning assigned to them by such definitions.
2
SECTION 1.3. Rules of Construction.
(a) For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires, (i) terms used in this Indenture include, as appropriate, all genders and the plural as well as the singular, (ii) references to words such as “this Indenture”, “herein”, “hereof” and the like shall refer to this Indenture as a whole and not to any particular part, Article or Section within this Indenture, (iii) references to an Article, Section or Exhibit such as “Article One”, “Section 1.1” or Exhibit A shall refer to the applicable Article, Section or Exhibit of this Indenture, (iv) the term “include” and all variations thereof means “include without limitation”, (v) the term “or” shall include “and/or”, (vi) the term “proceeds” shall have the meaning ascribed to such term in the UCC, (vii) any agreement, instrument or statute defined or referred to herein or in any instrument or certificate delivered in connection herewith means such agreement, instrument or statute as from time to time amended, restated, modified, supplemented or replaced (in the case of a statute) and includes (in the case of agreements or instruments) references to all attachments, annexes, exhibits and schedules thereto and instruments incorporated therein, except that references to the Credit and Servicing Agreement and the Basic Servicing Agreement include only such items as relate to the 2024-3 Exchange Note and/or the 2024-3 Designated Pool, as applicable, and (viii) any defined term which relates to a Person shall include within its definition the successors and permitted assigns of such Person.
(b) As used in this Indenture and in any certificate or other document made or delivered pursuant hereto, accounting terms not defined in this Indenture or in any such certificate or other document, and accounting terms partly defined in this Indenture or in any such certificate or other document to the extent not defined, shall have the respective meanings given to them under generally accepted accounting principles. To the extent that the definitions of accounting terms in this Indenture or in any such certificate or other document are inconsistent with the meanings of such terms under generally accepted accounting principles, the definitions contained in this Indenture or in any such certificate or other document shall control.
ARTICLE II
THE NOTES
SECTION 2.1. Form.
The Class A-1 Notes, Class A-2-A Notes, Class A-2-B Notes, Class A-3 Notes, Class A-4 Notes, Class B Notes and Class C Notes, in each case, together with the Indenture Trustee’s certificate of authentication, shall be in substantially the forms set forth in Exhibit A-1, Exhibit A-2-A, Exhibit A-2-B, Exhibit A-3, Exhibit A-4, Exhibit B and Exhibit C, respectively, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may, consistently herewith, be determined by the Authorized Officers executing such Notes, as evidenced by their execution of the Notes. Any portion of the text of any Note may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the Note.
3
The Definitive Notes shall be typewritten, printed, lithographed or engraved or produced by any combination of these methods (with or without steel engraved borders), all as determined by the officers executing such Notes, as evidenced by their execution of such Notes.
Each Note shall be dated the date of its authentication. The terms of the Notes set forth in Exhibits A-1, A-2-A, A-2-B, A-3, A-4, B and C are part of the terms of this Indenture.
SECTION 2.2. Execution, Authentication and Delivery.
The Notes shall be executed on behalf of the Issuer by any of its Authorized Officers. The signature of any such Authorized Officer on the Notes may be manual or facsimile.
Notes bearing the manual or facsimile signature of individuals who were at any time Authorized Officers of the Issuer shall bind the Issuer, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Notes or did not hold such offices at the date of such Notes.
The Indenture Trustee shall upon Issuer Order authenticate and deliver Class A-1 Notes for original issue in an aggregate principal amount of $175,760,000, Class A-2-A Notes for original issue in an aggregate principal amount of $229,720,000, Class A-2-B Notes for original issue in an aggregate principal amount of $265,000,000, Class A-3 Notes for original issue in an aggregate principal amount of $450,000,000, Class A-4 Notes for original issue in an aggregate principal amount of $71,500,000, Class B Notes for original issue in an aggregate principal amount of $65,120,000 and Class C Notes for original issue in an aggregate principal amount of $60,000,000. The Class A Notes, Class B Notes and Class C Notes outstanding at any time may not exceed such amounts except as provided in Section 2.5.
The Class A-1 Notes, Class A-2-A Notes, Class A-2-B Notes, Class A-3 Notes, Class A-4 Notes, Class B Notes and Class C Notes shall be issuable as registered Notes in the minimum denomination of $1,000 and in integral multiples of $1,000.
No Note shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose, unless there appears on such Note a certificate of authentication substantially in the form provided for herein executed by the Indenture Trustee by the manual signature of one of its authorized signatories, and such certificate upon any Note shall be conclusive evidence, and the only evidence, that such Note has been duly authenticated and delivered hereunder.
The Issuer represents that its indebtedness issued hereunder is a debt instrument that is excluded from the definition of “covered security” under Treasury Regulation 1.6045-1(a)(15) because such indebtedness is subject to Code Section 1272(a)(6).
4
SECTION 2.3. Temporary Notes. Pending the preparation of Definitive Notes, the Issuer may execute, and upon receipt of an Issuer Order the Indenture Trustee shall authenticate and deliver, temporary Notes which are printed, lithographed, typewritten, mimeographed or otherwise produced, of the tenor of the Definitive Notes in lieu of which they are issued and with such variations not inconsistent with the terms of this Indenture as the officers executing such Notes may determine, as evidenced by their execution of such Notes.
If temporary Notes are issued, the Issuer will cause Definitive Notes to be prepared without unreasonable delay. After the preparation of Definitive Notes, the temporary Notes shall be exchangeable for Definitive Notes upon surrender of the temporary Notes at the office or agency of the Issuer to be maintained as provided in Section 3.2, without charge to the Noteholder. Upon surrender for cancellation of any one or more temporary Notes, the Issuer shall execute and the Indenture Trustee shall authenticate and deliver in exchange therefor a like principal amount of Definitive Notes of authorized denominations. Until so exchanged, the temporary Notes shall in all respects be entitled to the same benefits under this Indenture as Definitive Notes.
SECTION 2.4. Registration; Registration of Transfer and Exchange.
(a) The Issuer shall cause to be kept a register (the “Note Register”) in which, subject to reasonable regulations as it may prescribe, the Issuer shall provide for the registration of Notes and the registration of transfers of Notes. The Indenture Trustee initially shall be the “Note Registrar” for the purpose of registering Notes and transfers of Notes as herein provided. Upon any resignation of any Note Registrar, the Issuer shall promptly appoint a successor or, if it elects not to make such an appointment, assume the duties of Note Registrar.
If a Person other than the Indenture Trustee is appointed by the Issuer as Note Registrar, the Issuer will give the Indenture Trustee prompt written notice of the appointment of such Note Registrar and of the location, and any change in the location, of the Note Register, and the Indenture Trustee shall have the right to inspect the Note Register at all reasonable times and to obtain copies thereof, and the Indenture Trustee shall have the right to rely upon a certificate executed on behalf of the Note Registrar by an Executive Officer thereof as to the names and addresses of the Noteholders and the principal amounts and number of such Notes.
(b) Subject to Sections 2.11 and 2.13 hereof, upon surrender for registration of transfer of any Note at the office or agency of the Issuer to be maintained as provided in Section 3.2, if the requirements of Section 8-401(a) of the UCC are met the Issuer shall execute, and the Indenture Trustee shall authenticate and the Noteholder shall obtain from the Indenture Trustee, in the name of the designated transferee or transferees, one or more new Notes in any authorized denominations of the same Class and of a like aggregate principal amount.
At the option of a Noteholder, Notes may be exchanged for other Notes in any authorized denominations, of the same Class and a like aggregate principal amount, upon surrender of the Notes to be exchanged at such office or agency. Whenever any Notes are so surrendered for exchange, subject to Sections 2.11 and 2.13 hereof, if the requirements of Section 8-401(a) of the UCC are met the Issuer shall execute, and the Indenture Trustee shall authenticate and the Noteholder shall obtain from the Indenture Trustee, the Notes which the Noteholder making the exchange is entitled to receive.
5
All Notes issued upon any registration of transfer or exchange of Notes shall be the valid obligations of the Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Notes surrendered upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or exchange shall be duly endorsed by, or be accompanied by a written instrument of transfer in form satisfactory to the Indenture Trustee duly executed by, the Noteholder thereof or such Noteholder’s attorney duly authorized in writing, with such signature guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar, which requirements include membership or participation in the Securities Transfer Agent’s Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Exchange Act.
(c) Notwithstanding the foregoing, in the case of any sale or other transfer of a Class A-1 Note, Class A-2-A Note, Class A-2-B Note, Class A-3 Note, Class A-4 Note, Class B Note or Class C Note that is a Definitive Note, the prospective transferee of such Definitive Note shall be required to represent and warrant in writing to the Note Registrar that it is not, and is not acting on behalf of or investing the assets of, (i) an “employee benefit plan” (as defined in Section 3(3) of ERISA), that is subject to the fiduciary responsibility provisions of Title I of ERISA, (ii) a “plan” (as defined in Section 4975(e)(1) of the Code), that is subject to Section 4975 of the Code, (iii) an entity whose underlying assets are deemed to include assets of an employee benefit plan or a plan described in (i) or (ii) above by reason of such employee benefit plan’s or plan’s investment in the entity (each, a “Benefit Plan Investor”), or (iv) an employee benefit plan, a plan or other similar arrangement that is not a Benefit Plan Investor but is subject to federal, state, local, non-U.S. or other laws or regulations substantially similar to ERISA or Section 4975 of the Code (“Similar Law”), unless such purchaser’s or transferee’s acquisition, holding and disposition of such Definitive Note will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Code or a violation of any Similar Law (each of (i) – (iv) a “Benefit Plan Entity”). Each transferee of a Class A-1 Note, Class A-2-A Note, Class A-2-B Note, Class A-3 Note, Class A-4 Note, Class B Note or Class C Note that is a Book Entry Note that is a Benefit Plan Entity shall be deemed to represent that its acquisition, holding and disposition of the Book Entry Note (or a beneficial interest therein) will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Code or a violation of any Similar Law. Notwithstanding the foregoing, no Benefit Plan Entity may acquire a Class C Note unless the Opinion of Counsel described in clause (ii)(A) in the first sentence of Section 2.4(d) has been delivered.
No service charge shall be made to a Noteholder for any registration of transfer or exchange of Notes, but the Note Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Notes, other than exchanges pursuant to Section 2.3 or 9.6 not involving any transfer.
The preceding provisions of this Section notwithstanding, the Issuer shall not be required to make and the Note Registrar need not register transfers or exchanges of Notes selected for redemption or of any Note for a period of fifteen (15) days preceding the due date for any payment with respect to the Note.
6
(d) No sale or transfer of a beneficial interest in a Class C Note shall be permitted (including, without limitation, by pledge or hypothecation) to a person other than the Depositor (or a person disregarded as separate from the Depositor for U.S. federal income tax purposes), and such sale or transfer shall be void ab initio, unless (i) the Class C Note has been registered under the Securities Act or, as evidenced by an Opinion of Counsel, such sale or transfer is otherwise exempt from the Securities Act, and (ii) at the time of such sale or transfer an Opinion of Counsel is provided to the effect that either (A) as of the date of such sale or transfer the Class C Notes will be treated as indebtedness for U.S. federal income tax purposes, or (B) such transfer will not cause the Issuer to be a publicly traded partnership treated as association taxable as a corporation for U.S. federal income tax purposes and will not cause the Class C Notes to be subject to U.S. withholding tax.
SECTION 2.5. Mutilated, Destroyed, Lost or Stolen Notes. If (a) any mutilated Note is surrendered to the Indenture Trustee, or the Indenture Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Note, and (b) there is delivered to the Indenture Trustee such security or indemnity as may be required by it to hold the Issuer and the Indenture Trustee harmless, then, in the absence of notice to the Issuer, the Note Registrar or the Indenture Trustee that such Note has been acquired by a Protected Purchaser, and provided that the requirements of Sections 8-405 and 8-406 of the UCC are met, the Issuer shall execute, and upon receipt of an Issuer Request the Indenture Trustee shall authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Note, a replacement Note; provided, however, that if any such destroyed, lost or stolen Note, but not a mutilated Note, shall have become or within seven (7) days shall be due and payable, or shall have been called for redemption, instead of issuing a replacement Note, the Issuer may pay such destroyed, lost or stolen Note when so due or payable or upon the Redemption Date without surrender thereof. If, after the delivery of such replacement Note or payment of a destroyed, lost or stolen Note pursuant to the proviso to the preceding sentence, a Protected Purchaser of the original Note in lieu of which such replacement Note was issued presents for payment such original Note, the Issuer and the Indenture Trustee shall be entitled to recover such replacement Note (or such payment) from the Person to whom it was delivered or any Person taking such replacement Note from such Person to whom such replacement Note was delivered or any assignee of such Person, except a Protected Purchaser, and shall be entitled to recover upon the security or indemnity provided therefor to the extent of any loss, damage, cost or expense incurred by the Issuer or the Indenture Trustee in connection therewith.
Upon the issuance of any replacement Note under this Section, the Issuer may require the payment by the Noteholder of such Note of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other reasonable expenses (including the fees and expenses of the Indenture Trustee) connected therewith.
Every replacement Note issued pursuant to this Section in replacement of any mutilated, destroyed, lost or stolen Note shall constitute an original additional contractual obligation of the Issuer, whether or not the mutilated, destroyed, lost or stolen Note shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Notes duly issued hereunder.
7
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.6. Persons Deemed Owner. Prior to due presentment for registration of transfer of any Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture Trustee will treat the Person in whose name any Note is registered (as of the day of determination) as the owner of such Note for the purpose of receiving payments of principal of and interest, if any, on such Note and for all other purposes whatsoever, whether or not such Note be overdue, and none of the Issuer, the Indenture Trustee or any agent of the Issuer or the Indenture Trustee shall be affected by notice to the contrary.
SECTION 2.7. Payment of Principal and Interest.
(a) The Notes shall accrue interest as provided in the forms of the Class A-1 Note, the Class A-2-A Note, the Class A-2-B Note, the Class A-3 Note, the Class A-4 Note, the Class B Note and the Class C Note set forth in Exhibits A-1, A-2-A, A-2-B, A-3, A-4, B and C, respectively, and such interest shall be due and payable on each Payment Date. Any installment of interest or principal payable on any Note that is punctually paid or duly provided for by the Issuer on the applicable Payment Date shall be paid to the Person in whose name such Note (or one or more Predecessor Notes) is registered on the Record Date, by check mailed first-class, postage prepaid, to such Person’s address as it appears on the Note Register on such Record Date, except that, unless Definitive Notes have been issued pursuant to Section 2.13, with respect to Notes registered on the Record Date in the name of the nominee of the Clearing Agency (initially, such nominee to be Cede & Co.), payment will be made by wire transfer in immediately available funds to the account designated by such nominee, and except for the final installment of principal payable with respect to such Note on a Payment Date (and except for the Redemption Price for any Note called for redemption pursuant to Section 10.1) which shall be payable as provided below. The funds represented by any such checks returned undelivered shall be held in accordance with Section 3.3.
(b) The principal of each Note shall be payable in installments on each Payment Date as provided herein and in the forms of the Class A-1 Note, the Class A-2-A Note, the Class A-2-B Note, the Class A-3 Note, the Class A-4 Note, the Class B Note and the Class C Note set forth in Exhibits A-1, A-2-A, A-2-B, A-3, A-4, B and C, respectively. The entire unpaid principal amount of each Note shall be due and payable on its Final Scheduled Payment Date. Notwithstanding the foregoing, the entire unpaid principal amount of the Notes shall be due and payable, if not previously paid, on the date on which an Event of Default shall have occurred and be continuing, if the Indenture Trustee, at the written direction of the Majority Noteholders, has declared the Notes to be immediately due and payable in the manner provided in Section 5.2. All principal payments on each Class of Notes shall be made pro rata to the related Noteholders. The Indenture Trustee shall notify the Person in whose name a Note is registered at the close of business on the Record Date preceding the Payment Date, as the case may be, on which the Issuer expects that the final installment of principal of and interest on such Note will be paid. Such notice shall be mailed or transmitted by facsimile prior to such final Payment Date and shall specify that such final installment will be payable only upon presentation and surrender of such Note and shall specify the place where such Note may be presented and surrendered for
8
payment of such installment. Notices in connection with redemptions of Notes shall be mailed to Noteholders as provided in Section 10.2.
SECTION 2.8. Cancellation. All Notes surrendered for payment, registration of transfer, exchange or redemption shall, if surrendered to any Person other than the Indenture Trustee, be delivered to the Indenture Trustee and shall be promptly cancelled by the Indenture Trustee. The Issuer may at any time deliver to the Indenture Trustee for cancellation any Notes previously authenticated and delivered hereunder which the Issuer may have acquired in any manner whatsoever, and all Notes so delivered shall be promptly cancelled by the Indenture Trustee. No Notes shall be authenticated in lieu of or in exchange for any Notes cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Notes may be held or disposed of by the Indenture Trustee in accordance with its standard retention or disposal policy as in effect at the time unless the Issuer shall direct by an Issuer Order that they be returned to it; provided, that such Issuer Order is timely and the Notes have not been previously disposed of by the Indenture Trustee.
SECTION 2.9. Tax Treatment. The Issuer has entered into this Indenture, and the Notes will be issued, with the intention that, for all purposes, including federal, State and local income, single business and franchise tax purposes, the Notes that are owned or beneficially owned by a Person other than the Depositor or its Affiliates will qualify as indebtedness secured by the Issuer Trust Estate. The Issuer, by entering into this Indenture, and each Noteholder, by its acceptance of a Note, agree (a) to treat the Notes for all purposes, including federal, State and local income, single business and franchise tax purposes, as indebtedness, and (b) not to take any action inconsistent with the agreement in clause (a), including claiming ownership of any assets comprising the 2024-3 Designated Pool or the right to take deductions for depreciation or otherwise.
SECTION 2.10. Representations and Warranties as to the Security Interest of the Indenture Trustee in the Indenture Collateral. The Issuer makes the following representations and warranties to the Indenture Trustee. The representations and warranties speak as of the 2024-3 Closing Date, and shall survive the sale of the Issuer Trust Estate to the Issuer and the pledge thereof to the Indenture Trustee pursuant to this Indenture.
(a) This Indenture creates a valid and continuing security interest (as defined in the UCC) in the 2024-3 Exchange Note and the other Indenture Collateral in favor of the Indenture Trustee, which security interest is prior to all other liens, and is enforceable as such as against creditors of and purchasers from the Issuer.
(b) The 2024-3 Exchange Note constitutes a “certificated security” within the meaning of the UCC. The Accounts and all subaccounts thereof, constitute either deposit accounts or securities accounts.
(c) The Issuer owns and has good and marketable title to the Indenture Collateral free and clear of any Liens, claim or encumbrance of any Person, excepting only Liens for taxes, assessments or similar governmental charges or levies incurred in the ordinary course of business that are not yet due and payable or as to which any applicable grace period shall not have expired, or that are being contested in good faith by proper proceedings and for which adequate reserves have been established, but only so long as foreclosure with respect to such a Lien is not
9
imminent and the use and value of the property to which the Liens attaches is not impaired during the pendency of such proceeding.
(d) All of the Indenture Collateral that constitutes securities entitlements (other than the 2024-3 Exchange Note to the extent the 2024-3 Exchange Note constitutes a certificated security) has been or will have been credited to one of the Accounts. The securities intermediary for each Account has agreed to treat all assets credited to the Accounts as “financial assets” within the meaning of the applicable UCC.
(e) The Issuer has received all consents and approvals to the grant of the security interest in the Indenture Collateral hereunder to the Indenture Trustee required by the terms of the Indenture Collateral that constitutes instruments or payment intangibles.
(f) The Issuer has received all consents and approvals required by the terms of the Indenture Collateral that constitutes securities entitlements, certificated securities or uncertificated securities to the transfer to the Indenture Trustee of its interest and rights in the Indenture Collateral hereunder.
(g) The Issuer has caused or will have caused, within ten (10) days after the effective date of the Indenture, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Indenture Collateral granted to the Indenture Trustee hereunder.
(h) With respect to Indenture Collateral that constitutes an instrument or tangible chattel paper, either:
(i) All original executed copies of each such instrument or tangible chattel paper have been delivered to the Indenture Trustee;
(ii) Such instruments or tangible chattel paper are in the possession of a custodian and the Indenture Trustee has received a written acknowledgment from such custodian that such custodian is holding such instruments or tangible chattel paper solely on behalf and for the benefit of the Indenture Trustee; or
(iii) A custodian received possession of such instruments or tangible chattel paper after the Indenture Trustee received a written acknowledgment from such custodian that such custodian is acting solely as agent of the Indenture Trustee.
(i) With respect to Indenture Collateral that constitutes electronic chattel paper:
(i) Only one authoritative copy (within the meaning of the UCC) of each item of Indenture Collateral that constitutes or evidences electronic chattel paper exists;
(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
10
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, Wells Fargo Bank, N.A. (provided that Wells Fargo Bank, N.A. has validly assigned the lien on such contract to the Indenture Trustee);
(iii) The Issuer has marked all copies of each item of Indenture Collateral that constitutes or evidences electronic chattel paper other than the authoritative copy with a legend to the following effect: “View of Authoritative Copy;”
(iv) Each item of Indenture Collateral which is electronic chattel paper has been established in a manner such that (A) all copies or revisions that add or change an identified assignee of the authoritative copy of each contract that constitutes or evidences Indenture Collateral must be made with the participation of the custodian thereof on behalf of the Indenture Trustee, and (B) all revisions of the authoritative copy of each contract that constitutes or evidences Indenture Collateral must be readily identifiable as an authorized or unauthorized revision; and
(v) The Issuer has received a written acknowledgement from the Servicer that the Servicer is acting solely as agent of the Indenture Trustee with respect to the Indenture Collateral which is electronic chattel paper.
(j) With respect to the Accounts and all subaccounts thereof that constitute deposit accounts, either:
(i) The Issuer has delivered to the Indenture Trustee a fully executed agreement pursuant to which the bank maintaining the deposit accounts has agreed to comply with all instructions originated by the Indenture Trustee directing disposition of the funds in the Accounts without further consent by the Issuer; or
(ii) The Issuer has taken all steps necessary to cause the Indenture Trustee to become the account holder of the Accounts.
(k) With respect to Indenture Collateral or Accounts or subaccounts thereof that constitute securities accounts or securities entitlements, either:
(i) The Issuer has caused or will have caused, within ten (10) days after the effective date of the Indenture, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest granted in the Indenture Collateral to the Indenture Trustee; or
(ii) The Issuer has delivered to the Indenture Trustee a fully executed agreement pursuant to which the securities intermediary has agreed to comply with all instructions originated by the Indenture Trustee relating to the Accounts without further consent by the Issuer; or
11
(iii) The Issuer has taken all steps necessary to cause the securities intermediary to identify in its records the Indenture Trustee as the person having a security entitlement against the securities intermediary in the Accounts.
(l) With respect to Indenture Collateral that constitutes certificated securities (other than securities entitlements), all original executed copies of each security certificate that constitutes or evidences the Indenture Collateral have been delivered to the Indenture Trustee, and each such security certificate either (i) is in bearer form, (ii) has been indorsed by an effective indorsement to the Indenture Trustee or in blank, or (iii) has been registered in the name of the Indenture Trustee. Other than the transfer of the 2024-3 Exchange Note from the Lender to the Depositor under the 2024-3 Exchange Note Sale Agreement, the transfer of the 2024-3 Exchange Note from the Depositor to the Issuer under the 2024-3 Exchange Note Transfer Agreement and the security interest in the Indenture Collateral granted to the Indenture Trustee pursuant to the Indenture, none of the Lender, the Depositor or the Issuer has pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Indenture Collateral or the Accounts or any subaccounts thereof. The Issuer has not authorized the filing of, and is not aware of any financing statements against the Issuer that include a description of collateral covering the Indenture Collateral or the Accounts or any subaccount thereof other than any financing statement relating to the security interest granted to the Indenture Trustee hereunder or that has been terminated.
(m) Neither the Accounts nor any subaccounts thereof are in the name of any person other than the Issuer or the Indenture Trustee. The Issuer has not consented to the securities intermediary of any Account to comply with entitlement orders of any person other than the Indenture Trustee.
(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, Wells Fargo Bank, N.A. (provided that Wells 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 2.11. Book-Entry Notes. The Class A Notes, Class B Notes and Class C Notes, upon original issuance, will be issued in the form of typewritten Notes representing the Book Entry Notes, to be delivered to The Depository Trust Company, the initial Clearing Agency, by, or on behalf of, the Issuer. Such Notes shall initially be registered on the Note Register in the name of Cede & Co., the nominee of the initial Clearing Agency, and no Note Owner will receive a Definitive Note representing such Note Owner’s interest in such Note, except as provided in Section 2.13. Unless and until definitive, fully registered Notes (the “Definitive Notes”) have been issued to Note Owners pursuant to Section 2.13:
(a) the provisions of this Section shall be in full force and effect;
(b) the Note Registrar and the Indenture Trustee shall be entitled to deal with the Clearing Agency for all purposes of this Indenture (including the payment of principal of and
12
interest on the Notes and the giving of instructions or directions hereunder) as the sole Holder of the Notes, and shall have no obligation to the Note Owners;
(c) to the extent that the provisions of this Section conflict with any other provisions of this Indenture, the provisions of this Section shall control;
(d) the rights of Note Owners shall be exercised only through the Clearing Agency and shall be limited to those established by law and agreements between such Note Owners and the Clearing Agency and/or the Clearing Agency Participants. Unless and until Definitive Notes are issued pursuant to Section 2.13, the initial Clearing Agency will make book-entry transfers among the Clearing Agency Participants and receive and transmit payments of principal of and interest on the Notes to such Clearing Agency Participants;
(e) whenever this Indenture requires or permits actions to be taken based upon instructions or directions of Noteholders evidencing a specified percentage of the Outstanding Amount of the Notes, the Clearing Agency shall be deemed to represent such percentage only to the extent that it has received instructions to such effect from Note Owners and/or Clearing Agency Participants owning or representing, respectively, such required percentage of the beneficial interest in the Notes and has delivered such instructions to the Indenture Trustee; and
(f) Note Owners may receive copies of any reports sent to Noteholders pursuant to this Indenture, upon written request, together with a certification that they are Note Owners and payment of reproduction and postage expenses associated with the distribution of such reports, from the Indenture Trustee at the Corporate Trust Office.
SECTION 2.12. Notices to Clearing Agency. Whenever a notice or other communication to the Noteholders is required under this Indenture, unless and until Definitive Notes shall have been issued to Note Owners pursuant to Section 2.13, the Indenture Trustee shall give all such notices and communications specified herein to be given to the Noteholders to the Clearing Agency, and shall have no obligation to the Note Owners.
SECTION 2.13. Definitive Notes. If (a) the Servicer advises the Indenture Trustee in writing that the Clearing Agency is no longer willing or able to properly discharge its responsibilities with respect to the Notes representing the Book Entry Notes, and the Servicer is unable to locate a qualified successor, or (b) after the occurrence of an Event of Default, the Majority Noteholders advise the Indenture Trustee through the Clearing Agency in writing that the continuation of a book-entry system through the Clearing Agency is no longer in the best interests of the Note Owners, then the Clearing Agency shall notify all Note Owners and the Indenture Trustee of the occurrence of any such event and of the availability of Definitive Notes to Note Owners requesting the same. Upon surrender to the Indenture Trustee of the typewritten Note or Notes representing the Book Entry Notes by the Clearing Agency, accompanied by registration instructions, the Issuer shall execute and the Indenture Trustee shall authenticate the Definitive Notes in accordance with the instructions of the Clearing Agency. Upon the issuance of Definitive Notes, the Indenture Trustee shall recognize the Holders of the Definitive Notes as Noteholders.
SECTION 2.14. SOFR Determination. For so long as the Class A-2-B Notes are Outstanding, the Indenture Trustee shall notify the Servicer and the Issuer on each SOFR
13
Determination Date, by e-mail, of SOFR for the related Interest Accrual Period. All determinations of SOFR by the Indenture Trustee, in the absence of manifest error, will be conclusive and binding on the Noteholders. The Issuer Owner Trustee will not have any obligation to determine SOFR, 30-day average SOFR, any SOFR Determination Date, or any SOFR Business Day, will have no liability for any such determinations made by the Indenture Trustee and will have no obligation to determine any alternative benchmark rate adopted by the Sponsor.
ARTICLE III
COVENANTS
SECTION 3.1. Payment of Principal and Interest. The Issuer will duly and punctually pay the principal of and interest, if any, on the Notes in accordance with the terms of the Notes and this Indenture. Without limiting the foregoing, the Issuer will cause to be distributed all amounts on deposit in the Note Payment Account on a Payment Date deposited therein (a) for the benefit of the Class A-1 Notes, to the Class A-1 Noteholders, (b) for the benefit of the Class A-2-A Notes, to the Class A-2-A Noteholders, (c) for the benefit of the Class A-2-B Notes, to the Class A-2-B Noteholders, (d) for the benefit of the Class A-3 Notes, to the Class A-3 Noteholders, (e) for the benefit of the Class A-4 Notes, to the Class A-4 Noteholders, (f) for the benefit of the Class B Notes, to the Class B Noteholders, and (g) for the benefit of the Class C Notes, to the Class C Noteholders. If any withholding tax is imposed with respect to any payment by the Issuer under the Notes to any Noteholder, such tax shall reduce the amount otherwise payable to such Noteholder. The Indenture Trustee is hereby authorized and directed by the Issuer to cause the Collateral Agent to retain from amounts otherwise payable to any Noteholder sufficient funds for the payment of any tax that is legally required to be withheld (but such authorization shall not prevent the Indenture Trustee from contesting any such tax in appropriate proceedings and withholding payment of such tax, if permitted by law, pending the outcome of such proceedings). The amount of any withholding tax imposed with respect to any Noteholder shall be treated as having been paid to such Noteholder at the time it is withheld by the Indenture Trustee and remitted to the appropriate taxing authority. If there is a possibility that withholding tax is payable with respect to a payment, the Indenture Trustee may in its sole discretion withhold such tax. If any Noteholder wishes to apply for a refund of any such withholding tax, the Indenture Trustee shall reasonably cooperate with such Noteholder in making such claim so long as such Noteholder agrees to reimburse the Indenture Trustee and the Collateral Agent for any out-of-pocket expenses incurred.
SECTION 3.2. Maintenance of Office or Agency. The Issuer will maintain in St. Paul, Minnesota, an office or agency where Notes may be surrendered for registration of transfer or exchange, and where notices and demands to or upon the Issuer in respect of the Notes and this Indenture may be served. The Issuer hereby initially appoints the Indenture Trustee to serve as its agent for the foregoing purposes. The Issuer will give prompt written notice to the Indenture Trustee of the location, and of any change in the location, of any such office or agency. If at any time the Issuer shall fail to maintain any such office or agency or shall fail to furnish the Indenture Trustee with the address thereof, such surrenders, notices and demands may be made or served at the Corporate Trust Office, and the Issuer hereby appoints the Indenture Trustee as its agent to receive all such surrenders, notices and demands.
14
SECTION 3.3. Money for Payments To Be Held in Trust. As provided in Section 8.3, all payments of amounts due and payable with respect to any Notes that are to be made from amounts withdrawn from the Note Payment Account pursuant to Section 8.3 shall be made on behalf of the Issuer by the Indenture Trustee, and no amounts so withdrawn from the Note Payment Account for payments of Notes shall be paid over to the Issuer except as provided in this Section.
The Issuer shall allocate or deposit, or cause to be allocated or deposited, to the Indenture Collections Account all 2024-3 Exchange Note Collections, all amounts collected with respect to the Issuer Trust Estate, such amounts to be held in trust for the benefit of the Persons entitled thereto, and shall promptly notify the Indenture Trustee of its action or failure so to act.
Subject to applicable laws with respect to escheat of funds, any money caused to be held by the Indenture Trustee in trust for the payment of any amount due with respect to any Note and remaining unclaimed for two years after such amount has become due and payable shall be discharged from such trust and be paid to the Issuer on Issuer Request; and the related Noteholder of such Note shall thereafter, as an unsecured general creditor, look only to the Issuer for payment thereof (but only to the extent of the amounts so paid to the Issuer), and all liability of the Indenture Trustee with respect to such trust money shall thereupon cease. The Indenture Trustee shall adopt and employ, at the expense and direction of the Issuer, any reasonable means of notification of such repayment (including, but not limited to, mailing notice of such repayment to Noteholders whose Notes have been called but have not been surrendered for redemption or whose right to or interest in moneys due and payable but not claimed is determinable from the records of the Indenture Trustee, at the last address of record for each such Noteholder).
SECTION 3.4. Existence. The Issuer will keep in full effect its existence, rights and franchises as a statutory trust under the laws of the State of Delaware (unless it becomes, or any successor Issuer hereunder is or becomes, organized under the laws of any other State or of the United States of America, in which case the Issuer will keep in full effect its existence, rights and franchises under the laws of such other jurisdiction) and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Indenture, the Notes, the Issuer Trust Estate and each other instrument or agreement included in the Issuer Trust Estate.
SECTION 3.5. Protection of Issuer Trust Estate.
(a) The Issuer intends the security interest Granted pursuant to this Indenture in favor of the Indenture Trustee on behalf of the 2024-3 Secured Parties to be prior to all other liens in respect of the Issuer Trust Estate, and the Issuer shall take all actions necessary to obtain and maintain, for the benefit of the Indenture Trustee on behalf of the 2024-3 Secured Parties, a first lien on and a first priority, perfected security interest in the Issuer Trust Estate. The Issuer will from time to time execute and deliver all such supplements and amendments hereto and all such financing statements, continuation statements, instruments of further assurance and other instruments, and will take such other action necessary or advisable to:
(i) Grant more effectively all or any portion of the Issuer Trust Estate;
15
(ii) maintain or preserve the lien and security interest (and the priority thereof) of this Indenture or carry out more effectively the purposes hereof;
(iii) perfect, publish notice of or protect the validity of any Grant made or to be made by this Indenture;
(iv) enforce any of the Indenture Collateral;
(v) preserve and defend title to the Issuer Trust Estate and the rights of the Indenture Trustee and the 2024-3 Secured Parties in such Issuer Trust Estate against the claims of all Persons; and
(vi) pay all taxes and assessments levied or assessed upon the Issuer Trust Estate when due.
(b) The Issuer hereby authorizes the Indenture Trustee to execute any financing statement, continuation statement or other instrument required to be executed pursuant to this Section 3.5. If the Indenture Trustee prepares or files any such financing statement, continuation statement or amendment thereto, the Indenture Trustee’s responsibility with respect to such financing statement, continuation statement or amendment shall be subject to the provisions of Section 6.1 hereof.
(c) Except in the case of continuation statements prepared or filed by the Indenture Trustee, the Indenture Trustee shall not be responsible or liable for the preparation, filing, correctness, or accuracy of any UCC financing statement(s), or the existence, validity, or perfection of any lien or security interest created by this Indenture, or to monitor the status of any such lien or security interest.
SECTION 3.6. Opinions as to Issuer Trust Estate.
(a) On the 2024-3 Closing Date, the Issuer shall furnish to the Indenture Trustee an Opinion of Counsel to the effect that, in the opinion of such counsel, the execution and delivery of the Indenture and the delivery for value to and taking of physical possession in the State of Minnesota by the Indenture Trustee of the 2024-3 Exchange Note, endorsed or registered in the name of the Indenture Trustee, will create a valid first priority perfected security interest, for the benefit of the Indenture Trustee on behalf of the 2024-3 Secured Parties in the 2024-3 Exchange Note and all such other action has been taken with respect to the recording and filing of this Indenture, any indentures supplemental hereto, and any other requisite documents, and with respect to the execution and filing of any financing statements and continuation statements, as are necessary to perfect and make effective the lien and security interest of this Indenture in the remainder of the Indenture Collateral and reciting the details of such action.
(b) Within one-hundred and twenty (120) days after the beginning of each calendar year, beginning with the first calendar year beginning more than six (6) months after the 2024-3 Closing Date, the Issuer shall furnish to the Indenture Trustee an Opinion of Counsel either stating that, in the opinion of such counsel, such action has been taken with respect to the recording, filing, re-recording and refiling of this Indenture, any indentures supplemental hereto and any other requisite documents and with respect to the filing of any financing statements and
16
continuation statements as is necessary to maintain the lien and security interest created by this Indenture and reciting the details of such action, or stating that in the opinion of such counsel no such action is necessary to maintain such lien and security interest. Such Opinion of Counsel shall also describe the recording, filing, re-recording and refiling of this Indenture, any indentures supplemental hereto and any other requisite documents and the execution and filing of any financing statements and continuation statements that will, in the opinion of such counsel, be required to maintain the lien and security interest of this Indenture until the one-hundred and twentieth (120th) day in the following calendar year.
SECTION 3.7. Performance of Issuer Obligations; Servicing of 2024-3 Designated Pool.
(a) The Issuer will not take any action and will use its best efforts not to permit any action to be taken by others that would release any Person from any of such Person’s material covenants or obligations under any instrument or agreement included in the Issuer Trust Estate or that would result in the amendment, hypothecation, subordination, termination or discharge of, or impair the validity or effectiveness of, any such instrument or agreement, except as expressly provided in this Indenture and the other Program Documents or such other instrument or agreement.
(b) The Issuer may contract with other Persons to assist it in performing its duties under this Indenture, and any performance of such duties by a Person identified to the Indenture Trustee in an Officer’s Certificate of the Issuer shall be deemed to be action taken by the Issuer. Initially, the Issuer has contracted with the Servicer and the Administrator to assist the Issuer in performing its duties under this Indenture.
(c) The Issuer will punctually perform and observe all of its obligations and agreements contained in this Indenture, the other Program Documents and in the instruments and agreements included in the Issuer Trust Estate, including but not limited to filing or causing to be filed all UCC financing statements and continuation statements required to be filed by the terms of this Indenture and the other Program Documents, in accordance with and within the time periods provided for herein and therein.
(d) If the Issuer shall have knowledge of the occurrence of a Servicer Default, the Issuer shall promptly notify the Indenture Trustee, and shall specify in such notice the action, if any, the Issuer is taking with respect to such event. If a Servicer Default shall arise from the failure of the Servicer to perform any of its duties or obligations under the 2024-3 Servicing Agreement with respect to the 2024-3 Exchange Note Assets, the Issuer shall take all reasonable steps available to it to remedy such failure. Upon the occurrence of a Servicer Default, the Indenture Trustee, at the direction of the Majority Noteholders, shall in turn direct the Titling Trust to terminate, pursuant to Section 2.11(c) of the 2024-3 Servicing Supplement, all of the rights and obligations of the Servicer with respect to the 2024-3 Exchange Note Assets only and the Indenture Trustee, at the direction of the Majority Noteholders, shall appoint a Successor Servicer pursuant to the 2024-3 Servicing Supplement.
(e) Upon any termination of the rights and powers of the Servicer or the resignation of the Servicer pursuant to the 2024-3 Servicing Agreement, the Issuer shall promptly notify the Indenture Trustee. As soon as any Successor Servicer is appointed pursuant to the 2024-3
17
Servicing Agreement, the Issuer shall notify the Indenture Trustee of such appointment, specifying in such notice the name and address of such Successor Servicer.
SECTION 3.8. Certain Negative Covenants. Until the date on which all Issuer Obligations are paid in full, the Issuer shall not directly or indirectly:
(a) engage in any activities other than financing, acquiring, pledging and managing the 2024-3 Exchange Note as contemplated by this Indenture and the other Program Documents;
(b) except as expressly permitted by this Indenture or the other Program Documents, sell, transfer, exchange or otherwise dispose of any of the properties or assets of the Issuer, including those included in the Issuer Trust Estate, unless directed to do so by the Indenture Trustee (acting at the direction of the Majority Noteholders);
(c) claim any credit on, or make any deduction from the principal or interest payable in respect of, the Notes (other than amounts properly withheld from such payments pursuant to Section 3.1) or assert any claim against any present or former Noteholder by reason of the payment of the taxes levied or assessed upon any part of the Issuer Trust Estate;
(d) dissolve or liquidate in whole or in part; or
(e) (i) permit the validity or effectiveness of this Indenture to be impaired, or permit the lien of this Indenture to be amended, hypothecated, subordinated, terminated or discharged, or permit any Person to be released from any covenants or obligations with respect to the Notes under this Indenture except as may be expressly permitted hereby, (ii) permit any Lien, charge, excise, claim, security interest, mortgage or other encumbrance (other than the lien of this Indenture) to be created on or extend to or otherwise arise upon or burden the Issuer Trust Estate or any part thereof or any interest therein or the proceeds thereof (other than tax liens, mechanics’ liens and other Liens that arise by operation of law, in each case on any of the 2024-3 Leased Vehicles and arising solely as a result of an action or omission of the related Lessee), or (iii) permit the lien of this Indenture not to constitute a valid first priority security interest in the Issuer Trust Estate.
SECTION 3.9. Annual Statement as to Compliance. The Issuer will deliver to the Indenture Trustee and the Noteholders, within one hundred twenty (120) days after the end of each fiscal year of the Issuer (commencing with the fiscal year 2024), and otherwise in compliance with the requirements of TIA Section 314(a)(4), an Officer’s Certificate stating, as to the Authorized Officer signing such Officer’s Certificate, that:
(a) a review of the activities of the Issuer during such year and of its performance under this Indenture and the other Program Documents to which it is a party has been made under such Authorized Officer’s supervision; and
(b) to the best of such Authorized Officer’s knowledge, based on such review, the Issuer has complied with all conditions and covenants under this Indenture and the other Program Documents to which it is a party throughout such year or, if there has been a default in its compliance with any such condition or covenant, specifying each such default known to such Authorized Officer and the nature and status thereof.
18
SECTION 3.10. Payment of Taxes. The Issuer will file (or cause to be filed on its behalf as a member of a consolidated group) all tax returns required by law to be filed by it and pay all taxes, assessments and governmental charges shown to be owing by it, except for any such taxes, assessments or charges which are not yet delinquent or that are being diligently contested in good faith by appropriate proceedings, for which adequate reserves in accordance with GAAP shall have been set aside on its books and that have not given rise to any Liens.
SECTION 3.11. Limitation on Fundamental Changes and Sale of Assets.
(a) The Issuer will not enter into any merger, consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer or otherwise dispose of, any of its property, business or assets except as contemplated by this Indenture.
(b) The Issuer will not make any change to its name or use any trade names, fictitious names, assumed names or “doing business as” names or change the jurisdiction under the laws of which it is organized.
SECTION 3.12. No Other Business. The Issuer will not engage in any business other than financing, purchasing, owning, selling and managing the 2024-3 Exchange Note and the underlying 2024-3 Exchange Note Assets and the other components of the Issuer Trust Estate, issuing the Issuer Trust Certificates and issuing and selling the Notes in the manner contemplated by this Indenture and the other Program Documents or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking which is not directly or indirectly related to the transactions contemplated by the Program Documents.
SECTION 3.13. No Borrowing. The Issuer will not issue, incur, assume, guarantee or otherwise become liable, directly or indirectly, for any Indebtedness other than the Notes.
SECTION 3.14. Issuer Obligations of Servicer. The Issuer will cause the Servicer to comply with its obligations under the 2024-3 Servicing Agreement.
SECTION 3.15. Guarantees, Loans, Advances and Other Liabilities. Except as contemplated by the 2024-3 Servicing Agreement or this Indenture, the Issuer will not make any loan or advance or credit to, or guarantee (directly or indirectly or by an instrument having the effect of assuring another’s payment or performance on any obligation or capability of so doing or otherwise), endorse or otherwise become contingently liable, directly or indirectly, in connection with the obligations, stocks or dividends of, or own, purchase, repurchase or acquire (or agree contingently to do so) any stock, obligations, assets or securities of, or any other interest in, or make any capital contribution to, any other Person.
SECTION 3.16. Transactions With Affiliates. The Issuer will not enter into, or be a party to any transaction with any Affiliate of the Issuer, except for (a) the transactions contemplated by the Program Documents, and (b) to the extent not otherwise prohibited under this Indenture, other transactions in the nature of employment contracts and directors’ fees, upon fair and reasonable terms materially no less favorable to the Issuer than would be obtained in a comparable arm’s-length transaction with a Person not an Affiliate. The Issuer will do all things necessary to continue to be readily distinguishable from GM Financial and its Affiliates (other
19
than the Depositor) and maintain its statutory trust existence separate and apart from that of GM Financial and each of its Affiliates.
SECTION 3.17. Capital Expenditures and Payments. The Issuer will not make any payments to any Person (including, without limitation, any salaries or bonuses) or make any expenditure (by long-term or operating lease or otherwise) for capital assets (either realty or personalty), except as contemplated by the 2024-3 Servicing Agreement and the other Program Documents.
SECTION 3.18. Compliance with Laws. The Issuer will comply with the requirements of all applicable laws, the non-compliance with which would, individually or in the aggregate, materially and adversely affect the ability of the Issuer to perform its obligations under the Notes, this Indenture or any Program Document.
SECTION 3.19. Restricted Payments. The Issuer will not, directly or indirectly, (a) pay any dividend or make any distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, to the Issuer Owner Trustee (provided, that any payment of fees, expenses and indemnities to the Issuer Owner Trustee in the manner specified herein shall not be prohibited by this Section) or any owner of a beneficial interest in the Issuer or otherwise with respect to any ownership or equity interest or security in or of the Issuer, (b) redeem, purchase, retire or otherwise acquire for value any such ownership or equity interest or security, or (c) set aside or otherwise segregate any amounts for any such purpose; provided, however, that so long as no Event of Default has occurred and is continuing or would result therefrom, the Issuer may make, or cause to be made, distributions as contemplated by, and to the extent funds are available for such purpose under, this Indenture or the Issuer Trust Agreement. The Issuer will not, directly or indirectly, make payments to or distributions from the Indenture Collections Account or the Note Payment Account except in accordance with this Indenture and the other Program Documents.
SECTION 3.20. Notice of Events of Default. The Issuer will give the Indenture Trustee and the Rating Agencies prompt written notice of each Event of Default and Servicer Default of which an Authorized Officer of the Issuer has actual knowledge.
SECTION 3.21. Other Notices. The Issuer will promptly give notice to the Indenture Trustee and the Rating Agencies of any default or event of default under any Contractual Obligation of the Issuer or any litigation, investigation or proceeding which may exist at any time with respect to the Issuer.
Each notice pursuant to this Section 3.21 shall be accompanied by a statement of an Authorized Officer of the Issuer setting forth details of the occurrence referred to therein and stating what action the Issuer proposes to take with respect thereto. Notwithstanding the foregoing, the Issuer Owner Trustee will have no liability with regard to any Authorized Officer’s failure to comply with Section 3.20 or this Section 3.21.
SECTION 3.22. Further Instruments and Acts. Upon request of the Indenture Trustee or any Agent, the Issuer will execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
20
SECTION 3.23. Delivery of the 2024-3 Exchange Note.
(a) On the 2024-3 Closing Date, the Issuer shall deliver or cause to be delivered to the Indenture Trustee as security for its obligations hereunder, the 2024-3 Exchange Note. The Indenture Trustee shall take possession of the 2024-3 Exchange Note in St. Paul, Minnesota and shall at all times during the period of this Indenture maintain custody of the 2024-3 Exchange Note in St. Paul, Minnesota.
(b) For the benefit of any holder, assignee or pledgee from time to time of any Exchange Note other than the 2024-3 Exchange Note and the Lender, as a Secured Party under the Credit and Security Agreement, the Indenture Trustee, as grantee of the interest in the 2024-3 Exchange Note hereunder, hereby releases all claims to the assets of the Titling Trust allocated to the Lending Facility Pool and each Designated Pool other than the 2024-3 Designated Pool and, in the event that such release is not given effect, the Indenture Trustee hereby fully subordinates all claims it may be deemed to have against the assets of the Titling Trust allocated to the Lending Facility or any Designated Pool other than the 2024-3 Designated Pool.
SECTION 3.24. Books and Records. The Issuer will keep proper books and records of account in which full, true and correct entries in conformity with GAAP and all Requirements of Law shall be made of all dealings and transactions in relation to its business and activities.
SECTION 3.25. Income Tax Characterization. For purposes of federal income, state and local income and franchise and any other income taxes, the Issuer will treat the Notes that are owned or beneficially owned by a Person other than the Depositor or its Affiliates as indebtedness and hereby instructs the Indenture Trustee and each Noteholder (or beneficial Note Owner) shall be deemed, by virtue of acquisition of an interest in such Note, to have agreed, to treat the Notes as indebtedness for all applicable tax reporting purposes.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1. Satisfaction and Discharge of the Indenture. This Indenture shall cease to be of further effect with respect to the Notes except as to (a) rights of registration of transfer and exchange, (b) substitution of mutilated, destroyed, lost or stolen Notes, (c) rights of Noteholders to receive payments of principal thereof and interest thereon, (d) Sections 3.3, 3.4, 3.5, 3.8, 3.12, 3.13, 3.14, 3.17, 3.23, and 3.25, (e) the rights, obligations and immunities of the Indenture Trustee hereunder (including the rights of the Indenture Trustee under Section 6.6 and the obligations of the Indenture Trustee under Section 4.2). and (f) the rights of Noteholders as beneficiaries hereof with respect to the property so deposited into the Accounts payable to all or any of them, and the Indenture Trustee, on demand of and at the expense of the Issuer, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture with respect to the Notes, when:
(i) All Notes theretofore authenticated and delivered (other than (A) Notes that have been destroyed, lost or stolen and that have been replaced or paid as provided in Section 2.5, and (B) Notes for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Issuer and thereafter repaid to the Issuer or
21
discharged from such trust, as provided in Section 3.3) have been delivered to the Indenture Trustee for cancellation;
(ii) The Issuer has paid or caused to be paid all Issuer Obligations; and
(iii) the Issuer has delivered to the Indenture Trustee and the Noteholders an Officer’s Certificate and Opinion of Counsel and if required by the TIA or the Indenture Trustee an Independent Certificate from a firm of certified public accountants, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.
SECTION 4.2. Application of Trust Money. All moneys deposited into the Accounts pursuant to Section 4.1 shall be caused to be held in trust and applied by the Indenture Trustee, in accordance with the provisions of the Notes and this Indenture, to the payment to the Noteholders of the particular Notes for the payment or redemption of which such moneys have been deposited into the Accounts, of all sums due and to become due thereon for principal and interest; provided, that such moneys need not be segregated from other funds except to the extent required herein or in the 2024-3 Servicing Agreement or required by law.
ARTICLE V
REMEDIES
SECTION 5.1. Events of Default. “Event of Default,” wherever used herein, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any interest when it becomes due and payable on (i) the Class A Notes, (ii) if no Class A Notes are Outstanding, the Class B Notes, or (iii) if no Class A Notes or Class B Notes are Outstanding, the Class C Notes and such default, in each case, shall continue for a period of five (5) days;
(b) default in the payment of the Outstanding Amount of any Note on the applicable Final Scheduled Payment Date;
(c) failure to observe or perform in any material respect any covenant or agreement of (i) the Issuer made in this Indenture (other than a covenant or agreement, a default in the observance or performance of which is specifically dealt with elsewhere in this Section 5.1), or (ii) the Issuer, the Depositor, the Settlor, the Titling Trust or GM Financial (in any capacity) in any other Program Document relating to the issuance of and payment of the Notes or the servicing of the 2024-3 Exchange Note Assets and, in each case, such failure shall continue for a period of sixty (60) days after the date on which a written notice stating that such notice is a Notice of Event of Default requiring the same to be remedied shall have been given to the Issuer, the Depositor, the Settlor, the Titling Trust or GM Financial, as the case may be, by the Indenture Trustee acting on behalf of the Holders of Notes representing at least 25% of the principal balance of the most senior Class of Notes specifying such failure;
22
(d) any representation or warranty made by the Issuer in this Indenture or by the Issuer, the Depositor, the Settlor, the Titling Trust or GM Financial (in any capacity) in any other Program Document or which is contained in any certificate, document or financial or other statement furnished at any time under or in connection herewith or therewith shall prove to have been incorrect in any manner that is materially adverse to any 2024-3 Secured Party on or as of the date made or deemed made which failure, if capable of being cured, has not been cured for a period of sixty (60) days after the date on which a written notice stating that such notice is a Notice of Event of Default requiring the same to be remedied shall have been given to the Issuer, the Depositor, the Settlor, the Titling Trust or GM Financial, as the case may be, by the Indenture Trustee or the Holders of Notes representing at least 25% of the principal balance of the most senior Class of Notes specifying such incorrectness; and
(e) an Insolvency Event shall have occurred with respect to the Issuer or the Titling Trust.
provided, however, that if any event described in clauses (a), (b), (c) or (d) above shall have been caused solely by a Force Majeure Event (as certified to in an Officer’s Certificate of the Servicer), then the applicable cure period referred to in such clause shall be extended for an additional ten (10) calendar days; provided, further, that if there is no cure period, then such cure period shall be ten (10) calendar days.
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment. If an Event of Default specified in Section 5.1(e) shall have occurred and be continuing, the Notes shall become immediately due and payable, together with accrued and unpaid interest thereon through the date of acceleration. If any other Event of Default should occur and be continuing, then and in every such case the Indenture Trustee shall, if directed to do so in writing by the Majority Noteholders, declare all the Notes to be immediately due and payable, by a notice in writing to the Issuer and to the Indenture Trustee, and upon any such declaration the unpaid principal amount of such Notes, together with accrued and unpaid interest thereon through the date of acceleration, shall become immediately due and payable.
At any time after such declaration of acceleration of maturity has been made and before a judgment or decree for payment of the money due has been obtained by the Indenture Trustee as hereinafter in this Article V provided, the Majority Noteholders, by written notice to the Issuer and the Indenture Trustee, may rescind and annul such declaration and its consequences if:
(a) the Issuer has paid or deposited into the Accounts a sum sufficient to pay:
(i) all payments of principal of and interest on all Notes and all other amounts that would then be due hereunder or upon such Notes (including monthly costs and expenses) if the Event of Default giving rise to such acceleration had not occurred; and
(ii) all sums paid or advanced by the Indenture Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Indenture Trustee and its agents and counsel; and
23
(b) all Events of Default, other than the nonpayment of the principal of the Notes that has become due solely by such acceleration, have been cured or waived as provided in Section 5.11.
No such rescission shall affect any subsequent default or impair any right consequent thereto.
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by Indenture Trustee.
(a) The Issuer covenants that if (i) there is an Event of Default relating to the payment of any interest or fees payable to any Noteholders when the same becomes due and payable, and such default continues for a period of five (5) days, or (ii) there is an Event of Default relating to the payment of principal payable to any Noteholders, and such default continues for a period of one (1) day, the Issuer will, upon demand of the Indenture Trustee, pay to it, for the benefit of the Noteholders, the whole amount then due and payable on such Notes, with interest on any overdue principal and, to the extent payment at such rate of interest shall be legally enforceable, on overdue installments of interest at the Note Interest Rate and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Indenture Trustee and its agents and counsel.
(b) In case the Issuer shall fail forthwith to pay such amounts upon such demand, the Indenture Trustee, in its own name and as trustee of an express trust, may institute a Proceeding for the collection of the sums so due and unpaid, and may prosecute such Proceeding to judgment or final decree, and may enforce the same against the Issuer or other obligor upon such Notes and collect in the manner provided by law out of the property of the Issuer or other obligor upon such Notes, wherever situated, the moneys adjudged or decreed to be payable.
(c) If an Event of Default occurs and is continuing, the Indenture Trustee may, as more particularly provided in Section 5.4, and shall at the direction of the Majority Noteholders, proceed to protect and enforce its rights and the rights of the Noteholders, by such appropriate Proceedings as the Indenture Trustee or the Majority Noteholders, as the case may be, shall deem most effective to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy or legal or equitable right vested in the Indenture Trustee by this Indenture or by law.
(d) In case there shall be pending, relative to the Issuer or any other obligor upon the Notes or any Person having or claiming an ownership interest in the Issuer Trust Estate, Proceedings under Title 11 of the United States Code or any other applicable federal or State bankruptcy, insolvency or other similar law, or in case a receiver, assignee or trustee in bankruptcy or reorganization, or liquidator, sequestrator or similar official shall have been appointed for or taken possession of the Issuer or its property or such other obligor or Person, or in case of any other comparable judicial Proceedings relative to the Issuer or other obligor upon the Notes, or to the creditors or property of the Issuer or such other obligor, the Indenture Trustee, irrespective of whether the principal of any Notes shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Indenture
24
Trustee shall have made any demand pursuant to the provisions of this Section, shall be entitled and empowered, by intervention in such Proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount of principal and interest owing and unpaid in respect of the Notes and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Indenture Trustee (including any claim for reasonable compensation to the Indenture Trustee and each predecessor Indenture Trustee, and their respective agents, attorneys and counsel, and for reimbursement of all expenses and liabilities incurred, and all advances made, by the Indenture Trustee and each predecessor Indenture Trustee, except as a result of negligence, bad faith or willful misconduct) and of the Noteholders allowed in such Proceedings;
(ii) unless prohibited by applicable law and regulations, to vote on behalf of the Noteholders in any election of a trustee, a standby trustee or Person performing similar functions in any such Proceedings;
(iii) to collect and receive any moneys or other property payable or deliverable on any such claims and to pay all amounts received with respect to the claims of the Noteholders and of the Indenture Trustee on their behalf; and
(iv) to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Indenture Trustee or the Noteholders allowed in any Proceedings relative to the Issuer, its creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar official in any such Proceeding is hereby authorized by each of such Noteholders to make payments to the Indenture Trustee and, in the event that the Indenture Trustee shall consent to the making of payments directly to such Noteholders, to pay to the Indenture Trustee such amounts as shall be sufficient to cover reasonable compensation to the Indenture Trustee, each predecessor Indenture Trustee and their respective agents, attorneys and counsel, and all other expenses and liabilities incurred, and all advances made, by the Indenture Trustee and each predecessor Indenture Trustee except as a result of the Indenture Trustee’s or any predecessor Indenture Trustee’s negligence or bad faith.
(e) Nothing herein contained shall be deemed to authorize the Indenture Trustee to authorize or consent to or vote for or accept or adopt on behalf of any Noteholder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Noteholders or to authorize the Indenture Trustee to vote in respect of the claim of any Noteholder in any such Proceeding except, as aforesaid, to vote for the election of a trustee in bankruptcy or similar Person.
(f) All rights of action and of asserting claims under this Indenture, or under any of the Notes, may be enforced by the Indenture Trustee without the possession of any of the Notes or the production thereof in any trial or other Proceedings relative thereto, and any such action or Proceedings instituted by the Indenture Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment, subject to the payment of the expenses,
25
disbursements and compensation of the Indenture Trustee, each predecessor Indenture Trustee and their respective agents and attorneys, shall be for the ratable benefit of the Noteholders.
(g) In any Proceedings brought by the Indenture Trustee (and also any Proceedings involving the interpretation of any provision of this Indenture to which the Indenture Trustee shall be a party), the Indenture Trustee shall be held to represent all the Noteholders, and it shall not be necessary to make any Noteholder a party to any such Proceedings.
SECTION 5.4. Remedies; Priorities.
(a) If an Event of Default shall have occurred and be continuing, the Indenture Trustee, if so requested in writing by the Majority Noteholders, shall do one or more of the following:
(i) institute Proceedings in its own name and as trustee of an express trust for the collection of all amounts then payable on the Notes or under this Indenture with respect thereto, whether by declaration or otherwise, enforce any judgment obtained and collect from the Issuer and any other obligor upon such Notes moneys adjudged due;
(ii) institute Proceedings from time to time for the complete or partial foreclosure of this Indenture with respect to the Issuer Trust Estate;
(iii) exercise any remedies of a secured party under the UCC and take any other appropriate action to protect and enforce the rights and remedies of the Indenture Trustee and the Noteholders; and
(iv) sell the Issuer Trust Estate or any portion thereof or rights or interest therein, at one or more public or private sales called and conducted in any manner permitted by law; provided, however, that the Indenture Trustee may not sell or otherwise liquidate the Issuer Trust Estate following an Event of Default, other than an Event of Default described in Section 5.1(a) or (b), unless (A) all Noteholders consent thereto, (B) the Majority Noteholders consent thereto and all amounts due and owing under the Notes and the other Program Documents to the Noteholders shall be paid in full with the proceeds of such sale or liquidation, or (C) the Issuer Trust Estate will not continue to provide sufficient funds for the payment of principal of and interest on the Notes as they would have become due if the Notes had not been declared due and payable, and the Indenture Trustee provides prior written notice to the Issuer (who shall deliver such notice to the Rating Agencies) and obtains the consent of the Required Noteholders.
(b) If the Indenture Trustee collects any money or property pursuant to this Article V, it shall apply such money or property to (i) first, reimburse itself for any amounts due under Section 6.6, (ii) second, pay the Issuer Owner Trustee for unpaid fees, indemnities and expenses owing to it under the Issuer Trust Agreement, and (iii) third, pay to the Servicer any due and unpaid Servicing Fee and then apply the remainder of such money or property in accordance with Section 5.4(c). The Indenture Trustee may fix a record date and payment date for any payment to Noteholders pursuant to this Section. At least fifteen (15) days before such record date, the Issuer shall mail to each Noteholder and the Indenture Trustee a notice that states the record date, the payment date and the amount to be paid.
26
(c) Following (i) the acceleration of the Notes pursuant to Section 5.2, or (ii) the occurrence of an Event of Default pursuant to Section 5.1 of this Indenture (other than an Event of Default pursuant to Sections 5.1(c) or (d)), or (iii) the liquidation of the Issuer Trust Estate, in full or in part, pursuant to Section 5.4(a)(iv), the Available Funds, plus any amounts on deposit in the Reserve Account, including any money or property collected pursuant to Section 5.4 of this Indenture, shall be applied by the Indenture Trustee on the related Payment Date in the following order of priority:
FIRST: amounts due and owing and required to be distributed to the Asset Representations Reviewer, the Successor Servicer, the Issuer Owner Trustee and the Indenture Trustee, respectively, pursuant to clause (i) of Section 8.3(a) and not previously distributed, ratably and without preference or priority of any kind and without regard to any caps set forth in clause (i) of Section 8.3(a);
SECOND: to the Class A Noteholders for amounts due and unpaid on the Class A Notes in respect of interest (including any premium), ratably by principal balance of such Class A Notes, without preference or priority of any kind, according to the amounts due and payable on the Class A Notes in respect of interest (including any premium);
THIRD: to Holders of the Class A-1 Notes, until the Outstanding Amount of the Class A-1 Notes is reduced to zero, and second, ratably, without preference or priority of any kind, according to the amounts due and payable to the Holders of the Class A-2-A Notes, Class A-2-B Notes, the Class A-3 Notes and the Class A-4 Notes, until the aggregate Outstanding Amount of the Class A-2-A Notes, Class A-2-B Notes, Class A-3 Notes and Class A-4 Notes is reduced to zero;
FOURTH: to the Class B Noteholders for amounts due and unpaid on the Class B Notes in respect of interest (including any premium), according to the amounts due and payable on the Class B Notes in respect of interest (including any premium);
FIFTH: to Holders of the Class B Notes for amounts due and unpaid on the Class B Notes in respect of principal, according to the amounts due and payable on the Class B Notes in respect of principal, until the Outstanding Amount of the Class B Notes is reduced to zero;
SIXTH: to the Class C Noteholders for amounts due and unpaid on the Class C Notes in respect of interest (including any premium), according to the amounts due and payable on the Class C Notes in respect of interest (including any premium);
SEVENTH: to Holders of the Class C Notes for amounts due and unpaid on the Class C Notes in respect of principal, according to the amounts due and payable on the Class C Notes in respect of principal, until the Outstanding Amount of the Class C Notes is reduced to zero;
EIGHTH: any other amount due and owing and required to be distributed to the Noteholders pursuant to the Program Documents and not previously distributed; and
NINTH: to the Issuer Trust Certificateholder.
27
SECTION 5.5. Optional Preservation of the Issuer Trust Estate. If the Notes have been declared to be due and payable under Section 5.2 following an Event of Default and such declaration and its consequences have not been rescinded and annulled, the Indenture Trustee may nonetheless, at the direction of the Majority Noteholders, elect to maintain possession of the Issuer Trust Estate.
SECTION 5.6. Unconditional Rights of Noteholders To Receive Principal and Interest. Notwithstanding any other provisions in this Indenture, any such Noteholder shall have the right, which is absolute and unconditional, to receive payment of the principal of and interest, if any, on its Note on or after the respective due dates thereof expressed in such Note or in this Indenture (or, in the case of redemption, on or after the Redemption Date) and to institute suit for the enforcement of any such payment, and such right shall not be impaired without the consent of such Noteholder.
SECTION 5.7. Restoration of Rights and Remedies. If the Indenture Trustee or any Noteholder has instituted any Proceeding to enforce any right or remedy under this Indenture and such Proceeding has been discontinued or abandoned for any reason or has been determined adversely to the Indenture Trustee or to such Noteholder, then and in every such case the Issuer, the Indenture Trustee and the Noteholders shall, subject to any determination in such Proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Indenture Trustee and the Noteholders shall continue as though no such Proceeding had been instituted.
SECTION 5.8. Rights and Remedies Cumulative. No right or remedy herein conferred upon or reserved to the Indenture Trustee or to the Noteholders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
SECTION 5.9. Delay or Omission Not a Waiver. No delay or omission of the Indenture Trustee or any Noteholder to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article V or by law to the Indenture Trustee or to the Noteholders may be exercised from time to time, and as often as may be deemed expedient, by the Indenture Trustee or by the Noteholders, as the case may be.
SECTION 5.10. Control by Noteholders. The Majority Noteholders shall have the right to direct the time, method and place of conducting any Proceeding for any remedy available to the Indenture Trustee with respect to the Notes or exercising any trust or power conferred on the Indenture Trustee. Furthermore, if any Noteholders have directed the Indenture Trustee to participate in dispute resolution pursuant to Section 2.20 of the 2024-3 Servicing Supplement, such Noteholders shall have the right to direct the time, method and place of conducting such dispute resolution, in accordance with Section 2.20 of the 2024-3 Servicing Supplement. Notwithstanding the foregoing:
28
(a) no such direction shall be in conflict with any rule of law or with this Indenture; and
(b) the Indenture Trustee may take any other action deemed proper by the Indenture Trustee that is not inconsistent with such direction.
Notwithstanding the rights of Noteholders set forth in this Section, subject to Section 6.1, the Indenture Trustee need not take any action that it determines might involve it in liability without receiving indemnity reasonably satisfactory to it.
SECTION 5.11. Waiver of Past Events of Default. Prior to the declaration of the acceleration of the maturity of the Notes as provided in Section 5.2, the Majority Noteholders may waive any past Event of Default and its consequences except an Event of Default resulting from a default (a) in payment of principal of or interest on any of the Notes, or (b) in respect of a covenant or provision hereof which cannot be modified or amended without the consent of each Noteholder. Any waiver of a Default or an Event of Default of a type set forth in (a) or (b) of the preceding sentence shall require the consent of all Noteholders. In the case of any such waiver, the Issuer, the Indenture Trustee and the Noteholders shall be restored to their former positions and rights hereunder, respectively; provided that no such waiver shall extend to any subsequent or other Event of Default or impair any right consequent thereto.
Upon any such waiver, such Event of Default shall cease to exist and be deemed to have been cured and not to have occurred, for every purpose of this Indenture; provided that no such waiver shall extend to any subsequent or other Event of Default or impair any right consequent thereto.
SECTION 5.12. Waiver of Stay or Extension Laws. The Issuer covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and the Issuer (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Indenture Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
SECTION 5.13. Action on Notes. The Indenture Trustee’s right to seek and recover judgment on the Notes or under this Indenture shall not be affected by the seeking, obtaining or application of any other relief under or with respect to this Indenture. Neither the lien of this Indenture nor any rights or remedies of the Indenture Trustee or the Noteholders shall be impaired by the recovery of any judgment by the Indenture Trustee against the Issuer or by the levy of any execution under such judgment upon any portion of the Issuer Trust Estate or upon any of the assets of the Issuer.
SECTION 5.14. Performance and Enforcement of Certain Issuer Obligations.
(a) Promptly following a request from the Indenture Trustee to do so and at the Administrator’s expense, the Issuer shall take all such lawful action as the Indenture Trustee may request to compel or secure the performance and observance by the Servicer, of each of its
29
obligations to the Issuer under or in connection with any of the Program Documents, and to exercise any and all rights, remedies, powers and privileges lawfully available to the Issuer under or in connection with the Program Documents to the extent and in the manner directed by the Indenture Trustee, including the transmission of notices of default on the part of the Servicer thereunder and the institution of legal or administrative actions or proceedings to compel or secure performance by the Servicer of its obligations under the Program Documents.
(b) If an Event of Default has occurred and is continuing, the Indenture Trustee may, and at the direction (which direction shall be in writing or by telephone (confirmed in writing promptly thereafter)) of the Majority Noteholders shall, exercise all rights, remedies, powers, privileges and claims of the Issuer against the Servicer under or in connection with the Program Documents, including the right or power to take any action to compel or secure performance or observance by the Servicer, of its obligations to the Issuer thereunder and to give any consent, request, notice, direction, approval, extension or waiver under the Program Documents and any right of the Issuer to take such action shall be suspended.
ARTICLE VI
THE INDENTURE TRUSTEE
SECTION 6.1. Duties of Indenture Trustee.
(a) If an Event of Default has occurred and is continuing, the Indenture Trustee shall exercise the rights and powers vested in it by this Indenture and the other Program Documents and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Indenture Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture and the other Program Documents and no implied covenants or obligations shall be read into this Indenture or the other Program Documents against the Indenture Trustee, and any discretion, permissive right, or privilege shall not be deemed to be or otherwise construed as a duty or obligation; and
(ii) in the absence of bad faith on its part, the Indenture Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Indenture Trustee and conforming to the requirements of this Indenture; however, the Indenture Trustee shall examine the certificates and opinions to determine whether or not they conform as to form to the requirements of this Indenture.
(c) The Indenture Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of this Section;
30
(ii) the Indenture Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer of the Indenture Trustee unless it is proved that the Indenture Trustee was negligent in ascertaining the pertinent facts;
(iii) the Indenture Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 5.10; and
(iv) only in the event the Indenture Trustee has acted negligently, the Indenture Trustee shall not be liable for special, consequential or indirect damages (including, among other things, lost profits).
(d) The Indenture Trustee shall not be liable for interest on any money received by it except as the Indenture Trustee may agree in writing with the Issuer.
(e) Money caused to be held in trust by the Indenture Trustee need not be segregated from other funds except to the extent required by law or the terms of this Indenture or the 2024-3 Servicing Agreement.
(f) No provision of this Indenture shall require the Indenture Trustee to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds to believe that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(g) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Indenture Trustee shall be subject to the provisions of this Section 6.1 and to the provisions of the TIA.
(h) The Indenture Trustee shall (i) not be charged with knowledge of any event, default or Event of Default or be required to act based on any other event unless either (A) a Responsible Officer shall have actual knowledge of such event or (B) written notice of such event shall have been given to a Responsible Officer of the Indenture Trustee in accordance with the provisions of this Indenture and the other Program Documents and (ii) shall have no duty to take any action to determine whether any such event, default or Event of Default has occurred. Publicly available information by itself shall not constitute actual or constructive knowledge unless a Responsible Officer shall have actual knowledge or has received written notice of such publicly available information.
(i) The Indenture Trustee shall, upon two (2) Business Days’ prior notice to the Indenture Trustee, permit any representative of the Noteholders at the expense of the Issuer, during the Indenture Trustee’s normal business hours, to examine all books of account, records, reports and other papers of the Indenture Trustee relating to the Notes, to make copies and extracts therefrom and to discuss the Indenture Trustee’s affairs and actions, as such affairs and actions relate to the Indenture Trustee’s duties with respect to the Notes, with the Indenture Trustee’s officers and employees responsible for carrying out the Indenture Trustee’s duties with respect to the Notes.
31
(j) Subject to Sections 6.1(a) and (c), in no event shall the Indenture Trustee be responsible for delays or failures in performance resulting directly or indirectly from forces beyond its control (including, without limitation, acts of God, strikes, work stoppages, accidents, severe weather, floods, nuclear or natural catastrophes, lockouts, riots, civil or military disturbances, acts of war or terrorism, pandemics or epidemics, any provision of any present or future law or regulation or any act of any governmental authority, and any interruption, loss or malfunction of utilities, communications, computer services (software or hardware) or Federal Reserve Bank wire service), provided such default or delay could not have been prevented by the taking of commercially reasonable precautions such as the implementation and execution of disaster recovery plans. Notwithstanding the occurrence of a foregoing event, the Indenture Trustee shall perform its obligations hereunder to the extent it is able to do so under such event. The Indenture Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to prevent any failure or delay in performance and to resume performance as soon as practicable under the circumstances.
SECTION 6.2. Rights of Indenture Trustee.
(a) The Indenture Trustee may conclusively rely on any document believed by it to be genuine and to have been signed or presented by the proper person. The Indenture Trustee need not investigate any fact or matter stated in the document and shall not be responsible for determining whether a document defect or breach of representation of warranty has occurred (including, whether such defect or breach is material). Notwithstanding the foregoing, the Indenture Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, directions, consents, requests, orders or other instruments furnished to the Indenture Trustee that shall be specifically required to be furnished pursuant to any provision of this Indenture, shall examine them to determine whether they comply as to form to the requirements of this Indenture.
(b) Before the Indenture Trustee acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel. The Indenture Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on an Officer’s Certificate or Opinion of Counsel.
(c) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian or nominee, and the Indenture Trustee shall not be responsible for any misconduct or negligence on the part of, or for the supervision of, any such agent, attorney, custodian or nominee appointed with due care by it hereunder.
(d) The Indenture Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers; provided, that the Indenture Trustee’s conduct does not constitute willful misconduct, negligence or bad faith.
(e) The Indenture Trustee may consult with counsel, and the advice or opinion of counsel with respect to legal matters relating to this Indenture and the Notes shall be full and complete authorization and protection from liability in respect to any action taken, omitted or suffered by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
32
(f) The Indenture Trustee shall, for so long as any Notes are Outstanding, be entitled to exercise all the rights and powers of the registered 2024-3 Exchange Noteholder under the Program Documents.
(g) The Indenture Trustee will not be responsible for filing any financing statements or continuation statements in connection with the Notes, but will cooperate with the Issuer in connection with the filing of such financing statements or continuation statements.
(h) In no event shall the Indenture Trustee, its directors, officers, agents or employees be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Indenture Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
(i) The rights, privileges, protections, immunities and benefits given to the Indenture Trustee, including its right to be indemnified, are extended to, and shall be enforceable by, the Indenture Trustee in each of its capacities hereunder.
(j) In no event shall the Indenture Trustee be liable for the selection of investments or for investment losses incurred thereon. The Indenture Trustee shall have no liability in respect of losses incurred as a result of the liquidation of any such investment prior to its stated maturity or the failure of any party directing such investment to provide timely written investment direction. The Indenture Trustee shall have no obligation to cause the investment or reinvestment of any amounts held hereunder in the absence of such written investment direction.
(k) For certain payments made pursuant to this Indenture, the Indenture Trustee may be required to make a “reportable payment” or “withholdable payment” and in such cases the Indenture Trustee shall have the duty to act as a payor or withholding agent, respectively, that is responsible for any tax withholding and reporting required under Chapters 3, 4 and 61 of the Code. The Indenture Trustee shall have the sole right to make the determination as to which payments are “reportable payments” or “withholdable payments.” All parties to this Indenture shall provide an executed Internal Revenue Service Form W-9 or appropriate Internal Revenue Service Form W-8 (or, in each case, any successor form) to the Indenture Trustee prior to the 2024-3 Closing Date, and shall promptly update any such form to the extent such form becomes obsolete or inaccurate in any respect. The Indenture Trustee shall have the right to request from any party to this Indenture, or any other Person entitled to payment hereunder, any additional forms, documentation or other information as may be reasonably necessary for the Indenture Trustee to satisfy its reporting and withholding obligations under the Code. To the extent any such forms to be delivered under this Section 6.2(k) are not provided prior to or by the time the related payment is required to be made or are determined by the Indenture Trustee to be incomplete and/or inaccurate in any respect, the Indenture Trustee shall be entitled to withhold on any such payments hereunder to the extent withholding is required under Chapters 3, 4 or 61 of the Code, and shall have no obligation to gross up any such payment.
SECTION 6.3. Individual Rights of Indenture Trustee. The Indenture Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuer or its Affiliates with the same rights it would have if it were not Indenture
33
Trustee. Any Note Registrar or co-registrar may do the same with like rights. However, the Indenture Trustee must comply with Section 6.10.
SECTION 6.4. Indenture Trustee’s Disclaimer. The Indenture Trustee (i) shall not be responsible for, and makes no representation as to, the validity or adequacy of this Indenture or the Notes, (ii) shall not be accountable for the Issuer’s use of the proceeds from the Notes or responsible for any statement of the Issuer in this Indenture or in any document issued in connection with the sale of the Notes or in the Notes other than the Indenture Trustee’s certificate of authentication, (iii) shall not be required to investigate claims of any document defect or breach of a representation or warranty made in the 2024-3 Exchange Note Sale Agreement, the 2024-3 Exchange Note Transfer Agreement or the 2024-3 Servicing Supplement, (iv) shall not be responsible or liable for the acts or omissions of any other party, including the Servicer, the Titling Trust and the Depositor, and may assume each other party’s performance of its obligations under the Trust Agreement, the 2024-3 Exchange Note Sale Agreement, the 2024-3 Exchange Note Transfer Agreement and the 2024-3 Servicing Supplement absent written notice or actual knowledge of a Responsible Officer of the Indenture Trustee to the contrary.
SECTION 6.5. Reports by Indenture Trustee to Noteholders. The Indenture Trustee shall deliver such information that is either required by applicable law or is requested in writing by a Noteholder in order to enable such Noteholder to prepare its federal and State income tax returns.
SECTION 6.6. Compensation and Indemnity. The Issuer shall, or shall cause the Administrator to, pay to the Indenture Trustee from time to time reasonable compensation for its services pursuant to a fee agreement between the Administrator and the Indenture Trustee. The Indenture Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Issuer shall, or shall cause the Administrator to, reimburse the Indenture Trustee for all reasonable out-of-pocket expenses, disbursements and advances incurred or made by it, including costs of collection, in addition to the compensation for its services. Such expenses shall include the reasonable compensation and expenses, disbursements and advances of the Indenture Trustee’s agents, counsel, accountants and experts. The Issuer shall, or shall cause the Administrator to, indemnify and hold harmless the Indenture Trustee and its officers, directors, employees, representatives and agents against any and all loss, liability, tax (other than taxes based on the income of the Indenture Trustee) or expense (including attorneys’ fees) of whatever kind or nature regardless of their merit directly or indirectly incurred by it or them without willful misconduct, negligence or bad faith on their part, arising out of or in connection with the acceptance or administration of the transactions contemplated by this Indenture, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under this Indenture or under any of the other Program Documents. The Indenture Trustee shall notify the Issuer and the Administrator promptly of any claim for which it may seek indemnity. Failure by the Indenture Trustee to so notify the Issuer and the Administrator shall not relieve the Issuer or the Administrator of its obligations hereunder. The Issuer shall, or shall cause the Administrator to, defend any such claim, and the Indenture Trustee may have separate counsel and the Issuer shall, or shall cause the Administrator to, pay the fees and expenses of such counsel. Neither the Issuer nor the Administrator need reimburse any expense or indemnify
34
against any loss, liability or expense incurred by the Indenture Trustee through the Indenture Trustee’s own willful misconduct, negligence or bad faith.
The Issuer’s payment obligations to the Indenture Trustee pursuant to this Section shall survive the discharge of this Indenture. When the Indenture Trustee incurs expenses after the occurrence of a Default specified in Section 5.1(d) with respect to the Issuer, the expenses are intended to constitute expenses of administration under Title 11 of the United States Code or any other applicable federal or State bankruptcy, insolvency or similar law.
Notwithstanding anything else set forth in this Indenture or the other Program Documents, the Indenture Trustee agrees that the obligations of the Issuer to the Indenture Trustee hereunder and under the other Program Documents shall be recourse to the Issuer Trust Estate only. In addition, the Indenture Trustee agrees that its recourse to the Issuer and the Issuer Trust Estate shall be limited to the right to receive amounts available pursuant to Sections 5.4(b) and 8.3.
SECTION 6.7. Replacement of Indenture Trustee. No resignation or removal of the Indenture Trustee and no appointment of a successor Indenture Trustee shall become effective until the acceptance of appointment by the successor Indenture Trustee pursuant to this Section 6.7. The Indenture Trustee may resign at any time by so notifying the Issuer. The Issuer, at the direction of the Majority Noteholders, shall remove the Indenture Trustee if:
(a) the Indenture Trustee fails to comply with Section 6.10;
(b) the Indenture Trustee is adjudged bankrupt or insolvent;
(c) a receiver or other public officer takes charge of the Indenture Trustee or its property; or
(d) the Indenture Trustee otherwise becomes incapable of acting.
If the Indenture Trustee resigns or is removed or if a vacancy exists in the office of Indenture Trustee for any reason (the Indenture Trustee in such event being referred to herein as the retiring Indenture Trustee), the Issuer shall promptly appoint a successor Indenture Trustee acceptable to the Majority Noteholders.
A successor Indenture Trustee shall deliver a written acceptance of its appointment to the retiring Indenture Trustee, the Noteholders and the Issuer. Thereupon, subject to satisfaction of the Rating Agency Condition, the resignation or removal of the retiring Indenture Trustee shall become effective, and the successor Indenture Trustee shall have all the rights, powers and duties of the retiring Indenture Trustee under this Indenture. The successor Indenture Trustee shall mail a notice of its succession to Noteholders. The retiring Indenture Trustee shall promptly transfer all property held by it as Indenture Trustee to the successor Indenture Trustee.
If a successor Indenture Trustee does not take office within sixty (60) days after the retiring Indenture Trustee resigns or is removed, the retiring Indenture Trustee, the Issuer or the Majority Noteholders may petition any court of competent jurisdiction for the appointment of a successor Indenture Trustee.
35
If the Indenture Trustee fails to comply with Section 6.10, any Noteholder may petition any court of competent jurisdiction for the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee.
Notwithstanding the replacement of the Indenture Trustee pursuant to this Section, the Issuer’s and the Administrator’s obligations under Section 6.6 shall continue for the benefit of the retiring Indenture Trustee.
The Issuer shall pay any costs and expenses associated with the replacement of the Indenture Trustee. To the extent the Issuer fails to pay any such costs or expenses on or before the Payment Date following the replacement of the Indenture Trustee, the Administrator shall pay such amount then-outstanding.
SECTION 6.8. Successor Indenture Trustee by Merger. If the Indenture Trustee consolidates with, merges or converts into, or transfers all or substantially all its corporate trust business or assets to, another corporation or banking association, the resulting, surviving or transferee corporation without any further act shall be the successor Indenture Trustee; provided, that such corporation or banking association shall be otherwise qualified and eligible under Section 6.10. The Indenture Trustee shall provide the Issuer prior written notice of any such transaction.
In case at the time such successor or successors by merger, conversion or consolidation to the Indenture Trustee shall succeed to the trusts created by this Indenture any of the Notes shall have been authenticated but not delivered, any such successor to the Indenture Trustee may adopt the certificate of authentication of any predecessor trustee and deliver such Notes so authenticated; and in case at that time any of the Notes shall not have been authenticated, any successor to the Indenture Trustee may authenticate such Notes either in the name of any predecessor hereunder or in the name of the successor to the Indenture Trustee; and in all such cases such certificates shall have the full force which it is anywhere in the Notes or in this Indenture provided that the certificate of the Indenture Trustee shall have.
SECTION 6.9. Appointment of Co-Indenture Trustee or Separate Indenture Trustee.
(a) Notwithstanding any other provisions of this Indenture, at any time, for the purpose of meeting any legal requirement of any jurisdiction in which any part of the Issuer Trust Estate may at the time be located, the Indenture Trustee shall have the power and may execute and deliver all instruments to appoint one or more Persons to act as a co-trustee or co-trustees, or separate trustee or separate trustees, of all or any part of the Issuer Trust Estate, and to vest in such Person or Persons, in such capacity and for the benefit of the Noteholders, such title to the Issuer Trust Estate, or any part hereof, and, subject to the other provisions of this Section, such powers, duties, obligations, rights and trusts as the Indenture Trustee may consider necessary or desirable. No co-trustee or separate trustee hereunder shall be required to meet the terms of eligibility as a successor trustee under Section 6.10 and no notice to Noteholders of the appointment of any co-trustee or separate trustee shall be required under Section 6.7.
(b) Every separate trustee and co-trustee shall, to the extent permitted by law, be appointed and act subject to the following provisions and conditions:
36
(i) all rights, powers, duties and obligations conferred or imposed upon the Indenture Trustee shall be conferred or imposed upon and exercised or performed by the Indenture Trustee and such separate trustee or co-trustee jointly (it being understood that such separate trustee or co-trustee is not authorized to act separately without the Indenture Trustee joining in such act), except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed the Indenture Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations (including the holding of title to the Issuer Trust Estate or any portion thereof in any such jurisdiction) shall be exercised and performed singly by such separate trustee or co-trustee, but solely at the direction of the Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by reason of any act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time accept the resignation of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Indenture Trustee shall be deemed to have been given to each of the then separate trustees and co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to this Indenture and the conditions of this Article VI. Each separate trustee and co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Indenture Trustee or separately, as may be provided therein, subject to all the provisions of this Indenture, specifically including every provision of this Indenture relating to the conduct of, affecting the liability of, or affording protection to, the Indenture Trustee. Every such instrument shall be filed with the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time constitute the Indenture Trustee, its agent or attorney-in-fact with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Indenture on its behalf and in its name. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Indenture Trustee, to the extent permitted by law, without the appointment of a new or successor trustee.
SECTION 6.10. Eligibility; Disqualification.
(a) The Indenture Trustee shall at all times satisfy the requirements of TIA § 310(a). The Indenture Trustee shall have a combined capital and surplus of at least $50,000,000 as set forth in its most recent published annual report of condition and it shall have a long-term debt rating of BBB-, or an equivalent rating, or better by Standard & Poor’s and Moody’s and, if rated by Fitch, Fitch’s equivalent rating. The Indenture Trustee shall comply with TIA § 310(b), including the optional provision permitted by the second sentence of TIA § 310(b)(9); provided, however, that there shall be excluded from the operation of TIA § 310(b)(1) any indenture or indentures under which other securities of the Issuer are outstanding if the requirements for such exclusion set forth in TIA § 310(b)(1) are met.
37
(b) Within ninety (90) days after the occurrence of an Event of Default which shall not have been cured or waived, unless authorized by the Commission, the Indenture Trustee shall resign with respect to the Class A Notes, the Class B Notes and/or the Class C Notes in accordance with Section 6.7 of this Indenture, and the Issuer shall appoint a successor Indenture Trustee for each of such Classes, as applicable, so that there will be separate Indenture Trustees for the Class A Notes, the Class B Notes and the Class C Notes. In the event the Indenture Trustee fails to comply with the terms of the preceding sentence, the Indenture Trustee shall comply with clauses (ii) and (iii) of TIA Section 310(b).
(c) In the case of the appointment hereunder of a successor Indenture Trustee with respect to any Class of Notes pursuant to this Section 6.10, the Issuer, the retiring Indenture Trustee and the successor Indenture Trustee with respect to such Class of Notes shall execute and deliver an indenture supplemental to this Indenture which shall contain:
(i) provisions by which each successor Indenture Trustee shall accept such appointment;
(ii) provisions necessary or desirable to transfer and confirm to, and to vest in, the successor Indenture Trustee all the rights, powers, trusts and duties of the retiring Indenture Trustee with respect to the Notes of the Class to which the appointment of such successor Indenture Trustee relates;
(iii) if the retiring Indenture Trustee is not retiring with respect to all Classes of Notes, provisions deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Indenture Trustee with respect to the Notes of each Class as to which the retiring Indenture Trustee is not retiring shall continue to be vested in the Indenture Trustee; and
(iv) provisions necessary to provide for or facilitate the administration of the trusts under this Indenture by more than one Indenture Trustee.
Nothing in this Indenture or in such supplemental indenture shall constitute such Indenture Trustees co-trustees of the same trust and each such Indenture Trustee shall be a trustee of a trust or trusts under this Indenture separate and apart from any trust or trusts under this Indenture administered by any other such Indenture Trustee. The indenture supplement will become effective on the removal of the retiring Indenture Trustee.
SECTION 6.11. Representations and Warranties of Indenture Trustee. The Indenture Trustee hereby makes the following representations and warranties on which the Issuer and Noteholders shall rely:
(a) the Indenture Trustee is a national banking association duly organized, validly existing and in good standing under the laws of the United States; and
(b) the Indenture Trustee has full power, authority and legal right to execute, deliver and perform this Indenture and shall have taken all necessary action to authorize the execution, delivery and performance by it of this Indenture.
38
SECTION 6.12. Preferential Collection of Claims Against Issuer. The Indenture Trustee shall comply with TIA § 311(a), excluding any creditor relationship listed in TIA § 311(b). An Indenture Trustee who has resigned or been removed shall be subject to TIA § 311(a).
ARTICLE VII
NOTEHOLDERS’ LISTS AND REPORTS
SECTION 7.1. Issuer to Furnish Indenture Trustee Names and Addresses of Noteholders. The Issuer will furnish or cause to be furnished to the Indenture Trustee (a) not more than five (5) days after each Record Date, a list, in such form as the Indenture Trustee may reasonably require, of the names and addresses of the Noteholders as of such Record Date, and (b) at such other times as the Indenture Trustee may request in writing, within thirty (30) days after receipt by the Issuer of any such request, a list of similar form and content as of a date not more than ten (10) days prior to the time such list is furnished; provided, however, that so long as the Indenture Trustee is the Note Registrar, no such list shall be required to be furnished. Upon the request of the Noteholders, the Indenture Trustee or, if the Indenture Trustee is not the Note Registrar, the Issuer, shall furnish a copy of the list of the names and addresses of the Noteholders to the Noteholders.
SECTION 7.2. Preservation of Information; Communications to Noteholders.
(a) The Indenture Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of the Noteholders contained in the most recent list furnished to the Indenture Trustee as provided in Section 7.1 and the names and addresses of Noteholders received by the Indenture Trustee in its capacity as Note Registrar. The Indenture Trustee may destroy any list furnished to it as provided in such Section 7.1 upon receipt of a new list so furnished.
(b) Noteholders may communicate pursuant to TIA § 312(b) with other Noteholders with respect to their rights under this Indenture or under the Notes.
(c) The Issuer, the Indenture Trustee and the Note Registrar shall have the protection of TIA § 312(c).
(d) A Noteholder (if the Notes are represented by Definitive Notes) or a Note Owner (if the Notes are represented by Book-Entry Notes) may communicate with the Indenture Trustee and provide notices and make requests and demands and give directions to the Indenture Trustee through the procedures of the Clearing Agency and by notice to the Indenture Trustee. Any Note Owner must provide a written certification stating that the Note Owner is a beneficial owner of a Note, together with supporting documentation such as a trade confirmation, an account statement, a letter from a broker or dealer verifying ownership or another similar document evidencing ownership of a Note. The Indenture Trustee will not be required to take action in response to requests, demands or directions of a Noteholder or a Note Owner, other than requests, demands or directions relating to an asset representations review demand pursuant to Section 7.2(f), unless the Noteholder or Note Owner has offered reasonable security or
39
indemnity reasonably satisfactory to the Indenture Trustee to protect it against the costs and expenses that it may incur in complying with the request, demand or direction.
(e) A Noteholder (if the Notes are represented by Definitive Notes) or a Note Owner (if the Notes are represented by Book-Entry Notes) that wishes to communicate with other Noteholders or Note Owners, as applicable, about a possible exercise of rights under this Indenture or the other Program Documents may send a request to the Issuer or the Servicer, on behalf of the Issuer, to include information regarding the communication in a Form 10-D to be filed by the Issuer with the Commission. Each request must include (i) the name of the requesting Noteholder or Note Owner, (ii) the method by which other Noteholders or Note Owners, as applicable, may contact the requesting Noteholder or Note Owner and (iii) in the case of a Note Owner, a certification from that Person that it is a Note Owner, together with at least one form of documentation evidencing its ownership of a Note, including a trade confirmation, account statement, letter from a broker or dealer or similar document. A Noteholder or Note Owner, as applicable, that delivers a request under this Section 7.2(e) will be deemed to have certified to the Issuer and the Servicer that its request to communicate with other Noteholders or Note Owners, as applicable, relates solely to a possible exercise of rights under this Indenture or the other Program Documents, and will not be used for other purposes. The Issuer will promptly deliver any such request to the Servicer. On receipt of a request, the Servicer will include, or will cause the Depositor (at the Servicer’s expense) to include, in the Form 10-D filed by the Issuer with the Commission for the Collection Period in which the request was received (A) a statement that the Issuer has received a request from a Noteholder or Note Owner, as applicable, that is interested in communicating with other Noteholders or Note Owners, as applicable, about a possible exercise of rights under this Indenture or the other Program Documents, (B) the name of the requesting Noteholder or Note Owner, (C) the date the request was received and (D) a description of the method by which the other Noteholders or Note Owners, as applicable, may contact the requesting Noteholder or Note Owner.
(f) If a Delinquency Trigger occurs, a Noteholder (if the Notes are represented by Definitive Notes) or a Note Owner (if the Notes are represented by Book-Entry Notes) may make a demand on the Indenture Trustee to cause a vote of the Noteholders or Note Owners, as applicable, about whether to direct the Asset Representations Reviewer to conduct an Asset Review of the Asset Review Receivables under the Asset Representations Review Agreement. In the case of a Note Owner, each demand must be accompanied by a certification from that Person that it is a Note Owner, together with at least one form of documentation evidencing its ownership of a Note, including a trade confirmation, account statement, letter from a broker or dealer or similar document. If Noteholders and Note Owners, as applicable, of at least 5% of the aggregate Note Principal Balance of the Notes as of the date on which such Delinquency Trigger occurred (exclusive of Notes held by the Sponsor or any of its Affiliates) demand a vote within 90 days of the filing of the Form 10-D reporting the occurrence of the Delinquency Trigger, the Indenture Trustee will promptly request such a vote of the Noteholders through the Clearing Agency, which vote will remain open until the 150th day after the filing of the related Form 10-D. If (i) a voting quorum of Noteholders holding at least 5% of the aggregate Note Principal Balance (exclusive of Notes held by the Sponsor or any of its Affiliates) participate in the related vote and (ii) Noteholders of a majority of the Note Principal Balance of Notes voted agree to an Asset Review, then the Indenture Trustee will send an Asset Review Notice to the Asset
40
Representations Reviewer and the Servicer under the Asset Representations Review Agreement directing the Asset Representations Reviewer to conduct the Asset Review.
SECTION 7.3. Reports by Issuer.
(a) The Issuer shall:
(i) file with the Indenture Trustee, within fifteen (15) days after the Issuer is required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Issuer may be required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act;
(ii) file with the Indenture Trustee and the Commission in accordance with rules and regulations prescribed from time to time by the Commission such additional information, documents and reports with respect to compliance by the Issuer with the conditions and covenants of this Indenture as may be required from time to time by such rules and regulations; and
(iii) supply to the Indenture Trustee (and the Indenture Trustee shall transmit by mail to all Noteholders described in TIA § 313(c)) such summaries of any information, documents and reports required to be filed by the Issuer pursuant to clauses (i) and (ii) of this Section 7.3(a) as may be required by rules and regulations prescribed from time to time by the Commission.
(b) Unless the Issuer otherwise determines, the fiscal year of the Issuer shall end on December 31 of each year.
SECTION 7.4. Reports by Indenture Trustee.
(a) If required by TIA § 313(a), within sixty (60) days after each May 31, beginning with May 31, 2024, the Indenture Trustee shall mail to each Noteholder if required by TIA § 313(c) a brief report dated as of such date that complies with TIA § 313(a). The Indenture Trustee also shall comply with TIA § 313(b).
(b) A copy of each report at the time of its mailing to Noteholders shall be filed by the Indenture Trustee with the Commission and each stock exchange, if any, on which the Notes are listed. The Issuer shall notify the Indenture Trustee if and when the Notes are listed on any stock exchange.
SECTION 7.5. Asset Review Reports.
Upon the request of any Noteholder to the Indenture Trustee for a copy of any Asset Review Report (as defined in the Asset Representations Review Agreement), the Indenture Trustee shall promptly provide a copy of such Asset Review Report to such Noteholder; provided, that if the requesting Noteholder is not a Noteholder of record, such Noteholder must provide the Indenture Trustee with a written certification stating that it is a beneficial owner of a
41
Note, together with supporting documentation supporting that statement (which may include, but is not limited to, a trade confirmation, an account statement or a letter from a broker or dealer verifying ownership) before the Indenture Trustee delivers such Asset Review Report to such Noteholder; provided, further, that the Indenture Trustee shall provide the Servicer with notice of such request before delivering the related Asset Review Report to the requesting Noteholder and if such Asset Review Report contains personally identifiable information regarding Lessees, and if the Servicer provides notice to the Indenture Trustee, then the Servicer may condition the Indenture Trustee’s delivery of that portion of the Asset Review Report to the requesting Noteholder on such Noteholder’s delivery to the Servicer of an agreement acknowledging that such Noteholder may use such information only for the limited purpose of assessing the nature of the related breaches of representations and warranties and may not use that information for any other purpose.
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS, RELEASES, REPORTS AND NOTICES
SECTION 8.1. Collection of Money. Except as otherwise expressly provided herein, the Indenture Trustee may demand payment or delivery of, and shall receive and collect, directly and without intervention or assistance of any fiscal agent or other intermediary other than the Collateral Agent, all money and other property payable to or receivable by the Indenture Trustee pursuant to this Indenture. The Indenture Trustee shall apply all such money received by it as provided in this Indenture. Except as otherwise expressly provided in this Indenture, if any default occurs in the making of any payment or performance under any agreement or instrument that is part of the Issuer Trust Estate, the Indenture Trustee may take such action as may be appropriate to enforce such payment or performance, including the institution and prosecution of appropriate Proceedings. Any such action shall be without prejudice to any right to claim an Event of Default under this Indenture and any right to proceed thereafter as provided in Article V.
SECTION 8.2. Servicer Report.
(a) (i) On each Determination Date, prior to 12:00 p.m. (Central time), the Issuer shall cause the Servicer to deliver to the Indenture Trustee, the Titling Trust and the Collateral Agent, a Servicer Report with respect to the next Payment Date and the related Collection Period, and (ii) the Issuer shall also cause the Servicer to deliver a Servicer Report to each Rating Agency on the same date the Servicer’s Report is publicly available (provided that if the Servicer’s Report is not made publicly available, the Servicer will deliver it to each Rating Agency, no later than the twenty-second (22nd) of each month (or if not a Business Day, the next succeeding Business Day)).
(b) The Indenture Trustee shall have no duty or obligation to verify or confirm the accuracy of any of the information or numbers set forth in the Servicer Report delivered to the Indenture Trustee in accordance with this Section, and the Indenture Trustee shall be fully protected in conclusively relying upon such Servicer Report.
SECTION 8.3. Disbursement of Funds.
42
(a) On each Payment Date, other than any Payment Date on which amounts are required to be distributed pursuant to Section 5.4(c), prior to 12:00 p.m. (Central time), in accordance with the related Servicer Report and pursuant to the instructions of the Servicer, the Indenture Trustee shall transfer from the Indenture Collections Account the sum of (i) the Available Funds for such Payment Date, plus (ii) the Reserve Account Withdrawal Amount for such Payment Date (such sum, “Total Available Funds”) and shall apply the Total Available Funds for such Payment Date in accordance with the following priorities:
(i) from the Total Available Funds, on a pro rata basis (A) to the Successor Servicer, an amount equal to any unpaid transition expenses that were required to be paid pursuant to Section 4.1(d) of the Servicing Agreement but not so paid in an amount not to exceed $200,000, (B) to the Indenture Trustee, any accrued and unpaid amounts, including fees, expenses and indemnities (to the extent such amounts have not been previously paid by the Administrator) in an amount not to exceed $100,000 in any consecutive twelve (12) month period (provided, however, that, such cap will not be applicable any time that an Event of Default has occurred and is continuing), (C) to the Issuer Owner Trustee, any accrued and unpaid amounts, including fees, expenses and indemnities (in each case, to the extent such amounts have not been previously paid by the Administrator) in an amount not to exceed $100,000 in any consecutive twelve (12) month period, and (D) to the Asset Representations Reviewer, any accrued and unpaid amounts, including fees, expenses, indemnities and, with respect to any successor Asset Representations Reviewer, transition expenses (in each case, to the extent such amounts have not been previously paid by the Servicer) in an amount not to exceed $200,000 in any calendar year.
(ii) from the Total Available Funds, to the Note Payment Account for payment to the Class A Noteholders, pari passu, the Noteholders’ Interest Distributable Amount for the Class A Notes for such Payment Date;
(iii) from the Total Available Funds, to the Note Payment Account for distribution as provided in paragraph (b) below, the Class A Principal Parity Amount;
(iv) from the Total Available Funds, to the Note Payment Account for distribution as provided in paragraph (b) below, any Matured Principal Shortfall on account of the Class A Notes;
(v) from the Total Available Funds, to the Note Payment Account for payment to the Class B Noteholders, the Noteholders’ Interest Distributable Amount for the Class B Notes for such Payment Date;
(vi) from the Total Available Funds, to the Note Payment Account for distribution as provided in paragraph (b) below, the Class B Principal Parity Amount;
(vii) from the Total Available Funds, to the Note Payment Account for distribution as provided in paragraph (b) below, any Matured Principal Shortfall on account of the Class B Notes;
43
(viii) from the Total Available Funds, to the Note Payment Account for payment to the Class C Noteholders, the Noteholders’ Interest Distributable Amount for the Class C Notes for such Payment Date;
(ix) from the Total Available Funds, to the Note Payment Account for distribution as provided in paragraph (b) below, the Class C Principal Parity Amount;
(x) from the Total Available Funds, to the Note Payment Account for distribution as provided in paragraph (b) below, any Matured Principal Shortfall on account of the Class C Notes;
(xi) from the Total Available Funds, to the Note Payment Account for distribution as provided in paragraph (b) below, the Noteholders’ Principal Distributable Amount;
(xii) from the Total Available Funds, to the Reserve Account, the Reserve Account Required Amount for such Payment Date;
(xiii) from the Total Available Funds, to the Note Payment Account for distribution as provided in paragraph (b) below, the Accelerated Principal Amount;
(xiv) from the Total Available Funds, on a pro rata basis to the Successor Servicer, the Indenture Trustee, the Asset Representations Reviewer and the Issuer Owner Trustee any amounts due to such parties in excess of the caps set forth in clause (i); and
(xv) from the Total Available Funds, to the Issuer Trust Certificateholders the aggregate amount remaining in the Indenture Collections Account.
On any Payment Date with respect to which no Servicer Report was delivered, to the extent there are Available Funds in the Indenture Collections Account, the Indenture Trustee will make payments of the Noteholders’ Interest Distributable Amounts described in (ii), (v) and (viii) above as well as any Matured Principal Shortfalls described in (iv), (vii) and (x) above.
(b) On each Payment Date, the Indenture Trustee shall apply or cause to be applied the aggregate of the amounts described in clause (iii), (iv), (vi), (vii), (ix), (x), (xi) and (xiii) of paragraph (a) above on that Payment Date in the listed order of priority:
(i) to the Class A-1 Noteholders in reduction of the remaining principal balance of the Class A-1 Notes, until the outstanding principal balance thereof has been reduced to zero;
(ii) to the Class A-2-A Noteholders and the Class A-2-B Noteholders, pro rata, based on the respective outstanding principal balances of the Class A-2-A Notes and the Class A-2-B Notes, until the outstanding principal balances of the Class A-2-A Notes and the Class A-2-B Notes have been reduced to zero;
44
(iii) to the Class A-3 Noteholders in reduction of the remaining principal balance of the Class A-3 Notes, until the outstanding principal balance thereof has been reduced to zero;
(iv) to the Class A-4 Noteholders in reduction of the remaining principal balance of the Class A-4 Notes, until the outstanding principal balance thereof has been reduced to zero;
(v) to the Class B Noteholders in reduction of the remaining principal balance of the Class B Notes, until the outstanding principal balance thereof has been reduced to zero; and
(vi) to the Class C Noteholders in reduction of the remaining principal balance of the Class C Notes, until the outstanding principal balance thereof has been reduced to zero;
provided, however, that, (A) following an acceleration of the Notes pursuant to Section 5.2, or (B) the occurrence of an Event of Default pursuant to Section 5.1, amounts deposited in the Note Payment Account shall be paid to the Noteholders pursuant to Section 5.4(c).
(c) In the event that the Indenture Collections Account is maintained with an institution other than the Collateral Agent, the Servicer shall instruct the Indenture Trustee to cause such institution to make all deposits and distributions pursuant to Section 8.3(a) on the related Payment Date.
(d) In the event that any withholding tax is imposed on the Issuer’s payment (or allocations of income) to a Noteholder, such tax shall reduce the amount otherwise distributable to the Noteholder in accordance with this Section. The Indenture Trustee is hereby authorized and directed to retain or cause to be retained from amounts otherwise distributable to the Noteholders sufficient funds for the payment of any tax attributable to the Issuer (but such authorization shall not prevent the Indenture Trustee from contesting any such tax in appropriate proceedings, and withholding payment of such tax, if permitted by law, pending the outcome of such proceedings). The amount of any withholding tax imposed with respect to a Noteholder shall be treated as cash distributed to such Noteholder at the time it is withheld by the Issuer and remitted to the appropriate taxing authority. If there is a possibility that withholding tax is payable with respect to a distribution (such as a distribution to a non-U.S. Noteholder), the Indenture Trustee may in its sole discretion cause the Collateral Agent to withhold such amounts in accordance with this clause (d). In the event that a Noteholder wishes to apply for a refund of any such withholding tax, the Indenture Trustee shall reasonably cooperate with such Noteholder in making such claim so long as such Noteholder agrees to reimburse the Indenture Trustee for any out-of-pocket expenses (including legal fees and expenses) incurred.
(e) Notwithstanding Sections 5.4(c)(SECOND) – (EIGHTH) and 8.3(a)(ii) – (xi) and (xiii), distributions required to be made to the Noteholders on any Payment Date shall be made to each Noteholder of record on the preceding Record Date either by (i) wire transfer, in immediately available funds, to the account of such Holder at a bank or other entity having appropriate facilities therefore, if such Noteholder shall have provided to the Note Registrar appropriate written instructions at least five Business Days prior to such Payment Date and such
45
Holder’s Notes in the aggregate evidence a denomination of not less than $1,000,000, or (ii) by check mailed to such Noteholder at the address of such holder appearing in the Note Register. Notwithstanding the foregoing, the final distribution in respect of any Note (whether on the Final Scheduled Payment Date or otherwise) will be payable only upon presentation and surrender of such Note at the office or agency maintained for that purpose by the Note Registrar pursuant to Section 2.3.
(f) Subject to Section 2.5(h) of the 2024-3 Servicing Supplement and this section, monies received by the Indenture Trustee hereunder need not be segregated in any manner except to the extent required by law and may be deposited under such general conditions as may be prescribed by law, and the Indenture Trustee shall not be liable for any interest thereon.
SECTION 8.4. Release of Issuer Trust Estate.
(a) Subject to the payment of its fees and expenses pursuant to Section 6.6, the Indenture Trustee may, and when required by the provisions of this Indenture shall, execute instruments to release property from the lien of this Indenture, or convey the Indenture Trustee’s interest in the same, in a manner and under circumstances that are not inconsistent with the provisions of this Indenture. No party relying upon an instrument executed by the Indenture Trustee as provided in this Article VIII shall be bound to ascertain the Indenture Trustee’s authority, inquire into the satisfaction of any conditions precedent or see to the application of any moneys.
(b) The Indenture Trustee shall, at such time as there are no Notes Outstanding, all Issuer Obligations have been paid in full and all sums due the Indenture Trustee pursuant to Section 6.6 have been paid, release any remaining portion of the Issuer Trust Estate that secured the Notes from the lien of this Indenture and release to the Issuer or any other Person entitled thereto any funds then on deposit in the 2024-3 Exchange Note Collections Account, the Indenture Collections Account or the Note Payment Account. The Indenture Trustee shall release property from the lien of this Indenture pursuant to this Section 8.4(b) only upon receipt of an Issuer Request accompanied by an Officer’s Certificate and an Opinion of Counsel.
SECTION 8.5. Opinion of Counsel. The Indenture Trustee shall receive at least seven (7) days’ notice when requested by the Issuer to take any action pursuant to Section 8.4(a), accompanied by copies of any instruments involved, and the Indenture Trustee may also require as a condition to such action, an Opinion of Counsel, in form and substance satisfactory to the Indenture Trustee, stating the legal effect of any such action, outlining the steps required to complete the same, and concluding that all conditions precedent to the taking of such action have been complied with and such action will not materially and adversely impair the security for the Notes or the rights of the Noteholders in contravention of the provisions of this Indenture; provided, however, that such Opinion of Counsel shall not be required to express an opinion as to the fair value of the Issuer Trust Estate. Counsel rendering any such opinion may rely, without independent investigation, on the accuracy and validity of any certificate or other instrument delivered to the Indenture Trustee in connection with any such action.
SECTION 8.6. Reports and Notices to Noteholders. The Indenture Trustee shall make available to each Noteholder, to the extent not already provided in accordance with the Program
46
Documents, the following reports and notices received by the Indenture Trustee pursuant to the Program Documents:
(a) on each Payment Date, a copy of the Servicer Report with respect to such Payment Date and the related Collection Period;
(b) if an Event of Default or a Servicer Default occurs and is continuing and it is known to a Trust Officer of the Indenture Trustee, as promptly as practicable after obtaining such knowledge, written notice of such Event of Default or Servicer Default;
(c) as promptly as practicable after receipt, a copy of each Officer’s Certificate delivered by the Issuer to the Indenture Trustee pursuant to Section 3.9;
(d) as promptly as practicable after receipt, a copy of each report, notice or certificate delivered by the Servicer to the Indenture Trustee pursuant to the 2024-3 Servicing Supplement;
(e) as promptly as practicable after receipt, a copy of any notice of a breach of representation or warranty by GM Financial or the Depositor delivered to the Indenture Trustee pursuant to the 2024-3 Exchange Note Sale Agreement;
(f) as promptly as practicable after receipt, a copy of any notice of a breach of representation or warranty by the Depositor or the Issuer delivered to the Indenture Trustee pursuant to the 2024-3 Exchange Note Transfer Agreement;
(g) as promptly as practicable after receipt, a copy of any notice received by the Indenture Trustee pursuant to the 2024-3 Exchange Note Supplement, the 2024-3 Exchange Note Sale Agreement and the 2024-3 Exchange Note Transfer Agreement;
(h) as promptly as practicable after receipt, any Officer’s Certificate or Opinion of Counsel provided by GM Financial to the Indenture Trustee pursuant to the 2024-3 Servicing Supplement; and
(i) as promptly as practicable after receipt, a copy of each notice delivered by the Issuer to the Indenture Trustee pursuant to Section 3.7(e).
The Indenture Trustee will make available each month to each Noteholder the statements referred to in Sections 8.2 and 8.6 above (and certain other documents, reports and information regarding the 2024-3 Designated Pool provided by the Servicer from time to time) via the Indenture Trustee’s internet website, with the use of a password provided by the Indenture Trustee. The Indenture Trustee’s internet website will be located at CTSLink.com or at such other address as the Indenture Trustee shall notify the Noteholders from time to time. For assistance with regard to this service, Noteholders can call the Indenture Trustee’s Corporate Trust Office at (866) 846-4526. The Indenture Trustee shall have the right to change the way the statements referred to in Sections 8.2 and 8.6 above are distributed in order to make such distributions more convenient and/or more accessible to the parties entitled to receive such statements so long as such statements are only provided to the then current Noteholders. The Indenture Trustee shall provide notification of any such change to all parties entitled to receive such statements in the manner described in Sections 11.4 and 11.5, as appropriate.
47
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures Without Consent of Noteholders.
(a) Without the consent of the Holders of any Notes and with prior notice to the Rating Agencies by the Issuer, as evidenced to the Indenture Trustee, the Issuer, the Servicer and the Indenture Trustee, when authorized by an Issuer Order, at any time and from time to time, may enter into one or more indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as in force at the date of the execution thereof), in form satisfactory to the Indenture Trustee, for any of the following purposes:
(i) to correct or amplify the description of any property at any time subject to the lien of this Indenture, or better to assure, convey and confirm unto the Indenture Trustee any property subject or required to be subjected to the lien of this Indenture, or to subject to the lien of this Indenture additional property;
(ii) to evidence the succession, in compliance with the applicable provisions hereof, of another person to the Issuer, and the assumption by any such successor of the covenants of the Issuer herein and in the Notes contained;
(iii) to add to the covenants of the Issuer, for the benefit of the Holders of the Notes, or to surrender any right or power herein conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any property to or with the Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any provision herein or in any supplemental indenture which may be inconsistent with any other provision herein or in any supplemental indenture or to make any other provisions with respect to matters or questions arising under this Indenture or in any supplemental indenture; provided, that such action shall not adversely affect the interests of the Holders of the Notes;
(vi) to evidence and provide for the acceptance of the appointment hereunder by a successor trustee with respect to the Notes and to add to or change any of the provisions of this Indenture as shall be necessary to facilitate the administration of the trusts hereunder by more than one trustee, pursuant to the requirements of Article VI; or
(vii) to modify, eliminate or add to the provisions of this Indenture to such extent as shall be necessary to effect the qualification of this Indenture under the TIA or under any similar federal statute hereafter enacted and to add to this Indenture such other provisions as may be expressly required by the TIA.
The Indenture Trustee is hereby authorized to join in the execution of any such supplemental indenture and to make any further appropriate agreements and stipulations that may be therein contained.
48
(b) The Issuer, the Servicer and the Indenture Trustee, when authorized by an Issuer Order, may, also without the consent of any of the Holders of the Notes but with prior notice to the Rating Agencies by the Issuer, as evidenced to the Indenture Trustee, enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to, or changing in any manner or eliminating any of the provisions of, this Indenture or of modifying in any manner the rights of the Holders of the Notes under this Indenture; provided, however, that such action shall not, as evidenced by an Opinion of Counsel, adversely affect in any material respect the interests of any Noteholder.
SECTION 9.2. Supplemental Indentures with Consent of Noteholders. The Issuer and the Indenture Trustee, when authorized by an Issuer Order, also may, with prior notice to the Rating Agencies by the Issuer, and with the consent of the Majority Noteholders, by Act of such Noteholders delivered to the Issuer and the Indenture Trustee, enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to, or changing in any manner or eliminating any of the provisions of, this Indenture or of modifying in any manner the rights of the Noteholders under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Noteholder of each Outstanding Note affected thereby:
(a) change the date of payment of any installment of principal of or interest on any Note, or reduce the principal amount thereof, the interest rate thereon or the Redemption Price with respect thereto, change the provisions of this Indenture relating to the application of collections on, or the proceeds of the sale of, the Issuer Trust Estate to payment of principal of or interest on the Notes, or change any place of payment where, or the coin or currency in which, any Note or the interest thereon is payable, or impair the right to institute suit for the enforcement of the provisions of this Indenture requiring the application of funds available therefor, as provided in Article V, to the payment of any such amount due on the Notes on or after the respective due dates thereof (or, in the case of redemption, on or after the Redemption Date);
(b) change the definition of Majority Noteholders or Required Noteholders or otherwise reduce the percentage of the outstanding principal amount of the Notes, the consent of the Noteholders of which is required for any such supplemental indenture, or the consent of the Noteholders of which is required for any waiver of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences provided for in this Indenture;
(c) modify or alter the provisions of the proviso to the definition of the term “Outstanding;”
(d) modify any provision of this Section except to increase any percentage specified herein or to provide that certain additional provisions of this Indenture or the Program Documents cannot be modified or waived without the consent of the Noteholder of each Outstanding Note affected thereby;
(e) modify any of the provisions of this Indenture in such manner as to affect the calculation of the amount of any payment of interest or principal due on any Note on any Payment Date (including the calculation of any of the individual components of such calculation)
49
or to affect the rights of the Noteholders to the benefit of any provisions for the mandatory redemption of the Notes contained herein; or
(f) permit the creation of any lien ranking prior to or on a parity with the lien of this Indenture with respect to any part of the Issuer Trust Estate or, except as otherwise permitted or contemplated herein or in any Program Document, terminate the lien of this Indenture on any property at any time subject hereto or deprive Noteholders of any Noteholder of the security provided by the lien of this Indenture.
It shall not be necessary for any Act of Noteholders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
Promptly after the execution by the Issuer and the Indenture Trustee of any supplemental indenture pursuant to this Section, the Indenture Trustee shall mail to the Noteholders to which such amendment or supplemental indenture relates a notice setting forth in general terms the substance of such supplemental indenture. Any failure of the Indenture Trustee to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
SECTION 9.3. Execution of Supplemental Indentures. In executing, or permitting the additional trusts created by, any supplemental indenture permitted by this Article IX or the modification thereby of the trusts created by this Indenture, the Indenture Trustee shall be entitled to receive, and subject to Sections 6.1 and 6.2, shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Indenture Trustee may, but shall not be obligated to, enter into any such supplemental indenture that affects the Indenture Trustee’s own rights, duties, liabilities or immunities under this Indenture or otherwise.
SECTION 9.4. Effect of Supplemental Indenture. Upon the execution of any supplemental indenture pursuant to the provisions hereof, this Indenture shall be and shall be deemed to be modified and amended in accordance therewith with respect to the Notes affected thereby, and the respective rights, limitations of rights, obligations, duties, liabilities and immunities under this Indenture of the Indenture Trustee, the Issuer and the Noteholders shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
SECTION 9.5. Conformity With Trust Indenture Act. Every amendment of this Indenture and every supplemental indenture executed pursuant to this Article IX shall conform to the requirements of the Trust Indenture Act as then in effect so long as this Indenture shall then be qualified under the Trust Indenture Act.
SECTION 9.6. Reference in Notes to Supplemental Indentures. Notes authenticated and delivered after the execution of any supplemental indenture pursuant to this Article IX may, and if required by the Indenture Trustee shall, bear a notation in form approved by the Indenture Trustee as to any matter provided for in such supplemental indenture. If the Issuer or the
50
Indenture Trustee shall so determine, new Notes so modified as to conform, in the opinion of the Indenture Trustee and the Issuer, to any such supplemental indenture may be prepared and executed by the Issuer and authenticated and delivered by the Indenture Trustee in exchange for Outstanding Notes.
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.1. Redemption. The Servicer shall be permitted at its option to purchase the 2024-3 Exchange Note and other components of the Issuer Trust Estate from the Issuer on a Payment Date if, either before or after giving effect to any payment of principal required to be made on such Payment Date, the Note Principal Balance is less than or equal to 10% of the Note Principal Balance as of the 2024-3 Closing Date (the exercise of such option is referred to as an “Optional Purchase”). In connection with the exercise of an Optional Purchase, the Servicer will deposit an amount equal to the Exchange Note Balance into the Indenture Collections Account on the Payment Date relating to the Redemption Date; provided, that the Servicer will be permitted to purchase the 2024-3 Exchange Note only if the related Exchange Note Balance is at least equal to the sum of (a) the Note Principal Balance plus accrued and unpaid interest thereon to and excluding the Payment Date on which the Notes will be redeemed, and (b) all other outstanding Issuer Obligations payable by the Issuer under the Program Documents (the “Optional Purchase Price”); provided, further, that if the Optional Purchase Price is less than such Exchange Note Balance, the Servicer may deposit only the Optional Purchase Price to the Indenture Collections Account in full satisfaction of its obligations to deposit the Exchange Note Balance therein. In connection with an Optional Purchase, the Notes shall be redeemed on the Redemption Date in whole, but not in part, for the Redemption Price and thereupon the pledge of the 2024-3 Exchange Note shall be discharged and released. If the outstanding Notes are to be redeemed pursuant to this Section, the Administrator or the Issuer shall furnish notice of such election to the Indenture Trustee not later than twenty (20) days prior to the Redemption Date. In connection with the exercise of an Optional Purchase, on the Redemption Date, prior to 10:00 a.m. (Eastern time), the Indenture Trustee shall transfer the Optional Purchase Price as part of Available Funds from the Indenture Collections and use such funds to pay the Redemption Price.
SECTION 10.2. Form of Redemption Notice. Notice of redemption under Section 10.1 shall be given by the Indenture Trustee by first-class mail, postage prepaid, or by facsimile and mailed or transmitted not later than ten (10) days prior to the applicable Redemption Date to each Noteholder, as of the close of business on the Record Date preceding the applicable Redemption Date, at such Noteholder’s address or facsimile number appearing in the Note Register.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price; and
(c) the place where such Notes are to be surrendered for payment of the Redemption Price (which shall be the office or agency of the Issuer to be maintained as provided in Section 3.2).
51
Notice of redemption of the Notes shall be given by the Indenture Trustee in the name and at the expense of the Issuer. Failure to give notice of redemption, or any defect therein, to any Noteholder shall not impair or affect the validity of the redemption of any other Note.
SECTION 10.3. Notes Payable on Redemption Date. The Notes or portions thereof to be redeemed shall, following notice of redemption as required by Section 10.2, on the Redemption Date become due and payable at the Redemption Price and (unless the Issuer shall default in the payment of the Redemption Price) no interest shall accrue on the Redemption Price for any period after the date to which accrued interest is calculated for purposes of calculating the Redemption Price.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Compliance Certificates and Opinions, etc.
(a) Upon any application or request by the Issuer to the Indenture Trustee to take any action under any provision of this Indenture, the Issuer shall furnish to the Indenture Trustee (i) an Officer’s Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with, (ii) an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, and (iii) (if required by the TIA) an Independent Certificate from a firm of certified public accountants meeting the applicable requirements of this Section except that, in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:
(i) a statement that each signatory of such certificate or opinion has read or has caused to be read such covenant or condition and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such signatory, such signatory has made such examination or investigation as is necessary to enable such signatory to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such signatory, such condition or covenant has been complied with.
(b) (i) Prior to the deposit of any Indenture Collateral or other property or securities with the Indenture Trustee that is to be made the basis for the release of any property or
52
securities subject to the lien of this Indenture, the Issuer shall, in addition to any obligation imposed in Section 11.1(a) or elsewhere in this Indenture, furnish to the Indenture Trustee an Officer’s Certificate certifying or stating the opinion of each Person signing such certificate as to the fair value (within ninety (90) days of such deposit) to the Issuer of the Indenture Collateral or other property or securities to be so deposited.
(ii) Whenever the Issuer is required to furnish to the Indenture Trustee an Officer’s Certificate certifying or stating the opinion of any signer thereof as to the matters described in clause (i) above, the Issuer shall also deliver to the Indenture Trustee an Independent Certificate as to the same matters, if the fair value to the Issuer of the securities to be so deposited and of all other such securities made the basis of any such withdrawal or release since the commencement of the then-current fiscal year of the Issuer, as set forth in the certificates delivered pursuant to clause (i) above and this clause (ii), is 10% or more of the Outstanding Amount of the Notes, but such a certificate need not be furnished with respect to any securities so deposited, if the fair value thereof to the Issuer as set forth in the related Officer’s Certificate is less than $25,000 or less than 1% of the Outstanding Amount of the Notes.
(iii) Whenever any property or securities are to be released from the lien of this Indenture, the Issuer shall furnish to the Indenture Trustee and the Noteholders an Officer’s Certificate of the Issuer certifying or stating the opinion of each person signing such certificate as to the fair value (within ninety (90) days of such release) of the property or securities proposed to be released and stating that in the opinion of such person the proposed release will not impair the security under this Indenture in contravention of the provisions hereof.
(iv) Whenever the Issuer is required to furnish to the Indenture Trustee an Officer’s Certificate certifying or stating the opinion of any signer thereof as to the matters described in clause (iii) above, the Issuer shall also furnish to the Indenture Trustee an Independent Certificate as to the same matters if the fair value of the property or securities and of all other property, or securities released from the lien of this Indenture since the commencement of the then current calendar year, as set forth in the certificates required by clause (iii) above and this clause (iv), equals 10% or more of the Outstanding Amount of the Notes, but such certificate need not be furnished in the case of any release of property or securities if the fair value thereof as set forth in the related Officer’s Certificate is less than $25,000 or less than 1% of the then Outstanding Amount of the Notes.
(v) Notwithstanding any other provision of this Section, the Issuer may (A) collect, liquidate, sell or otherwise dispose of the Indenture Collateral as and to the extent permitted or required by the Program Documents and (B) make cash payments out of the 2024-3 Exchange Note Collections Account as and to the extent permitted or required by the Program Documents.
(vi) If the Commission issues an exemptive order under Section 304(d) of the TIA modifying the Indenture Trustee’s obligations under Sections 314(c) and 314(d)(1) of the TIA, the Indenture Trustee will release property from the lien of this Indenture
53
only in accordance with the Program Documents and the conditions and procedures set forth in the exemptive order.
SECTION 11.2. Form of Documents Delivered to Indenture Trustee. In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an Authorized Officer of the Issuer may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which such officer’s certificate or opinion is based are erroneous. Any such certificate of an Authorized Officer or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Servicer, the Issuer or the Administrator stating that the information with respect to such factual matters is in the possession of the Servicer, Issuer or the Administrator, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
Whenever in this Indenture, in connection with any application or certificate or report to the Indenture Trustee, it is provided that the Issuer shall deliver any document as a condition of the granting of such application, or as evidence of the Issuer’s compliance with any term hereof, it is intended that the truth and accuracy, at the time of the granting of such application or at the effective date of such certificate or report (as the case may be), of the facts and opinions stated in such document shall in such case be conditions precedent to the right of the Issuer to have such application granted or to the sufficiency of such certificate or report. The foregoing shall not, however, be construed to affect the Indenture Trustee’s right to rely upon the truth and accuracy of any statement or opinion contained in any such document as provided in Article VI.
SECTION 11.3. Acts of Noteholders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Noteholders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Noteholders in person or by agents duly appointed in writing; and except as herein otherwise expressly provided such action shall become effective when such instrument or instruments are delivered to the Indenture Trustee and, where it is hereby expressly required, to the Issuer. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Noteholders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be
54
sufficient for any purpose of this Indenture and (subject to Section 6.1) conclusive in favor of the Indenture Trustee and the Issuer, if made in the manner provided in this Section.
(b) The fact and date of the execution by any person of any such instrument or writing may be proved in any manner that the Indenture Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver or other action by any Noteholder shall bind the Noteholder of every Note issued upon the registration thereof or in exchange therefor or in lieu thereof, in respect of anything done, omitted or suffered to be done by the Indenture Trustee or the Issuer in reliance thereon, whether or not notation of such action is made upon such Note.
SECTION 11.4. Notices, etc., to Indenture Trustee, Issuer and Rating Agencies. Any request, demand, authorization, direction, notice, consent, waiver or Act of Noteholders or other documents provided or permitted by this Indenture shall be in writing and if such request, demand, authorization, direction, notice, consent, waiver or act of Noteholders is to be made upon, given or furnished to or filed with:
(a) the Indenture Trustee by any Noteholder or by the Issuer shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Indenture Trustee at the Corporate Trust Office, or
(b) the Issuer by the Indenture Trustee or by any Noteholder shall be sufficient for every purpose hereunder if in writing and mailed first-class, postage prepaid to the Issuer addressed to: Issuer, c/o Wilmington Trust Company, Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890, Attention: Corporate Trust Administration or at any other address previously furnished in writing to the Indenture Trustee by the Issuer or the Servicer; with a copy to the Administrator addressed to: 801 Cherry Street, Suite 3500, Fort Worth, Texas 76102, Attention: Chief Financial Officer, or at any other address previously furnished in writing to the Indenture Trustee by the Administrator. The Issuer shall promptly transmit any notice received by it from the Noteholders to the Indenture Trustee.
(c) Notices required to be given to the Rating Agencies shall be provided by the Issuer in writing, personally delivered, electronically delivered, delivered by overnight courier or mailed certified mail, return receipt requested, to (i) in the case of Fitch, to 33 Whitehall Street, New York, New York 10004, or (ii) in the case of S&P, via electronic delivery to Servicer_reports@sandp.com, and for any information not available in electronic format, hard copies should be sent to S&P Global Ratings, 55 Water Street, 41st Floor, New York, New York 10041-0003, Attention: ABS Surveillance Group; or, as to each of the foregoing, at such other address as shall be designated by written notice to the parties hereto.
SECTION 11.5. Notices to Noteholders; Waiver. Where this Indenture provides for notice to Noteholders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class, postage prepaid to each Noteholder affected by such event, at such Noteholder’s address as it appears on the Note Register, not later than the latest date, and not earlier than the earliest date, prescribed for the
55
giving of such notice. In any case where notice to Noteholders is given by mail, neither the failure to mail such notice nor any defect in any notice so mailed to any particular Noteholder shall affect the sufficiency of such notice with respect to other Noteholders, and any notice that is mailed in the manner herein provided shall conclusively be presumed to have been duly given.
Where this Indenture provides for notice in any manner, such notice may be waived in writing by any Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Noteholders shall be filed with the Indenture Trustee but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail service as a result of a strike, work stoppage or similar activity, it shall be impractical to mail notice of any event to Noteholders when such notice is required to be given pursuant to any provision of this Indenture, then any manner of giving such notice as shall be satisfactory to the Indenture Trustee shall be deemed to be a sufficient giving of such notice.
Where this Indenture provides for notice to the Rating Agencies, failure to give such notice shall not affect any other rights or obligations created hereunder, and shall not under any circumstance constitute a Default or Event of Default.
SECTION 11.6. Alternate Payment and Notice Provisions. Notwithstanding any provision of this Indenture or any of the Notes to the contrary, the Issuer may enter into any agreement with any Noteholder providing for a method of payment, or notice by the Indenture Trustee to such Noteholder, that is different from the methods provided for in this Indenture for such payments or notices. The Issuer will furnish to the Indenture Trustee a copy of each such agreement and the Indenture Trustee will cause payments to be made and notices to be given in accordance with such agreements.
SECTION 11.7. Conflict with Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with another provision hereof that is required to be included in this Indenture by any of the provisions of the Trust Indenture Act, such required provision shall control.
The provisions of TIA §§ 310 through 317 that impose duties on any person (including the provisions automatically deemed included herein unless expressly excluded by this Indenture) are a part of and govern this Indenture, whether or not physically contained herein.
SECTION 11.8. Effect of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
SECTION 11.9. Successors and Assigns. All covenants and agreements in this Indenture and the Notes by the Issuer shall bind its successors and assigns, whether so expressed or not. All agreements of the Indenture Trustee in this Indenture shall bind its successors, co-trustees and agents.
56
SECTION 11.10. Separability. In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 11.11. Benefits of Indenture. Nothing in this Indenture or in the Notes, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder, and the Noteholders, and any other party secured hereunder, and any other Person with an ownership interest in any part of the Issuer Trust Estate, any benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 11.12. Legal Holidays. In any case where the date on which any payment is due shall not be a Business Day, then (notwithstanding any other provision of the Notes or this Indenture) payment need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the date on which nominally due, and no interest shall accrue for the period from and after any such nominal date.
SECTION 11.13. GOVERNING LAW. THIS INDENTURE 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 SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATION LAW).
SECTION 11.14. Counterparts and Consent to Do Business Electronically. This Indenture 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 Indenture and any documents to be delivered in connection with this Indenture 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 Indenture 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 11.15. Recording of Indenture. If this Indenture is subject to recording in any appropriate public recording offices, such recording is to be effected by the Issuer and at its expense accompanied by an Opinion of Counsel (which may be counsel to the Indenture Trustee or any other counsel reasonably acceptable to the Indenture Trustee) to the effect that such recording is necessary either for the protection of the Noteholders or any other Person secured hereunder or for the enforcement of any right or remedy granted to the Indenture Trustee under this Indenture.
SECTION 11.16. Trust Obligation.
57
(a) No recourse may be taken, directly or indirectly, with respect to the obligations of the Issuer, the Issuer Owner Trustee or the Indenture Trustee on the Notes or under this Indenture or any certificate or other writing delivered in connection herewith or therewith, against (i) the Indenture Trustee or the Issuer Owner Trustee, as such or in its individual capacity, (ii) any Issuer Certificateholder, (iii) any other owner of a beneficial interest in the Issuer, or (iv) any partner, owner, beneficiary, agent, officer, director, employee or agent of the Indenture Trustee or the Issuer Owner Trustee in its individual capacity, any Issuer Trust Certificateholder, the Issuer Owner Trustee or the Indenture Trustee or of any successor or assign of the Indenture Trustee or the Issuer Owner Trustee, as such or in its individual capacity, except as any such Person may have expressly agreed (it being understood that the Indenture Trustee and the Issuer Owner Trustee have no such obligations in their individual capacity) and except that any such partner, owner or beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid consideration for stock, unpaid capital contribution or failure to pay any installment or call owing to such entity.
(b) It is expressly understood and agreed by the parties hereto that (i) this Indenture is executed and delivered by Wilmington Trust Company, not individually or personally but solely as Issuer Owner Trustee of the Issuer, in the exercise of the powers and authority conferred and vested in it under the Issuer Trust Agreement, (ii) each of the representations, covenants, undertakings and agreements herein made on the part of the Issuer is made and intended not as personal representations, covenants, undertakings and agreements by Wilmington Trust Company but is made and intended for the purpose for binding only the Issuer, (iii) 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, (iv) Wilmington Trust Company has not verified or made any investigation as to the accuracy or completeness of any representations and warranties made by the Issuer in this Indenture, and (v) under no circumstances shall Wilmington Trust Company be personally liable for the payment of any indebtedness or expenses of the Issuer or be liable for the breach or failure of any obligation, duty (including fiduciary duty, if any), representation, warranty or covenant made or undertaken by the Issuer under this Indenture or any other Program Documents.
SECTION 11.17. No Petition the Issuer, Depositor, Settlor or Titling Trust. The Indenture Trustee, by entering into this Indenture, and each Noteholder, by accepting a Note, hereby covenant and agree that they will not institute, or join in instituting, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding under any United States, federal or state bankruptcy or similar law for a period of one year and a day after:
(a) termination of the Titling Trust Agreement, against the Settlor or the Titling Trust; and
(b) payment in full of the Notes, against the Depositor or the Issuer.
SECTION 11.18. No Recourse. The Notes represent obligations of the Issuer only and do not represent an interest in or obligations of the Titling Trust, the Servicer, the Settlor, GM
58
Financial, the Depositor, the Issuer Owner Trustee (as such or in its individual capacity) or any of their respective Affiliates, and no recourse may be had against such parties or their assets, except as may be set forth in this Indenture and the other Program Documents. Each Noteholder, by acceptance of a Note, covenants and agrees that no recourse may be taken, directly or indirectly, with respect to the obligations of the Issuer, the Issuer Owner Trustee or the Indenture Trustee on the Notes or under the Indenture or any certificate or other writing delivered in connection therewith against (a) the Indenture Trustee or the Issuer Owner Trustee, as such or in its individual capacity, (b) any owner of a beneficial interest in the Issuer, or (c) any partner, owner, beneficiary, agent, officer, director or employee of the Indenture Trustee or the Issuer Owner Trustee, as such or in its individual capacity or any holder of a beneficial interest in the Issuer, the Issuer Owner Trustee or the Indenture Trustee or of any successor or assign of the Indenture Trustee or the Issuer Owner Trustee, as such or in its individual capacity, except as any such Person may have expressly agreed and except that any such partner, owner or beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid consideration for stock, unpaid capital contribution or failure to pay any installment or call owing to such entity.
SECTION 11.19. Execution of Financing Statements. Pursuant to any applicable law, the Indenture Trustee is authorized to file or record financing statements and other filing or recording documents or instruments with respect to the Indenture Collateral without the signature of the Issuer in such form and in such offices as the Indenture Trustee determines appropriate to perfect the security interests of the Indenture Trustee under this Indenture. The Issuer hereby authorizes the Indenture Trustee to use the collateral description “all personal property” or “all assets” in any such financing statements. The Issuer hereby ratifies and authorizes the filing by the Indenture Trustee of any financing statement with respect to the Indenture Collateral made prior to the date hereof; provided that, at the request of the Issuer, the Indenture Trustee shall amend any such statement (and any other financing statement filed by the Indenture Trustee in connection with this Indenture) to exclude any property that is released from, or otherwise not included in, the Indenture Collateral.
SECTION 11.20. [Reserved].
SECTION 11.21. Indemnification. The indemnification provided by any party under any Program Document shall include all reasonable legal fees and expenses and court costs incurred by any respective indemnified party in connection with any proceeding to enforce such indemnification obligation.
SECTION 11.22. AML Law. The parties hereto acknowledge that in accordance with laws, regulations and executive orders of the United States or any state or political subdivision thereof as are in effect from time to time applicable to financial institutions relating to the funding of terrorist activities and money laundering, including without limitation the USA Patriot Act (Pub. L. 107-56) and regulations promulgated by the Office of Foreign Asset Control (collectively, “AML Law”), the Indenture Trustee is required to obtain, verify, and record information relating to individuals and entities that establish a business relationship or open an account with the Indenture. Each applicable party hereby agrees that it shall provide the Indenture Trustee with such identifying information and documentation as the Indenture Trustee may request from time to time in order to enable the Indenture Trustee to comply with all applicable requirements of AML Law.
59
SECTION 11.23. Third Party Beneficiaries. The Issuer Owner Trustee is an express third party beneficiary of this Indenture.
[Remainder of Page Intentionally Left Blank]
60
IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused this Indenture to be duly executed by their respective officers, thereunto duly authorized and duly attested, all as of the day and year first above written.
| GM FINANCIAL AUTOMOBILE LEASING TRUST 2024-3 | ||
| By: |
Wilmington Trust Company, not in its individual capacity but solely as Issuer Owner Trustee, | |
| By: |
| |
| Name: | ||
| Title: | ||
| COMPUTERSHARE TRUST COMPANY, N.A., not in its individual capacity but solely as Indenture Trustee, | ||
| By: |
| |
| Name: | ||
| Title: | ||
| AMERICREDIT FINANCIAL SERVICES, INC. d/b/a GM FINANCIAL, as Servicer | ||
| By: |
| |
| Name: | ||
| Title: | ||
[Signature Page to the Indenture]
EXHIBIT A-1
| REGISTERED |
$175,760,000 |
No. A-1
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. 38012Q AA6
Unless this Note is presented by an authorized representative of The Depository Trust Company, a New York corporation (“DTC”), to the Issuer or its agent for registration of transfer, exchange or payment, and any Note issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
GM FINANCIAL AUTOMOBILE LEASE TRUST 2024-3
CLASS A-1 4.745% ASSET BACKED NOTE
GM Financial Automobile Lease Trust 2024-3, a statutory trust organized and existing under the laws of the State of Delaware (herein referred to as the “Issuer”), for value received, hereby promises to pay to CEDE & CO., or registered assigns, the principal sum of ONE HUNDRED SEVENTY-FIVE MILLION SEVEN HUNDRED SIXTY THOUSAND DOLLARS payable on each Payment Date pursuant to the Indenture; provided, however, that the entire unpaid principal amount of this Note shall be due and payable on the October 20, 2025 Payment Date (the “Final Scheduled Payment Date”). The Issuer will pay interest on this Note at the rate per annum shown above on each Payment Date until the principal of this Note is paid or made available for payment. Interest on this Note will accrue for each Payment Date from the most recent Payment Date on which interest has been paid to but excluding such Payment Date or, if no interest has yet been paid, from October 2, 2024. Interest will be computed on the basis of a 360-day year and the actual number of days in the related Interest Accrual Period. Such principal of and interest on this Note shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. All payments made by the Issuer with respect to this Note shall be applied first to interest due and payable on this Note as provided above and then to the unpaid principal of this Note.
A-1-1
Reference is made to the further provisions of this Note set forth on the reverse hereof, which shall have the same effect as though fully set forth on the face of this Note.
Unless the certificate of authentication hereon has been executed by the Indenture Trustee whose name appears below by manual signature, this Note shall not be entitled to any benefit under the Indenture referred to on the reverse hereof, or be valid or obligatory for any purpose.
A-1-2
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed, manually or in facsimile, by its Authorized Officer, as of the date set forth below.
| Date: October 2, 2024 |
GM FINANCIAL AUTOMOBILE LEASING TRUST 2024-3 | |||||
| By: |
Wilmington Trust Company, not in its individual capacity but solely as Issuer Owner Trustee | |||||
| By: |
| |||||
| Authorized Signatory | ||||||
A-1-3
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the within-mentioned Indenture.
| Date: October 2, 2024 |
COMPUTERSHARE TRUST COMPANY, N.A., not in its individual capacity but solely as Indenture Trustee | |||||
| By: |
| |||||
| Authorized Signatory | ||||||
A-1-4
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer, designated as its Class A-1 4.745% Asset Backed Notes (herein called the “Class A-1 Notes”), all issued under an Indenture dated as of August 20, 2024 (such indenture, as supplemented or amended, is herein called the “Indenture”), among the Issuer, AmeriCredit Financial Services Inc., d/b/a GM Financial (“GM Financial”), as servicer, and Computershare Trust Company, N.A., as indenture trustee (the “Indenture Trustee,” which term includes any successor Indenture Trustee under the Indenture) to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights and obligations thereunder of the Issuer, the Indenture Trustee and the Holders of the Notes. The Notes are subject to all terms of the Indenture. All terms used in this Note that are defined in the Indenture, as supplemented or amended, shall have the meanings assigned to them in or pursuant to the Indenture, as so supplemented or amended.
The Class A-1 Notes, the Class A-2-A Notes, the Class A-2-B Notes, the Class A-3 Notes, the Class A-4 Notes, the Class B Notes and the Class C Notes (together, the “Notes”) are and will be equally and ratably secured by the collateral pledged as security therefor as provided in the Indenture.
Principal of the Class A-1 Notes will be payable on each Payment Date in an amount described on the face hereof. “Payment Date” means the twentieth (20th) day of each month, or, if any such date is not a Business Day, the next succeeding Business Day, commencing October 21, 2024. If GM Financial is no longer acting as Servicer, the Payment Date may be a different day of the month. The term “Payment Date,” shall be deemed to include the Final Scheduled Payment Date.
As described above, the entire unpaid principal amount of this Note shall be due and payable on the earlier of the Final Scheduled Payment Date and the Redemption Date, if any, pursuant to the Indenture. As described above, a portion of the unpaid principal balance of this Note shall be due and payable on the Redemption Date, if any. Notwithstanding the foregoing, the entire unpaid principal amount of the Notes shall be due and payable on the date on which an Event of Default shall have occurred and be continuing and the Majority Noteholders have declared the Notes to be immediately due and payable in the manner provided in the Indenture. All principal payments on the Class A-1 Notes shall be made pro rata to the Class A-1 Noteholders entitled thereto.
Payments of interest on this Note due and payable on each Payment Date, together with the installment of principal, if any, to the extent not in full payment of this Note, shall be made by check mailed to the Person whose name appears as the Holder of this Note (or one or more Predecessor Notes) on the Note Register as of the close of business on each Record Date, except that with respect to Notes registered on the Record Date in the name of the nominee of the Clearing Agency (initially, such nominee to be Cede & Co.), payments will be made by wire transfer in immediately available funds to the account designated by such nominee. Such checks shall be mailed to the Person entitled thereto at the address of such Person as it appears on the Note Register as of the applicable Record Date without requiring that this Note be submitted for notation of payment. Any reduction in the principal amount of this Note (or any one or more Predecessor Notes) effected by any payments made on any Payment Date shall be binding upon
A-1-5
all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not noted hereon. If funds are expected to be available, as provided in the Indenture, for payment in full of the then remaining unpaid principal amount of this Note on a Payment Date, then the Indenture Trustee, in the name of and on behalf of the Issuer, will notify the Person who was the Holder hereof as of the Record Date preceding such Payment Date by notice mailed prior to such Payment Date and the amount then due and payable shall be payable only upon presentation and surrender of this Note at the Indenture Trustee’s principal Corporate Trust Office or at the office of the Indenture Trustee’s agent appointed for such purposes located in the City of New York.
The Issuer shall pay interest on overdue installments of interest at the Class A-1 Interest Rate to the extent lawful.
As provided in the Indenture and the 2024-3 Servicing Agreement, the Servicer will be permitted at its option to purchase the 2024-3 Exchange Note and other components of the Issuer Trust Estate and to terminate the pledge of the 2024-3 Exchange Note on any Redemption Date if, either before or after giving effect to any payment of principal required to be made on such Payment Date, the Outstanding Amount of all Notes is less than or equal to 10% of the Outstanding Amount of all Notes measured on the 2024-3 Closing Date. The purchase price for the 2024-3 Exchange Note shall equal the unpaid principal balances of the outstanding Notes, together with accrued interest thereon for the related Interest Accrual Period and certain other amounts, which amount shall be deposited by the Servicer into the Indenture Collections Account on the related Payment Date fixed for redemption. In connection with an Optional Purchase, the Notes will be redeemed on such Payment Date in whole, but not in part, for the Redemption Price and thereupon the pledge of the 2024-3 Exchange Note shall be discharged and released and the 2024-3 Exchange Note shall be returned to or upon the order of the Servicer.
As provided in the Indenture and subject to certain limitations set forth therein, the transfer of this Note may be registered on the Note Register upon surrender of this Note for registration of transfer at the office or agency designated by the Issuer pursuant to the Indenture, (i) duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Indenture Trustee duly executed by, the Holder hereof or his attorney duly authorized in writing, with such signature guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar which requirements include membership or participation in Securities Transfer Agents Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Exchange Act, and (ii) accompanied by such other documents as the Indenture Trustee may require, and thereupon one or more new Notes of authorized denominations and in the same aggregate principal amount will be issued to the designated transferee or transferees. No service charge will be charged for any registration of transfer or exchange of this Note, but the transferor may be required to pay a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any such registration of transfer or exchange.
If this Note has been issued as a Definitive Note, the Note Registrar shall not register the transfer of this Note unless the prospective transferee has represented and warranted in writing
A-1-6
that either (a) it is not, and it is not acting on behalf of or investing the assets of, a Benefit Plan Entity or (b) it is, or is acting on behalf of or investing the assets of, a Benefit Plan Entity and its acquisition, holding and disposition of this Note will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Code or a violation of any Similar Law. If this Note has been issued as a Book Entry Note, each transferee of this Note or any beneficial interest herein that is a Benefit Plan Entity shall be deemed to represent that its acquisition, holding and disposition of this Note or any beneficial interest herein will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Code or a violation of any Similar Law.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a Note covenants and agrees (i) that no recourse may be taken, directly or indirectly, with respect to the obligations of the Issuer, the Issuer Owner Trustee or the Indenture Trustee on the Notes or under the Indenture or any certificate or other writing delivered in connection therewith, against (a) the Depositor, the Servicer, the Indenture Trustee or the Issuer Owner Trustee in its individual capacity, (b) any owner of a beneficial interest in the Issuer or (c) any partner, owner, beneficiary, agent, officer, director or employee of the Depositor, the Servicer, the Indenture Trustee or the Issuer Owner Trustee in its individual capacity, any holder of a beneficial interest in the Issuer, the Depositor, the Servicer, the Issuer Owner Trustee or the Indenture Trustee or of any successor or assign of the Depositor, the Servicer, the Indenture Trustee or the Issuer Owner Trustee in its individual capacity, except as any such Person may have expressly agreed (it being understood that the Indenture Trustee and the Issuer Owner Trustee have no such obligations in their individual capacity) and except that any such partner, owner or beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid consideration for stock, unpaid capital contribution or failure to pay any installment or call owing to such entity, and (ii) to treat the Notes that are owned or beneficially owned by a Person other than the Depositor, or its Affiliates, as indebtedness for purposes of federal income, state and local income and franchise and any other income taxes.
The Notes represent obligations of the Issuer only and do not represent interests in, recourse to or obligations of the Titling Trust, the Depositor, the Settlor, the Servicer or any of their respective Affiliates.
Prior to the due presentment for registration of transfer of this Note, the Issuer and the Indenture Trustee and any agent of the Issuer or the Indenture Trustee may treat the Person in whose name this Note (as of the day of determination or as of such other date as may be specified in the Indenture) is registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Issuer, the Indenture Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer and the rights of the Holders of the Notes under the Indenture at any time by the Issuer with the consent of the Majority Noteholders. The Indenture also contains provisions permitting the Noteholders representing specified percentages of the Outstanding Amount of the Notes, on behalf of the Holders of all the Notes, to waive compliance by the Issuer with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such
A-1-7
consent or waiver by the Holder of this Note (or any one of more Predecessor Notes) shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent or waiver is made upon this Note. The Indenture also permits the Indenture Trustee to amend or waive certain terms and conditions set forth in the Indenture without the consent of Holders of the Notes issued thereunder.
The term “Issuer” as used in this Note includes any successor to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances, to merge or consolidate, subject to the rights of the Indenture Trustee and the Noteholders under the Indenture.
The Notes are issuable only in registered form in denominations as provided in the Indenture, subject to certain limitations therein set forth.
THIS NOTE AND THE INDENTURE SHALL BE GOVERNED BY, AN 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 SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATION LAW).
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and interest on this Note at the times, place, and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly provided in the Program Documents, none of Wilmington Trust Company in its individual capacity, Computershare Trust Company, N.A. in its individual capacity, any owner of a beneficial interest in the Issuer, or any of their respective partners, beneficiaries, agents, officers, directors, employees or successors or assigns shall be personally liable for, shall recourse be had to any of them for, the payment of principal of or interest on, or performance of, or omission to perform, any of the covenants, obligations or indemnifications contained in the Indenture, it being expressly understood that said covenants, obligations and indemnifications have been made by the Issuer for the sole purposes of binding the Issuer. The Noteholder of this Note by its acceptance hereof agrees that, except as expressly provided in the Program Documents, in the case of an Event of Default the Noteholder shall have no claim against any of the foregoing for any deficiency, loss or claim therefrom; provided, however, that nothing contained herein shall be taken to prevent recourse to, and enforcement against, the assets of the Issuer for any and all liabilities, obligations and undertakings contained in the Indenture or in this Note.
A-1-8
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints _________________________________________________________________ , attorney, to transfer said Note on the books kept for registration thereof, with full power of substitution in the premises.
| Dated: __________________ |
_____________________________________ */ | |||
| Signature Guaranteed: | ||||
| _____________________________________ */ |
| */ | NOTICE: The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within Note in every particular, without alteration, enlargement or any change whatsoever. Such signature must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar, which requirements include membership or participation in STAMP or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended. |
A-1-9
EXHIBIT A-2-A
| REGISTERED |
$229,720,000 |
No. A-2-A
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. 38012Q AB4
Unless this Note is presented by an authorized representative of The Depository Trust Company, a New York corporation (“DTC”), to the Issuer or its agent for registration of transfer, exchange or payment, and any Note issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
GM FINANCIAL AUTOMOBILE LEASE TRUST 2024-3
CLASS A-2-A 4.29% ASSET BACKED NOTE
GM Financial Automobile Lease Trust 2024-3, a statutory trust organized and existing under the laws of the State of Delaware (herein referred to as the “Issuer”), for value received, hereby promises to pay to CEDE & CO., or registered assigns, the principal sum of TWO HUNDRED TWENTY-NINE MILLION SEVEN HUNDRED TWENTY THOUSAND DOLLARS payable on each Payment Date pursuant to the Indenture; provided, however, that the entire unpaid principal amount of this Note shall be due and payable on the January 20, 2027 Payment Date (the “Final Scheduled Payment Date”). The Issuer will pay interest on this Note at the rate per annum shown above on each Payment Date until the principal of this Note is paid or made available for payment. Interest on this Note will accrue for each Payment Date from the most recent Payment Date on which interest has been paid to but excluding such Payment Date or, if no interest has yet been paid, from October 2, 2024. Interest will be computed on the basis of a 360-day year consisting of twelve 30-day months. Such principal of and interest on this Note shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. All payments made by the Issuer with respect to this Note shall be applied first to interest due and payable on this Note as provided above and then to the unpaid principal of this Note.
A-2-A-1
Reference is made to the further provisions of this Note set forth on the reverse hereof, which shall have the same effect as though fully set forth on the face of this Note.
Unless the certificate of authentication hereon has been executed by the Indenture Trustee whose name appears below by manual signature, this Note shall not be entitled to any benefit under the Indenture referred to on the reverse hereof, or be valid or obligatory for any purpose.
A-2-A-2
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed, manually or in facsimile, by its Authorized Officer, as of the date set forth below.
| Date: October 2, 2024 |
GM FINANCIAL AUTOMOBILE LEASING TRUST 2024-3 | |||||
| By: |
Wilmington Trust Company, not in its individual capacity but solely as Issuer Owner Trustee | |||||
| By: |
| |||||
| Authorized Signatory | ||||||
A-2-A-3
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the within-mentioned Indenture.
| Date: October 2, 2024 |
COMPUTERSHARE TRUST COMPANY, N.A., not in its individual capacity but solely as Indenture Trustee | |||||
| By: |
| |||||
| Authorized Signatory | ||||||
A-2-A-4
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer, designated as its Class A-2-A 4.29% Asset Backed Notes (herein called the “Class A-2-A Notes”), all issued under an Indenture dated as of August 20, 2024 (such indenture, as supplemented or amended, is herein called the “Indenture”), among the Issuer, AmeriCredit Financial Services Inc., d/b/a GM Financial (“GM Financial”), as servicer, and Computershare Trust Company, N.A., as indenture trustee (the “Indenture Trustee,” which term includes any successor Indenture Trustee under the Indenture) to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights and obligations thereunder of the Issuer, the Indenture Trustee and the Holders of the Notes. The Notes are subject to all terms of the Indenture. All terms used in this Note that are defined in the Indenture, as supplemented or amended, shall have the meanings assigned to them in or pursuant to the Indenture, as so supplemented or amended.
The Class A-1 Notes, the Class A-2-A Notes, the Class A-2-B Notes, the Class A-3 Notes, the Class A-4 Notes, the Class B Notes and the Class C Notes (together, the “Notes”) are and will be equally and ratably secured by the collateral pledged as security therefor as provided in the Indenture.
Principal of the Class A-2-A Notes will be payable on each Payment Date in an amount described on the face hereof. “Payment Date” means the twentieth (20th) day of each month, or, if any such date is not a Business Day, the next succeeding Business Day, commencing October 21, 2024. If GM Financial is no longer acting as Servicer, the Payment Date may be a different day of the month. The term “Payment Date,” shall be deemed to include the Final Scheduled Payment Date.
As described above, the entire unpaid principal amount of this Note shall be due and payable on the earlier of the Final Scheduled Payment Date and the Redemption Date, if any, pursuant to the Indenture. As described above, a portion of the unpaid principal balance of this Note shall be due and payable on the Redemption Date, if any. Notwithstanding the foregoing, the entire unpaid principal amount of the Notes shall be due and payable on the date on which an Event of Default shall have occurred and be continuing and the Majority Noteholders have declared the Notes to be immediately due and payable in the manner provided in the Indenture. All principal payments on the Class A-2-A Notes shall be made pro rata to the Class A-2-A Noteholders entitled thereto.
Payments of interest on this Note due and payable on each Payment Date, together with the installment of principal, if any, to the extent not in full payment of this Note, shall be made by check mailed to the Person whose name appears as the Holder of this Note (or one or more Predecessor Notes) on the Note Register as of the close of business on each Record Date, except that with respect to Notes registered on the Record Date in the name of the nominee of the Clearing Agency (initially, such nominee to be Cede & Co.), payments will be made by wire transfer in immediately available funds to the account designated by such nominee. Such checks shall be mailed to the Person entitled thereto at the address of such Person as it appears on the Note Register as of the applicable Record Date without requiring that this Note be submitted for notation of payment. Any reduction in the principal amount of this Note (or any one or more Predecessor Notes) effected by any payments made on any Payment Date shall be binding upon
A-2-A-5
all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not noted hereon. If funds are expected to be available, as provided in the Indenture, for payment in full of the then remaining unpaid principal amount of this Note on a Payment Date, then the Indenture Trustee, in the name of and on behalf of the Issuer, will notify the Person who was the Holder hereof as of the Record Date preceding such Payment Date by notice mailed prior to such Payment Date and the amount then due and payable shall be payable only upon presentation and surrender of this Note at the Indenture Trustee’s principal Corporate Trust Office or at the office of the Indenture Trustee’s agent appointed for such purposes located in the City of New York.
The Issuer shall pay interest on overdue installments of interest at the Class A-2-A Interest Rate to the extent lawful.
As provided in the Indenture and the 2024-3 Servicing Agreement, the Servicer will be permitted at its option to purchase the 2024-3 Exchange Note and other components of the Issuer Trust Estate and to terminate the pledge of the 2024-3 Exchange Note on any Redemption Date if, either before or after giving effect to any payment of principal required to be made on such Payment Date, the Outstanding Amount of all Notes is less than or equal to 10% of the Outstanding Amount of all Notes measured on the 2024-3 Closing Date. The purchase price for the 2024-3 Exchange Note shall equal the unpaid principal balances of the outstanding Notes, together with accrued interest thereon for the related Interest Accrual Period and certain other amounts, which amount shall be deposited by the Servicer into the Indenture Collections Account on the related Payment Date fixed for redemption. In connection with an Optional Purchase, the Notes will be redeemed on such Payment Date in whole, but not in part, for the Redemption Price and thereupon the pledge of the 2024-3 Exchange Note shall be discharged and released and the 2024-3 Exchange Note shall be returned to or upon the order of the Servicer.
As provided in the Indenture and subject to certain limitations set forth therein, the transfer of this Note may be registered on the Note Register upon surrender of this Note for registration of transfer at the office or agency designated by the Issuer pursuant to the Indenture, (i) duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Indenture Trustee duly executed by, the Holder hereof or his attorney duly authorized in writing, with such signature guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar which requirements include membership or participation in Securities Transfer Agents Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Exchange Act, and (ii) accompanied by such other documents as the Indenture Trustee may require, and thereupon one or more new Notes of authorized denominations and in the same aggregate principal amount will be issued to the designated transferee or transferees. No service charge will be charged for any registration of transfer or exchange of this Note, but the transferor may be required to pay a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any such registration of transfer or exchange.
If this Note has been issued as a Definitive Note, the Note Registrar shall not register the transfer of this Note unless the prospective transferee has represented and warranted in writing
A-2-A-6
that either (a) it is not, and it is not acting on behalf of or investing the assets of, a Benefit Plan Entity or (b) it is, or is acting on behalf of or investing the assets of, a Benefit Plan Entity and its acquisition, holding and disposition of this Note will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Code or a violation of any Similar Law. If this Note has been issued as a Book Entry Note, each transferee of this Note or any beneficial interest herein that is a Benefit Plan Entity shall be deemed to represent that its acquisition, holding and disposition of this Note or any beneficial interest herein will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Code or a violation of any Similar Law.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a Note covenants and agrees (i) that no recourse may be taken, directly or indirectly, with respect to the obligations of the Issuer, the Issuer Owner Trustee or the Indenture Trustee on the Notes or under the Indenture or any certificate or other writing delivered in connection therewith, against (a) the Depositor, the Servicer, the Indenture Trustee or the Issuer Owner Trustee in its individual capacity, (b) any owner of a beneficial interest in the Issuer or (c) any partner, owner, beneficiary, agent, officer, director or employee of the Depositor, the Servicer, the Indenture Trustee or the Issuer Owner Trustee in its individual capacity, any holder of a beneficial interest in the Issuer, the Depositor, the Servicer, the Issuer Owner Trustee or the Indenture Trustee or of any successor or assign of the Depositor, the Servicer, the Indenture Trustee or the Issuer Owner Trustee in its individual capacity, except as any such Person may have expressly agreed (it being understood that the Indenture Trustee and the Issuer Owner Trustee have no such obligations in their individual capacity) and except that any such partner, owner or beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid consideration for stock, unpaid capital contribution or failure to pay any installment or call owing to such entity, and (ii) to treat the Notes that are owned or beneficially owned by a Person other than the Depositor, or its Affiliates, as indebtedness for purposes of federal income, state and local income and franchise and any other income taxes.
The Notes represent obligations of the Issuer only and do not represent interests in, recourse to or obligations of the Titling Trust, the Depositor, the Settlor, the Servicer or any of their respective Affiliates.
Prior to the due presentment for registration of transfer of this Note, the Issuer and the Indenture Trustee and any agent of the Issuer or the Indenture Trustee may treat the Person in whose name this Note (as of the day of determination or as of such other date as may be specified in the Indenture) is registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Issuer, the Indenture Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer and the rights of the Holders of the Notes under the Indenture at any time by the Issuer with the consent of the Majority Noteholders. The Indenture also contains provisions permitting the Noteholders representing specified percentages of the Outstanding Amount of the Notes, on behalf of the Holders of all the Notes, to waive compliance by the Issuer with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such
A-2-A-7
consent or waiver by the Holder of this Note (or any one of more Predecessor Notes) shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent or waiver is made upon this Note. The Indenture also permits the Indenture Trustee to amend or waive certain terms and conditions set forth in the Indenture without the consent of Holders of the Notes issued thereunder.
The term “Issuer” as used in this Note includes any successor to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances, to merge or consolidate, subject to the rights of the Indenture Trustee and the Noteholders under the Indenture.
The Notes are issuable only in registered form in denominations as provided in the Indenture, subject to certain limitations therein set forth.
THIS NOTE AND THE INDENTURE SHALL BE GOVERNED BY, AN 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 SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATION LAW).
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and interest on this Note at the times, place, and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly provided in the Program Documents, none of Wilmington Trust Company in its individual capacity, Computershare Trust Company, N.A. in its individual capacity, any owner of a beneficial interest in the Issuer, or any of their respective partners, beneficiaries, agents, officers, directors, employees or successors or assigns shall be personally liable for, shall recourse be had to any of them for, the payment of principal of or interest on, or performance of, or omission to perform, any of the covenants, obligations or indemnifications contained in the Indenture, it being expressly understood that said covenants, obligations and indemnifications have been made by the Issuer for the sole purposes of binding the Issuer. The Noteholder of this Note by its acceptance hereof agrees that, except as expressly provided in the Program Documents, in the case of an Event of Default the Noteholder shall have no claim against any of the foregoing for any deficiency, loss or claim therefrom; provided, however, that nothing contained herein shall be taken to prevent recourse to, and enforcement against, the assets of the Issuer for any and all liabilities, obligations and undertakings contained in the Indenture or in this Note.
A-2-A-8
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints _________________________________________________________________ , attorney, to transfer said Note on the books kept for registration thereof, with full power of substitution in the premises.
| Dated: __________________ |
_____________________________________ */ | |||
| Signature Guaranteed: | ||||
| _____________________________________ */ |
| */ | NOTICE: The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within Note in every particular, without alteration, enlargement or any change whatsoever. Such signature must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar, which requirements include membership or participation in STAMP or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended. |
A-2-A-9
EXHIBIT A-2-B
| REGISTERED |
$265,000,000 |
No. A-2-B
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. 38012Q AC2
Unless this Note is presented by an authorized representative of The Depository Trust Company, a New York corporation (“DTC”), to the Issuer or its agent for registration of transfer, exchange or payment, and any Note issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
GM FINANCIAL AUTOMOBILE LEASE TRUST 2024-3
CLASS A-2-B FLOATING RATE ASSET BACKED NOTE
GM Financial Automobile Lease Trust 2024-3, a statutory trust organized and existing under the laws of the State of Delaware (herein referred to as the “Issuer”), for value received, hereby promises to pay to CEDE & CO., or registered assigns, the principal sum of TWO HUNDRED SIXTY-FIVE MILLION DOLLARS payable on each Payment Date pursuant to the Indenture; provided, however, that the entire unpaid principal amount of this Note shall be due and payable on the January 20, 2027 Payment Date (the “Final Scheduled Payment Date”). The Issuer will pay interest on this Note at the rate of SOFR plus 0.47% per annum on each Payment Date until the principal of this Note is paid or made available for payment. Interest on this Note will accrue for each Payment Date from the most recent Payment Date on which interest has been paid to but excluding such Payment Date or, if no interest has yet been paid, from October 2, 2024. Interest will be computed on the basis of a 360-day year and the actual number of days in the related Interest Accrual Period. Such principal of and interest on this Note shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. All payments made by the Issuer with respect to this Note shall be applied first to interest due and payable on this Note as provided above and then to the unpaid principal of this Note.
A-2-B-1
Reference is made to the further provisions of this Note set forth on the reverse hereof, which shall have the same effect as though fully set forth on the face of this Note.
Unless the certificate of authentication hereon has been executed by the Indenture Trustee whose name appears below by manual signature, this Note shall not be entitled to any benefit under the Indenture referred to on the reverse hereof, or be valid or obligatory for any purpose.
A-2-B-2
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed, manually or in facsimile, by its Authorized Officer, as of the date set forth below.
| Date: October 2, 2024 | GM FINANCIAL AUTOMOBILE LEASING TRUST 2024-3 | |||||
| By: | Wilmington Trust Company, not in its individual capacity but solely as Issuer Owner Trustee | |||||
| By: |
| |||||
| Authorized Signatory | ||||||
A-2-B-3
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the within-mentioned Indenture.
| Date: October 2, 2024 |
COMPUTERSHARE TRUST COMPANY, N.A., not in its individual capacity but solely as Indenture Trustee | |||||
| By: |
| |||||
| Authorized Signatory | ||||||
A-2-B-4
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer, designated as its Class A-2-B Floating Rate Asset Backed Notes (herein called the “Class A-2-B Notes”), all issued under an Indenture dated as of August 20, 2024 (such indenture, as supplemented or amended, is herein called the “Indenture”), among the Issuer, AmeriCredit Financial Services Inc., d/b/a GM Financial (“GM Financial”), as servicer, and Computershare Trust Company, N.A., as indenture trustee (the “Indenture Trustee,” which term includes any successor Indenture Trustee under the Indenture) to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights and obligations thereunder of the Issuer, the Indenture Trustee and the Holders of the Notes. The Notes are subject to all terms of the Indenture. All terms used in this Note that are defined in the Indenture, as supplemented or amended, shall have the meanings assigned to them in or pursuant to the Indenture, as so supplemented or amended.
The Class A-1 Notes, the Class A-2-A Notes, the Class A-2-B Notes, the Class A-3 Notes, the Class A-4 Notes, the Class B Notes and the Class C Notes (together, the “Notes”) are and will be equally and ratably secured by the collateral pledged as security therefor as provided in the Indenture.
Principal of the Class A-2-B Notes will be payable on each Payment Date in an amount described on the face hereof. “Payment Date” means the twentieth (20th) day of each month, or, if any such date is not a Business Day, the next succeeding Business Day, commencing October 21, 2024. If GM Financial is no longer acting as Servicer, the Payment Date may be a different day of the month. The term “Payment Date,” shall be deemed to include the Final Scheduled Payment Date.
As described above, the entire unpaid principal amount of this Note shall be due and payable on the earlier of the Final Scheduled Payment Date and the Redemption Date, if any, pursuant to the Indenture. As described above, a portion of the unpaid principal balance of this Note shall be due and payable on the Redemption Date, if any. Notwithstanding the foregoing, the entire unpaid principal amount of the Notes shall be due and payable on the date on which an Event of Default shall have occurred and be continuing and the Majority Noteholders have declared the Notes to be immediately due and payable in the manner provided in the Indenture. All principal payments on the Class A-2-B Notes shall be made pro rata to the Class A-2-B Noteholders entitled thereto.
Payments of interest on this Note due and payable on each Payment Date, together with the installment of principal, if any, to the extent not in full payment of this Note, shall be made by check mailed to the Person whose name appears as the Holder of this Note (or one or more Predecessor Notes) on the Note Register as of the close of business on each Record Date, except that with respect to Notes registered on the Record Date in the name of the nominee of the Clearing Agency (initially, such nominee to be Cede & Co.), payments will be made by wire transfer in immediately available funds to the account designated by such nominee. Such checks shall be mailed to the Person entitled thereto at the address of such Person as it appears on the Note Register as of the applicable Record Date without requiring that this Note be submitted for notation of payment. Any reduction in the principal amount of this Note (or any one or more Predecessor Notes) effected by any payments made on any Payment Date shall be binding upon
A-2-B-5
all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not noted hereon. If funds are expected to be available, as provided in the Indenture, for payment in full of the then remaining unpaid principal amount of this Note on a Payment Date, then the Indenture Trustee, in the name of and on behalf of the Issuer, will notify the Person who was the Holder hereof as of the Record Date preceding such Payment Date by notice mailed prior to such Payment Date and the amount then due and payable shall be payable only upon presentation and surrender of this Note at the Indenture Trustee’s principal Corporate Trust Office or at the office of the Indenture Trustee’s agent appointed for such purposes located in the City of New York.
The Issuer shall pay interest on overdue installments of interest at the Class A-2-B Interest Rate to the extent lawful.
As provided in the Indenture and the 2024-3 Servicing Agreement, the Servicer will be permitted at its option to purchase the 2024-3 Exchange Note and other components of the Issuer Trust Estate and to terminate the pledge of the 2024-3 Exchange Note on any Redemption Date if, either before or after giving effect to any payment of principal required to be made on such Payment Date, the Outstanding Amount of all Notes is less than or equal to 10% of the Outstanding Amount of all Notes measured on the 2024-3 Closing Date. The purchase price for the 2024-3 Exchange Note shall equal the unpaid principal balances of the outstanding Notes, together with accrued interest thereon for the related Interest Accrual Period and certain other amounts, which amount shall be deposited by the Servicer into the Indenture Collections Account on the related Payment Date fixed for redemption. In connection with an Optional Purchase, the Notes will be redeemed on such Payment Date in whole, but not in part, for the Redemption Price and thereupon the pledge of the 2024-3 Exchange Note shall be discharged and released and the 2024-3 Exchange Note shall be returned to or upon the order of the Servicer.
As provided in the Indenture and subject to certain limitations set forth therein, the transfer of this Note may be registered on the Note Register upon surrender of this Note for registration of transfer at the office or agency designated by the Issuer pursuant to the Indenture, (i) duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Indenture Trustee duly executed by, the Holder hereof or his attorney duly authorized in writing, with such signature guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar which requirements include membership or participation in Securities Transfer Agents Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Exchange Act, and (ii) accompanied by such other documents as the Indenture Trustee may require, and thereupon one or more new Notes of authorized denominations and in the same aggregate principal amount will be issued to the designated transferee or transferees. No service charge will be charged for any registration of transfer or exchange of this Note, but the transferor may be required to pay a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any such registration of transfer or exchange.
If this Note has been issued as a Definitive Note, the Note Registrar shall not register the transfer of this Note unless the prospective transferee has represented and warranted in writing
A-2-B-6
that either (a) it is not, and it is not acting on behalf of or investing the assets of, a Benefit Plan Entity or (b) it is, or is acting on behalf of or investing the assets of, a Benefit Plan Entity and its acquisition, holding and disposition of this Note will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Code or a violation of any Similar Law. If this Note has been issued as a Book Entry Note, each transferee of this Note or any beneficial interest herein that is a Benefit Plan Entity shall be deemed to represent that its acquisition, holding and disposition of this Note or any beneficial interest herein will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Code or a violation of any Similar Law.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a Note covenants and agrees (i) that no recourse may be taken, directly or indirectly, with respect to the obligations of the Issuer, the Issuer Owner Trustee or the Indenture Trustee on the Notes or under the Indenture or any certificate or other writing delivered in connection therewith, against (a) the Depositor, the Servicer, the Indenture Trustee or the Issuer Owner Trustee in its individual capacity, (b) any owner of a beneficial interest in the Issuer or (c) any partner, owner, beneficiary, agent, officer, director or employee of the Depositor, the Servicer, the Indenture Trustee or the Issuer Owner Trustee in its individual capacity, any holder of a beneficial interest in the Issuer, the Depositor, the Servicer, the Issuer Owner Trustee or the Indenture Trustee or of any successor or assign of the Depositor, the Servicer, the Indenture Trustee or the Issuer Owner Trustee in its individual capacity, except as any such Person may have expressly agreed (it being understood that the Indenture Trustee and the Issuer Owner Trustee have no such obligations in their individual capacity) and except that any such partner, owner or beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid consideration for stock, unpaid capital contribution or failure to pay any installment or call owing to such entity, and (ii) to treat the Notes that are owned or beneficially owned by a Person other than the Depositor, or its Affiliates, as indebtedness for purposes of federal income, state and local income and franchise and any other income taxes.
The Notes represent obligations of the Issuer only and do not represent interests in, recourse to or obligations of the Titling Trust, the Depositor, the Settlor, the Servicer or any of their respective Affiliates.
Prior to the due presentment for registration of transfer of this Note, the Issuer and the Indenture Trustee and any agent of the Issuer or the Indenture Trustee may treat the Person in whose name this Note (as of the day of determination or as of such other date as may be specified in the Indenture) is registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Issuer, the Indenture Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer and the rights of the Holders of the Notes under the Indenture at any time by the Issuer with the consent of the Majority Noteholders. The Indenture also contains provisions permitting the Noteholders representing specified percentages of the Outstanding Amount of the Notes, on behalf of the Holders of all the Notes, to waive compliance by the Issuer with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such
A-2-B-7
consent or waiver by the Holder of this Note (or any one of more Predecessor Notes) shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent or waiver is made upon this Note. The Indenture also permits the Indenture Trustee to amend or waive certain terms and conditions set forth in the Indenture without the consent of Holders of the Notes issued thereunder.
The term “Issuer” as used in this Note includes any successor to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances, to merge or consolidate, subject to the rights of the Indenture Trustee and the Noteholders under the Indenture.
The Notes are issuable only in registered form in denominations as provided in the Indenture, subject to certain limitations therein set forth.
THIS NOTE AND THE INDENTURE SHALL BE GOVERNED BY, AN 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 SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATION LAW).
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and interest on this Note at the times, place, and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly provided in the Program Documents, none of Wilmington Trust Company in its individual capacity, Computershare Trust Company, N.A. in its individual capacity, any owner of a beneficial interest in the Issuer, or any of their respective partners, beneficiaries, agents, officers, directors, employees or successors or assigns shall be personally liable for, shall recourse be had to any of them for, the payment of principal of or interest on, or performance of, or omission to perform, any of the covenants, obligations or indemnifications contained in the Indenture, it being expressly understood that said covenants, obligations and indemnifications have been made by the Issuer for the sole purposes of binding the Issuer. The Noteholder of this Note by its acceptance hereof agrees that, except as expressly provided in the Program Documents, in the case of an Event of Default the Noteholder shall have no claim against any of the foregoing for any deficiency, loss or claim therefrom; provided, however, that nothing contained herein shall be taken to prevent recourse to, and enforcement against, the assets of the Issuer for any and all liabilities, obligations and undertakings contained in the Indenture or in this Note.
A-2-B-8
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints _________________________________________________________________ , attorney, to transfer said Note on the books kept for registration thereof, with full power of substitution in the premises.
| Dated: |
_______________________________________ */ | |
| Signature Guaranteed: | ||
| _______________________________________ */ |
| */ | NOTICE: The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within Note in every particular, without alteration, enlargement or any change whatsoever. Such signature must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar, which requirements include membership or participation in STAMP or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended. |
A-2-B-9
EXHIBIT A-3
| REGISTERED | $450,000,000 |
No. A-3
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. 38012Q AD0
Unless this Note is presented by an authorized representative of The Depository Trust Company, a New York corporation (“DTC”), to the Issuer or its agent for registration of transfer, exchange or payment, and any Note issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
GM FINANCIAL AUTOMOBILE LEASE TRUST 2024-3
CLASS A-3 4.21% ASSET BACKED NOTE
GM Financial Automobile Lease Trust 2024-3, a statutory trust organized and existing under the laws of the State of Delaware (herein referred to as the “Issuer”), for value received, hereby promises to pay to CEDE & CO., or registered assigns, the principal sum of FOUR HUNDRED FIFTY MILLION DOLLARS payable on each Payment Date pursuant to the Indenture; provided, however, that the entire unpaid principal amount of this Note shall be due and payable on the October 20, 2027 Payment Date (the “Final Scheduled Payment Date”). The Issuer will pay interest on this Note at the rate per annum shown above on each Payment Date until the principal of this Note is paid or made available for payment. Interest on this Note will accrue for each Payment Date from the most recent Payment Date on which interest has been paid to but excluding such Payment Date or, if no interest has yet been paid, from October 2, 2024. Interest will be computed on the basis of a 360-day year consisting of twelve 30-day months. Such principal of and interest on this Note shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. All payments made by the Issuer with respect to this Note shall be applied first to interest due and payable on this Note as provided above and then to the unpaid principal of this Note.
A-3-1
Reference is made to the further provisions of this Note set forth on the reverse hereof, which shall have the same effect as though fully set forth on the face of this Note.
Unless the certificate of authentication hereon has been executed by the Indenture Trustee whose name appears below by manual signature, this Note shall not be entitled to any benefit under the Indenture referred to on the reverse hereof, or be valid or obligatory for any purpose.
A-3-2
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed, manually or in facsimile, by its Authorized Officer, as of the date set forth below.
| Date: October 2, 2024 |
GM FINANCIAL AUTOMOBILE LEASING TRUST 2024-3 | |||||
| By: |
Wilmington Trust Company, not in its individual capacity but solely as Issuer Owner Trustee | |||||
| By: |
| |||||
| Authorized Signatory | ||||||
A-3-3
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the within-mentioned Indenture.
| Date: October 2, 2024 |
COMPUTERSHARE TRUST COMPANY, N.A., not in its individual capacity but solely as Indenture Trustee | |||||
| By: |
| |||||
| Authorized Signatory | ||||||
A-3-4
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer, designated as its Class A-3 4.21% Asset Backed Notes (herein called the “Class A-3 Notes”), all issued under an Indenture dated as of August 20, 2024 (such indenture, as supplemented or amended, is herein called the “Indenture”), among the Issuer, AmeriCredit Financial Services Inc., d/b/a GM Financial (“GM Financial”), as servicer, and Computershare Trust Company, N.A., as indenture trustee (the “Indenture Trustee,” which term includes any successor Indenture Trustee under the Indenture) to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights and obligations thereunder of the Issuer, the Indenture Trustee and the Holders of the Notes. The Notes are subject to all terms of the Indenture. All terms used in this Note that are defined in the Indenture, as supplemented or amended, shall have the meanings assigned to them in or pursuant to the Indenture, as so supplemented or amended.
The Class A-1 Notes, the Class A-2-A Notes, the Class A-2-B Notes, the Class A-3 Notes, the Class A-4 Notes, the Class B Notes and the Class C Notes (together, the “Notes”) are and will be equally and ratably secured by the collateral pledged as security therefor as provided in the Indenture.
Principal of the Class A-3 Notes will be payable on each Payment Date in an amount described on the face hereof. “Payment Date” means the twentieth (20th) day of each month, or, if any such date is not a Business Day, the next succeeding Business Day, commencing October 21, 2024. If GM Financial is no longer acting as Servicer, the Payment Date may be a different day of the month. The term “Payment Date,” shall be deemed to include the Final Scheduled Payment Date.
As described above, the entire unpaid principal amount of this Note shall be due and payable on the earlier of the Final Scheduled Payment Date and the Redemption Date, if any, pursuant to the Indenture. As described above, a portion of the unpaid principal balance of this Note shall be due and payable on the Redemption Date, if any. Notwithstanding the foregoing, the entire unpaid principal amount of the Notes shall be due and payable on the date on which an Event of Default shall have occurred and be continuing and the Majority Noteholders have declared the Notes to be immediately due and payable in the manner provided in the Indenture. All principal payments on the Class A-3 Notes shall be made pro rata to the Class A-3 Noteholders entitled thereto.
Payments of interest on this Note due and payable on each Payment Date, together with the installment of principal, if any, to the extent not in full payment of this Note, shall be made by check mailed to the Person whose name appears as the Holder of this Note (or one or more Predecessor Notes) on the Note Register as of the close of business on each Record Date, except that with respect to Notes registered on the Record Date in the name of the nominee of the Clearing Agency (initially, such nominee to be Cede & Co.), payments will be made by wire transfer in immediately available funds to the account designated by such nominee. Such checks shall be mailed to the Person entitled thereto at the address of such Person as it appears on the Note Register as of the applicable Record Date without requiring that this Note be submitted for notation of payment. Any reduction in the principal amount of this Note (or any one or more Predecessor Notes) effected by any payments made on any Payment Date shall be binding upon
A-3-5
all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not noted hereon. If funds are expected to be available, as provided in the Indenture, for payment in full of the then remaining unpaid principal amount of this Note on a Payment Date, then the Indenture Trustee, in the name of and on behalf of the Issuer, will notify the Person who was the Holder hereof as of the Record Date preceding such Payment Date by notice mailed prior to such Payment Date and the amount then due and payable shall be payable only upon presentation and surrender of this Note at the Indenture Trustee’s principal Corporate Trust Office or at the office of the Indenture Trustee’s agent appointed for such purposes located in the City of New York.
The Issuer shall pay interest on overdue installments of interest at the Class A-3 Interest Rate to the extent lawful.
As provided in the Indenture and the 2024-3 Servicing Agreement, the Servicer will be permitted at its option to purchase the 2024-3 Exchange Note and other components of the Issuer Trust Estate and to terminate the pledge of the 2024-3 Exchange Note on any Redemption Date if, either before or after giving effect to any payment of principal required to be made on such Payment Date, the Outstanding Amount of all Notes is less than or equal to 10% of the Outstanding Amount of all Notes measured on the 2024-3 Closing Date. The purchase price for the 2024-3 Exchange Note shall equal the unpaid principal balances of the outstanding Notes, together with accrued interest thereon for the related Interest Accrual Period and certain other amounts, which amount shall be deposited by the Servicer into the Indenture Collections Account on the related Payment Date fixed for redemption. In connection with an Optional Purchase, the Notes will be redeemed on such Payment Date in whole, but not in part, for the Redemption Price and thereupon the pledge of the 2024-3 Exchange Note shall be discharged and released and the 2024-3 Exchange Note shall be returned to or upon the order of the Servicer.
As provided in the Indenture and subject to certain limitations set forth therein, the transfer of this Note may be registered on the Note Register upon surrender of this Note for registration of transfer at the office or agency designated by the Issuer pursuant to the Indenture, (i) duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Indenture Trustee duly executed by, the Holder hereof or his attorney duly authorized in writing, with such signature guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar which requirements include membership or participation in Securities Transfer Agents Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Exchange Act, and (ii) accompanied by such other documents as the Indenture Trustee may require, and thereupon one or more new Notes of authorized denominations and in the same aggregate principal amount will be issued to the designated transferee or transferees. No service charge will be charged for any registration of transfer or exchange of this Note, but the transferor may be required to pay a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any such registration of transfer or exchange.
If this Note has been issued as a Definitive Note, the Note Registrar shall not register the transfer of this Note unless the prospective transferee has represented and warranted in writing
A-3-6
that either (a) it is not, and it is not acting on behalf of or investing the assets of, a Benefit Plan Entity or (b) it is, or is acting on behalf of or investing the assets of, a Benefit Plan Entity and its acquisition, holding and disposition of this Note will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Code or a violation of any Similar Law. If this Note has been issued as a Book Entry Note, each transferee of this Note or any beneficial interest herein that is a Benefit Plan Entity shall be deemed to represent that its acquisition, holding and disposition of this Note or any beneficial interest herein will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Code or a violation of any Similar Law.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a Note covenants and agrees (i) that no recourse may be taken, directly or indirectly, with respect to the obligations of the Issuer, the Issuer Owner Trustee or the Indenture Trustee on the Notes or under the Indenture or any certificate or other writing delivered in connection therewith, against (a) the Depositor, the Servicer, the Indenture Trustee or the Issuer Owner Trustee in its individual capacity, (b) any owner of a beneficial interest in the Issuer or (c) any partner, owner, beneficiary, agent, officer, director or employee of the Depositor, the Servicer, the Indenture Trustee or the Issuer Owner Trustee in its individual capacity, any holder of a beneficial interest in the Issuer, the Depositor, the Servicer, the Issuer Owner Trustee or the Indenture Trustee or of any successor or assign of the Depositor, the Servicer, the Indenture Trustee or the Issuer Owner Trustee in its individual capacity, except as any such Person may have expressly agreed (it being understood that the Indenture Trustee and the Issuer Owner Trustee have no such obligations in their individual capacity) and except that any such partner, owner or beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid consideration for stock, unpaid capital contribution or failure to pay any installment or call owing to such entity, and (ii) to treat the Notes that are owned or beneficially owned by a Person other than the Depositor, or its Affiliates, as indebtedness for purposes of federal income, state and local income and franchise and any other income taxes.
The Notes represent obligations of the Issuer only and do not represent interests in, recourse to or obligations of the Titling Trust, the Depositor, the Settlor, the Servicer or any of their respective Affiliates.
Prior to the due presentment for registration of transfer of this Note, the Issuer and the Indenture Trustee and any agent of the Issuer or the Indenture Trustee may treat the Person in whose name this Note (as of the day of determination or as of such other date as may be specified in the Indenture) is registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Issuer, the Indenture Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer and the rights of the Holders of the Notes under the Indenture at any time by the Issuer with the consent of the Majority Noteholders. The Indenture also contains provisions permitting the Noteholders representing specified percentages of the Outstanding Amount of the Notes, on behalf of the Holders of all the Notes, to waive compliance by the Issuer with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such
A-3-7
consent or waiver by the Holder of this Note (or any one of more Predecessor Notes) shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent or waiver is made upon this Note. The Indenture also permits the Indenture Trustee to amend or waive certain terms and conditions set forth in the Indenture without the consent of Holders of the Notes issued thereunder.
The term “Issuer” as used in this Note includes any successor to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances, to merge or consolidate, subject to the rights of the Indenture Trustee and the Noteholders under the Indenture.
The Notes are issuable only in registered form in denominations as provided in the Indenture, subject to certain limitations therein set forth.
THIS NOTE AND THE INDENTURE SHALL BE GOVERNED BY, AN 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 SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATION LAW).
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and interest on this Note at the times, place, and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly provided in the Program Documents, none of Wilmington Trust Company in its individual capacity, Computershare Trust Company, N.A. in its individual capacity, any owner of a beneficial interest in the Issuer, or any of their respective partners, beneficiaries, agents, officers, directors, employees or successors or assigns shall be personally liable for, shall recourse be had to any of them for, the payment of principal of or interest on, or performance of, or omission to perform, any of the covenants, obligations or indemnifications contained in the Indenture, it being expressly understood that said covenants, obligations and indemnifications have been made by the Issuer for the sole purposes of binding the Issuer. The Noteholder of this Note by its acceptance hereof agrees that, except as expressly provided in the Program Documents, in the case of an Event of Default the Noteholder shall have no claim against any of the foregoing for any deficiency, loss or claim therefrom; provided, however, that nothing contained herein shall be taken to prevent recourse to, and enforcement against, the assets of the Issuer for any and all liabilities, obligations and undertakings contained in the Indenture or in this Note.
A-3-8
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints _________________________________________________________________ , attorney, to transfer said Note on the books kept for registration thereof, with full power of substitution in the premises.
| Dated: |
_______________________________________ */ | |
| Signature Guaranteed: | ||
| _______________________________________ */ |
| */ | NOTICE: The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within Note in every particular, without alteration, enlargement or any change whatsoever. Such signature must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar, which requirements include membership or participation in STAMP or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended. |
A-3-9
EXHIBIT A-4
| REGISTERED | $71,500,000 |
No. A-4
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. 38012Q AE8
Unless this Note is presented by an authorized representative of The Depository Trust Company, a New York corporation (“DTC”), to the Issuer or its agent for registration of transfer, exchange or payment, and any Note issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
GM FINANCIAL AUTOMOBILE LEASE TRUST 2024-3
CLASS A-4 4.22% ASSET BACKED NOTE
GM Financial Automobile Lease Trust 2024-3, a statutory trust organized and existing under the laws of the State of Delaware (herein referred to as the “Issuer”), for value received, hereby promises to pay to CEDE & CO., or registered assigns, the principal sum of SEVENTY-ONE MILLION FIVE HUNDRED THOUSAND DOLLARS payable on each Payment Date pursuant to the Indenture; provided, however, that the entire unpaid principal amount of this Note shall be due and payable on the October 20, 2028 Payment Date (the “Final Scheduled Payment Date”). The Issuer will pay interest on this Note at the rate per annum shown above on each Payment Date until the principal of this Note is paid or made available for payment. Interest on this Note will accrue for each Payment Date from the most recent Payment Date on which interest has been paid to but excluding such Payment Date or, if no interest has yet been paid, from October 2, 2024. Interest will be computed on the basis of a 360-day year consisting of twelve 30-day months. Such principal of and interest on this Note shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. All payments made by the Issuer with respect to this Note shall be applied first to interest due and payable on this Note as provided above and then to the unpaid principal of this Note.
A-4-1
Reference is made to the further provisions of this Note set forth on the reverse hereof, which shall have the same effect as though fully set forth on the face of this Note.
Unless the certificate of authentication hereon has been executed by the Indenture Trustee whose name appears below by manual signature, this Note shall not be entitled to any benefit under the Indenture referred to on the reverse hereof, or be valid or obligatory for any purpose.
A-4-2
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed, manually or in facsimile, by its Authorized Officer, as of the date set forth below.
| Date: October 2, 2024 |
GM FINANCIAL AUTOMOBILE LEASING TRUST 2024-3 | |||||
| By: |
Wilmington Trust Company, not in its individual capacity but solely as Issuer Owner Trustee | |||||
| By: |
| |||||
| Authorized Signatory | ||||||
A-4-3
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the within-mentioned Indenture.
| Date: October 2, 2024 |
COMPUTERSHARE TRUST COMPANY, N.A., not in its individual capacity but solely as Indenture Trustee | |||||
| By: |
| |||||
| Authorized Signatory | ||||||
A-4-4
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer, designated as its Class A-4 4.22% Asset Backed Notes (herein called the “Class A-4 Notes”), all issued under an Indenture dated as of August 20, 2024 (such indenture, as supplemented or amended, is herein called the “Indenture”), among the Issuer, AmeriCredit Financial Services Inc., d/b/a GM Financial (“GM Financial”), as servicer, and Computershare Trust Company, N.A., as indenture trustee (the “Indenture Trustee,” which term includes any successor Indenture Trustee under the Indenture) to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights and obligations thereunder of the Issuer, the Indenture Trustee and the Holders of the Notes. The Notes are subject to all terms of the Indenture. All terms used in this Note that are defined in the Indenture, as supplemented or amended, shall have the meanings assigned to them in or pursuant to the Indenture, as so supplemented or amended.
The Class A-1 Notes, the Class A-2-A Notes, the Class A-2-B Notes, the Class A-3 Notes, the Class A-4 Notes, the Class B Notes and the Class C Notes (together, the “Notes”) are and will be equally and ratably secured by the collateral pledged as security therefor as provided in the Indenture.
Principal of the Class A-4 Notes will be payable on each Payment Date in an amount described on the face hereof. “Payment Date” means the twentieth (20th) day of each month, or, if any such date is not a Business Day, the next succeeding Business Day, commencing October 21, 2024. If GM Financial is no longer acting as Servicer, the Payment Date may be a different day of the month. The term “Payment Date,” shall be deemed to include the Final Scheduled Payment Date.
As described above, the entire unpaid principal amount of this Note shall be due and payable on the earlier of the Final Scheduled Payment Date and the Redemption Date, if any, pursuant to the Indenture. As described above, a portion of the unpaid principal balance of this Note shall be due and payable on the Redemption Date, if any. Notwithstanding the foregoing, the entire unpaid principal amount of the Notes shall be due and payable on the date on which an Event of Default shall have occurred and be continuing and the Majority Noteholders have declared the Notes to be immediately due and payable in the manner provided in the Indenture. All principal payments on the Class A-4 Notes shall be made pro rata to the Class A-4 Noteholders entitled thereto.
Payments of interest on this Note due and payable on each Payment Date, together with the installment of principal, if any, to the extent not in full payment of this Note, shall be made by check mailed to the Person whose name appears as the Holder of this Note (or one or more Predecessor Notes) on the Note Register as of the close of business on each Record Date, except that with respect to Notes registered on the Record Date in the name of the nominee of the Clearing Agency (initially, such nominee to be Cede & Co.), payments will be made by wire transfer in immediately available funds to the account designated by such nominee. Such checks shall be mailed to the Person entitled thereto at the address of such Person as it appears on the Note Register as of the applicable Record Date without requiring that this Note be submitted for notation of payment. Any reduction in the principal amount of this Note (or any one or more Predecessor Notes) effected by any payments made on any Payment Date shall be binding upon
A-4-5
all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not noted hereon. If funds are expected to be available, as provided in the Indenture, for payment in full of the then remaining unpaid principal amount of this Note on a Payment Date, then the Indenture Trustee, in the name of and on behalf of the Issuer, will notify the Person who was the Holder hereof as of the Record Date preceding such Payment Date by notice mailed prior to such Payment Date and the amount then due and payable shall be payable only upon presentation and surrender of this Note at the Indenture Trustee’s principal Corporate Trust Office or at the office of the Indenture Trustee’s agent appointed for such purposes located in the City of New York.
The Issuer shall pay interest on overdue installments of interest at the Class A-4 Interest Rate to the extent lawful.
As provided in the Indenture and the 2024-3 Servicing Agreement, the Servicer will be permitted at its option to purchase the 2024-3 Exchange Note and other components of the Issuer Trust Estate and to terminate the pledge of the 2024-3 Exchange Note on any Redemption Date if, either before or after giving effect to any payment of principal required to be made on such Payment Date, the Outstanding Amount of all Notes is less than or equal to 10% of the Outstanding Amount of all Notes measured on the 2024-3 Closing Date. The purchase price for the 2024-3 Exchange Note shall equal the unpaid principal balances of the outstanding Notes, together with accrued interest thereon for the related Interest Accrual Period and certain other amounts, which amount shall be deposited by the Servicer into the Indenture Collections Account on the related Payment Date fixed for redemption. In connection with an Optional Purchase, the Notes will be redeemed on such Payment Date in whole, but not in part, for the Redemption Price and thereupon the pledge of the 2024-3 Exchange Note shall be discharged and released and the 2024-3 Exchange Note shall be returned to or upon the order of the Servicer.
As provided in the Indenture and subject to certain limitations set forth therein, the transfer of this Note may be registered on the Note Register upon surrender of this Note for registration of transfer at the office or agency designated by the Issuer pursuant to the Indenture, (i) duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Indenture Trustee duly executed by, the Holder hereof or his attorney duly authorized in writing, with such signature guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar which requirements include membership or participation in Securities Transfer Agents Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Exchange Act, and (ii) accompanied by such other documents as the Indenture Trustee may require, and thereupon one or more new Notes of authorized denominations and in the same aggregate principal amount will be issued to the designated transferee or transferees. No service charge will be charged for any registration of transfer or exchange of this Note, but the transferor may be required to pay a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any such registration of transfer or exchange.
If this Note has been issued as a Definitive Note, the Note Registrar shall not register the transfer of this Note unless the prospective transferee has represented and warranted in writing
A-4-6
that either (a) it is not, and it is not acting on behalf of or investing the assets of, a Benefit Plan Entity or (b) it is, or is acting on behalf of or investing the assets of, a Benefit Plan Entity and its acquisition, holding and disposition of this Note will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Code or a violation of any Similar Law. If this Note has been issued as a Book Entry Note, each transferee of this Note or any beneficial interest herein that is a Benefit Plan Entity shall be deemed to represent that its acquisition, holding and disposition of this Note or any beneficial interest herein will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Code or a violation of any Similar Law.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a Note covenants and agrees (i) that no recourse may be taken, directly or indirectly, with respect to the obligations of the Issuer, the Issuer Owner Trustee or the Indenture Trustee on the Notes or under the Indenture or any certificate or other writing delivered in connection therewith, against (a) the Depositor, the Servicer, the Indenture Trustee or the Issuer Owner Trustee in its individual capacity, (b) any owner of a beneficial interest in the Issuer or (c) any partner, owner, beneficiary, agent, officer, director or employee of the Depositor, the Servicer, the Indenture Trustee or the Issuer Owner Trustee in its individual capacity, any holder of a beneficial interest in the Issuer, the Depositor, the Servicer, the Issuer Owner Trustee or the Indenture Trustee or of any successor or assign of the Depositor, the Servicer, the Indenture Trustee or the Issuer Owner Trustee in its individual capacity, except as any such Person may have expressly agreed (it being understood that the Indenture Trustee and the Issuer Owner Trustee have no such obligations in their individual capacity) and except that any such partner, owner or beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid consideration for stock, unpaid capital contribution or failure to pay any installment or call owing to such entity, and (ii) to treat the Notes that are owned or beneficially owned by a Person other than the Depositor, or its Affiliates, as indebtedness for purposes of federal income, state and local income and franchise and any other income taxes.
The Notes represent obligations of the Issuer only and do not represent interests in, recourse to or obligations of the Titling Trust, the Depositor, the Settlor, the Servicer or any of their respective Affiliates.
Prior to the due presentment for registration of transfer of this Note, the Issuer and the Indenture Trustee and any agent of the Issuer or the Indenture Trustee may treat the Person in whose name this Note (as of the day of determination or as of such other date as may be specified in the Indenture) is registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Issuer, the Indenture Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer and the rights of the Holders of the Notes under the Indenture at any time by the Issuer with the consent of the Majority Noteholders. The Indenture also contains provisions permitting the Noteholders representing specified percentages of the Outstanding Amount of the Notes, on behalf of the Holders of all the Notes, to waive compliance by the Issuer with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such
A-4-7
consent or waiver by the Holder of this Note (or any one of more Predecessor Notes) shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent or waiver is made upon this Note. The Indenture also permits the Indenture Trustee to amend or waive certain terms and conditions set forth in the Indenture without the consent of Holders of the Notes issued thereunder.
The term “Issuer” as used in this Note includes any successor to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances, to merge or consolidate, subject to the rights of the Indenture Trustee and the Noteholders under the Indenture.
The Notes are issuable only in registered form in denominations as provided in the Indenture, subject to certain limitations therein set forth.
THIS NOTE AND THE INDENTURE SHALL BE GOVERNED BY, AN 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 SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATION LAW).
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and interest on this Note at the times, place, and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly provided in the Program Documents, none of Wilmington Trust Company in its individual capacity, Computershare Trust Company, N.A. in its individual capacity, any owner of a beneficial interest in the Issuer, or any of their respective partners, beneficiaries, agents, officers, directors, employees or successors or assigns shall be personally liable for, shall recourse be had to any of them for, the payment of principal of or interest on, or performance of, or omission to perform, any of the covenants, obligations or indemnifications contained in the Indenture, it being expressly understood that said covenants, obligations and indemnifications have been made by the Issuer for the sole purposes of binding the Issuer. The Noteholder of this Note by its acceptance hereof agrees that, except as expressly provided in the Program Documents, in the case of an Event of Default the Noteholder shall have no claim against any of the foregoing for any deficiency, loss or claim therefrom; provided, however, that nothing contained herein shall be taken to prevent recourse to, and enforcement against, the assets of the Issuer for any and all liabilities, obligations and undertakings contained in the Indenture or in this Note.
A-4-8
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints _________________________________________________________________ , attorney, to transfer said Note on the books kept for registration thereof, with full power of substitution in the premises.
| Dated: |
|
*/ | ||||
| Signature Guaranteed: |
||||||
|
|
*/ |
| */ | NOTICE: The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within Note in every particular, without alteration, enlargement or any change whatsoever. Such signature must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar, which requirements include membership or participation in STAMP or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended. |
A-4-9
EXHIBIT B
| REGISTERED | $65,120,000 | |||
| No. B | ||||
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. 38012Q AF5
Unless this Note is presented by an authorized representative of The Depository Trust Company, a New York corporation (“DTC”), to the Issuer or its agent for registration of transfer, exchange or payment, and any Note issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
GM FINANCIAL AUTOMOBILE LEASE TRUST 2024-3
CLASS B 4.49% ASSET BACKED NOTE
GM Financial Automobile Lease Trust 2024-3, a statutory trust organized and existing under the laws of the State of Delaware (herein referred to as the “Issuer”), for value received, hereby promises to pay to CEDE & CO., or registered assigns, the principal sum of SIXTY-FIVE MILLION ONE HUNDRED TWENTY THOUSAND DOLLARS payable on each Payment Date pursuant to the Indenture; provided, however, that the entire unpaid principal amount of this Note shall be due and payable on the October 20, 2028 Payment Date (the “Final Scheduled Payment Date”). The Issuer will pay interest on this Note at the rate per annum shown above on each Payment Date until the principal of this Note is paid or made available for payment. Interest on this Note will accrue for each Payment Date from the most recent Payment Date on which interest has been paid to but excluding such Payment Date or, if no interest has yet been paid, from October 2, 2024. Interest will be computed on the basis of a 360-day year consisting of twelve 30-day months. Such principal of and interest on this Note shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. All payments made by the Issuer with respect to this Note shall be applied first to interest due and payable on this Note as provided above and then to the unpaid principal of this Note.
B-1
Reference is made to the further provisions of this Note set forth on the reverse hereof, which shall have the same effect as though fully set forth on the face of this Note.
Unless the certificate of authentication hereon has been executed by the Indenture Trustee whose name appears below by manual signature, this Note shall not be entitled to any benefit under the Indenture referred to on the reverse hereof, or be valid or obligatory for any purpose.
B-2
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed, manually or in facsimile, by its Authorized Officer, as of the date set forth below.
| Date: October 2, 2024 | GM FINANCIAL AUTOMOBILE LEASING TRUST 2024-3 | |||||
| By: | Wilmington Trust Company, not in its individual capacity but solely as Issuer Owner Trustee | |||||
| By: | ||||||
| Authorized Signatory | ||||||
B-3
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the within-mentioned Indenture.
| Date: October 2, 2024 | COMPUTERSHARE TRUST COMPANY, N.A., not in its individual capacity but solely as Indenture Trustee | |||||
| By: | ||||||
| Authorized Signatory | ||||||
B-4
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer, designated as its Class B 4.49% Asset Backed Notes (herein called the “Class B Notes”), all issued under an Indenture dated as of August 20, 2024 (such indenture, as supplemented or amended, is herein called the “Indenture”), among the Issuer, AmeriCredit Financial Services Inc., d/b/a GM Financial (“GM Financial”), as servicer, and Computershare Trust Company, N.A., as indenture trustee (the “Indenture Trustee,” which term includes any successor Indenture Trustee under the Indenture) to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights and obligations thereunder of the Issuer, the Indenture Trustee and the Holders of the Notes. The Notes are subject to all terms of the Indenture. All terms used in this Note that are defined in the Indenture, as supplemented or amended, shall have the meanings assigned to them in or pursuant to the Indenture, as so supplemented or amended.
The Class A-1 Notes, the Class A-2-A Notes, the Class A-2-B Notes, the Class A-3 Notes, the Class A-4 Notes, the Class B Notes and the Class C Notes (together, the “Notes”) are and will be equally and ratably secured by the collateral pledged as security therefor as provided in the Indenture.
Principal of the Class B Notes will be payable on each Payment Date in an amount described on the face hereof. “Payment Date” means the twentieth (20th) day of each month, or, if any such date is not a Business Day, the next succeeding Business Day, commencing October 21, 2024. If GM Financial is no longer acting as Servicer, the Payment Date may be a different day of the month. The term “Payment Date,” shall be deemed to include the Final Scheduled Payment Date.
As described above, the entire unpaid principal amount of this Note shall be due and payable on the earlier of the Final Scheduled Payment Date and the Redemption Date, if any, pursuant to the Indenture. As described above, a portion of the unpaid principal balance of this Note shall be due and payable on the Redemption Date, if any. Notwithstanding the foregoing, the entire unpaid principal amount of the Notes shall be due and payable on the date on which an Event of Default shall have occurred and be continuing and the Majority Noteholders have declared the Notes to be immediately due and payable in the manner provided in the Indenture. All principal payments on the Class B Notes shall be made pro rata to the Class B Noteholders entitled thereto.
Payments of interest on this Note due and payable on each Payment Date, together with the installment of principal, if any, to the extent not in full payment of this Note, shall be made by check mailed to the Person whose name appears as the Holder of this Note (or one or more Predecessor Notes) on the Note Register as of the close of business on each Record Date, except that with respect to Notes registered on the Record Date in the name of the nominee of the Clearing Agency (initially, such nominee to be Cede & Co.), payments will be made by wire transfer in immediately available funds to the account designated by such nominee. Such checks shall be mailed to the Person entitled thereto at the address of such Person as it appears on the Note Register as of the applicable Record Date without requiring that this Note be submitted for notation of payment. Any reduction in the principal amount of this Note (or any one or more Predecessor Notes) effected by any payments made on any Payment Date shall be binding upon
B-5
all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not noted hereon. If funds are expected to be available, as provided in the Indenture, for payment in full of the then remaining unpaid principal amount of this Note on a Payment Date, then the Indenture Trustee, in the name of and on behalf of the Issuer, will notify the Person who was the Holder hereof as of the Record Date preceding such Payment Date by notice mailed prior to such Payment Date and the amount then due and payable shall be payable only upon presentation and surrender of this Note at the Indenture Trustee’s principal Corporate Trust Office or at the office of the Indenture Trustee’s agent appointed for such purposes located in the City of New York.
The Issuer shall pay interest on overdue installments of interest at the Class B Interest Rate to the extent lawful.
As provided in the Indenture and the 2024-3 Servicing Agreement, the Servicer will be permitted at its option to purchase the 2024-3 Exchange Note and other components of the Issuer Trust Estate and to terminate the pledge of the 2024-3 Exchange Note on any Redemption Date if, either before or after giving effect to any payment of principal required to be made on such Payment Date, the Outstanding Amount of all Notes is less than or equal to 10% of the Outstanding Amount of all Notes measured on the 2024-3 Closing Date. The purchase price for the 2024-3 Exchange Note shall equal the unpaid principal balances of the outstanding Notes, together with accrued interest thereon for the related Interest Accrual Period and certain other amounts, which amount shall be deposited by the Servicer into the Indenture Collections Account on the related Payment Date fixed for redemption. In connection with an Optional Purchase, the Notes will be redeemed on such Payment Date in whole, but not in part, for the Redemption Price and thereupon the pledge of the 2024-3 Exchange Note shall be discharged and released and the 2024-3 Exchange Note shall be returned to or upon the order of the Servicer.
As provided in the Indenture and subject to certain limitations set forth therein, the transfer of this Note may be registered on the Note Register upon surrender of this Note for registration of transfer at the office or agency designated by the Issuer pursuant to the Indenture, (i) duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Indenture Trustee duly executed by, the Holder hereof or his attorney duly authorized in writing, with such signature guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar which requirements include membership or participation in Securities Transfer Agents Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Exchange Act, and (ii) accompanied by such other documents as the Indenture Trustee may require, and thereupon one or more new Notes of authorized denominations and in the same aggregate principal amount will be issued to the designated transferee or transferees. No service charge will be charged for any registration of transfer or exchange of this Note, but the transferor may be required to pay a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any such registration of transfer or exchange.
If this Note has been issued as a Definitive Note, the Note Registrar shall not register the transfer of this Note unless the prospective transferee has represented and warranted in writing
B-6
that either (a) it is not, and it is not acting on behalf of or investing the assets of, a Benefit Plan Entity or (b) it is, or is acting on behalf of or investing the assets of, a Benefit Plan Entity and its acquisition, holding and disposition of this Note will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Code or a violation of any Similar Law. If this Note has been issued as a Book Entry Note, each transferee of this Note or any beneficial interest herein that is a Benefit Plan Entity shall be deemed to represent that its acquisition, holding and disposition of this Note or any beneficial interest herein will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Code or a violation of any Similar Law.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a Note covenants and agrees (i) that no recourse may be taken, directly or indirectly, with respect to the obligations of the Issuer, the Issuer Owner Trustee or the Indenture Trustee on the Notes or under the Indenture or any certificate or other writing delivered in connection therewith, against (a) the Depositor, the Servicer, the Indenture Trustee or the Issuer Owner Trustee in its individual capacity, (b) any owner of a beneficial interest in the Issuer or (c) any partner, owner, beneficiary, agent, officer, director or employee of the Depositor, the Servicer, the Indenture Trustee or the Issuer Owner Trustee in its individual capacity, any holder of a beneficial interest in the Issuer, the Depositor, the Servicer, the Issuer Owner Trustee or the Indenture Trustee or of any successor or assign of the Depositor, the Servicer, the Indenture Trustee or the Issuer Owner Trustee in its individual capacity, except as any such Person may have expressly agreed (it being understood that the Indenture Trustee and the Issuer Owner Trustee have no such obligations in their individual capacity) and except that any such partner, owner or beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid consideration for stock, unpaid capital contribution or failure to pay any installment or call owing to such entity, and (ii) to treat the Notes that are owned or beneficially owned by a Person other than the Depositor, or its Affiliates, as indebtedness for purposes of federal income, state and local income and franchise and any other income taxes.
The Notes represent obligations of the Issuer only and do not represent interests in, recourse to or obligations of the Titling Trust, the Depositor, the Settlor, the Servicer or any of their respective Affiliates.
Prior to the due presentment for registration of transfer of this Note, the Issuer and the Indenture Trustee and any agent of the Issuer or the Indenture Trustee may treat the Person in whose name this Note (as of the day of determination or as of such other date as may be specified in the Indenture) is registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Issuer, the Indenture Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer and the rights of the Holders of the Notes under the Indenture at any time by the Issuer with the consent of the Majority Noteholders. The Indenture also contains provisions permitting the Noteholders representing specified percentages of the Outstanding Amount of the Notes, on behalf of the Holders of all the Notes, to waive compliance by the Issuer with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such
B-7
consent or waiver by the Holder of this Note (or any one of more Predecessor Notes) shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent or waiver is made upon this Note. The Indenture also permits the Indenture Trustee to amend or waive certain terms and conditions set forth in the Indenture without the consent of Holders of the Notes issued thereunder.
The term “Issuer” as used in this Note includes any successor to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances, to merge or consolidate, subject to the rights of the Indenture Trustee and the Noteholders under the Indenture.
The Notes are issuable only in registered form in denominations as provided in the Indenture, subject to certain limitations therein set forth.
THIS NOTE AND THE INDENTURE SHALL BE GOVERNED BY, AN 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 SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATION LAW).
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and interest on this Note at the times, place, and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly provided in the Program Documents, none of Wilmington Trust Company in its individual capacity, Computershare Trust Company, N.A. in its individual capacity, any owner of a beneficial interest in the Issuer, or any of their respective partners, beneficiaries, agents, officers, directors, employees or successors or assigns shall be personally liable for, shall recourse be had to any of them for, the payment of principal of or interest on, or performance of, or omission to perform, any of the covenants, obligations or indemnifications contained in the Indenture, it being expressly understood that said covenants, obligations and indemnifications have been made by the Issuer for the sole purposes of binding the Issuer. The Noteholder of this Note by its acceptance hereof agrees that, except as expressly provided in the Program Documents, in the case of an Event of Default the Noteholder shall have no claim against any of the foregoing for any deficiency, loss or claim therefrom; provided, however, that nothing contained herein shall be taken to prevent recourse to, and enforcement against, the assets of the Issuer for any and all liabilities, obligations and undertakings contained in the Indenture or in this Note.
B-8
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints _________________________________________________________________ , attorney, to transfer said Note on the books kept for registration thereof, with full power of substitution in the premises.
| Dated: |
|
*/ | ||||
| Signature Guaranteed: |
||||||
|
|
*/ |
| */ | NOTICE: The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within Note in every particular, without alteration, enlargement or any change whatsoever. Such signature must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar, which requirements include membership or participation in STAMP or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended. |
B-9
EXHIBIT C
| REGISTERED | $60,000,000 | |||
| No. C | ||||
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. 38012Q AG3
Unless this Note is presented by an authorized representative of The Depository Trust Company, a New York corporation (“DTC”), to the Issuer or its agent for registration of transfer, exchange or payment, and any Note issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER THE SECURITIES OR BLUE SKY LAWS OF ANY STATE IN THE UNITED STATES OR ANY FOREIGN SECURITIES LAWS. BY ITS ACCEPTANCE OF THIS NOTE THE HOLDER OF THIS NOTE IS DEEMED TO REPRESENT TO THE DEPOSITOR AND THE ISSUER OWNER TRUSTEE THAT IT (I) IS A “QUALIFIED INSTITUTIONAL BUYER” WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QIB”) AND IS ACQUIRING SUCH NOTE FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE QIBS) TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A OR (II) IS AN “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501 UNDER THE SECURITIES ACT (AN “ACCREDITED INVESTOR”) AND IS ACQUIRING SUCH NOTE FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE ACCREDITED INVESTORS) OR (III) IS OTHERWISE ACQUIRING THIS NOTE IN A TRANSACTION EXEMPT FROM THE SECURITIES ACT.
NO SALE, PLEDGE OR OTHER TRANSFER OF THIS NOTE MAY BE MADE BY ANY PERSON UNLESS (I) SUCH SALE, PLEDGE OR OTHER TRANSFER IS MADE TO THE DEPOSITOR, (II) SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, SUCH SALE, PLEDGE OR OTHER TRANSFER IS MADE TO A PERSON WHOM THE TRANSFEROR REASONABLY BELIEVES AFTER DUE INQUIRY IS A QIB ACTING FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE QIBS) TO WHOM NOTICE IS GIVEN THAT THE SALE, PLEDGE OR TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A OR (III) SUCH SALE, PLEDGE OR OTHER TRANSFER IS OTHERWISE MADE IN A TRANSFER EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN
C-1
WHICH CASE (A) THE ISSUER SHALL REQUIRE THAT BOTH THE PROSPECTIVE TRANSFEROR AND THE PROSPECTIVE TRANSFEREE CERTIFY TO THE ISSUER AND THE DEPOSITOR IN WRITING THE FACTS SURROUNDING SUCH TRANSFER, WHICH CERTIFICATION SHALL BE IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER AND THE DEPOSITOR, AND (B) THE ISSUER SHALL REQUIRE A WRITTEN OPINION OF COUNSEL (WHICH SHALL NOT BE AT THE EXPENSE OF THE ISSUER, THE DEPOSITOR OR THE ISSUER OWNER TRUSTEE) SATISFACTORY TO THE DEPOSITOR AND THE ISSUER TO THE EFFECT THAT SUCH TRANSFER WILL NOT VIOLATE THE SECURITIES ACT OR THE APPLICABLE STATE SECURITIES LAWS. ANY ATTEMPTED TRANSFER IN CONTRAVENTION OF THE IMMEDIATELY PRECEDING RESTRICTIONS WILL BE VOID AB INITIO AND THE PURPORTED TRANSFEROR WILL CONTINUE TO BE TREATED AS THE OWNER OF THE NOTES FOR ALL PURPOSES.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
GM FINANCIAL AUTOMOBILE LEASE TRUST 2024-3
CLASS C 4.58% ASSET BACKED NOTE
GM Financial Automobile Lease Trust 2024-3, a statutory trust organized and existing under the laws of the State of Delaware (herein referred to as the “Issuer”), for value received, hereby promises to pay to CEDE & CO., or registered assigns, the principal sum of SIXTY MILLION DOLLARS payable on each Payment Date pursuant to the Indenture; provided, however, that the entire unpaid principal amount of this Note shall be due and payable on the March 20, 2029 Payment Date (the “Final Scheduled Payment Date”). The Issuer will pay interest on this Note at the rate per annum shown above on each Payment Date until the principal of this Note is paid or made available for payment. Interest on this Note will accrue for each Payment Date from the most recent Payment Date on which interest has been paid to but excluding such Payment Date or, if no interest has yet been paid, from October 2, 2024. Interest will be computed on the basis of a 360-day year consisting of twelve 30-day months. Such principal of and interest on this Note shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. All payments made by the Issuer with respect to this Note shall be applied first to interest due and payable on this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the reverse hereof, which shall have the same effect as though fully set forth on the face of this Note.
C-2
Unless the certificate of authentication hereon has been executed by the Indenture Trustee whose name appears below by manual signature, this Note shall not be entitled to any benefit under the Indenture referred to on the reverse hereof, or be valid or obligatory for any purpose.
C-3
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed, manually or in facsimile, by its Authorized Officer, as of the date set forth below.
| Date: October 2, 2024 | GM FINANCIAL AUTOMOBILE LEASING TRUST 2024-3 | |||||
| By: | Wilmington Trust Company, not in its individual capacity but solely as Issuer Owner Trustee | |||||
| By: | ||||||
| Authorized Signatory | ||||||
C-4
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the within-mentioned Indenture.
| Date: October 2, 2024 | COMPUTERSHARE TRUST COMPANY, N.A., not in its individual capacity but solely as Indenture Trustee | |||||
| By: | ||||||
| Authorized Signatory | ||||||
C-5
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer, designated as its Class C 4.58% Asset Backed Notes (herein called the “Class C Notes”), all issued under an Indenture dated as of August 20, 2024 (such indenture, as supplemented or amended, is herein called the “Indenture”), among the Issuer, AmeriCredit Financial Services Inc., d/b/a GM Financial (“GM Financial”), as servicer, and Computershare Trust Company, N.A., as indenture trustee (the “Indenture Trustee,” which term includes any successor Indenture Trustee under the Indenture) to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights and obligations thereunder of the Issuer, the Indenture Trustee and the Holders of the Notes. The Notes are subject to all terms of the Indenture. All terms used in this Note that are defined in the Indenture, as supplemented or amended, shall have the meanings assigned to them in or pursuant to the Indenture, as so supplemented or amended.
The Class A-1 Notes, the Class A-2-A Notes, the Class A-2-B Notes, the Class A-3 Notes, the Class A-4 Notes, the Class B Notes and the Class C Notes (together, the “Notes”) are and will be equally and ratably secured by the collateral pledged as security therefor as provided in the Indenture.
Principal of the Class C Notes will be payable on each Payment Date in an amount described on the face hereof. “Payment Date” means the twentieth (20th) day of each month, or, if any such date is not a Business Day, the next succeeding Business Day, commencing October 21, 2024. If GM Financial is no longer acting as Servicer, the Payment Date may be a different day of the month. The term “Payment Date,” shall be deemed to include the Final Scheduled Payment Date.
As described above, the entire unpaid principal amount of this Note shall be due and payable on the earlier of the Final Scheduled Payment Date and the Redemption Date, if any, pursuant to the Indenture. As described above, a portion of the unpaid principal balance of this Note shall be due and payable on the Redemption Date, if any. Notwithstanding the foregoing, the entire unpaid principal amount of the Notes shall be due and payable on the date on which an Event of Default shall have occurred and be continuing and the Majority Noteholders have declared the Notes to be immediately due and payable in the manner provided in the Indenture. All principal payments on the Class C Notes shall be made pro rata to the Class C Noteholders entitled thereto.
Payments of interest on this Note due and payable on each Payment Date, together with the installment of principal, if any, to the extent not in full payment of this Note, shall be made by check mailed to the Person whose name appears as the Holder of this Note (or one or more Predecessor Notes) on the Note Register as of the close of business on each Record Date, except that with respect to Notes registered on the Record Date in the name of the nominee of the Clearing Agency (initially, such nominee to be Cede & Co.), payments will be made by wire transfer in immediately available funds to the account designated by such nominee. Such checks shall be mailed to the Person entitled thereto at the address of such Person as it appears on the Note Register as of the applicable Record Date without requiring that this Note be submitted for notation of payment. Any reduction in the principal amount of this Note (or any one or more Predecessor Notes) effected by any payments made on any Payment Date shall be binding upon
C-6
all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not noted hereon. If funds are expected to be available, as provided in the Indenture, for payment in full of the then remaining unpaid principal amount of this Note on a Payment Date, then the Indenture Trustee, in the name of and on behalf of the Issuer, will notify the Person who was the Holder hereof as of the Record Date preceding such Payment Date by notice mailed prior to such Payment Date and the amount then due and payable shall be payable only upon presentation and surrender of this Note at the Indenture Trustee’s principal Corporate Trust Office or at the office of the Indenture Trustee’s agent appointed for such purposes located in the City of New York.
The Issuer shall pay interest on overdue installments of interest at the Class C Interest Rate to the extent lawful.
As provided in the Indenture and the 2024-3 Servicing Agreement, the Servicer will be permitted at its option to purchase the 2024-3 Exchange Note and other components of the Issuer Trust Estate and to terminate the pledge of the 2024-3 Exchange Note on any Redemption Date if, either before or after giving effect to any payment of principal required to be made on such Payment Date, the Outstanding Amount of all Notes is less than or equal to 10% of the Outstanding Amount of all Notes measured on the 2024-3 Closing Date. The purchase price for the 2024-3 Exchange Note shall equal the unpaid principal balances of the outstanding Notes, together with accrued interest thereon for the related Interest Accrual Period and certain other amounts, which amount shall be deposited by the Servicer into the Indenture Collections Account on the related Payment Date fixed for redemption. In connection with an Optional Purchase, the Notes will be redeemed on such Payment Date in whole, but not in part, for the Redemption Price and thereupon the pledge of the 2024-3 Exchange Note shall be discharged and released and the 2024-3 Exchange Note shall be returned to or upon the order of the Servicer.
As provided in the Indenture and subject to certain limitations set forth therein, the transfer of this Note may be registered on the Note Register upon surrender of this Note for registration of transfer at the office or agency designated by the Issuer pursuant to the Indenture, (i) duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Indenture Trustee duly executed by, the Holder hereof or his attorney duly authorized in writing, with such signature guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar which requirements include membership or participation in Securities Transfer Agents Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Exchange Act, and (ii) accompanied by such other documents as the Indenture Trustee may require, and thereupon one or more new Notes of authorized denominations and in the same aggregate principal amount will be issued to the designated transferee or transferees. No service charge will be charged for any registration of transfer or exchange of this Note, but the transferor may be required to pay a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any such registration of transfer or exchange.
If this Note has been issued as a Definitive Note, the Note Registrar shall not register the transfer of this Note unless the prospective transferee has represented and warranted in writing
C-7
that (a)(i) it is not, and it is not acting on behalf of or investing the assets of, a Benefit Plan Entity or (ii) it is, or is acting on behalf of or investing the assets of, a Benefit Plan Entity and its acquisition, holding and disposition of this Note will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Code or a violation of any Similar Law and (b) an Opinion of Counsel described in clause (ii)(A) in the first sentence of Section 2.4(d) of the Indenture has been delivered.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a Note covenants and agrees (i) that no recourse may be taken, directly or indirectly, with respect to the obligations of the Issuer, the Issuer Owner Trustee or the Indenture Trustee on the Notes or under the Indenture or any certificate or other writing delivered in connection therewith, against (a) the Depositor, the Servicer, the Indenture Trustee or the Issuer Owner Trustee in its individual capacity, (b) any owner of a beneficial interest in the Issuer or (c) any partner, owner, beneficiary, agent, officer, director or employee of the Depositor, the Servicer, the Indenture Trustee or the Issuer Owner Trustee in its individual capacity, any holder of a beneficial interest in the Issuer, the Depositor, the Servicer, the Issuer Owner Trustee or the Indenture Trustee or of any successor or assign of the Depositor, the Servicer, the Indenture Trustee or the Issuer Owner Trustee in its individual capacity, except as any such Person may have expressly agreed (it being understood that the Indenture Trustee and the Issuer Owner Trustee have no such obligations in their individual capacity) and except that any such partner, owner or beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid consideration for stock, unpaid capital contribution or failure to pay any installment or call owing to such entity, and (ii) to treat the Notes that are owned or beneficially owned by a Person other than the Depositor, or its Affiliates, as indebtedness for purposes of federal income, state and local income and franchise and any other income taxes.
The Notes represent obligations of the Issuer only and do not represent interests in, recourse to or obligations of the Titling Trust, the Depositor, the Settlor, the Servicer or any of their respective Affiliates.
Prior to the due presentment for registration of transfer of this Note, the Issuer and the Indenture Trustee and any agent of the Issuer or the Indenture Trustee may treat the Person in whose name this Note (as of the day of determination or as of such other date as may be specified in the Indenture) is registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Issuer, the Indenture Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer and the rights of the Holders of the Notes under the Indenture at any time by the Issuer with the consent of the Majority Noteholders. The Indenture also contains provisions permitting the Noteholders representing specified percentages of the Outstanding Amount of the Notes, on behalf of the Holders of all the Notes, to waive compliance by the Issuer with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note (or any one of more Predecessor Notes) shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof
C-8
whether or not notation of such consent or waiver is made upon this Note. The Indenture also permits the Indenture Trustee to amend or waive certain terms and conditions set forth in the Indenture without the consent of Holders of the Notes issued thereunder.
The term “Issuer” as used in this Note includes any successor to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances, to merge or consolidate, subject to the rights of the Indenture Trustee and the Noteholders under the Indenture.
The Notes are issuable only in registered form in denominations as provided in the Indenture, subject to certain limitations therein set forth.
THIS NOTE AND THE INDENTURE SHALL BE GOVERNED BY, AN 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 SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATION LAW).
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and interest on this Note at the times, place, and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly provided in the Program Documents, none of Wilmington Trust Company in its individual capacity, Computershare Trust Company, N.A. in its individual capacity, any owner of a beneficial interest in the Issuer, or any of their respective partners, beneficiaries, agents, officers, directors, employees or successors or assigns shall be personally liable for, shall recourse be had to any of them for, the payment of principal of or interest on, or performance of, or omission to perform, any of the covenants, obligations or indemnifications contained in the Indenture, it being expressly understood that said covenants, obligations and indemnifications have been made by the Issuer for the sole purposes of binding the Issuer. The Noteholder of this Note by its acceptance hereof agrees that, except as expressly provided in the Program Documents, in the case of an Event of Default the Noteholder shall have no claim against any of the foregoing for any deficiency, loss or claim therefrom; provided, however, that nothing contained herein shall be taken to prevent recourse to, and enforcement against, the assets of the Issuer for any and all liabilities, obligations and undertakings contained in the Indenture or in this Note.
C-9
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints _________________________________________________________________ , attorney, to transfer said Note on the books kept for registration thereof, with full power of substitution in the premises.
| Dated: |
|
*/ | ||||
| Signature Guaranteed: |
||||||
|
|
*/ |
| */ | NOTICE: The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within Note in every particular, without alteration, enlargement or any change whatsoever. Such signature must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar, which requirements include membership or participation in STAMP or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended. |
C-10
Exhibit 4.3
GMF LEASING LLC
as Depositor,
and
WILMINGTON TRUST COMPANY
as Owner Trustee
AMENDED AND RESTATED TRUST AGREEMENT
OF
GM FINANCIAL AUTOMOBILE LEASING TRUST 2024-3
Dated as of August 20, 2024
TABLE OF CONTENTS
| Page | ||||||
| ARTICLE I DEFINITIONS |
1 | |||||
| SECTION 1.1. |
Capitalized Terms | 1 | ||||
| SECTION 1.2. |
Interpretive Provisions | 5 | ||||
| SECTION 1.3. |
Amendment and Restatement | 5 | ||||
| ARTICLE II ORGANIZATION |
5 | |||||
| SECTION 2.1. |
Name | 5 | ||||
| SECTION 2.2. |
Office | 6 | ||||
| SECTION 2.3. |
Purposes and Powers | 6 | ||||
| SECTION 2.4. |
Appointment of Owner Trustee | 6 | ||||
| SECTION 2.5. |
Initial Capital Contribution of Owner Trust Estate | 6 | ||||
| SECTION 2.6. |
Declaration of Trust | 7 | ||||
| SECTION 2.7. |
Liability of Trust Certificateholders | 7 | ||||
| SECTION 2.8. |
Title to Owner Trust Estate | 7 | ||||
| SECTION 2.9. |
Situs of Securitization Trust | 7 | ||||
| SECTION 2.10. |
Representations and Warranties of the Depositor | 7 | ||||
| SECTION 2.11. |
Federal Income Tax Treatment of the Trust | 8 | ||||
| ARTICLE III TRUST CERTIFICATES AND TRANSFER OF INTERESTS |
9 | |||||
| SECTION 3.1. |
Initial Ownership | 9 | ||||
| SECTION 3.2. |
The Trust Certificates | 9 | ||||
| SECTION 3.3. |
Authentication of Trust Certificates | 10 | ||||
| SECTION 3.4. |
Registration of Transfer and Exchange | 10 | ||||
| SECTION 3.5. |
Mutilated, Destroyed, Lost or Stolen Trust Certificates | 13 | ||||
| SECTION 3.6. |
Persons Deemed Trust Certificateholders | 14 | ||||
| SECTION 3.7. |
Access to List of Trust Certificateholders’ Names and Addresses | 14 | ||||
| SECTION 3.8. |
Maintenance of Office or Agency | 15 | ||||
| SECTION 3.9. |
Appointment of Paying Agent | 15 | ||||
| SECTION 3.10. |
Definitive Trust Certificates | 15 | ||||
| SECTION 3.11. |
Trust Certificates held by Depositor or its Affiliates | 15 | ||||
| SECTION 3.12. |
Trust Certificates Nonassessable and Fully Paid | 16 | ||||
| SECTION 3.13. |
No Legal Title to Owner Trust Estate in Trust Certificateholders | 16 | ||||
| SECTION 3.14. |
No Recourse | 16 | ||||
| ARTICLE IV ACTIONS BY OWNER TRUSTEE |
16 | |||||
| SECTION 4.1. |
Prior Notice to Trust Certificateholders with Respect to Certain Matters | 16 | ||||
| SECTION 4.2. |
Action by Trust Certificateholders with Respect to Certain Matters | 17 | ||||
| SECTION 4.3. |
Action by Trust Certificateholders with Respect to Bankruptcy | 17 | ||||
| SECTION 4.4. |
Restrictions on Trust Certificateholders’ Power | 17 | ||||
| SECTION 4.5. |
Super-Majority Control | 18 | ||||
i
| ARTICLE V APPLICATION OF SECURITIZATION TRUST FUNDS; CERTAIN DUTIES |
18 | |||||
| SECTION 5.1. |
Application of Securitization Trust Funds | 18 | ||||
| SECTION 5.2. |
Method of Payment | 19 | ||||
| SECTION 5.3. |
Accounting and Reports to Trust Certificateholders, Internal Revenue Service and Others |
19 | ||||
| ARTICLE VI AUTHORITY AND DUTIES OF OWNER TRUSTEE |
20 | |||||
| SECTION 6.1. |
General Authority | 20 | ||||
| SECTION 6.2. |
General Duties | 20 | ||||
| SECTION 6.3. |
Action upon Instruction | 20 | ||||
| SECTION 6.4. |
No Duties Except as Specified in this Agreement or in Instructions | 21 | ||||
| SECTION 6.5. |
No Action Except Under Specified Documents or Instructions | 22 | ||||
| SECTION 6.6. |
Restrictions | 22 | ||||
| SECTION 6.7. |
Covenants for Reporting of Repurchase Demands due to Breaches of Representations and Warranties |
22 | ||||
| ARTICLE VII CONCERNING THE OWNER TRUSTEE |
23 | |||||
| SECTION 7.1. |
Acceptance of Trusts and Duties | 23 | ||||
| SECTION 7.2. |
Furnishing of Documents | 25 | ||||
| SECTION 7.3. |
Representations and Warranties | 25 | ||||
| SECTION 7.4. |
Reliance; Advice of Counsel | 25 | ||||
| SECTION 7.5. |
Not Acting in Individual Capacity | 26 | ||||
| SECTION 7.6. |
Owner Trustee Not Liable for Trust Certificates | 26 | ||||
| SECTION 7.7. |
Owner Trustee May Own Trust Certificates and Notes | 26 | ||||
| SECTION 7.8. |
Doing Business in Other Jurisdictions | 26 | ||||
| SECTION 7.9. |
Financial Crimes Enforcement Network’s Customer Due Diligence Requirements |
27 | ||||
| SECTION 7.10. |
Beneficial Ownership and Control of Trust | 27 | ||||
| ARTICLE VIII COMPENSATION OF OWNER TRUSTEE |
28 | |||||
| SECTION 8.1. |
Owner Trustee’s Fees and Expenses | 28 | ||||
| SECTION 8.2. |
Indemnification | 28 | ||||
| SECTION 8.3. |
Payments to Owner Trustee | 28 | ||||
| ARTICLE IX TERMINATION OF TRUST AGREEMENT |
28 | |||||
| SECTION 9.1. |
Termination of Trust Agreement | 28 | ||||
| ARTICLE X SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES |
30 | |||||
| SECTION 10.1. |
Eligibility Requirements for Owner Trustee | 30 | ||||
| SECTION 10.2. |
Resignation or Removal of Owner Trustee | 30 | ||||
ii
| SECTION 10.3. |
Successor Owner Trustee | 31 | ||||
| SECTION 10.4. |
Merger or Consolidation of Owner Trustee | 31 | ||||
| SECTION 10.5. |
Appointment of Co-Trustee or Separate Trustee | 31 | ||||
| ARTICLE XI MISCELLANEOUS |
33 | |||||
| SECTION 11.1. |
Amendments | 33 | ||||
| SECTION 11.2. |
Limitations on Rights of Others | 34 | ||||
| SECTION 11.3. |
Notices | 34 | ||||
| SECTION 11.4. |
Severability | 34 | ||||
| SECTION 11.5. |
Counterparts and Consent to Do Business Electronically | 34 | ||||
| SECTION 11.6. |
Successors and Assigns | 35 | ||||
| SECTION 11.7. |
No Petition | 35 | ||||
| SECTION 11.8. |
Headings | 35 | ||||
| SECTION 11.9. |
GOVERNING LAW | 35 | ||||
| SECTION 11.10. |
Administrator | 35 | ||||
| SECTION 11.11. |
Regulation AB | 36 | ||||
| SECTION 11.12. |
Force Majeure | 36 | ||||
| EXHIBITS |
||||||||
| Exhibit A |
– |
Form of Trust Certificate |
A-1 | |||||
| Exhibit B |
– |
Certificate of Trust of GM Financial Automobile Leasing Trust 2024-3 |
B-1 | |||||
| Exhibit C |
– |
Form of Transferor Certificate |
C-1 | |||||
| Exhibit D |
– |
Form of Investment Letter |
D-1 | |||||
| Exhibit E |
– |
Form of Rule 144A Letter |
E-1 | |||||
| Exhibit F |
– |
Form of Notice of Repurchase Request |
F-1 | |||||
iii
AMENDED AND RESTATED TRUST AGREEMENT, dated as of August 20, 2024 (as the same may be further amended, restated, supplemented or otherwise modified from time to time, this “Agreement”), between GMF Leasing LLC, a Delaware limited liability company, as depositor (the “Depositor”), and Wilmington Trust Company, a Delaware trust company (in its individual capacity, together with its successors, assigns, the “Trust Company”), as trustee (in such capacity, the “Owner Trustee”).
WHEREAS, the parties to this Agreement intend to amend and restate the Trust Agreement, dated as of August 8, 2024 (the “Original Trust Agreement”), among the parties, on the terms and conditions set forth in this Agreement;
WHEREAS, the parties hereto entered into the Original Trust Agreement, and filed the Certificate of Trust with the Secretary of State of the State of Delaware pursuant to which GM Financial Automobile Leasing Trust 2024-3 (the “Securitization Trust” or the “Issuer”) was formed; and
WHEREAS, the parties hereto are entering into this Agreement pursuant to which, among other things, the Original Trust Agreement will be amended and restated and a Trust Certificate will be issued.
NOW, THEREFORE, in consideration of the mutual agreements herein contained, and of other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto hereby amend and restate the governing instrument of the Securitization Trust and agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Capitalized Terms. Capitalized terms used in this Agreement that are not otherwise defined herein shall have the meanings assigned to them in Appendix 1 to the 2024-3 Exchange Note Supplement, dated as of August 20, 2024 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “2024-3 Exchange Note Supplement”), among ACAR Leasing Ltd., as Borrower (in such capacity, the “Borrower”), AmeriCredit Financial Services, Inc. d/b/a GM Financial (“GM Financial”), as Lender (in such capacity, the “Lender”) and as Servicer (in such capacity, the “Servicer”), and Computershare Trust Company, N.A. (“Computershare”), as Administrative Agent (in such capacity, the “Administrative Agent”) and as Collateral Agent (in such capacity, the “Collateral Agent”) or, if not defined therein, in Appendix A to the Third Amended and Restated Credit and Security Agreement, dated as of October 3, 2022 (as the same may be further amended, restated, supplemented or otherwise modified from time to time, the “Credit and Security Agreement”), among the Borrower, the Lender, the Servicer, the Administrative Agent and the Collateral Agent. Whenever used herein, unless the context otherwise requires, the following words and phrases shall have the following meanings:
“2024-3 Servicing Agreement” means the Fourth Amended and Restated Servicing Agreement, dated as of October 3, 2022, as the same may be further amended, restated,
1
supplemented or otherwise modified from time to time, among ACAR Leasing Ltd., the Servicer, APGO Trust and the Collateral Agent as supplemented by the 2024-3 Servicing Supplement, dated as of August 20, 2024, as the same may be further amended, restated, supplemented or otherwise modified from time to time, among ACAR Leasing Ltd., the Servicer, APGO Trust, and Computershare, as Collateral Agent and Indenture Trustee.
“Applicable Anti-Money-Laundering Law” has the meaning set forth in Section 7.9.
“Authenticating Agent” means initially, Computershare, and thereafter any Person authorized by the Owner Trustee to act on behalf of the Owner Trustee to authenticate and deliver Trust Certificates.
“BBA Partnership Audit Rules” shall mean Sections 6221 through 6241 of the Code, and any regulations promulgated or proposed under any such Sections and any administrative guidance with respect thereto.
“Benefit Plan Entity” has the meaning set forth in Section 3.4(e).
“Benefit Plan Investor” has the meaning set forth in Section 3.4(e).
“Certificate of Trust” means the Certificate of Trust filed for the Securitization Trust pursuant to Section 3810(a) of the Statutory Trust Statute, as originally filed with the Delaware Secretary of State on August 8, 2024, in the form attached hereto as Exhibit B.
“Certificate Register” and “Certificate Registrar” means the register mentioned in and the registrar appointed pursuant to Section 3.4(a).
“Commission” means the United States Securities and Exchange Commission.
“Controlling Party” means an executive officer, senior officer, or senior manager or any other individual who regularly performs similar functions.
“Corporate Trust Office” means with respect to the Owner Trustee, the corporate trust office of the Owner Trustee located at 1100 North Market Street, Rodney Square North, Wilmington, Delaware, 19890¬0001, Attention: Corporate Trust Administration, or at such other address as the Owner Trustee may designate by notice to the Trust Certificateholders and the Depositor, or the corporate trust office of any successor Owner Trustee at the address designated by such successor Owner Trustee by notice to the Trust Certificateholders and the Depositor.
“Depositor” has the meaning set forth in the preamble.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, supplemented or otherwise modified and in effect from time to time.
“Expenses” has the meaning set forth in Section 8.2.
“FATCA” shall mean Sections 1471 through 1474 of the Code and (a) any regulations or official interpretations thereof (including any revenue ruling, revenue procedure, notice or
2
similar guidance issued by the IRS thereunder as a precondition to relief or exemption from taxes under such Sections, regulations and interpretations), (b) any applicable agreement entered into under Section 1471(b)(1) of the Code, and (c) any applicable intergovernmental agreement (including any implementing guidance) with respect to the implementation of the foregoing.
“FATCA Information” shall mean, with respect to any Trust Certificateholder, any form or other certification, or such other information reasonably sufficient to eliminate the imposition of, or determine the amount of, FATCA Withholding Tax.
“FATCA Withholding Tax” shall mean any required withholding or deduction of tax pursuant to FATCA.
“Flow-Through Entity” has the meaning set forth in Section 3.4(c).
“Indemnified Parties” has the meaning set forth in Section 8.2.
“Investment Letter” has the meaning set forth in Section 3.4(b).
“Issuer Tax Opinion” means with respect to any action, an Opinion of Counsel to the effect that, for federal income tax purposes and subject to customary assumptions and qualifications for opinions of this type, (a) such action will not adversely affect the tax characterization as debt of any Notes that were characterized as debt at the time of their issuance, and (b) following such action neither the Issuer nor the Titling Trust will be treated as an association (or publicly traded partnership) taxable as a corporation.
“Majority Certificateholder” shall mean the holder of the greatest percentage ownership interest in the Trust Certificate as recorded in the Certificate Register.
“Notes” means the Series 2024-3 Class A-1 4.745% Fixed Rate Asset Backed Notes, Class A-2-A 4.29% Fixed Rate Asset Backed Notes, Class A-2-B Floating Rate Asset Backed Notes, Class A-3 4.21% Fixed Rate Asset Backed Notes, Class A-4 4.22% Fixed Rate Asset Backed Notes, Class B 4.49% Fixed Rate Asset Backed Notes and Class C 4.58% Fixed Rate Asset Backed Notes, all issued by the Issuer and substantially in the form of Exhibit A-1, A-2-A, A-2-B, A-3, A-4, B and C, respectively, to the Indenture.
“Original Trust Agreement” has the meaning set forth in the recitals.
“Owner Trust Estate” means all right, title and interest of the Securitization Trust in and to the property and rights transferred to the Securitization Trust pursuant to the 2024-3 Exchange Note Transfer Agreement and all other property of the Securitization Trust from time to time, including any rights of the Owner Trustee and the Securitization Trust pursuant to the 2024-3 Servicing Agreement, the 2024-3 Exchange Note Supplement and the Administration Agreement.
“Owner Trustee” means Wilmington Trust Company, a Delaware trust company, not in its individual capacity but solely as owner trustee under this Agreement, and any successor Owner Trustee hereunder.
3
“Paying Agent” means any paying agent or co-paying agent appointed pursuant to Section 3.9, which shall initially be Computershare.
“Percentage Interest” means with respect to any Trust Certificate, the percentage interest, specified on the face thereof, in the distributions on the Trust Certificates pursuant to this Agreement.
“Protected Purchaser” has the meaning set forth in Section 8-303 of the UCC.
“Record Date” means with respect to any Payment Date, the close of business on the Business Day immediately preceding such Payment Date.
“Regulation AB” means Subpart 229.1100- Asset Backed Securities (Regulation AB), 17 C.F.R. §§ 229.1100-229.1125, as such may be amended from time to time and subject to such clarification and interpretation as have been provided by the Commission in the adopting releases (Asset-Backed Securities, Securities Act Release No. 33-8518.70 Fed. Reg. 1,506,1,531 (January 7, 2005) and Asset-Backed Securities Disclosure and Registration, Securities Act Release No. 33-9638, 79 Fed. Reg. 57,184 (September 24, 2014)) or by the staff of the Commission, or as may be provided by the Commission or its staff from time to time.
“Rule 144A” means Rule 144A under the Securities Act.
“Rule 144A Letter” has the meaning set forth in Section 3.4(b).
“Securities” means the Notes and Trust Certificates.
“Securitization Trust” means GM Financial Automobile Leasing Trust 2024-3, the trust created pursuant to the Original Trust Agreement and continued pursuant to this Agreement.
“Securityholders” means Trust Certificateholders and the Noteholders.
“Statutory Trust Statute” means Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code § 3801 et seq., as the same may be amended from time to time.
“Titling Trust Certificateholder” means a Person in whose name a Certificate of the Titling Trust is registered.
“Treasury Regulations” means regulations, including proposed or temporary regulations, promulgated under the Code. References herein to specific provisions of proposed or temporary regulations shall include analogous provisions of final Treasury Regulations or other successor Treasury Regulations.
“Trust Certificate” means a certificate evidencing the undivided beneficial interest of a Trust Certificateholder in the assets of the Securitization Trust, substantially in the form attached hereto as Exhibit A.
“Trust Certificateholder” means a Person in whose name a Trust Certificate is registered.
4
SECTION 1.2. Interpretive Provisions.
(a) For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires, (i) terms used in this Agreement include, as appropriate, all genders and the plural as well as the singular, (ii) references to words such as “this Agreement”, “herein”, “hereof” and the like shall refer to this Agreement as a whole and not to any particular part, Article or Section within this Agreement, (iii) references to an Article, Section or Exhibit such as “Article One”, “Section 1.1” or Exhibit A shall refer to the applicable Article, Section or Exhibit of this Agreement, (iv) the term “include” and all variations thereof means “include without limitation”, (v) the term “or” shall include “and/or”, (vi) the term “proceeds” shall have the meaning ascribed to such term in the UCC, (vii) any agreement, instrument or statute defined or referred to herein or in any instrument or certificate delivered in connection herewith means such agreement, instrument or statute as from time to time amended, restated, modified, supplemented or replaced (in the case of a statute) and includes (in the case of agreements or instruments) references to all attachments, annexes, exhibits and schedules thereto and instruments incorporated therein, except that references to the 2024-3 Exchange Note Supplement and the 2024-3 Servicing Agreement include only such items as relate to the 2024-3 Exchange Note, and (viii) any defined term which relates to a Person shall include within its definition the successors and permitted assigns of such Person.
(b) As used in this Agreement and in any certificate or other document made or delivered pursuant hereto, accounting terms not defined in this Agreement or in any such certificate or other document, and accounting terms partly defined in this Agreement or in any such certificate or other document to the extent not defined, shall have the respective meanings given to them under generally accepted accounting principles. To the extent that the definitions of accounting terms in this Agreement or in any such certificate or other document are inconsistent with the meanings of such terms under generally accepted accounting principles, the definitions contained in this Agreement or in any such certificate or other document shall control.
SECTION 1.3. Amendment and Restatement. This Agreement amends and restates in full the Original Trust Agreement, with effect as of the date of this Agreement, and the parties confirm that (a) all prior actions made pursuant to such Original Trust Agreement are effective as if made under this Agreement on the date made, and (b) no provision of this Agreement is intended to result in the duplication of any such prior action by any party.
ARTICLE II
ORGANIZATION
SECTION 2.1. Name. The trust created pursuant to the Original Trust Agreement and continued hereby shall be known as “GM Financial Automobile Leasing Trust 2024-3”, in which name the Owner Trustee may conduct the business of the Securitization Trust, make and execute contracts and other instruments on behalf of the Securitization Trust and sue and be sued.
5
SECTION 2.2. Office. The office of the Securitization Trust shall be in care of the Owner Trustee at the Corporate Trust Office or at such other address in Delaware as the Owner Trustee may designate by written notice to the Trust Certificateholders and the Depositor.
SECTION 2.3. Purposes and Powers. The purpose of the Securitization Trust is and the Securitization Trust shall have the power and authority to engage in the following activities:
(a) to issue and sell the Notes pursuant to the Indenture and the Underwriting Agreement;
(b) to issue the Trust Certificates pursuant to this Agreement;
(c) with the net proceeds of the sale of the Notes, to acquire the 2024-3 Exchange Note and, to pay the organizational, start-up and transactional expenses of the Securitization Trust;
(d) to assign, grant, transfer, pledge, mortgage and convey the Owner Trust Estate pursuant to the Indenture and to hold, manage and distribute any portion of the Owner Trust Estate released from the lien of, and remitted to the Securitization Trust pursuant to, the Indenture;
(e) to enter into and perform its obligations under the Program Documents to which the Securitization Trust is a party; and
(f) to engage in those activities, including entering into agreements, that are necessary or suitable to accomplish the foregoing or are incidental thereto or connected therewith.
The Securitization Trust is hereby authorized to engage in the foregoing activities. The Securitization Trust shall not engage in any activity other than in connection with the foregoing or other than as required or authorized by the terms of this Agreement or the other Program Documents.
SECTION 2.4. Appointment of Owner Trustee. The Depositor hereby appoints Wilmington Trust Company as trustee of the Securitization Trust effective as of the date hereof, to have all the rights, powers and duties set forth herein. Wilmington Trust Company hereby accepts such appointment.
SECTION 2.5. Initial Capital Contribution of Owner Trust Estate. The Depositor has previously sold, assigned, transferred, conveyed and set over to the Owner Trustee, as of the date of the Original Trust Agreement, the sum of $1. The Owner Trustee hereby acknowledges receipt in trust from the Depositor, of the foregoing contribution, which shall constitute the initial Owner Trust Estate and shall be deposited in the 2024-3 Exchange Note Collections Account. The Depositor shall pay organizational expenses of the Securitization Trust as they may arise or shall, upon the request of the Owner Trustee, promptly reimburse the Owner Trustee for any such expenses paid by the Owner Trustee.
6
SECTION 2.6. Declaration of Trust. The Owner Trustee hereby declares that it will hold the Owner Trust Estate in trust upon and subject to the conditions set forth herein for the use and benefit of the Trust Certificateholders, subject to the obligations of the Securitization Trust under the Program Documents. It is the intention of the parties hereto that the Securitization Trust constitute a statutory trust under the Statutory Trust Statute and that this Agreement constitute the governing instrument of such statutory trust. Effective as of the date hereof, the Owner Trustee shall have all rights, powers authority and authorization set forth herein and in the Statutory Trust Statute with respect to accomplishing the purposes of the Securitization Trust.
SECTION 2.7. Liability of Trust Certificateholders. The Trust Certificateholders shall be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit organized under the general corporation law of the State of Delaware.
SECTION 2.8. Title to Owner Trust Estate. Legal title to all the Owner Trust Estate shall be vested at all times in the Securitization Trust as a separate legal entity except where applicable law in any jurisdiction requires title to any part of the Owner Trust Estate to be vested in a trustee or trustees, in which case title shall be deemed to be vested in the Owner Trustee, a co-trustee and/or a separate trustee, as the case may be.
SECTION 2.9. Situs of Securitization Trust. The Securitization Trust will be located in the State of Delaware. All bank accounts maintained by the Owner Trustee on behalf of the Securitization Trust shall be located in the State of Delaware or the State of New York. The Securitization Trust shall not have any employees in any State other than Delaware; provided, however, that nothing herein shall restrict or prohibit the Owner Trustee from having employees within or outside of the State of Delaware. Payments will be received by the Securitization Trust only in Delaware or New York, and payments will be made by the Securitization Trust only from Delaware or New York.
SECTION 2.10. Representations and Warranties of the Depositor. The Depositor hereby represents and warrants to the Owner Trustee that:
(a) The Depositor is duly organized and validly existing as a limited liability company in good standing under the laws of the State of Delaware, with power and authority to own its properties and to conduct its business as such properties are currently owned and such business is presently conducted.
(b) The Depositor is duly qualified to do business as a foreign limited liability company in good standing and has obtained or has filed all forms, in the appropriate form, that are required to obtain all necessary licenses and approvals in all jurisdictions in which the ownership or lease of its property or the conduct of its business shall require such qualifications.
(c) The Depositor has the power and authority to execute and deliver this Agreement and any other Program Document to which the Depositor is a party, and to carry out their respective terms; the Depositor has full power and authority to transfer and assign the property to be transferred and assigned to and deposited with the Securitization Trust and the Depositor has duly authorized such transfer and assignment and deposit to the Securitization Trust by all
7
necessary limited liability company action; and the execution, delivery and performance of this Agreement and any other Program Document to which the Depositor is a party have been duly authorized by the Depositor by all necessary action of a limited liability company.
(d) This Agreement and each other Program Document to which the Depositor is a party constitutes a legal, valid and binding obligation of the Depositor, enforceable in accordance with its terms, except as such enforceability may be subject to or limited by bankruptcy, liquidation, insolvency, reorganization, moratorium, liquidation, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general and by general principles of equity, regardless of whether such enforceability shall be considered in a proceeding in equity or in law.
(e) The consummation of the transactions contemplated by this Agreement and any other Program Document to which the Depositor is a party and the fulfillment of the respective terms hereof and thereof do not conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time) a default under, the limited liability company agreement of the Depositor, or any material indenture, agreement or other instrument to which the Depositor is a party or by which it is bound; nor result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement or other instrument (other than pursuant to the Program Documents); nor violate any law or any order, rule or regulation applicable to the Depositor of any court or of any federal or State regulatory body, administrative agency or other Governmental Authority having jurisdiction over the Depositor or its properties.
(f) There are no proceedings or investigations pending or, to the best of the Depositor’s knowledge, threatened before any court, regulatory body, administrative agency or other Governmental Authority having jurisdiction over the Depositor or its properties: (i) asserting the invalidity of this Agreement or any other Program Document, (ii) seeking to prevent the consummation of any of the transactions contemplated by this Agreement or any other Program Document or (iii) seeking any determination or ruling that might materially and adversely affect the performance by the Depositor of its obligations under, or the validity or enforceability of, this Agreement or any other Program Document.
SECTION 2.11. Federal Income Tax Treatment of the Trust.
(a) For so long as the Securitization Trust has a single owner for federal income tax purposes, pursuant to Treasury Regulations promulgated under Section 7701 of the Code, it will be disregarded as an entity distinct from the Trust Certificateholder for federal income tax purposes. Accordingly, for federal income tax purposes, the Trust Certificateholder will be treated as (i) owning all assets owned by the Securitization Trust and (ii) having incurred all liabilities incurred by the Securitization Trust, and all transactions between the Securitization Trust and the Trust Certificateholder will be disregarded. The parties agree that, unless otherwise required by appropriate tax authorities, the Securitization Trust will file or cause to be filed annual or other necessary returns, reports and other forms consistent with the characterization of the Securitization Trust as provided in the preceding sentence for such tax purposes.
8
(b) Neither the Owner Trustee nor the Trust Certificateholder will, nor will the Trust Certificateholder direct the Owner Trustee to, make an election on IRS Form 8832 or otherwise to classify the Securitization Trust as an association taxable as a corporation for federal, state or any other applicable tax purpose.
(c) In the event that the Securitization Trust has two or more owners for federal income tax purposes, pursuant to Treasury Regulations promulgated under Section 7701 of the Code, it will be treated as a partnership, with the assets of the partnership being the 2024-3 Exchange Note and other assets held by the Securitization Trust, the partners of the partnership being the Trust Certificateholders and the Notes being debt of the partnership, solely for income and franchise tax purposes. At any such time that the Securitization Trust has two or more equity owners, this Agreement will be amended, in accordance with Section 11.1 herein, and appropriate provisions will be added so as to provide for treatment of the Securitization Trust as a partnership.
(d) In the event that the Securitization Trust is classified as a partnership for federal income tax purposes (i) the Depositor (or if the Depositor is no longer a Trust Certificateholder, the Majority Certificateholder) is hereby designated as the “partnership representative” under Section 6223(a) of the Code and (ii) the partnership representative will or will cause the Securitization Trust, to the extent eligible, to make the election under Section 6221(b) of the Code with respect to determinations of adjustments at the partnership level and take any other action (such as disclosures and notifications) necessary or appropriate to effectuate such election. If the election described in the preceding sentence is not available, to the extent applicable, the partnership representative will or will cause the Securitization Trust to make the election under Section 6226(a) of the Code with respect to the alternative to payment of imputed underpayment by a partnership and take any other action such as filings, disclosures and notifications necessary or appropriate to effectuate such election. The partnership representative is authorized, in its sole discretion, to make any available election with respect to the BBA Partnership Audit Rules and take any action it deems necessary or appropriate to comply with the requirements of the Code and to conduct the Securitization Trust’s affairs with respect to the BBA Partnership Audit Rules. Each Trust Certificateholder and, if different, each beneficial owner of a Trust Certificate, shall promptly provide the partnership representative any requested information, documentation or material to enable the partnership representative to make any of the elections described in this clause (d) and otherwise comply with the BBA Partnership Audit Rules. The provisions of this Section 2.11(d) shall survive any termination of this Agreement. In addition, should the Securitization Trust be classified as a partnership, the partnership representative, may, in its sole discretion, cause the Securitization Trust to make an election under Section 754 of the Code.
ARTICLE III
TRUST CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.1. Initial Ownership. Until the issuance of the Trust Certificates, the Depositor shall be the sole beneficiary of the Securitization Trust.
SECTION 3.2. The Trust Certificates.
9
(a) The Trust Certificates shall be substantially in the form set forth in Exhibit A and shall be issued in minimum denominations of a one percent Percentage Interest in the Securitization Trust. Except for the issuance of Trust Certificates to the Depositor, no Trust Certificate may be sold, pledged or otherwise transferred to any Person except in accordance with Section 3.4 and any attempted sale, pledge or transfer in violation of such Section shall be null and void.
The Trust Certificates may be in printed or in typewritten form, and may be executed on behalf of the Securitization Trust by manual or facsimile signature of an authorized officer of the Owner Trustee. Trust Certificates bearing the manual or facsimile signatures of individuals who were, at the time when such signatures shall have been affixed, authorized to sign on behalf of the Securitization Trust, shall be validly issued and entitled to the benefit of this Agreement, notwithstanding that such individuals or any of them shall have ceased to be so authorized prior to the authentication and delivery of such Trust Certificates or did not hold such offices at the date of authentication and delivery of such Trust Certificates. If registration of a transfer of a Trust Certificate is permitted pursuant to Section 3.4, the transferee of such Trust Certificate shall become a Trust Certificateholder, and shall be entitled to the rights and subject to the obligations of a Trust Certificateholder hereunder, upon due registration of such Trust Certificate in such transferee’s name pursuant to Section 3.4.
(b) Payments in respect of the Trust Certificates shall be payable to the Trust Certificateholders in accordance with Section 5.1.
SECTION 3.3. Authentication of Trust Certificates. Concurrently with the transfer of the 2024-3 Exchange Note to the Securitization Trust, the Owner Trustee shall cause the Trust Certificates in an aggregate Percentage Interest equal to 100% to be executed on behalf of the Securitization Trust, authenticated and delivered to or upon the written order of the Depositor. No Trust Certificate shall entitle its holder to any benefit under this Agreement, or shall be valid for any purpose, unless there shall appear on such Trust Certificate a certificate of authentication, substantially in the form set forth in Exhibit A, executed by the Owner Trustee or the Authenticating Agent, by manual signature; such authentication shall constitute conclusive evidence that such Trust Certificate shall have been duly authenticated and delivered hereunder. All Trust Certificates shall be dated the date of their authentication. Upon issuance, execution and delivery pursuant to the terms hereof, the Trust Certificates shall be entitled to the benefits of this Agreement. Computershare is hereby appointed as the initial Authenticating Agent.
SECTION 3.4. Registration of Transfer and Exchange.
(a) The Certificate Registrar shall cause to be kept a register (the “Certificate Register”) in which, subject to such reasonable regulations as it may prescribe, the Certificate Registrar shall provide for the registration of Trust Certificates and, if and to the extent transfers and exchanges are permitted pursuant to Section 3.4(b), the registration of transfers of Trust Certificates. No transfer of a Trust Certificate shall be recognized except upon registration of such transfer. Computershare is hereby appointed as the initial “Certificate Registrar”. Upon any resignation of the Certificate Registrar, the Depositor shall promptly appoint a successor.
10
(b) The Trust Certificates have not been and will not be registered under the Securities Act and will not be listed on any exchange. No transfer of a Trust Certificate shall be made unless such transfer is made pursuant to an effective registration statement under the Securities Act and any applicable state securities laws or is exempt from the registration requirements under the Securities Act and such state securities laws. In the event that a transfer is to be made in reliance upon an exemption from the Securities Act and state securities laws, in order to assure compliance with the Securities Act and such laws, the Trust Certificateholder desiring to effect such transfer and such Trust Certificateholder’s prospective transferee shall each certify to the Owner Trustee in writing the facts surrounding the transfer in substantially the forms set forth in Exhibit C (the “Transferor Certificate”) and either Exhibit D (the “Investment Letter”) or Exhibit E (the “Rule 144A Letter”). Except in the case of a transfer as to which the proposed transferee has provided a Rule 144A Letter, there shall also be delivered to the Owner Trustee an Opinion of Counsel that such transfer may be made pursuant to an exemption from the Securities Act, which Opinion of Counsel shall not be an expense of the Securitization Trust or the Owner Trustee. The Depositor shall provide to any Trust Certificateholder and any prospective transferee designated by any such Trust Certificateholder, information regarding the Trust Certificates and the 2024-3 Exchange Note and such other information as shall be necessary to satisfy the condition to eligibility set forth in Rule 144A(d)(4) for transfer of any such Trust Certificate without registration thereof under the Securities Act pursuant to the registration exemption provided by Rule 144A. Each Trust Certificateholder desiring to effect such a transfer shall, and does hereby agree to, indemnify the Securitization Trust, the Owner Trustee, the Trust Company and the Depositor against any liability that may result if the transfer is not so exempt or is not made in accordance with federal and state securities laws. Each Trust Certificate is to contain a legend in the form set forth on the form of Trust Certificate attached hereto as Exhibit A.
(c) Upon surrender for registration of transfer or exchange of any Trust Certificate at the office of the Certificate Registrar and upon compliance with the provisions of this Agreement relating to such transfer or exchange, provided that the requirements of Section 8-401(a) of the UCC are met, the Owner Trustee upon written direction of the Depositor shall execute on behalf of the Securitization Trust and shall, or shall cause the Authenticating Agent to, authenticate and deliver, in the name of the designated transferee or transferees, one or more new Trust Certificates of a like aggregate Percentage Interest that the Trust Certificateholder making the exchange is entitled to receive and dated the date of such authentication of the Trust Certificates, as the case may be; provided that prior to such execution, authentication and delivery, the Owner Trustee and the Depositor shall have received an Issuer Tax Opinion. Notwithstanding the foregoing, no sale or transfer of a Trust Certificate shall be permitted (including, without limitation, by pledge or hypothecation), and no such sale or transfer shall be registered by the Certificate Registrar to be effective hereunder, if the sale or transfer thereof increases the number of Trust Certificateholders and Titling Trust Certificateholders to more than ninety-five (95). For purposes of determining the total number of Trust Certificateholders, a beneficial owner of an interest in a partnership, grantor trust or S corporation for federal income tax purposes (each, a “Flow-Through Entity”) that owns, directly or through other Flow-Through Entities, a Trust Certificate, is treated as a holder of a Trust Certificate if (i) substantially all of the value of the beneficial owner’s interest (directly or indirectly) in the Flow-Through Entity is attributed to the Flow-Through Entity’s interest in the Trust Certificate or (ii) a principal purpose of the use of the Flow-Through Entity to hold the Trust Certificate is to satisfy the 95 holder limitation set out
11
above. If using a Flow-Through Entity to acquire a Trust Certificate, the Trust Certificateholder shall be deemed to have represented that it is not using the Flow-Through Entity in order to avoid the 95 holder limitation set out above. In addition, no sale or transfer of a Trust Certificate shall be registered by the Certificate Registrar or made effective hereunder unless, as evidenced by a written representation and covenant by the transferee in form satisfactory to the Certificate Registrar (upon which representation and covenant the Certificate Registrar may conclusively rely without independent investigation), no member of the transferee’s expanded group as defined in Treasury Regulation Section 1.385-1(c)(4) (including through a controlled partnership as defined in Treasury Regulation Section 1.385-1(c)(1)) is or will become the beneficial owner of a Note. If a Trust Certificateholder or a member of its expanded group becomes the beneficial owner of a Note, the Depositor is authorized at its discretion to compel such Certificateholder to sell its Trust Certificate to a Person whose ownership complies with this paragraph so long as such sale does not otherwise cause a material adverse effect on the Securitization Trust. At the option of a Trust Certificateholder, Trust Certificates may be exchanged for other Trust Certificates of like tenor and aggregate Percentage Interest upon surrender of the Trust Certificates to be exchanged at the office or agency maintained pursuant to Section 3.8.
The Certificate Registrar shall require that every Trust Certificate presented or surrendered for registration of transfer or exchange shall be beneficially owned by a United States person within the meaning of Section 7701(a)(30) of the Code and shall be accompanied by a written instrument of transfer and accompanied by IRS Form W-9, and such other form or documentation as may be reasonably required by the Owner Trustee or the Certificate Registrar in order to comply with Applicable Anti-Money Laundering Law, in form satisfactory to the Certificate Registrar or the Owner Trustee, as applicable, duly executed by the Trust Certificateholder or such Person’s attorney duly authorized in writing. No such transfer will be effective unless the Owner Trustee has received the transfer documentation required hereunder.
No service charge shall be made for any registration of transfer or exchange of Trust Certificates, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any registration of transfer or exchange of Trust Certificates.
No Certificate may be held or beneficially owned by any Person that is not a United States person as defined under Section 7701(a)(30) of the Code. By accepting and holding its beneficial ownership interest in its Certificate, the Holder thereof shall be deemed to have represented and warranted that it is a United States person as defined under Section 7701(a)(30) of the Code.
The Certificate Registrar shall cancel and retain or destroy, in accordance with the Certificate Registrar’s retention policy then in effect, all Trust Certificates surrendered for registration of transfer or exchange and shall upon written request certify to the Depositor as to such retention or destruction.
12
(d) The provisions of this Section generally are intended, among other things, to prevent the Securitization Trust from being characterized as a “publicly traded partnership” within the meaning of Section 7704 of the Code, in reliance on Treasury Regulations Section 1.7704-1(e) and (h), and the Depositor shall take such intent into account in determining whether or not to consent to any proposed transfer of any Trust Certificate.
(e) The Trust Certificates may not be acquired or held by or for the account of (i) an “employee benefit plan” (as defined in Section 3(3) of ERISA) that is subject to the fiduciary responsibility provisions of Title I of ERISA, (ii) a “plan” (as defined in Section 4975(e)(1) of the Code) that is subject to Section 4975 of the Code, (iii) an entity whose underlying assets are deemed to include assets of an employee benefit plan or a plan described in (i) or (ii) above by reason of such employee benefit plan’s or a plan’s investment in the entity (each, a “Benefit Plan Investor”), or (iv) an employee benefit plan, a plan or other similar arrangement that is not a Benefit Plan Investor but is subject to federal, state, local, non-U.S. or other laws or regulations that are substantially similar to ERISA or Section 4975 of the Code (each of (i)-(iv), a “Benefit Plan Entity”). Each Trust Certificateholder shall be deemed to represent and warrant that it is not a Benefit Plan Entity.
The preceding provisions of this Section notwithstanding, the Owner Trustee shall not make and the Certificate Registrar shall not register any transfer or exchange of Trust Certificates for a period of fifteen (15) days preceding the due date for any payment with respect to the Trust Certificates. Notwithstanding anything contained herein to the contrary, neither the Certificate Registrar nor the Owner Trustee shall be responsible for ascertaining whether any transfer complies with the registration provisions or exemptions from the Securities Act, the Exchange Act, applicable state securities law, ERISA, the Investment Company Act, other applicable law, or the provisions of this Agreement. Except that, if an Investment Letter or Rule 144A Letter is required by this Section 3.4 and provided to the Owner Trustee, the Owner Trustee shall be under a duty to examine the same solely to determine whether it conforms substantially on its face to the applicable form attached hereto.
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Trust Certificates.
(a) If (i) any mutilated Trust Certificate shall be surrendered to the Certificate Registrar, or if the Certificate Registrar shall receive evidence to its satisfaction of the destruction, loss or theft of any Trust Certificate, and (ii) there shall be delivered to the Certificate Registrar, the Owner Trustee and the Trust Company such security or indemnity as may be required by them to save each of them harmless, then in the absence of notice that such Trust Certificate has been acquired by a Protected Purchaser, upon the written direction of the Depositor, the Owner Trustee on behalf of the Securitization Trust shall execute and the Owner Trustee or the Authenticating Agent, shall authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Trust Certificate, a new Trust Certificate of like tenor and Percentage Interest. If, after the delivery of such replacement Trust Certificate or payment of a destroyed, lost or stolen Trust Certificate, a Protected Purchaser of the original Trust Certificate in lieu of which such replacement Trust Certificate was issued presents for payment such original Trust Certificate, the Securitization Trust and the Owner Trustee shall be entitled to recover such replacement Trust Certificate (or such payment) from the Person to whom such replacement Trust Certificate was delivered or any Person taking such replacement
13
Trust Certificate from such Person to whom such replacement Trust Certificate was delivered or any assignee of such Person, except a Protected Purchaser, and shall be entitled to recover upon the security or indemnity provided therefor to the extent of any loss, damage, cost or expense incurred by the Securitization Trust or the Owner Trustee in connection therewith. Any duplicate Trust Certificate issued pursuant to this Section shall constitute conclusive evidence of ownership in the Securitization Trust, as if originally issued, whether or not the lost, stolen or destroyed Trust Certificate shall be found at any time.
(b) In connection with the issuance of any new Trust Certificate under this Section, the Owner Trustee or the Certificate Registrar may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith.
(c) Every replacement Trust Certificate issued pursuant to this Section in replacement of any mutilated, destroyed, lost or stolen Trust Certificate shall constitute an original additional contractual obligation of the Securitization Trust, whether or not the mutilated, destroyed, lost or stolen Trust Certificate shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Agreement equally and proportionately with any and all other Trust Certificates issued hereunder.
(d) The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Trust Certificates.
SECTION 3.6. Persons Deemed Trust Certificateholders. Prior to due presentation of a Trust Certificate for registration of transfer, the Owner Trustee, the Certificate Registrar or any Paying Agent will treat the Person in whose name any Trust Certificate is registered in the Certificate Register as the owner of such Trust Certificate for the purpose of receiving distributions pursuant to Section 5.1 and for all other purposes whatsoever, and none of the Owner Trustee, the Certificate Registrar or any Paying Agent shall be bound by any notice to the contrary.
SECTION 3.7. Access to List of Trust Certificateholders’ Names and Addresses. The Certificate Registrar shall furnish or cause to be furnished to the Owner Trustee, the Servicer and the Depositor, within ten (10) Business Days after receipt by the Certificate Registrar of a written request therefor from the Owner Trustee, the Servicer or the Depositor, a list, in such form as the Owner Trustee, the Servicer or the Depositor may reasonably require, of the names, addresses, and Percentage Interests of the Trust Certificateholders as of the most recent Record Date, and the Owner Trustee, the Depositor and the Servicer may rely and shall be fully protected in relying thereon.
If a Trust Certificateholder applies in writing to the Certificate Registrar, and such application states that the applicant desires to communicate with other Trust Certificateholders with respect to their rights under this Agreement or under the Trust Certificates, then the Certificate Registrar shall, within five (5) Business Days after the receipt of such application, afford such applicant access during normal business hours to the current list of Trust Certificateholders. Each Trust Certificateholder, by receiving and holding a Trust Certificate, shall be deemed to have agreed not to hold any of the Depositor, the Certificate Registrar or the
14
Owner Trustee accountable by reason of the disclosure of its name and address, regardless of the source from which such information was derived.
SECTION 3.8. Maintenance of Office or Agency. The Certificate Registrar shall maintain an office or offices or agency or agencies where Trust Certificates may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Certificate Registrar in respect of the Trust Certificates and the Program Documents may be served. The Certificate Registrar designates its offices at Computershare Trust Company, N.A., 1505 Energy Park Drive St. Paul, Minnesota 55108, Attention: Computershare Corporate Trust for such purposes. The Certificate Registrar shall give prompt written notice to the Depositor and to the Trust Certificateholders of any change in the location of the Certificate Register or any such office or agency.
SECTION 3.9. Appointment of Paying Agent. The Paying Agent shall make distributions to Trust Certificateholders pursuant to Section 5.1 and shall report the amounts of such distributions to the Depositor. The Depositor may revoke such power and remove the Paying Agent if the Depositor determines in its sole discretion that the Paying Agent shall have failed to perform its obligations under this Agreement in any material respect or that it is in the interest of the Trust Certificateholders to do so. The Paying Agent initially shall be the Indenture Trustee, and any co-paying agent chosen by the Indenture Trustee and acceptable to the Depositor. The Depositor shall cause such successor Paying Agent or any additional Paying Agent appointed by the Depositor to execute and deliver to the Depositor an instrument in which such successor Paying Agent or additional Paying Agent shall agree with the Owner Trustee that, as Paying Agent, such successor Paying Agent or additional Paying Agent will cause all sums, if any, to be held by the Collateral Agent for payment to the Trust Certificateholders in trust for the benefit of the Trust Certificateholders entitled thereto until such sums shall be paid to such Trust Certificateholders. Upon removal of a Paying Agent such Paying Agent shall cause all funds in the Collateral Agent’s possession to be returned to the successor Paying Agent. The provisions of Sections 7.1, 7.3, 7.4 and 8.1 shall apply to the Owner Trustee also in its role as Paying Agent, if and for so long as the Owner Trustee shall act as Paying Agent, if and, to the extent applicable, to any other paying agent appointed hereunder. Any reference in this Agreement to the Paying Agent shall include any co-paying agent unless the context requires otherwise.
SECTION 3.10. Definitive Trust Certificates. The Trust Certificates, upon original issuance, will be issued in definitive, fully registered form.
SECTION 3.11. Trust Certificates held by Depositor or its Affiliates. Unless otherwise specified in this Agreement or other Program Documents, any Trust Certificates owned by the Depositor, the Servicer (so long as GM Financial or an Affiliate thereof is the Servicer) or any of their respective Affiliates shall be entitled to the benefits under this Agreement equally and proportionately to the benefits afforded other owners of the Trust Certificates, except that such Trust Certificates shall be deemed not to be outstanding for the purpose of determining whether the requisite percentage of Securityholders have given any request, demand, authorization, direction, notice, consent or other action under the Program Documents (other than the commencement by the Securitization Trust of a voluntary proceeding in bankruptcy).
15
SECTION 3.12. Trust Certificates Nonassessable and Fully Paid. Trust Certificateholders shall not be personally liable for obligations of the Securitization Trust. Except as set forth herein, the interests represented by the Trust Certificates shall be nonassessable for any losses or expenses of the Securitization Trust or for any reason whatsoever, and, upon authentication thereof pursuant to Sections 3.3, 3.4 and 3.5, the Trust Certificates shall be deemed fully paid.
SECTION 3.13. No Legal Title to Owner Trust Estate in Trust Certificateholders. The Trust Certificateholders shall not have legal title to any part of the Owner Trust Estate. The Trust Certificateholders shall be entitled to receive distributions with respect to their undivided beneficial interest therein only in accordance with Articles Five and Nine. No transfer, by operation of law or otherwise, of any right, title or interest of the Trust Certificateholders to and in their beneficial interest in the Securitization Trust shall operate to terminate this Agreement or the trusts hereunder or entitle any transferee to an accounting or to the transfer to it of legal title to any part of the Owner Trust Estate.
SECTION 3.14. No Recourse. Each Trust Certificateholder by accepting a Trust Certificate acknowledges that such Trust Certificateholder’s Trust Certificates represent beneficial interests in the Securitization Trust only and do not represent interests in or obligations of the Depositor, the Servicer, the Administrator, the Owner Trustee, the Trust Company, the Indenture Trustee or any of their respective Affiliates and no recourse may be had against such parties or their assets, except as may be expressly set forth or contemplated in this Agreement or the Trust Certificates.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1. Prior Notice to Trust Certificateholders with Respect to Certain Matters. Subject to the provisions and limitations of Section 4.4, with respect to the following matters, the Securitization Trust shall not take action unless at least thirty (30) days before the taking of such action, the Owner Trustee shall have notified the Trust Certificateholders in writing of the proposed action and prior to the 30th day after such notice is given the Trust Certificateholders shall not have notified the Owner Trustee in writing that such Trust Certificateholders have withheld consent or provided alternative direction:
(a) the initiation of any claim or lawsuit by the Securitization Trust (except claims or lawsuits brought by the Servicer on behalf of the Titling Trust and Persons having interest in the 2024-3 Exchange Note to collect amounts owed under the 2024-3 Lease Agreements or in respect of a 2024-3 Leased Vehicles) and the compromise of any action, claim or lawsuit brought by or against the Securitization Trust (except with respect to the aforementioned claims or lawsuits for collection of the 2024-3 Lease Agreements and the 2024-3 Leased Vehicles);
(b) the election by the Securitization Trust to file an amendment to the Certificate of Trust (unless such amendment is required to be filed under the Statutory Trust Statute);
16
(c) the amendment of the Indenture by a supplemental indenture in circumstances where such amendment materially adversely affects the interests of the Trust Certificateholders;
(d) the amendment, change or modification of the Administration Agreement, except to cure any ambiguity or to amend or supplement any provision in a manner or add any provision that would not materially adversely affect the interests of the Trust Certificateholders; or
(e) the appointment pursuant to the Indenture of a successor Note Registrar or Indenture Trustee or pursuant to this Agreement of a successor Certificate Registrar or Paying Agent, or the consent to the assignment by the Note Registrar, Paying Agent or Indenture Trustee or Certificate Registrar of its obligations under the Indenture or this Agreement, as applicable.
SECTION 4.2. Action by Trust Certificateholders with Respect to Certain Matters.
(a) Subject to the provisions and limitations of this Agreement, to the extent the Owner Trustee or the Securitization Trust is deemed to be the 2024-3 Exchange Noteholder pursuant to the 2024-3 Exchange Note Supplement and the Credit and Security Agreement, subsequent to the payment in full of all obligations secured by the Indenture, the Owner Trustee or Securitization Trust, as the case may be, shall take such actions as directed in writing by Trust Certificateholders of Trust Certificates evidencing at least 662/3% of the Percentage Interests. The Securitization Trust may not, except upon the occurrence of a Servicer Default, subsequent to the payment in full of the Notes and in accordance with the written directions of Trust Certificateholders of Trust Certificates evidencing at least 662/3% of the Percentage Interests, remove the Servicer with respect to the 2024-3 Exchange Note or appoint a Successor Servicer with respect thereto.
(b) The Securitization Trust shall not have the power, except upon the direction of Trust Certificateholders of Trust Certificates evidencing at least 662/3% of the Percentage Interests, to (i) remove the Administrator under the Administration Agreement pursuant to Section 1.09 thereof, (ii) appoint a successor Administrator pursuant to Section 1.09 of the Administration Agreement, or (iii) except as expressly provided in the Program Documents, sell the 2024-3 Exchange Note after the termination of the Indenture. The Securitization Trust shall take the actions referred to in the preceding sentence only upon written instructions signed by Trust Certificateholders of Trust Certificates evidencing at least 662/3% of the Percentage Interests.
SECTION 4.3. Action by Trust Certificateholders with Respect to Bankruptcy. The Securitization Trust shall not have the power to commence a voluntary proceeding in bankruptcy relating to the Securitization Trust without the unanimous prior approval of all Trust Certificateholders and the delivery to the Securitization Trust by each such Trust Certificateholder of a certificate certifying that such Trust Certificateholder reasonably believes that the Securitization Trust is insolvent.
SECTION 4.4. Restrictions on Trust Certificateholders’ Power. The Trust Certificateholders shall not direct the Owner Trustee to take or to refrain from taking any action if such action or inaction would be contrary to any obligation of the Securitization Trust or the
17
Owner Trustee under this Agreement or any of the Program Documents or would be contrary to Section 2.3 or 6.3, nor shall the Owner Trustee be obligated to follow any such direction, if given.
SECTION 4.5. Super-Majority Control. Except as expressly provided herein, any action that may be taken by the Trust Certificateholders under this Agreement shall be taken only by Trust Certificateholders of Trust Certificates evidencing at least 662/3% of the Percentage Interests thereof. Except as expressly provided herein, any written notice of the Trust Certificateholders delivered pursuant to this Agreement shall be effective only if signed by such super-majority of Trust Certificateholders.
ARTICLE V
APPLICATION OF SECURITIZATION TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1. Application of Securitization Trust Funds.
(a) At least two (2) Business Days prior to each Payment Date, the Servicer shall send instructions to the Indenture Trustee to make payments or distributions in accordance with Section 8.3 of the Indenture. Distributions to Trust Certificateholders will be made in accordance with Section 5.4(c) or Section 8.3(a)(xv), as applicable, of the Indenture; provided, however, that so long as the Depositor or an Affiliate of the Depositor is a Trust Certificateholder, the Depositor will, or will cause such Affiliate of the Depositor to, as the case may be, promptly remit all amounts that the Depositor or such Affiliate, as applicable, receives as Trust Certificateholder pursuant to Section 5.4(c)(NINTH) or Section 8.3(a)(xv) of the Indenture and that represent Excess Exchange Note Payments to the Borrower for further application to the Lending Facility Pool.
(b) So long as the Depositor is the sole Trust Certificateholder, on or following the Payment Date on which the Note Principal Balance has been reduced to zero and all Obligations shall have been satisfied, the Depositor may direct the Owner Trustee in writing to distribute to it, and upon receipt of such direction the Owner Trustee shall distribute to or upon the order of the Depositor, the remaining assets of the Securitization Trust.
(c) On or before each Payment Date, the Servicer shall deliver to each Trust Certificateholder a Servicer Report with respect to such Payment Date and the related Collection Period.
(d) In the event that any withholding tax is imposed on the Securitization Trust’s payment (or, if the Securitization Trust is treated as a partnership for federal income tax purposes, allocations of income) to a Trust Certificateholder, such tax shall reduce the amount otherwise distributable to such Trust Certificateholder in accordance with this Section. The Paying Agent is hereby authorized and directed to cause to be retained from amounts otherwise distributable to such Trust Certificateholders, sufficient funds for the payment of any withholding tax that is legally owed by the Securitization Trust (but such authorization shall not prevent the Securitization Trust from contesting any such tax in appropriate proceedings, and withholding payment of such tax, if permitted by law, pending the outcome of such
18
proceedings). The amount of any withholding tax imposed with respect to a Trust Certificateholder shall be treated as cash distributed to such Trust Certificateholder, at the time it is withheld by the Securitization Trust for remittance to the appropriate taxing authority. If the Paying Agent determines that there is a possibility that withholding tax is payable with respect to a distribution, the Paying Agent may in its sole discretion cause to be withheld such amounts in accordance with this Section. In the event that a Trust Certificateholder wishes to apply for a refund of any such withholding tax, the Paying Agent shall reasonably cooperate with such Trust Certificateholder in making such claim so long as such Trust Certificateholder agrees to reimburse the Paying Agent for any out-of-pocket expenses incurred.
SECTION 5.2. Method of Payment. Subject to Section 9.1, distributions required to be made to Trust Certificateholders on any Payment Date shall be made by the Paying Agent to each Trust Certificateholder of record on the preceding Record Date by wire transfer, in immediately available funds, to the account of such Trust Certificateholder at a bank or other entity having appropriate facilities therefor, if such Trust Certificateholder shall have provided to the Certificate Registrar appropriate written instructions at least five (5) Business Days prior to such Payment Date, or, if not, by check mailed to such Trust Certificateholder at the address of such Trust Certificateholder appearing in the Certificate Register.
SECTION 5.3. Accounting and Reports to Trust Certificateholders, Internal Revenue Service and Others.
(a) The Owner Trustee shall, based on information provided by the Depositor, (i) maintain (or cause to be maintained) the books of the Securitization Trust on a fiscal year basis ending December 31 on the accrual method of accounting and in addition to the Owner Trustee’s rights under Section 5.1, take such action as instructed by the Trust Certificateholders to collect or cause to be collected and paid over to applicable authorities any withholding tax as described in and in accordance with Section 5.1 with respect to income or distributions to Trust Certificateholders.
(b) The Owner Trustee shall deliver to each Trust Certificateholder such information, reports or statements as may be required by the Code and applicable Treasury Regulations and as may be required to enable each Trust Certificateholder to prepare its federal and state income tax returns. In no event shall the Owner Trustee, the Trust Company, or the Depositor (or such designee Trust Certificateholder, as applicable) be liable for any liabilities, costs or expenses of the Securitization Trust if it is treated as a separate entity subject to taxation or the Noteholders arising out of the application of any tax law, including federal, State, foreign or local income or excise taxes or any other tax imposed on or measured by the Securitization Trust’s or a Noteholder’s income (or any interest, penalty or addition with respect thereto or arising from a failure to comply therewith) except for any such liability, cost or expense attributable to the willful misconduct or gross negligence by the Owner Trustee or the Depositor (or such designee Trust Certificateholder, as applicable), as the case may be, in breach of its obligations under this Agreement.
(c) Each Trust Certificateholder, by acceptance of such Trust Certificate or such interest therein, agrees to provide to the Owner Trustee, upon its reasonable request, the FATCA Information to the extent such Trust Certificateholder is legally entitled to do so. In addition,
19
each Trust Certificateholder, by acceptance of such Trust Certificate or such interest therein, agrees that the Owner Trustee has the right to withhold or deduct (and to promptly pay over, in full, to the relevant taxing authority) any amounts properly withheld or deducted under law (and without any corresponding gross-up) payable to a Trust Certificateholder that fails to comply with the requirements of the preceding sentence.
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.1. General Authority.
(a) The Owner Trustee is authorized and empowered to execute and deliver the Program Documents to which the Securitization Trust is to be a party and each certificate or other document attached as an exhibit to or contemplated by the Program Documents to which the Securitization Trust is to be a party and any amendment or other agreement or instrument, in each case, in such form as the Depositor shall approve, as evidenced conclusively by the presentation thereof to the Owner Trustee and the Owner Trustee’s execution thereof. In addition to the foregoing, the Owner Trustee is authorized and empowered, but shall not be obligated, to take all actions required of the Securitization Trust pursuant to the Program Documents. The Owner Trustee is further authorized and empowered from time to time to take such action as the Administrator recommends with respect to the Program Documents.
(b) At the written direction of the Trust Certificateholder, the Owner Trustee shall sign on behalf of the Securitization Trust any applicable tax returns of the Securitization Trust delivered to it by the Servicer, unless applicable law requires the Trust Certificateholder to sign such documents.
SECTION 6.2. General Duties. It shall be the duty of the Owner Trustee to discharge (or cause to be discharged) only those responsibilities expressly required to be performed by it pursuant to the terms of this Agreement and the Program Documents to which the Securitization Trust is a party, in the interest of the Trust Certificateholders, and in all cases subject to such Program Documents and in accordance with the provisions of this Agreement. In addition to the foregoing, the Owner Trustee shall comply with the obligations set forth in Section 2.5(b) of the Servicing Supplement. Notwithstanding the foregoing, the Owner Trustee shall be deemed to have discharged its duties and responsibilities hereunder and under the other Program Documents to the extent the Administrator has agreed in the Administration Agreement to perform any act or to discharge any duty of the Owner Trustee or the Securitization Trust hereunder or under any other Program Document, and the Owner Trustee shall not be held liable for the default or failure of the Administrator to carry out its obligations under the Administration Agreement.
SECTION 6.3. Action upon Instruction.
(a) Subject to Article Four and in accordance with the terms of the Program Documents, the Trust Certificateholders may by written instruction direct the Owner Trustee in
20
the management of the Securitization Trust. Such direction may be exercised at any time by written instruction of the Trust Certificateholders pursuant to Article Four.
(b) The Owner Trustee shall not be required to take any action hereunder or under any other Program Document if the Owner Trustee shall have reasonably determined, or shall have been advised by counsel, that such action is likely to result in liability on the part of the Owner Trustee or is contrary to the terms hereof or of any other Program Document or is otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between alternative courses of action permitted or required by the terms of this Agreement or under any other Program Document, the Owner Trustee shall promptly give notice (in such form as shall be appropriate under the circumstances) to the Trust Certificateholders requesting instruction as to the course of action to be adopted, and to the extent the Owner Trustee acts in good faith in accordance with any written instruction of the Trust Certificateholders received, the Owner Trustee shall not be liable on account of such action to any Person. If the Owner Trustee shall not have received appropriate instruction within ten (10) days of such notice (or within such shorter period of time as reasonably may be specified in such notice or may be necessary under the circumstances) it may, but shall be under no duty to, take or refrain from taking such action as it shall deem to be in the best interests of the Trust Certificateholders, and shall have no liability to any Person for such action or inaction.
(d) In the event that the Owner Trustee is unsure as to the application of any provision of this Agreement or any other Program Document or any such provision is ambiguous as to its application, or is, or appears to be, in conflict with any other applicable provision, or in the event that this Agreement permits any determination by the Owner Trustee or is silent or is incomplete as to the course of action that the Owner Trustee is required to take with respect to a particular set of facts, the Owner Trustee may give notice (in such form as shall be appropriate under the circumstances) to the Trust Certificateholders requesting instruction and, to the extent that the Owner Trustee acts or refrains from acting in good faith in accordance with any such instruction received, the Owner Trustee shall not be liable, on account of such action or inaction, to any Person. If the Owner Trustee shall not have received appropriate instruction within ten (10) days of such notice (or within such shorter period of time as reasonably may be specified in such notice or may be necessary under the circumstances) it may, but shall be under no duty to, take or refrain from taking such action as it shall deem to be in the best interests of the Trust Certificateholders, and shall have no liability to any Person for such action or inaction.
(e) Notwithstanding the foregoing, the right of the Depositor or the Trust Certificateholders to take any action affecting the Owner Trust Estate shall be subject to the rights of the Indenture Trustee under the Indenture.
SECTION 6.4. No Duties Except as Specified in this Agreement or in Instructions. The Owner Trustee shall not have any duty or obligation to manage, make any payment with respect to, register, record, sell, dispose of, or otherwise deal with the Owner Trust Estate, or to otherwise take or refrain from taking any action under, or in connection with, this Agreement, the Securitization Trust or any document contemplated hereby to which the Owner Trustee is a party, except as expressly provided by the terms of this Agreement or in any document or written
21
instruction received by the Owner Trustee pursuant to Section 6.3; and no implied duties or obligations shall be read into this Agreement or any other document against the Owner Trustee. To the extent that, at law or in equity, the Owner Trustee has duties (including, without limitation, fiduciary duties) and liabilities relating thereto to the Securitization Trust or to the Depositor and the other Trust Certificateholders, the Owner Trustee shall not be personally liable to the Securitization Trust or to the Depositor and the other Trust Certificateholders, to the fullest extent permitted by law, for the Owner Trustee’s good faith reliance on the provisions of this Agreement. The provisions of this Agreement, to the extent that they restrict or eliminate the duties (including, without limitation, fiduciary duties) and liabilities of the Owner Trustee otherwise existing at law or in equity, are agreed by the Owner Trustee, the Depositor, and the Trust Certificateholders to replace such other duties (including, without limitation, fiduciary duties) and liabilities to the fullest extent permitted by law (including, without limitation, Section 3806(c)(2) of the Statutory Trust Statute, as amended). The Owner Trustee shall have no responsibility for filing any trust licensing or qualifications to do business, securities law filing, tax filing, financing or continuation statement in any public office at any time or to otherwise perfect or maintain the perfection of any ownership or security interest or lien granted to it hereunder or to record this Agreement or any other Program Document or monitor or enforce the satisfaction of any risk retention requirement. The Owner Trustee nevertheless agrees that it will, at its own cost and expense, promptly take all action as may be necessary to discharge any liens on any part of the Owner Trust Estate that result from actions by, or claims against, the Owner Trustee that are not related to the ownership or the administration of the Owner Trust Estate.
SECTION 6.5. No Action Except Under Specified Documents or Instructions. The Owner Trustee shall not manage, control, use, sell, dispose of or otherwise deal with any part of the Owner Trust Estate except (a) in accordance with the powers granted to and the authority conferred upon the Owner Trustee pursuant to this Agreement, or (b) in accordance with any document or instruction delivered to the Owner Trustee pursuant to Section 6.3.
SECTION 6.6. Restrictions. The Owner Trustee shall not take any action (a) that is inconsistent with the purposes of the Securitization Trust set forth in Section 2.3 of this Agreement, or (b) that, to the actual knowledge of the Owner Trustee, would result in the Securitization Trust’s becoming an association (or publicly traded partnership) taxable as a corporation for federal income tax purposes. The Trust Certificateholders shall not direct the Owner Trustee to take action that would violate the provisions of this Section.
SECTION 6.7. Covenants for Reporting of Repurchase Demands due to Breaches of Representations and Warranties.
(a) The Owner Trustee will (i) in accordance with its obligations pursuant to Section 2.5 of the 2024-3 Servicing Supplement, provide prompt written notice upon the discovery of any breach of the Servicer’s representations and warranties, (ii) no later than five (5) Business Days after the end of each calendar quarter, provide to the Servicer and the Depositor, a notice in substantially the form of Exhibit F, or any other form agreed upon between the Owner Trustee and the Depositor, which shall be deemed acceptable to the Depositor unless the Depositor notifies the Owner Trustee within five (5) Business Days of its receipt thereof, with respect to any requests (in writing or orally) for the repurchase of any 2024-3 Lease Agreement and
22
the related 2024-3 Leased Vehicle pursuant to Section 2.5 of the 2024-3 Servicing Supplement received by a Responsible Officer of the Owner Trustee during the immediately preceding calendar quarter (or, in the case of the initial notice, since the 2024-3 Closing Date) and (iii) promptly upon reasonable written request by the Servicer or the Depositor, provide to them any other information reasonably requested in good faith that is in actual possession of the Owner Trustee and necessary to facilitate compliance by them with Rule 15Ga-1 under the Exchange Act, and Items 1104(e) and 1121(c) of Regulation AB.
(b) In no event will the Owner Trustee or the Issuer have any responsibility or liability in connection with (i) the compliance by the Servicer, the Depositor or any other Person with the Exchange Act or Regulation AB or (ii) any filing required to be made by a securitizer under the Exchange Act or Regulation AB. The Owner Trustee will not have a duty to conduct any affirmative investigation as to the occurrence of any conditions requiring the repurchase or reallocation of any 2024-3 Lease Agreement and the related 2024-3 Leased Vehicle pursuant to Section 2.5 of the 2024-3 Servicing Supplement.
ARTICLE VII
CONCERNING THE OWNER TRUSTEE
SECTION 7.1. Acceptance of Trusts and Duties.
(a) The Owner Trustee accepts the trusts hereby created and agrees to perform its duties hereunder with respect to such trusts, but only upon the terms of this Agreement. The Owner Trustee also agrees to disburse all monies actually received by it constituting part of the Owner Trust Estate upon the terms set forth in this Agreement. The Owner Trustee shall not be answerable or accountable hereunder under any circumstances, except to the Securitization Trust, the Depositor, and to the Trust Certificateholders (x) for its own willful misconduct or gross negligence, or (y) in the case of the inaccuracy of any representation or warranty contained in Section 7.3 expressly made by the Trust Company. In particular, but not by way of limitation (and subject to the exceptions set forth in the preceding sentence):
(i) the Owner Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Owner Trustee (except in the case of willful misconduct, bad faith or gross negligence);
(ii) the Owner Trustee shall not be liable with respect to any action taken or omitted to be taken by it in accordance with the instructions of the Administrator or any Trust Certificateholder;
(iii) no provision of this Agreement or any other Program Document shall require the Owner Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its rights or powers hereunder or under any other Program Document if the Owner Trustee shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured or provided to it;
23
(iv) the Owner Trustee shall not be responsible for or in respect of the validity or sufficiency of this Agreement or for the due execution hereof by the Depositor or for the form, character, genuineness, sufficiency, value or validity of any of the Owner Trust Estate, or for or in respect of the validity or sufficiency of the Program Documents, other than the certificate of authentication on the Trust Certificates, and the Owner Trustee shall in no event assume or incur any liability, duty or obligation to any Noteholder or to any Trust Certificateholder, other than as expressly provided for herein or expressly agreed to in the Program Documents;
(v) the Owner Trustee shall not be responsible for supervising or monitoring the performance of, and shall not be liable for the default or misconduct of the Administrator, the Depositor, the Indenture Trustee, the Servicer or any other person under any of the Program Documents or otherwise, and the Owner Trustee shall have no obligation or liability to perform the obligations of the Securitization Trust under this Agreement or the other Program Documents that are not expressly required to be performed by the Owner Trustee, including, without limitation, those that are required to be performed by the Administrator under the Administration Agreement, the Indenture Trustee under the Indenture or the Servicer under the 2024-3 Servicing Agreement;
(vi) the Owner Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement, or to institute, conduct or defend any litigation under this Agreement or otherwise or in relation to this Agreement or any other Program Document, at the request, order or direction of any of the Trust Certificateholders, unless such Trust Certificateholders have offered to the Owner Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred by the Owner Trustee therein or thereby. The right of the Owner Trustee to perform any discretionary act enumerated in this Agreement or in any other Program Document shall not be construed as a duty, and the Owner Trustee shall not be answerable for other than to the Securitization Trust, the Depositor, and the Trust Certificateholders for its own gross negligence or willful misconduct in the performance of any such act;
(vii) in no event shall the Owner Trustee, its directors, officers, agents or employees be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Owner Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action; and
(viii) the Owner Trustee shall not be deemed to have knowledge or notice of any fact or event unless a Responsible Officer of the Trustee has actual knowledge or received written notice thereof.
(b) under no circumstances shall the Owner Trustee be liable for any representations, warranties or covenants of the Issuer or any other person or the indebtedness evidenced by or arising under any of the Program Documents, including the principal of and interest on the Notes or any amounts payable on the Trust Certificates.
24
SECTION 7.2. Furnishing of Documents. The Owner Trustee shall furnish to the Trust Certificateholders, promptly upon receipt of a written request therefor, and at the expense of the requesting Trust Certificateholder, (a) copies of the Program Documents, and (b) copies of all reports, notices, requests, demands, certificates, financial statements and any other instruments furnished to the Owner Trustee under the Program Documents.
SECTION 7.3. Representations and Warranties. The Owner Trustee hereby represents and warrants to the Depositor and the Trust Certificateholders, that:
(a) It is a trust company duly organized and validly existing in good standing under the laws of the State of Delaware. It has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement.
(b) It has taken all corporate action necessary to authorize the execution and delivery by it of this Agreement, and this Agreement will be executed and delivered by one of its officers who is duly authorized to execute and deliver this Agreement on its behalf.
(c) Neither the execution or the delivery by it of this Agreement, nor the consummation by it of the transactions contemplated hereby, nor compliance by it with any of the terms or provisions hereof will contravene any federal or Delaware law, governmental rule or regulation governing the trust powers of the Owner Trustee or any judgment or order binding on it, or constitute any default under its charter documents or bylaws or any indenture, mortgage, contract, agreement or instrument to which it is a party or by which any of its properties may be bound.
SECTION 7.4. Reliance; Advice of Counsel.
(a) The Owner Trustee shall incur no liability to anyone in acting upon any signature, instrument, notice, resolution, request, consent, order, judgment, certificate, report, opinion, bond or other document or paper believed by it to be genuine and believed by it to be signed by the proper party or parties. The Owner Trustee need not investigate any fact or matter stated in any such document, including verifying the correctness of any numbers or calculations. The Owner Trustee may accept a certified copy of a resolution of the board of directors or other governing body of any corporate party as conclusive evidence that such resolution has been duly adopted by such body and that the same is in full force and effect. As to any fact or matter the method of determination of which is not specifically prescribed herein, the Owner Trustee may for all purposes hereof require and rely on a certificate, signed by an appropriate person, as to such fact or matter, and such certificate shall constitute full protection to the Owner Trustee for any action taken or omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or performance of its power, authority, duties and obligations under this Agreement or the other Program Documents, the Owner Trustee (i) may act directly or through its agents or attorneys pursuant to agreements entered into with any of them, and the Owner Trustee shall not be liable for the conduct or misconduct of such agents or attorneys if such agents or attorneys shall have been selected by the Owner Trustee with reasonable care, and (ii) may consult with counsel, accountants and other skilled Persons to be selected with reasonable care and employed by it. The Owner Trustee shall not be liable for anything done,
25
suffered or omitted in good faith by it in accordance with the written opinion or advice of any such counsel, accountants or other such Persons; provided, however, that the Owner Trustee shall use its best efforts to procure and provide to such counsel, accountants or other such Persons all such documents and information as may be reasonably necessary for such Persons to render such opinion or advice.
SECTION 7.5. Not Acting in Individual Capacity. Except as provided in this Article, in accepting the trusts hereby created the Trust Company acts solely as Owner Trustee hereunder and not in its individual capacity, and all Persons having any claim against the Owner Trustee or the Trust by reason of the transactions contemplated by this Agreement or any other Program Document shall look only to the Owner Trust Estate for payment or satisfaction thereof.
SECTION 7.6. Owner Trustee Not Liable for Trust Certificates. The recitals contained herein and in the Trust Certificates (other than the signature and any authentication of the Owner Trustee on the Trust Certificates) shall be taken as the statements of the Depositor, and the Owner Trustee assumes no responsibility for the correctness thereof. The Owner Trustee makes no representations as to the validity or sufficiency of this Agreement, of any other Program Document or of the Trust Certificates (other than the signature and countersignature of the Owner Trustee on the Trust Certificates) or the Notes. The Owner Trustee shall at no time have any responsibility or liability for or with respect to the legality, validity or enforceability of any Program Document to which the Owner Trustee is to be a party (except for enforceability against the Owner Trustee), or the perfection and priority of any security interest created by or under any Program Document, or the maintenance of any such perfection and priority, or for or with respect to the sufficiency of the Owner Trust Estate or its ability to generate the payments to be distributed to Trust Certificateholders under this Agreement or the Noteholders under the Indenture, the validity of the transfer of the 2024-3 Exchange Note, or for the compliance by the Depositor, the Administrator or the Servicer with any warranty or representation made under any Program Document or for the accuracy of any such warranty or representation or for any action of the Administrator, the Servicer or the Indenture Trustee taken in the name of the Owner Trustee.
SECTION 7.7. Owner Trustee May Own Trust Certificates and Notes. The Owner Trustee in its individual or any other capacity may become the owner or pledgee of Trust Certificates or Notes and may deal with the Depositor, the Administrator, the Indenture Trustee and the Servicer in banking transactions with the same rights as it would have if it were not Owner Trustee.
SECTION 7.8. Doing Business in Other Jurisdictions.
Notwithstanding anything contained herein to the contrary, neither Wilmington Trust Company or any successor thereto, nor the Owner Trustee shall be required to take any action in any jurisdiction if the taking of such action will, even after the appointment of a co-trustee or separate trustee in accordance with Section 10.5 hereof, (a) require the consent or approval or authorization or order of or the giving of notice to, or the registration with or the taking of any other action in respect of, any state or other governmental authority or agency of any jurisdiction other than the State of Delaware; (b) result in any fee, tax or other governmental charge under the laws of any jurisdiction or political subdivisions thereof other than the State of Delaware
26
becoming payable by Wilmington Trust Company (or any successor thereto); or (c) subject Wilmington Trust Company (or any successor thereto) to personal jurisdiction in any jurisdiction other than the State of Delaware for causes of action arising from acts unrelated to the consummation of the transactions by Wilmington Trust Company (or any successor thereto) or the Owner Trustee, as the case may be, contemplated hereby.
SECTION 7.9. Financial Crimes Enforcement Network’s Customer Due Diligence Requirements. To help the government fight the funding of terrorism and money laundering activities, the Customer Identification Program requirements established under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Title III of Pub. L. 107 56 and its implementing regulations (together, the “USA PATRIOT Act”), the Financial Crimes Enforcement Network’s Customer Due Diligence Requirements (the “FinCEN Due Diligence Requirements”) and such other laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions (collectively, with the USA PATRIOT Act and FinCEN Due Diligence Requirements, the “Applicable Anti-Money Laundering Law”), requires all financial institutions to obtain, verify and record information that identifies each Person who opens an account. Accordingly, in order to comply with Applicable Anti-Money-Laundering Law, the Owner Trustee will request on or before the 2024-3 Closing Date and from time to time thereafter reasonable documentation to verify and record information that identifies each Person who opens an account. For a non-individual Person, such as a business entity, a charity, a trust or other “legal entity customer” (as defined in the FinCEN Due Diligence Requirements), the Owner Trustee may request and shall be entitled to receive from such Person reasonable documentation to verify its formation and existence as a legal entity, financial statements, licenses, tax identification documents, and identification and authorization documents from individuals claiming authority to represent the entity or other relevant documentation and information (including beneficial owners of such entities) (collectively, the “Owner Trustee Due Diligence Documents”). Failure by a Person who opens an account to provide such Owner Trustee Due Diligence Documents may result in an inability of the Owner Trustee to perform its obligations hereunder which, at the sole option of the Owner Trustee, may result in the immediate resignation of the Owner Trustee pursuant to Section 10.2. Notwithstanding the foregoing, if such Person who opens an account is not a legal entity customer (as defined in the FinCEN Due Diligence Requirements), in the determination of the Owner Trustee (in the Owner Trustee’s reasonable discretion), such Person shall not be required to provide to the Owner Trustee the Owner Trustee Due Diligence Documents, and any such requirement to provide such information shall be deemed satisfied.
The Administrator will take any action, if necessary, from time to time to cause compliance by the Securitization Trust with the Corporate Transparency Act (31 U.S.C § 5336) and its implementing regulations (collectively, the “CTA”). The Owner Trustee will have no responsibility to monitor or ensure compliance by the Securitization Trust with the CTA.
SECTION 7.10. Beneficial Ownership and Control of Trust. The parties hereto agree that for purposes of Applicable Anti-Money-Laundering Law, including without limitation the CTA as applicable, (a) the Trust Certificateholders are and shall be deemed to be the sole direct owner(s) of the Securitization Trust and (b) one or more Controlling Parties of the Trust Certificateholders and the Administrator are, and shall be deemed to be, the parties with the power and authority to exercise substantial control over the Securitization Trust.
27
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
SECTION 8.1. Owner Trustee’s Fees and Expenses. The Trust Company shall receive as compensation for its services hereunder such fees as have been separately agreed upon before the date hereof between the Administrator and the Trust Company, and the Trust Company shall be entitled to be reimbursed by the Administrator for its other reasonable expenses hereunder, including the reasonable compensation, expenses and disbursements of such agents, representatives, experts and counsel as the Trust Company may employ in connection with the negotiation, execution and delivery of the Program Documents and the exercise and performance of its power, authority, rights and its duties hereunder.
SECTION 8.2. Indemnification. To the fullest extent permitted by law, and notwithstanding any other provision in this Agreement or elsewhere, the Administrator shall be liable as primary obligor for, and to indemnify, defend and hold harmless the Trust Company, and its successors, assigns, agents, servants, officers, directors and employees (collectively, the “Indemnified Parties”) from and against, any and all liabilities, obligations, losses, damages, taxes, claims, actions, fees, penalties, demands, proceedings, and suits, and any and all costs, expenses and disbursements (including, without limitation, reasonable legal fees and expenses and including, without limitation, any legal fees, costs and expenses incurred in connection with any enforcement (including any action, claim or suit) brought by the Indemnified Parties for any indemnification or other obligation of the Administrator) of any kind and nature whatsoever (collectively, “Expenses”), which may at any time be imposed on, incurred by, or asserted against the Owner Trustee or any Indemnified Party in any way resulting from this Agreement, the other Program Documents, the Owner Trust Estate, the Securitization Trust, or any action or inaction of the Owner Trustee relating thereto, except only that the Administrator shall not be liable for or required to indemnify an Indemnified Party from and against Expenses arising or resulting from any of the matters described in the third sentence of Section 7.1(a). The indemnities contained in this Section shall survive the resignation or removal of the Owner Trustee or the termination of the Securitization Trust or this Agreement. In any event of any claim, action or proceeding for which indemnity will be sought pursuant to this Section, the Owner Trustee’s choice of legal counsel shall be subject to the approval of the Administrator, which approval shall not be unreasonably withheld.
SECTION 8.3. Payments to Owner Trustee. Any amounts paid to the Owner Trustee pursuant to this Article shall be deemed not to be a part of the Owner Trust Estate immediately after such payment.
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
SECTION 9.1. Termination of Trust Agreement.
(a) The Securitization Trust shall dissolve upon the final distribution by the Owner Trustee of all monies or other property or proceeds of the Owner Trust Estate in accordance with
28
the terms of the Indenture, the 2024-3 Servicing Agreement and Article Five hereof. Neither the Depositor nor any Trust Certificateholder shall be entitled to otherwise revoke, dissolve or terminate the Securitization Trust. The bankruptcy, liquidation, dissolution, death or incapacity of any Trust Certificateholder shall not (i) operate to dissolve or terminate this Agreement or the Securitization Trust, (ii) entitle such Trust Certificateholder’s legal representatives or heirs to claim an accounting or to take any action or proceeding in any court for a partition or winding up of all or any part of the Securitization Trust or Owner Trust Estate, or (iii) otherwise affect the rights, obligations and liabilities of the parties hereto.
(b) Notice of any dissolution of the Securitization Trust, specifying the Payment Date upon which Trust Certificateholders shall surrender their Trust Certificates to the Paying Agent for payment of the final distribution and cancellation, shall be given by the Administrator by letter to the Owner Trustee and all Trust Certificateholders mailed within five (5) Business Days of receipt of a termination notice of such termination from the Servicer, stating (i) the Payment Date upon or with respect to which final payment of the Trust Certificates shall be made upon presentation and surrender of the Trust Certificates at the office of the Owner Trustee or the Paying Agent therein designated, (ii) the amount of any such final payment, and (iii) that the Record Date otherwise applicable to such Payment Date is not applicable, payments being made only upon presentation and surrender of the Trust Certificates at the office of the Owner Trustee or the Paying Agent therein specified. The Administrator shall give such notice to the Certificate Registrar (if other than the Owner Trustee) and the Paying Agent at the time such notice is given to Trust Certificateholders. Upon presentation and surrender of the Trust Certificates, the Paying Agent shall cause to be distributed to Trust Certificateholders amounts distributable on such Payment Date pursuant to Section 5.2.
In the event that all of the Trust Certificateholders shall not surrender their Trust Certificates for cancellation within six months after the date specified in the above mentioned written notice, the Administrator shall so notify the Owner Trustee in writing and the Owner Trustee shall give a second written notice to the remaining Trust Certificateholders to surrender their Trust Certificates for cancellation and receive the final distribution with respect thereto. If within one year after the second notice all the Trust Certificates shall not have been surrendered for cancellation, the Owner Trustee may take appropriate steps, or may appoint an agent to take appropriate steps, to contact the remaining Trust Certificateholders concerning surrender of their Trust Certificates, and the cost thereof shall be paid out of the funds and other assets that shall remain subject to this Agreement. Subject to applicable escheat laws, any funds remaining in the Securitization Trust after exhaustion of such remedies shall be distributed by the Paying Agent to the Depositor.
(c) Upon the completion of the winding up of the Securitization Trust by the Administrator in accordance with Section 3808 of the Statutory Trust Statute and at the written direction of the Depositor, the Owner Trustee, at the expense of the Depositor shall cause the Certificate of Trust to be cancelled by filing a certificate of cancellation with the Delaware Secretary of State in accordance with the provisions of Section 3810 of the Statutory Trust Statute and the Securitization Trust and this Agreement (other than Article Eight) shall terminate and be of no further force or effect.
29
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 10.1. Eligibility Requirements for Owner Trustee. The Owner Trustee shall at all times be a national banking association or corporation organized under the laws of the United States or any State and satisfying the provisions of Section 3807(a) of the Statutory Trust Statute; authorized to exercise corporate trust powers; having a combined capital and surplus of at least $50,000,000 and subject to supervision or examination by federal or State authorities; and having (or having a parent that has) time deposits that are rated at least “Baa2” by Moody’s or at least “BBB” by S&P and, if rated by Fitch, Fitch’s equivalent rating. If such national banking association or corporation shall publish reports of condition at least annually pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purpose of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In case at any time the Owner Trustee shall cease to be eligible in accordance with the provisions of this Section, the Owner Trustee shall resign immediately in the manner and with the effect specified in Section 10.2.
SECTION 10.2. Resignation or Removal of Owner Trustee. The Owner Trustee may at any time resign and be discharged from the trusts hereby created by giving written notice thereof to the Administrator. Upon receiving such notice of resignation, the Administrator shall promptly appoint a successor Owner Trustee by written instrument, in duplicate, one copy of which instrument shall be delivered to the resigning Owner Trustee and one copy to the successor Owner Trustee. If no successor Owner Trustee shall have been so appointed and have accepted appointment within thirty (30) days after the giving of such notice of resignation, the resigning Owner Trustee may petition any court of competent jurisdiction for the appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in accordance with the provisions of Section 10.1 and shall fail to resign after written request therefor by the Administrator, or if at any time the Owner Trustee shall be legally unable to act, or shall be adjudged bankrupt or insolvent, or a receiver of the Owner Trustee or of its property shall be appointed, or any public officer shall take charge or control of the Owner Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then the Administrator may remove the Owner Trustee. If the Administrator shall remove the Owner Trustee under the authority of the immediately preceding sentence, the Administrator shall promptly appoint a successor Owner Trustee by written instrument, in duplicate, one copy of which instrument shall be delivered to the outgoing Owner Trustee so removed and one copy to the successor Owner Trustee, and shall pay all amounts owed to the outgoing Owner Trustee in its individual capacity.
Any resignation or removal of the Owner Trustee and appointment of a successor Owner Trustee pursuant to any of the provisions of this Section shall not become effective until acceptance of appointment by the successor Owner Trustee pursuant to Section 10.3 and any such removal shall be subject to payment of all amounts owed to the outgoing Owner Trustee in its individual capacity. The Issuer shall pay any costs and expenses associated with the
30
replacement of the Owner Trustee. To the extent the Issuer fails to pay any such costs or expenses on or before the Payment Date following the replacement of the Owner Trustee, the Administrator shall pay such amount then-outstanding.
SECTION 10.3. Successor Owner Trustee. Any successor Owner Trustee appointed pursuant to Section 10.2 shall execute, acknowledge and deliver to the Administrator and to its predecessor Owner Trustee an instrument accepting such appointment under this Agreement, and thereupon the resignation or removal of the predecessor Owner Trustee shall become effective, and such successor Owner Trustee, without any further act, deed or conveyance, shall become fully vested with all the rights, powers, duties and obligations of its predecessor under this Agreement, with like effect as if originally named as Owner Trustee. The predecessor Owner Trustee shall upon payment of its fees and expenses deliver to the successor Owner Trustee all documents and statements and monies held by it under this Agreement; and the Administrator and the predecessor Owner Trustee shall execute and deliver such instruments and do such other things as may reasonably be required for fully and certainly vesting and confirming in the successor Owner Trustee all such rights, powers, duties and obligations.
No successor Owner Trustee shall accept appointment as provided in this Section unless at the time of such acceptance such successor Owner Trustee shall be eligible pursuant to Section 10.1.
Upon acceptance of appointment by a successor Owner Trustee pursuant to this Section, the Administrator shall mail notice thereof to all Trust Certificateholders, the Indenture Trustee, the Administrative Agent and the Noteholders. If the Administrator shall fail to mail such notice within ten (10) days after acceptance of such appointment by the successor Owner Trustee, the successor Owner Trustee shall cause such notice to be mailed at the expense of the Administrator.
SECTION 10.4. Merger or Consolidation of Owner Trustee. Any Person into which the Owner Trustee may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Owner Trustee shall be a party, or any Person succeeding to all or substantially all of the corporate trust business of the Owner Trustee, shall be the successor of the Owner Trustee hereunder, without the execution or filing of any instrument or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding; provided, that such Person shall be eligible pursuant to Section 10.1.
SECTION 10.5. Appointment of Co-Trustee or Separate Trustee. Notwithstanding any other provisions of this Agreement, at any time, for the purpose of meeting any legal requirements of any jurisdiction in which any part of the Owner Trust Estate may at the time be located, the Administrator and the Owner Trustee acting jointly shall have the power and shall execute and deliver all instruments to appoint one or more Persons approved by the Administrator and Owner Trustee to act as co-trustee, jointly with the Owner Trustee, or as separate trustee or separate trustees, of all or any part of the Owner Trust Estate, and to vest in such Person, in such capacity, such title to the Securitization Trust or any part thereof and, subject to the other provisions of this Section, such powers, duties, obligations, rights and trusts as the Administrator and the Owner Trustee may consider necessary or desirable. If the
31
Administrator shall not have joined in such appointment within fifteen (15) days after the receipt by it of a request so to do, the Owner Trustee alone shall have the power to make such appointment. No co-trustee or separate trustee under this Agreement shall be required to meet the terms of eligibility as a successor Owner Trustee pursuant to Section 10.1 and no notice of the appointment of any co-trustee or separate trustee shall be required pursuant to Section 10.3.
Each separate trustee and co-trustee shall, to the extent permitted by law, be appointed and act subject to the following provisions and conditions:
(a) All rights, powers, duties and obligations conferred or imposed upon the Owner Trustee shall be conferred upon and exercised or performed by the Owner Trustee and such separate trustee or co-trustee jointly (it being understood that such separate trustee or co-trustee is not authorized to act separately without the Owner Trustee joining in such act), except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed, the Owner Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations (including the holding of title to the Owner Trust Estate or any portion thereof in any such jurisdiction) shall be exercised and performed singly by such separate trustee or co-trustee, but solely at the direction of the Owner Trustee;
(b) No trustee under this Agreement shall be personally liable by reason of any act or omission of any other trustee under this Agreement; and
(c) The Administrator and the Owner Trustee acting jointly may at any time accept the resignation of or remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Owner Trustee shall be deemed to have been given to each of the then separate trustees and co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to this Agreement and the conditions of this Article. Each separate trustee and co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Owner Trustee or separately, as may be provided therein, subject to all the provisions of this Agreement, specifically including every provision of this Agreement relating to the conduct of, affecting the liability of, or affording protection to, the Owner Trustee. Each such instrument shall be filed with the Owner Trustee and a copy thereof given to the Administrator.
Any separate trustee or co-trustee may at any time appoint the Owner Trustee as its agent or attorney-in-fact with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf and in its name. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Owner Trustee, to the extent permitted by law, without the appointment of a new or successor co-trustee or separate trustee.
32
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Amendments.
(a) This Agreement may be amended by the Depositor and the Owner Trustee, upon issuance of an Issuer Tax Opinion, which shall not be at the expense of the Owner Trustee, with the consent of the Majority Noteholders and the consent of Trust Certificateholders of Trust Certificates evidencing not less than a majority of the Percentage Interests; provided, however, that no such amendment shall (i) increase or reduce in any manner the amount of, or accelerate or delay the timing of, collections of payments on the 2024-3 Exchange Note or distributions that shall be required to be made for the benefit of the Noteholders or the Trust Certificateholders, without the consent of all Noteholders and all Trust Certificateholders, (ii) reduce the aforesaid percentage of the principal amount of the Notes required to consent to any such amendment, without the consent of all Noteholders, or (iii) reduce the aforesaid percentage of the Percentage Interests evidenced by the Trust Certificates required to consent to any such amendment, without the consent of the Trust Certificateholders of all Trust Certificates; and provided further, notwithstanding any other provision in this Agreement or elsewhere, that any amendment or modification of or supplement to this Agreement or any other document that will affect any right, power, authority, duty, liability, benefit, protection, privilege, immunity, or indemnity of the Owner Trustee (as such or in its individual capacity) shall not be binding on the Owner Trustee (as such or in its individual capacity), unless the Owner Trustee in its individual capacity has specifically consented thereto in writing.
(b) Upon issuance of an Issuer Tax Opinion, which shall not be at the expense of the Owner Trustee, this Agreement may be amended by the Depositor and the Owner Trustee for any purpose, with the consent of Trust Certificateholders of Trust Certificates evidencing not less than a majority of Percentage Interests; provided, that an Opinion of Counsel acceptable to the Indenture Trustee is delivered to the effect that such amendment would not have an adverse effect on the rights or interests of the Noteholders.
Promptly after the execution of any such amendment or consent, the Owner Trustee shall furnish written notification of the substance of such amendment or consent to each Trust Certificateholder, the Administrative Agent and the Indenture Trustee.
It shall not be necessary for the consent of Trust Certificateholders or Noteholders pursuant to this Section to approve the particular form of any proposed amendment or consent, but it shall be sufficient if such consent shall approve the substance thereof. The manner of obtaining such consents (and any other consents of Trust Certificateholders provided for in this Agreement or in any other Program Document) and of evidencing the authorization of the execution thereof by Trust Certificateholders shall be subject to such reasonable requirements as the Owner Trustee may prescribe.
(c) Promptly after the execution of any amendment to the Certificate of Trust, the Owner Trustee shall cause the filing of such amendment with the Delaware Secretary of State and shall furnish written notification of the substance of such amendment to the
33
Certificateholder, who shall furnish written notification of the substance of such amendment to the Indenture Trustee and each Rating Agency.
(d) Prior to the execution of any amendment to this Agreement or the Certificate of Trust, the Owner Trustee shall be entitled to receive and rely upon an Opinion of Counsel to the Depositor or the Trust Certificateholders (which shall not be at the expense of the Owner Trustee or the Trust Company) stating that the execution of such amendment is authorized or permitted by this Agreement. The Owner Trustee may, but shall not be obligated to, enter into any such amendment that affects the Owner Trustee’s own rights, duties or immunities under this Agreement or otherwise.
SECTION 11.2. Limitations on Rights of Others. The provisions of this Agreement are solely for the benefit of the Owner Trustee, the Trust Company, the Depositor, the Trust Certificateholders, the Administrator and, to the extent expressly provided herein, the Indenture Trustee and the Noteholders, and nothing in this Agreement, whether express or implied, shall be construed to give to any other Person any legal or equitable right, remedy or claim in the Owner Trust Estate or under or in respect of this Agreement or any covenants, conditions or provisions contained herein.
SECTION 11.3. Notices.
(a) Unless otherwise expressly specified or permitted by the terms hereof, all notices shall be in writing and shall be deemed given upon receipt by the intended recipient or three (3) Business Days after mailing if mailed by certified mail, postage prepaid (except that notice to the Owner Trustee shall be deemed given only upon actual receipt by the Owner Trustee), if to the Owner Trustee, addressed to the Corporate Trust Office, Email: SF_GMF@wilmingtontrust.com; if to the Depositor, addressed to 801 Cherry Street, Suite 3500, Fort Worth, Texas 76102, Attention of Chief Financial Officer; or, as to each party, at such other address as shall be designated by such party in a written notice to each other party.
(b) Any notice required or permitted to be given to a Trust Certificateholder shall be given by first-class mail, postage prepaid, at the address of such Trust Certificateholder as shown in the Certificate Register. Any notice so mailed within the time prescribed in this Agreement shall be conclusively presumed to have been duly given, whether or not the Trust Certificateholder receives such notice.
SECTION 11.4. Severability. If any one or more of the covenants, agreements, provisions or terms of this Agreement or the Trust Certificates shall be for any reason whatsoever held invalid, then such covenants, agreements, provisions or terms shall be deemed severable from the remaining covenants, agreements, provisions or terms of this Agreement, and such invalidity shall in no way affect the validity or enforceability of the other covenants, agreements, provisions or terms of this Agreement or the Trust Certificates.
SECTION 11.5. Counterparts and Consent to Do Business Electronically. This Agreement may be executed and delivered 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
34
original and the parties affirmatively consent to the use thereof, with no such consent having been withdrawn. Each party agrees that this Agreement and any documents to be delivered in connection with this Agreement 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 Agreement 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 11.6. Successors and Assigns. All covenants and agreements contained herein shall be binding upon, and inure to the benefit of the Depositor and its permitted assignees, the Owner Trustee and its successors and each Trust Certificateholder and its successors and permitted assigns, all as herein provided. Any request, notice, direction, consent, waiver or other instrument or action by a Trust Certificateholder shall bind the successors and assigns of such Trust Certificateholder.
SECTION 11.7. No Petition. The Owner Trustee, any Paying Agent, the Depositor and each Trust Certificateholder by accepting a Trust Certificate, covenant that they will not institute, or join in instituting, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding under any United States, federal or state bankruptcy or similar law for a period of one year and a day after:
(a) termination of the Titling Trust Agreement, against the Settlor or the Titling Trust; and
(b) payment in full of` the Notes, against the Depositor or the Securitization Trust.
SECTION 11.8. Headings. The headings of the various Articles and Sections herein are for convenience of reference only and shall not define or limit any of the terms or provisions hereof.
SECTION 11.9. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.10. Administrator. It shall be the Administrator’s duty and responsibility, and not the Owner Trustee’s duty or responsibility, to cause the Securitization Trust to comply with, respond to, defend, participate in or otherwise act in connection with any regulatory, administrative, governmental, investigative or other obligation, proceeding or inquiry relating in any way to the Securitization Trust, its assets or the conduct of its business; provided, that, the Owner Trustee hereby agrees to cooperate with the Administrator and to comply with any reasonable request made by the Administrator for the delivery of information or documents to
35
the Administrator in the Owner Trustee’s actual possession relating to any such regulatory, administrative, governmental, investigative or other obligation, proceeding or inquiry.
SECTION 11.11. Regulation AB. The Owner Trustee acknowledges and agrees that the purpose of this Section 11.11 is to facilitate compliance by the Issuer with the provisions of Regulation AB and related rules and regulations of the Commission. The Owner Trustee acknowledges that interpretations of the requirements of Regulation AB may change over time, whether due to interpretive guidance provided by the Commission or its staff, consensus among participants in the asset-backed securities markets, advice of counsel, or otherwise, and agrees hereby to comply with reasonable requests made by the Servicer in good faith for delivery of information under these provisions on the basis of evolving interpretations of Regulation AB. The Owner Trustee shall cooperate fully with the Servicer and the Issuer to deliver to the Servicer and the Issuer any and all statements, reports, certifications, records and any other information in its possession necessary in the good faith determination of the Servicer to permit the Servicer and the Issuer to comply with the provisions of Regulation AB, together with such disclosures relating to the Owner Trustee reasonably believed by the Servicer to be necessary in order to effect such compliance.
SECTION 11.12. Force Majeure. The Owner Trustee shall not be responsible for delays or failures in performance resulting directly or indirectly from forces beyond its control (including, without limitation, acts of God, strikes, work stoppages, accidents, severe weather, floods, nuclear or natural catastrophes, lockouts, riots, civil or military disturbances, acts of war or terrorism, pandemics or epidemics, any provision of any present or future law or regulation or any act of any governmental authority, and any interruption, loss or malfunction of utilities, communications, computer services (software or hardware) or Federal Reserve Bank wire service) provided such default or delay could not have been prevented by the taking of commercially reasonable precautions such as the implementation and execution of disaster recovery plans.
[Remainder of Page Intentionally Left Blank]
36
IN WITNESS WHEREOF, the parties hereto have caused this Amended and Restated Trust Agreement to be duly executed by their respective officers hereunto duly authorized, as of the day and year first above written.
| GMF LEASING LLC, as Depositor |
|
By: |
| Name: |
| Title: |
| WILMINGTON TRUST COMPANY, as Owner Trustee |
|
By: |
| Name: |
| Title: |
Acknowledged and accepted:
COMPUTERSHARE TRUST COMPANY, N.A., not
in its individual capacity but solely as Paying Agent,
Authenticating Agent and Certificate Registrar
|
By: |
| Name: |
| Title: |
AMERICREDIT FINANCIAL SERVICES, INC.
d/b/a GM FINANCIAL,
as Servicer and Administrator
|
By: |
| Name: |
| Title: |
[Signature Page to Amended and Restated Trust Agreement (Issuer)]
EXHIBIT A
FORM OF TRUST CERTIFICATE
TRUST CERTIFICATE
THIS TRUST CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM. IN ADDITION, THE TRANSFER OF THIS TRUST CERTIFICATE IS SUBJECT TO CERTAIN RESTRICTIONS AND CONDITIONS SET FORTH IN SECTION 3.4 OF THE TRUST AGREEMENT UNDER WHICH THIS TRUST CERTIFICATE IS ISSUED (A COPY OF WHICH TRUST AGREEMENT IS AVAILABLE FROM THE OWNER TRUSTEE OR UPON REQUEST), INCLUDING RECEIPT BY THE OWNER TRUSTEE OF AN INVESTMENT LETTER IN WHICH THE TRANSFEREE MAKES CERTAIN REPRESENTATIONS.
THIS TRUST CERTIFICATE MAY NOT BE ACQUIRED OR HELD BY OR FOR THE ACCOUNT OF (I) AN “EMPLOYEE BENEFIT PLAN” (AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”)) THAT IS SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF TITLE I OF ERISA, (II) A “PLAN” (AS DEFINED IN SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”)) THAT IS SUBJECT TO SECTION 4975 OF THE CODE, (III) AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE ASSETS OF AN EMPLOYEE BENEFIT PLAN OR PLAN DESCRIBED IN (I) OR (II) ABOVE BY REASON OF SUCH EMPLOYEE BENEFIT PLAN’S OR A PLAN’S INVESTMENT IN THE ENTITY (EACH, A “BENEFIT PLAN INVESTOR”), OR (IV) AN EMPLOYEE BENEFIT PLAN, A PLAN OR OTHER SIMILAR ARRANGEMENT THAT IS NOT A BENEFIT PLAN INVESTOR BUT IS SUBJECT TO FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SUBSTANTIALLY SIMILAR TO ERISA OR SECTION 4975 OF THE CODE (EACH OF (I)-(IV) ABOVE, A “BENEFIT PLAN ENTITY”). THE HOLDER OF THIS TRUST CERTIFICATE SHALL BE DEEMED TO REPRESENT AND WARRANT THAT IT IS NOT A BENEFIT PLAN ENTITY.
THIS TRUST CERTIFICATE IS NOT TRANSFERABLE UNLESS THE PARTY TRANSFERRING THIS TRUST CERTIFICATE DELIVERS TO THE OWNER TRUSTEE AND THE DEPOSITOR AN OPINION OF COUNSEL STATING THE CIRCUMSTANCES AND CONDITIONS UPON WHICH THIS TRUST CERTIFICATE MAY BE TRANSFERRED AND THAT SUCH TRANSFER AS DESCRIBED THEREIN WILL NOT CAUSE EITHER THE SECURITIZATION TRUST OR THE TITLING TRUST TO BE CLASSIFIED AS AN ASSOCIATION (OR A PUBLICLY TRADED PARTNERSHIP) TAXABLE AS A CORPORATION FOR FEDERAL INCOME TAX PURPOSES. BASED UPON SUCH OPINION (IF REQUIRED), THE OWNER TRUSTEE WILL NOTIFY THE HOLDER OF THIS TRUST CERTIFICATE THAT THIS TRUST CERTIFICATE MAY BE TRANSFERRED IN ACCORDANCE WITH THE CONDITIONS SET FORTH IN SUCH
A-1
OPINION OF COUNSEL, AND THE HOLDER OF THIS TRUST CERTIFICATE MAY EXCHANGE THIS TRUST CERTIFICATE FOR A NEW TRUST CERTIFICATE OF LIKE DENOMINATION AND TENOR, WHICH NEW TRUST CERTIFICATE MAY BE TRANSFERRED IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH THEREON. THE HOLDER OF THIS TRUST CERTIFICATE SHALL BE DEEMED TO REPRESENT AND WARRANT THAT IT IS A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE.
A-2
| No. R-1 |
Percentage Interest: 100% |
SEE REVERSE FOR CERTAIN DEFINITIONS
GM FINANCIAL AUTOMOBILE LEASING TRUST 2024-3
TRUST CERTIFICATE
ASSET BACKED CERTIFICATE
Evidencing an undivided beneficial interest in the Securitization Trust, as defined below, the property of which includes, among the other things, the 2024-3 Exchange Note.
(This Trust Certificate does not represent an interest in or obligation of GMF Leasing LLC, AmeriCredit Financial Services, Inc. d/b/a GM Financial (“GM Financial”) or any of their respective Affiliates, except to the extent described below.)
THIS CERTIFIES THAT GMF LEASING LLC is the registered owner of a ONE HUNDRED PERCENT nonassessable, fully-paid, undivided percentage beneficial interest in GM Financial Automobile Leasing Trust 2024-3 (the “Securitization Trust”), formed by GMF Leasing LLC (the “Depositor”).
The Securitization Trust is governed pursuant to an Amended and Restated Trust Agreement, dated as of August 20, 2024 (as the same may be further amended, restated, supplemented or otherwise modified from time to time, the “Trust Agreement”), between the Depositor and Wilmington Trust Company, as owner trustee (the “Owner Trustee”), a summary of certain of the pertinent provisions of which is set forth below. Capitalized terms used herein that are not otherwise defined shall have the meanings ascribed thereto in the Trust Agreement. In the event of conflict between the terms of this Trust Certificate and the Trust Agreement, the terms of the Trust Agreement shall control.
This Trust Certificate is one of the duly authorized class of certificates (herein called the “Trust Certificates”). Also issued under an Indenture, dated as of August 20, 2024 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Indenture”), among the Securitization Trust, GM Financial, as servicer, and Computershare Trust Company, N.A., as indenture trustee, are Notes designated as “Series 2024-3 Class A-1 4.745% Fixed Rate Asset Backed Notes,” “Series 2024-3 Class A-2-A 4.29% Fixed Rate Asset Backed Notes,” “Series 2024-3 Class A-2-B Floating Rate Asset Backed Notes,” “Series 2024-3 Class A-3 4.21% Fixed Rate Asset Backed Notes,” “Series 2024-3 Class A-4 4.22% Fixed Rate Asset Backed Notes,” “Series 2024-3 Class B 4.49% Fixed Rate Asset Backed Notes” and “Series 2024-3 Class C 4.58% Fixed Rate Asset Backed Notes” (together, the “Notes”). This Trust Certificate is issued under and is subject to the terms, provisions and conditions of the Trust Agreement, to which Trust Agreement the holder of this Trust Certificate by virtue of its acceptance hereof assents and by which such holder is bound. The property of the Securitization Trust consists primarily of the 2024-3 Exchange Note, certain bank accounts and the proceeds
A-3
thereof, certain other rights under the Trust Agreement, the 2024-3 Exchange Note Sale Agreement, and the 2024-3 Servicing Agreement and all proceeds of the foregoing. The rights of the Securitization Trust in the foregoing property have been pledged by the Securitization Trust to the Indenture Trustee to secure payments of the Notes.
The Trust Certificates represent obligations of the Securitization Trust only and do not represent interests in, recourse to or obligations of the Depositor, the Owner Trustee or any of their respective Affiliates.
Distributions on this Trust Certificate will be made as provided in the Trust Agreement to the Person in whose name this Trust Certificate is registered at the close of business on the related Record Date, such Trust Certificateholder’s Percentage Interest in the amount to be distributed with respect to the Trust Certificates on such Payment Date.
The holder of this Trust Certificate acknowledges and agrees that its rights to receive payments in respect of this Trust Certificate are subordinated to the rights of the Noteholders as described in the Indenture and the Trust Agreement, as applicable.
It is the intent of the Depositor and the Trust Certificateholders that the Trust Certificates represent the equity interest in the Securitization Trust for U.S. federal and state income, single business and franchise tax purposes. For so long as the Trust Certificates are held by a single owner for federal income tax purposes, the Securitization Trust will be treated as an entity disregarded as separate from such owner for purposes of federal income tax or state income, single business and franchise taxes. If, however, the Securitization Trust is characterized as a separate entity for federal income tax purposes, it is the intention of the parties to the Trust Agreement that it qualify as a partnership for such purposes and the Trust Certificateholders will be treated as partners in that partnership. The Depositor and the other Trust Certificateholders, by acceptance of a Trust Certificate, agree to take no action inconsistent with such tax treatment of the Trust Certificates.
Each Trust Certificateholder by accepting a Trust Certificate, covenants and agrees that such Trust Certificateholder will not institute, or join in instituting, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding under any United States, federal or state bankruptcy or similar law for a period of one year and a day after:
(a) termination of the Titling Trust Agreement, against the Settlor or the Titling Trust; and
(b) payment in full of the Notes, against the Depositor or the Securitization Trust.
Distributions on this Trust Certificate will be made as provided in the Trust Agreement by the Paying Agent by wire transfer or check mailed to the Trust Certificateholder of record in the Certificate Register without the presentation or surrender of this Trust Certificate or the making of any notation hereon. Except as otherwise provided in the Trust Agreement and notwithstanding the above, the final distribution on this Trust Certificate will be made after due notice by the Owner Trustee of the pendency of such distribution and only upon presentation and
A-4
surrender of this Trust Certificate at the office or agency maintained for that purpose by the Paying Agent at its offices in St. Paul, Minnesota.
Reference is hereby made to the further provisions of this Trust Certificate set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been executed by an authorized officer of the Owner Trustee or its Authenticating Agent, by manual signature, this Trust Certificate shall not entitle the holder hereof to any benefit under the Trust Agreement or be valid for any purpose.
THIS TRUST CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
A-5
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Securitization Trust and not in its individual capacity, has caused this Trust Certificate to be duly executed.
| GM FINANCIAL AUTOMOBILE LEASING | ||
| TRUST 2024-3 | ||
| By: Wilmington Trust Company, not in its | ||
| individual capacity but solely as Owner Trustee | ||
|
By: | ||
| Date: October 2, 2024 |
Authorized Signatory | |
A-6
OWNER TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Trust Certificates referred to in the within-mentioned Trust Agreement.
| WILMINGTON TRUST COMPANY, |
Or |
COMPUTERSHARE TRUST COMPANY, | ||||||
| not in its individual capacity but solely |
N.A., not in its individual capacity but solely | |||||||
| as Owner Trustee |
as Authenticating Agent | |||||||
| By: |
|
By: |
| |||||
| Authorized Signatory |
Authorized Signatory | |||||||
| Date: October 2, 2024 |
||||||||
A-7
[REVERSE OF TRUST CERTIFICATE]
The Trust Certificates do not represent an obligation of, or an interest in, the Depositor, the Servicer, the Owner Trustee or any of their respective Affiliates and no recourse may be had against such parties or their assets, except as expressly set forth or contemplated herein or in the Trust Agreement or the other Program Documents. In addition, this Trust Certificate is not guaranteed by any governmental agency or instrumentality and is limited in right of payment to certain collections and recoveries with respect to the 2024-3 Exchange Note (and certain other amounts), all as more specifically set forth herein and in the 2024-3 Servicing Agreement and the Indenture. A copy of each of the Indenture, the 2024-3 Servicing Agreement and the Trust Agreement may be examined by any Trust Certificateholder upon written request during normal business hours at the principal office of the Depositor and at such other places, if any, designated by the Depositor.
The Trust Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Depositor and the rights of the Trust Certificateholders under the Trust Agreement at any time by the Depositor and the Owner Trustee with the consent of the Majority Noteholders and Trust Certificateholders of Trust Certificates evidencing not less than a majority of the Percentage Interests. Any such consent by the holder of this Trust Certificate shall be conclusive and binding on such holder and on all future holders of this Trust Certificate and of any Trust Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent is made upon this Trust Certificate.
As provided in the Trust Agreement and subject to certain limitations therein set forth, the transfer of this Trust Certificate is registerable in the Certificate Register upon surrender of this Trust Certificate for registration of transfer at the offices or agencies of the Certificate Registrar, accompanied by a written instrument of transfer in form satisfactory to the Owner Trustee and the Certificate Registrar duly executed by the Trust Certificateholder hereof or such Trust Certificateholder’s attorney duly authorized in writing, and thereupon one or more new Trust Certificates of authorized denominations evidencing the same aggregate Percentage Interest in the Securitization Trust will be issued to the designated transferee. The initial Certificate Registrar appointed under the Trust Agreement is Computershare Trust Company, N.A. No service charge will be made for any such registration or transfer or exchange, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge payable in connection therewith.
This certificate may not be held or beneficially owned by any Person that is not a United States person as defined under Section 7701(a)(30) of the Code.
No sale or transfer of a Trust Certificate shall be permitted (including, without limitation, by pledge or hypothecation), and no such sale or transfer shall be registered by the Certificate Registrar to be effective hereunder, if the sale or transfer thereof increases the number of Trust Certificateholders and Titling Trust Certificateholders to more than ninety-five (95). In addition, no sale or transfer of a Trust Certificate shall be registered by the Certificate Registrar or made effective hereunder unless, as evidenced by a written representation and covenant by the transferee in form satisfactory to the Certificate Registrar (upon which representation and
A-8
covenant the Certificate Registrar may conclusively rely without independent investigation), no member of the transferee’s expanded group as defined in Treasury Regulation Section 1.385-1(c)(4) (including through a controlled partnership as defined in Treasury Regulation Section 1.385-1(c)(1)) is or will become the beneficial owner of a Note. If a Trust Certificateholder or a member of its expanded group becomes the beneficial owner of a Note, the Depositor is authorized at its discretion to compel such Trust Certificateholder to sell its Trust Certificate to a Person whose ownership complies with this paragraph so long as such sale does not otherwise cause a material adverse effect on the Issuer.
The Trust Certificates are issuable only as registered Trust Certificates. As provided in the Trust Agreement and subject to certain limitations therein set forth, Trust Certificates are exchangeable for new Trust Certificates of authorized denominations evidencing the same aggregate Percentage Interest, as requested by the Trust Certificateholder surrendering the same. No service charge will be made for any such registration of transfer or exchange, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge payable in connection therewith.
The Owner Trustee, the Certificate Registrar and any agent of the Owner Trustee or the Certificate Registrar may treat the Person in whose name this Trust Certificate is registered as the owner hereof for all purposes, and none of the Owner Trustee, the Certificate Registrar or any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Trust Agreement and the Securitization Trust created thereby shall terminate upon the payment to Trust Certificateholders of all amounts required to be paid to them pursuant to the Trust Agreement and the Indenture and the disposition of all property held as part of the Owner Trust Estate.
The Trust Certificates may not be acquired or held by or for the account of a Benefit Plan Entity. The holder of this Trust Certificate shall be deemed to represent and warrant that it is not a Benefit Plan Entity.
A-9
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
(Please print or type name and address, including postal zip code, of assignee)
the within Trust Certificate, and all rights thereunder, and hereby irrevocably constitutes and appoints ________________, attorney, to transfer said Trust Certificate on the books of the Certificate Registrar, with full power of substitution in the premises.
| Dated: |
*/ | |
| Signature Guaranteed: | ||
| */ | ||
| */ | NOTICE: The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within Trust Certificate in every particular, without alteration, enlargement or any change whatsoever. Such signature must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Certificate Registrar, which requirements include membership or participation in STAMP or such other “signature guarantee program” as may be determined by the Certificate Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended. |
A-10
EXHIBIT B
CERTIFICATE OF TRUST
OF
GM FINANCIAL AUTOMOBILE LEASING TRUST 2024-3
This Certificate of Trust of GM FINANCIAL AUTOMOBILE LEASING TRUST 2024-3 (the “Trust”) is being duly executed by the undersigned, as trustee, and filed on behalf of the Trust by GMF Leasing LLC to form a statutory trust under the Delaware Statutory Trust Act (12 Del. C., Section 3801 et seq.) (the “Act”).
1. Name: The name of the statutory trust formed by this Certificate of Trust is GM Financial Automobile Leasing Trust 2024-3.
2. Delaware Trustee: The name and business address of a trustee of the Trust in the State of Delaware is Wilmington Trust Company, Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890.
3. Effective Date: This Certificate of Trust shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Trust in accordance with Section 3811(a) of the Act.
| WILMINGTON TRUST COMPANY, not in its individual capacity but solely as trustee of the Trust
By: Name: Title: |
B-1
EXHIBIT C
FORM OF TRANSFEROR CERTIFICATE
[DATE]
GMF Leasing LLC
801 Cherry Street, Suite 3500
Fort Worth, Texas 76102
Attention: Chief Financial Officer
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention: Corporate Trust Administration
Computershare Trust Company, N.A.
1505 Energy Park Drive
St. Paul, MN 55108
Attention: Computershare Corporate Trust
| Re: | GM Financial Automobile Leasing Trust 2024-3, Trust Certificates |
Ladies and Gentlemen:
In connection with our disposition of the above-referenced Trust Certificates (the “Trust Certificates”) we certify that (a) we understand that the Trust Certificates have not been registered under the Securities Act of 1933, as amended (the “Act”), and are being transferred by us in a transaction that is exempt from the registration requirements of the Act and (b) we have not offered or sold any Trust Certificates to, or solicited offers to buy any Trust Certificates from, any person, or otherwise approached or negotiated with any person with respect thereto, in a manner that would be deemed, or taken any other action which would result in, a violation of Section 5 of the Act.
| Very truly yours,
[NAME OF TRANSFEROR]
By: Authorized Officer |
C-1
EXHIBIT D
FORM OF INVESTMENT LETTER
[DATE]
GMF Leasing LLC
801 Cherry Street, Suite 3500
Fort Worth, Texas, 76102
Attention: Chief Financial Officer
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware, 19890-0001
Attention: Corporate Trust Administration
Computershare Trust Company, N.A.
1505 Energy Park Drive
St. Paul, MN 55108
Attention: Computershare Corporate Trust
| Re: | GM Financial Automobile Leasing Trust 2024-3, Trust Certificates |
Ladies and Gentlemen:
In connection with our acquisition of the above-referenced Trust Certificates (the “Trust Certificates”) we certify that (a) we understand that the Trust Certificates are not being registered under the Securities Act of 1933, as amended (the “Act”), or any state securities laws and are being transferred to us in a transaction that is exempt from the registration requirements of the Act and any such laws, (b) we are an “accredited investor,” as defined in Regulation D under the Act, and have such knowledge and experience in financial and business matters that we are capable of evaluating the merits and risks of investments in the Trust Certificates, (c) we have had the opportunity to ask questions of and receive answers from the seller concerning the purchase of the Trust Certificates and all matters relating thereto or any additional information deemed necessary to our decision to purchase the Trust Certificates, (d) we are acquiring the Trust Certificates for investment for our own account and not with a view to any distribution of such Trust Certificates (but without prejudice to our right at all times to sell or otherwise dispose of the Trust Certificates in accordance with the following sentence), (e) we have not offered or sold any Trust Certificates to, or solicited offers to buy any Trust Certificates from, any person, or otherwise approached or negotiated with any person with respect thereto, or taken any other action that would result in a violation of Section 5 of the Act or any state securities laws, (f) we are not a Benefit Plan Entity and will not acquire or hold the Trust Certificates on behalf of or with “plan assets” of a Benefit Plan Entity (as such term is defined the Amended and Restated Trust Agreement, dated as of August 20, 2024 (as the same may be further amended, restated, supplemented or otherwise modified from time to time, the “Trust Agreement”), between GMF Leasing LLC, as Depositor, and Wilmington Trust Company, as Owner Trustee), and (g) we are a United States person within the meaning of Section 7701(a)(30) of the Internal Revenue Code
D-1
of 1986, as amended and neither we nor any member of our expanded group (as defined in Treasury Regulation Section 1.385-1(c)(4)) is or will become the beneficial owner of a Note. We are acquiring the Trust Certificates for our own account and understand that the Trust Certificates may be resold, pledged or transferred only (i) (A) in a transaction exempt from the registration requirements of the Act and applicable state securities or “blue sky” laws and, if requested, we will at our expense provide an Opinion of Counsel satisfactory to the addressees of this Trust Certificate that such sale, transfer or other disposition may be made pursuant to an exemption from the Act, or (B) to a person who we reasonably believe is a “qualified institutional buyer” within the meaning of Rule 144A under the Act that is aware that the sale or other transfer is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Securitization Trust as such transferee has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon its foregoing representations in order to claim the exemption from registration provided by Rule 144A, and (ii) if the transferee has otherwise complied with all conditions for transfer set forth in the Trust Agreement.
Capitalized terms used herein that are not otherwise defined shall have the meanings ascribed thereto in the Trust Agreement.
| Very truly yours,
[NAME OF TRANSFEREE]
By: Authorized Officer |
D-2
EXHIBIT E
FORM OF RULE 144A LETTER
[DATE]
GMF Leasing LLC
801 Cherry Street, Suite 3500
Fort Worth, Texas 76102
Attention: Chief Financial Officer
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention: Computershare Corporate Trust
Computershare Trust Company, N.A.
1505 Energy Park Drive
St. Paul, MN 55108
Attention: Computershare Corporate Trust
| Re: | GM Financial Automobile Leasing Trust 2024-3, Trust Certificates |
Ladies and Gentlemen:
In connection with our acquisition of the above-referenced Trust Certificates (the “Trust Certificates”) we certify that (a) we understand that the Trust Certificates are not being registered under the Securities Act of 1933, as amended (the “Act”), or any state securities laws and are being transferred to us in a transaction that is exempt from the registration requirements of the Act and any such laws, (b) we have such knowledge and experience in financial and business matters that we are capable of evaluating the merits and risks of investments in the Trust Certificates, (c) we have had the opportunity to ask questions of and receive answers from the seller concerning the purchase of the Trust Certificates and all matters relating thereto or any additional information deemed necessary to our decision to purchase the Trust Certificates, (d) we have not, nor has anyone acting on our behalf, offered, transferred, pledged, sold or otherwise disposed of the Trust Certificates or any interest in the Trust Certificates, or solicited any offer to buy, transfer, pledge or otherwise dispose of the Trust Certificates or any interest in the Trust Certificates from any person in any manner, or made any general solicitation by means of general advertising or in any other manner, or taken any other action that would constitute a distribution of the Trust Certificates under the Act or that would render the disposition of the Trust Certificates a violation of Section 5 of the Act or any state securities laws or require registration pursuant thereto, and we will not act, or authorize any person to act, in such manner with respect to the Trust Certificates, (e) we are a “qualified institutional buyer” as that term is defined in Rule 144A under the Act, (f) we are not a Benefit Plan Entity and will not acquire or hold the Trust Certificates on behalf of or with “plan assets” of a Benefit Plan Entity (as such term is defined the Amended and Restated Trust Agreement, dated as of August 20, 2024 (as the
E-1
same may be further amended, restated, supplemented or otherwise modified from time to time, the “Trust Agreement”), between GMF Leasing LLC, as Depositor, and Wilmington Trust Company, as Owner Trustee), and (g) we are a United States person within the meaning of Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended. We are aware that the sale to us is being made in reliance on Rule 144A and acknowledge that we have received such information regarding the Securitization Trust as we have requested pursuant to Rule 144A or have determined not to request such information and that we are aware that the seller is relying upon our foregoing representations in order to claim the exemption from registration provided by Rule 144A. We are acquiring the Trust Certificates for our own account or for resale pursuant to Rule 144A and understand that such Trust Certificates may be resold, pledged or transferred only (i) (A) in a transaction exempt from the registration requirements of the Act and applicable state securities or “blue sky” laws and, if requested, we will at our expense provide an Opinion of Counsel satisfactory to the addressees of this Trust Certificate that such sale, transfer or other disposition may be made pursuant to an exemption from the Act, or (B) to a person who we reasonably believe is a “qualified institutional buyer” within the meaning of Rule 144A under the Act that is aware that the sale or other transfer is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Securitization Trust as such transferee has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon its foregoing representations in order to claim the exemption from registration provided by Rule 144A, and (ii) if the transferee has otherwise complied with all conditions for transfer set forth in the Trust Agreement.
Capitalized terms used herein that are not otherwise defined shall have the meanings ascribed thereto in the Trust Agreement.
| Very truly yours,
[NAME OF TRANSFEREE]
By: Authorized Officer |
E-2
EXHIBIT F
FORM OF NOTICE OF REPURCHASE REQUEST
[DATE]
AmeriCredit Financial Services, Inc.
d/b/a GM Financial
as Servicer
801 Cherry Street, Suite 3500
Fort Worth, Texas 76102
Attention: Chief Financial Officer
GMF Leasing LLC,
as Depositor
801 Cherry Street, Suite 3500
Fort Worth, Texas 76102
Attention: Chief Financial Officer
| Re: | Notice of Requests to Repurchase 2024-3 Leased Agreement(s) and related 2024-3 Leased Vehicle(s) (“Receivables”) |
Reference is hereby made to each of the Amended and Restated Trust Agreements set forth on Schedule A (each, an “Agreement”), for which Wilmington Trust Company, a Delaware trust company has acted in the capacity of owner trustee (in each case, the “Owner Trustee”). This Notice is being delivered pursuant to Section 5.7 or 6.7, as applicable, of the related Agreement.
[During the period from and including [_____], 20[__] to but excluding [_____], 20[__], the Owner Trustee received no requests requesting that any Receivables be repurchased.]
[During the period from and including [_____], 20[__] to but excluding [_____], 20[__] the Owner Trustee received one or more requests requesting that Receivables be repurchased. Copies of such requests received in writing are attached, and details of any such requests received orally are set forth below:
| Agreement | Date of Request | Number of Receivables Subject to Request |
Aggregate Principal Balance of Receivables Subject to Request | |||
This notice, and requests contained herein are being sent to you in connection with compliance with Rule 15Ga-1 of the Securities Exchange Act of 1934. In no event will the
F-1
Owner Trustee or any of the related Issuers have any responsibility or liability in connection with (i) the compliance by the related Servicer, the related Depositor or any other Person with the Exchange Act or Regulation AB or (ii) any filing required to be made by a securitizer under the Exchange Act or Regulation AB.
Capitalized terms used but not defined herein shall have the meanings given to them in the related Agreement.
| WILMINGTON TRUST COMPANY, not in its individual capacity but solely as | ||
| Owner Trustee of the Issuer | ||
|
By: | ||
F-2
Schedule A
Agreements
[To be provided]
F-3
Exhibit 4.5
ACAR LEASING LTD.,
as Borrower
GM FINANCIAL,
as Lender and Servicer
and
COMPUTERSHARE TRUST COMPANY, N.A.,
as Administrative Agent and Collateral Agent
2024-3 EXCHANGE NOTE SUPPLEMENT
Dated as of August 20, 2024
TABLE OF CONTENTS
| Page | ||||||
| ARTICLE I USAGE AND DEFINITIONS |
1 | |||||
| SECTION 1.1. |
Usage and Definitions; Conflicts | 1 | ||||
| ARTICLE II THE 2024-3 EXCHANGE NOTE |
1 | |||||
| SECTION 2.1. |
Creation and Designation. | 1 | ||||
| SECTION 2.2. |
Form of Execution, Authentication and Delivery of the 2024-3 Exchange Note; Delivery and Payment for the 2024-3 Exchange Note | 2 | ||||
| SECTION 2.3. |
Transfer Restrictions with Respect to the 2024-3 Exchange Note | 2 | ||||
| SECTION 2.4. |
Interest Payments on the 2024-3 Exchange Note | 3 | ||||
| SECTION 2.5. |
Payments of Principal on the 2024-3 Exchange Note | 3 | ||||
| SECTION 2.6. |
Decreases in the Exchange Note Balance; Cancellation of the 2024-3 Exchange Note | 3 | ||||
| ARTICLE III THE 2024-3 DESIGNATED POOL |
3 | |||||
| SECTION 3.1. |
The 2024-3 Designated Pool | 3 | ||||
| ARTICLE IV EXCHANGE NOTE DEFAULTS AND REMEDIES |
4 | |||||
| SECTION 4.1. |
2024-3 Exchange Note Defaults | 4 | ||||
| SECTION 4.2. |
Exchange Note Remedies | 4 | ||||
| ARTICLE V APPLICATION OF COLLECTIONS ON THE 2024-3 DESIGNATED POOL |
5 | |||||
| SECTION 5.1. |
Application of Collections on the 2024-3 Designated Pool when No Exchange Note Default Has Occurred | 5 | ||||
| SECTION 5.2. |
Modified Priorities Following Liquidation | 5 | ||||
| ARTICLE VI SECURITY INTEREST |
6 | |||||
| SECTION 6.1. |
Security Interest | 6 | ||||
| ARTICLE VII MISCELLANEOUS |
7 | |||||
| SECTION 7.1. |
Amendments | 7 | ||||
| SECTION 7.2. |
2024-3 Exchange Noteholders Entitled to Benefits of this Supplement | 7 | ||||
| SECTION 7.3. |
GOVERNING LAW | 7 | ||||
| SECTION 7.4. |
Submission to Jurisdiction; Service of Process | 7 | ||||
| SECTION 7.5. |
Severability | 8 | ||||
i
| SECTION 7.6. |
Counterparts and Consent to Do Business Electronically | 8 | ||||
| SECTION 7.7. |
Headings | 8 | ||||
| SECTION 7.8. |
No Petition | 8 | ||||
| SECTION 7.9. |
Limitation of Liability | 8 |
| Schedule A |
Collateral Lease Agreements and Collateral Leased Vehicles in 2024-3 Designated Pool | SA-1 | ||||
| Exhibit A |
Form of 2024-3 Exchange Note | EA-1 | ||||
| Appendix 1 |
Definitions | A1-1 | ||||
ii
2024-3 EXCHANGE NOTE SUPPLEMENT, dated as of August 20, 2024 (as the same may be amended, restated, supplemented or otherwise modified from time to time, this “Supplement” or this “Agreement”), among ACAR LEASING LTD., a Delaware statutory trust, as Borrower (the “Borrower”), AMERICREDIT FINANCIAL SERVICES, INC. d/b/a GM Financial, a Delaware corporation (“GM Financial”), as lender (in such capacity, the “Lender”) and as servicer (in such capacity, the “Servicer”), and COMPUTERSHARE TRUST COMPANY, N.A., a national banking association, as administrative agent (in such capacity, the “Administrative Agent”) and as collateral agent (in such capacity, the “Collateral Agent”).
WHEREAS, Section 4.1 of the Third Amended and Restated Credit and Security Agreement, dated as of October 3, 2022 (as the same may be further amended, restated, supplemented or otherwise modified from time to time, the “Credit and Security Agreement”), among the Borrower, the Lender, the Servicer, the Administrative Agent and the Collateral Agent provides that the parties thereto may at any time and from time to time enter into a supplement to the Credit and Security Agreement for the purpose of authorizing the issuance, execution and authentication of one or more Exchange Notes; and
WHEREAS, the Lender enters into this Supplement with the other parties hereto as required by Section 4.2(e)(i) of the Credit and Security Agreement to provide for the issuance, authentication and delivery of the 2024-3 Exchange Note.
NOW, THEREFORE, the parties to this Supplement wish to create the 2024-3 Exchange Note and specify the principal terms thereof in accordance with the following terms and conditions.
ARTICLE I
USAGE AND DEFINITIONS
SECTION 1.1. Usage and Definitions; Conflicts. Capitalized terms used in this Supplement that are not otherwise defined herein or in the Definitions Appendix hereto shall have the meanings assigned to them in Appendix A to the Credit and Security Agreement. The “Other Definitional Provisions” set forth in Section 1.2 of the Credit and Security Agreement are incorporated by reference into this Supplement. In the event of a conflict between the terms of the 2024-3 Exchange Note, the terms of the Credit and Security Agreement and the terms of this Supplement, this Supplement will prevail.
ARTICLE II
THE 2024-3 EXCHANGE NOTE
SECTION 2.1. Creation and Designation.
(a) An Exchange Note that is to be designated and known as the “2024-3 Exchange Note” is hereby created.
(b) The terms of the 2024-3 Exchange Note are as follows:
(i) the “Exchange Note Issuance Date” will be October 2, 2024;
1
(ii) the “Exchange Note Initial Principal Balance” will be $1,390,000,000;
(iii) the “Cutoff Date” will be the close of business on August 20, 2024;
(iv) the “Exchange Note Interest Rate” will be equal to 4.755%;
(v) the “Exchange Note Final Scheduled Payment Date” will be the Payment Date occurring on March 20, 2029;
(vi) the 2024-3 Exchange Note will be issued as a single class; and
(vii) the 2024-3 Exchange Note will not be rated.
SECTION 2.2. Form of Execution, Authentication and Delivery of the 2024-3 Exchange Note; Delivery and Payment for the 2024-3 Exchange Note.
(a) The 2024-3 Exchange Note, together with the Administrative Agent’s certificate of authentication on the 2024-3 Exchange Note, will be delivered in the form of a certificated note substantially in the form set forth as Exhibit A and will satisfy the requirements of Sections 4.1 and 4.2 of the Credit and Security Agreement. The 2024-3 Exchange Note may be transferred only in whole and not in part.
(b) Following satisfaction of the conditions set forth in Section 4.2(e) of the Credit and Security Agreement, the Administrative Agent will (i) acknowledge this Supplement, and (ii) authenticate and deliver the 2024-3 Exchange Note in accordance with Section 4.2(f) of the Credit and Security Agreement.
(c) The Borrower represents and warrants that upon satisfaction of the conditions set forth in Sections 2.2(a) and (b), the 2024-3 Exchange Note will have been duly authorized, executed and delivered under this Supplement.
(d) The 2024-3 Exchange Note will state that (i) if an Insolvency Event occurs with respect to the Borrower, any claim that the 2024-3 Exchange Noteholder may seek to enforce at any time against the Borrower will be limited in recourse to the 2024-3 Designated Pool, (ii) if, notwithstanding clause (i), the 2024-3 Exchange Noteholder is deemed to have any claim against the assets of the Borrower other than the assets included in the 2024-3 Designated Pool, such claim will be subordinate to the payment in full, including post-petition interest, of the claims of the Lender and to the holders of (A) all other Exchange Notes, and (B) in the case of assets allocated to a Specified Interest other than the Series CSA Interest, all other asset-backed securities, the payments on which are derived primarily from collections on designated assets of the Borrower and all related hedging arrangements, and (iii) such recitation constitutes an enforceable subordination agreement for purposes of Section 510(a) of the Bankruptcy Code.
SECTION 2.3. Transfer Restrictions with Respect to the 2024-3 Exchange Note. By acceptance of the 2024-3 Exchange Note, the 2024-3 Exchange Noteholder agrees to comply with the transfer restrictions set forth in Section 4.4 of the Credit and Security Agreement.
2
SECTION 2.4. Interest Payments on the 2024-3 Exchange Note. For each Payment Date, the amount of interest due on the 2024-3 Exchange Note (the “Exchange Note Interest Payment Amount”) will be an amount equal to the sum of (a) the sum of the amounts calculated for each day during the related Interest Accrual Period equal to the product of (i) the Exchange Note Balance as of such day, times (ii) the Exchange Note Interest Rate on such day, times (iii) 30/360 (or, in the case of the first Payment Date, a fraction equal to the number of days from and including the Closing Date through and excluding October 21, 2024, over 360), plus (b) the portion of the Exchange Note Interest Payment Amount, if any, that was not paid on any prior Payment Date plus interest on such unpaid amount, to the extent permissible by law, at the Exchange Note Interest Rate.
SECTION 2.5. Payments of Principal on the 2024-3 Exchange Note. For each Payment Date, the amount of principal payable on the 2024-3 Exchange Note (the “Exchange Note Principal Payment Amount”) will be an amount equal to the sum of (a) the difference between (i) the Designated Pool Balance as of the close of business on the last day of the immediately preceding Collection Period, minus (ii) the Designated Pool Balance as of the close of business on the last day of the related Collection Period, plus (b) the portion of the Exchange Note Principal Payment Amount, if any, that was not paid on any prior Payment Date; provided, that, for each Payment Date occurring on or after the Exchange Note Final Scheduled Payment Date, the Exchange Note Principal Payment Amount will equal the entire outstanding 2024-3 Exchange Note Balance as of such Payment Date; provided, further, that, for each Payment Date occurring on or after the acceleration of the 2024-3 Exchange Note following an Exchange Note Default, the Exchange Note Principal Payment Amount will equal the entire unpaid Exchange Note Balance as of such Payment Date.
SECTION 2.6. Decreases in the Exchange Note Balance; Cancellation of the 2024-3 Exchange Note.
(a) At any time the Note Principal Balance of the Notes is reduced to zero, the Exchange Note Balance will be reduced to zero at such time.
(b) GM Financial may not effect the cancellation of the 2024-3 Exchange Note pursuant to Section 4.7 of the Credit and Security Agreement unless the 2024-3 Exchange Note has been released from the lien of the Indenture pursuant to Section 8.4 thereof or unless it has purchased such 2024-3 Exchange Note in accordance with an Optional Purchase.
ARTICLE III
THE 2024-3 DESIGNATED POOL
SECTION 3.1. The 2024-3 Designated Pool.
(a) The Collateral Lease Agreements and the Collateral Leased Vehicles listed on Schedule A hereto (the “Schedule of 2024-3 Lease Agreements and 2024-3 Leased Vehicles”), will constitute the 2024-3 Designated Pool as of the Cutoff Date. The 2024-3 Exchange Note will be payable solely from Collections on the Collateral Assets included in the 2024-3 Designated Pool in accordance with the priorities in Section 5.1. For purposes of determining the Collections
3
that are applicable to the 2024-3 Designated Pool, the Collateral Assets included in the 2024-3 Designated Pool will be deemed to have been included in the 2024-3 Designated Pool from and after the Cutoff Date.
(b) Any Collateral Assets reallocated from the 2024-3 Designated Pool, including following a sale of the related Leased Vehicle or upon an Optional Purchase of the Notes, will be deemed to have been reallocated to the Lending Facility Pool as of the date of such sale.
(c) At any time that Collateral Assets are included in the 2024-3 Designated Pool they will not be included in the Lending Facility Pool or in any other Designated Pool. Collateral Assets that are included in the Lending Facility Pool or any other Designated Pool as of the Cutoff Date will not be included in the 2024-3 Designated Pool.
(d) At any time the Exchange Note Balance is reduced to zero, the Collateral Assets included in the 2024-3 Designated Pool at such time will be reallocated to the Lending Facility Pool.
(e) Upon repayment in full of the 2024-3 Exchange Note, the 2024-3 Designated Pool will be deemed to be terminated and all Collateral Assets included in the 2024-3 Designated Pool at the time of such termination will be reallocated to the Lending Facility Pool.
ARTICLE IV
EXCHANGE NOTE DEFAULTS AND REMEDIES
SECTION 4.1. 2024-3 Exchange Note Defaults. Any of the following events or occurrences shall constitute the “Exchange Note Defaults” with respect to the 2024-3 Exchange Note: (a) the events set forth in Section 6.3(a) of the Credit and Security Agreement, or (b) the acceleration of the Notes under the Indenture following the occurrence of an Event of Default set forth in Section 5.1 thereof; provided, that, with respect to Section 6.3(a)(ii) of the Credit and Security Agreement, the reference to a “Facility Servicer Event of Default” shall be read to mean the occurrence of either a “Lending Facility Servicer Default” (as defined in Section 4.1 of the Basic Servicing Agreement) or an “Exchange Note Servicer Default”; provided, further, that, if any event described in Section 6.3(a)(iii) through (vi) of the Credit and Security Agreement shall have been caused solely by a Force Majeure Event, then the applicable cure period referred to in such clause shall be extended for an additional ten (10) calendar days; provided, further, that, if there is no cure period listed in any such clause, then such cure period shall be ten (10) calendar days.
SECTION 4.2. Exchange Note Remedies.
(a) If an Exchange Note Default has occurred, the 2024-3 Exchange Noteholder may take the actions set forth in Section 6.4(a) of the Credit and Security Agreement.
(b) Any Secured Party may submit a bid with respect to any such liquidation or sale of the Collateral included in the 2024-3 Designated Pool pursuant to Section 6.4(a)(ii)(z) of the Credit and Security Agreement.
4
ARTICLE V
APPLICATION OF COLLECTIONS ON THE 2024-3 DESIGNATED POOL
SECTION 5.1. Application of Collections on the 2024-3 Designated Pool when No Exchange Note Default Has Occurred. On each Payment Date (unless an Exchange Note Default has occurred prior to such Payment Date and the Exchange Note Balance has been accelerated), the Indenture Trustee will, with respect to the 2024-3 Designated Pool (based on the information contained in the Servicer Report delivered with respect to such Payment Date), withdraw from the 2024-3 Exchange Note Collections Account an amount equal to the 2024-3 Designated Pool Collections for such Payment Date and apply such amounts in accordance with the following order of priority:
(a) to the Servicer, the Designated Pool Servicing Fee for the related Collection Period, to the extent that such amounts have not been paid from 2024-3 Designated Pool Collections that have been retained by the Servicer in a manner permitted by any other Program Document;
(b) to the 2024-3 Exchange Noteholder, the Exchange Note Interest Payment Amount;
(c) to the 2024-3 Exchange Noteholder, the Exchange Note Principal Payment Amount, as a payment of principal of the 2024-3 Exchange Note until the Exchange Note Balance has been reduced to zero;
(d) to the 2024-3 Exchange Noteholder, the amount, if any by which the amounts that it is obligated to pay pursuant to Sections 8.3(a)(i) through (xiv) of the Indenture on such Payment Date exceed the amounts received by it pursuant to clauses (b) and (c), above, on such Payment Date; and
(e) all remaining funds, to the 2024-3 Exchange Noteholder as Excess Exchange Note Payments.
All amounts payable to the 2024-3 Exchange Noteholder pursuant to this Section 5.1 will be deposited by the Indenture Trustee into the Indenture Collections Account, and the Borrower will apply all amounts remitted to it by the Certificateholder as Excess Exchange Note Payments as Collections on the Lending Facility Pool in the manner and in the priority set forth in Section 10.2 of the Credit and Security Agreement.
SECTION 5.2. Modified Priorities Following Liquidation. Notwithstanding Section 5.1, on each Payment Date following the acceleration of the 2024-3 Exchange Note following an Exchange Note Default, the Indenture Trustee will, with respect to the 2024-3 Designated Pool (based on the information contained in the Servicer Report delivered with respect to such Payment Date), withdraw from the 2024-3 Exchange Note Collections Account an amount equal to the 2024-3 Designated Pool Collections for such Payment Date and apply such amounts, together with the proceeds of the sale or liquidation of any portion of the Collateral included in the 2024-3 Designated Pool pursuant to Section 6.4(a)(ii)(z) of the Credit and Security Agreement, in accordance with the following priorities:
5
(a) to pay to the Collateral Agent any amounts due with respect to the 2024-3 Exchange Note or the 2024-3 Designated Pool under Section 3.1(c) or Article VIII of the Credit and Security Agreement to the extent such amounts have not been paid by the Borrower, but not to exceed $100,000 in any consecutive twelve (12) month period;
(b) to pay to the Administrative Agent any amounts due with respect to the 2024-3 Exchange Note or the 2024-3 Designated Pool under Section 7.5 or Article VIII of the Credit and Security Agreement to the extent such amounts have not been paid by the Borrower, but not to exceed $100,000 in any consecutive twelve (12) month period;
(c) to make the payments described in Section 5.1(a);
(d) to make payments to the 2024-3 Exchange Noteholder, to the extent necessary to pay all accrued and unpaid interest on the 2024-3 Exchange Note and any interest on such accrued and unpaid interest at the Exchange Note Interest Rate;
(e) to make payments to the 2024-3 Exchange Noteholder, to the extent necessary to reduce the Exchange Note Balance to zero;
(f) to the 2024-3 Exchange Noteholder, the amount, if any, by which the amounts that it is obligated to pay pursuant to Sections 5.4(c)(FIRST) through (EIGHTH) of the Indenture on such Payment Date exceed the amounts received by it pursuant to clauses (d) and (e), above, on such Payment Date; and
(g) to make payments in the manner described in Section 5.1(e).
All amounts payable to the 2024-3 Exchange Noteholder pursuant to this Section 5.2 will be deposited by the Indenture Trustee into the Indenture Collections Account.
ARTICLE VI
SECURITY INTEREST
SECTION 6.1. Security Interest.
(a) The Borrower hereby confirms its Grant under the Credit and Security Agreement of a security interest in the Collateral to the Collateral Agent. In addition, the Borrower hereby Grants to the Collateral Agent on behalf of the 2024-3 Secured Parties a security interest in the Collateral and acknowledges and agrees that such Grant includes (but is not limited to) a Grant to the Collateral Agent on behalf of the 2024-3 Exchange Noteholder a security interest in the Collateral Assets included in the 2024-3 Designated Pool.
(b) For so long as the 2024-3 Exchange Note is outstanding, the Collateral Agent agrees to deliver a copy of each opinion received by it pursuant to Section 5.5 of the Credit and Security Agreement to each Noteholder promptly after its receipt thereof.
6
ARTICLE VII
MISCELLANEOUS
SECTION 7.1. Amendments.
(a) Subject to Sections 7.1(c) and (d) of this Supplement, this Supplement may only be amended in accordance with Article IX of the Credit and Security Agreement.
(b) Promptly upon the execution of any such amendment, (i) the Servicer will send a copy of such amendment to the Indenture Trustee, and (ii) the Indenture Trustee will notify each 2024-3 Exchange Noteholder of the substance of such amendment.
(c) Notwithstanding Article IX of the Credit and Security Agreement, the parties hereto agree that they shall not amend the Credit and Security Agreement or this Supplement pursuant to Section 9.1 of the Credit and Security Agreement without the consent of the 2024-3 Exchange Noteholder unless the 2024-3 Exchange Noteholder shall have received an Opinion of Counsel to the effect that such amendment will not materially adversely affect the interests of the 2024-3 Exchange Noteholder.
(d) In the case of any amendment pursuant to Section 9.2 of the Credit and Security Agreement, the consent of the 2024-3 Exchange Noteholder shall be deemed to have been granted only upon receipt of the consent thereto by the Majority Noteholders.
SECTION 7.2. 2024-3 Exchange Noteholders Entitled to Benefits of this Supplement. GM Financial Automobile Leasing Trust 2024-3, as transferee of GM Financial, as Lender, will be the initial 2024-3 Exchange Noteholder. Any subsequent 2024-3 Exchange Noteholder, by accepting the 2024-3 Exchange Note, will be deemed to have agreed to the terms and conditions of the Credit and Security Agreement and this Supplement and will be entitled to the benefits of the Credit and Security Agreement and this Supplement with the same effect as if such 2024-3 Exchange Noteholder had been a party thereto or hereto.
SECTION 7.3. GOVERNING LAW. THIS SUPPLEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO OTHERWISE APPLICABLE PRINCIPLES OF CONFLICTS OF LAW (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
SECTION 7.4. Submission to Jurisdiction; Service of Process. The Administrative Agent submits to the nonexclusive jurisdiction of any United States District Court sitting in New York and of any New York state court for purposes of all legal proceedings arising out of or relating to this Supplement. The Administrative Agent irrevocably waives, to the fullest extent it may do so, any objection that it may now or hereafter have to the laying of the venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum. The Administrative Agent irrevocably appoints Computershare Trust Company, N.A., at its Corporate Trust Office, as its authorized agent on which any and all legal process may be served in any such legal proceeding brought in any such court. If for any reason such agent ceases to be available to act as such, the Administrative Agent agrees to designate a new agent in the State of New York for receipt of service of legal process.
7
SECTION 7.5. Severability. If any one or more of the covenants, agreements, provisions or terms of this Supplement is held invalid, illegal or unenforceable, then such covenants, agreements, provisions and terms will be deemed severable from the remaining covenants, agreements, provisions and terms of this Supplement and will in no way affect the validity, legality or enforceability of the other covenants, agreements, provisions or terms of this Supplement.
SECTION 7.6. Counterparts and Consent to Do Business Electronically. This Supplement 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 Supplement and any documents to be delivered in connection with this Supplement 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 Supplement 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 7.7. Headings. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
SECTION 7.8. No Petition. Each party to this Supplement covenants that for a period of one (1) year and one (1) day (or, if longer, any applicable preference period) after payment in full of the Notes, all Exchange Notes, and all distributions to all Certificateholders the payments on which are derived in any material part from amounts received with respect to any Trust Assets, it will not institute against, or join any Person in instituting against, the Issuer, the Depositor, the Borrower, the Settlor or the Holder of the Series CSA Interest Certificate any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings under any United States federal or state bankruptcy or similar law in connection with any obligations relating to the 2024-3 Exchange Note, the Notes, this Supplement or any of the other Program Documents and agrees it will not cooperate with or encourage others to file a bankruptcy petition against the Issuer, the Depositor, the Borrower, the Settlor or the Holder of the Series CSA Interest Certificate during the same period.
SECTION 7.9. Limitation of Liability. It is expressly understood and agreed by the parties hereto that (a) this Supplement is executed and delivered by Wilmington Trust Company, not individually or personally but solely as Owner Trustee, Administrative Trustee and Delaware Trustee of the Borrower, in the exercise of the powers and authority conferred and vested in it under the Titling Trust Agreement, (b) each of the representations, covenants, undertakings and
8
agreements herein made on the part of the Borrower is made and intended not as personal representations, covenants, undertakings and agreements by Wilmington Trust Company but is made and intended for the purpose for binding only the Borrower, (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 not verified or made any investigation as to the accuracy or completeness of any representations and warranties made by the Borrower in this Agreement, and (e) under no circumstances shall Wilmington Trust Company be personally liable for the payment of any indebtedness or expenses of the Borrower or be liable for the breach or failure of any obligation, duty (including fiduciary duty, if any), representation, warranty or covenant made or undertaken by the Borrower under this Supplement or any other related documents.
[Remainder of Page Intentionally Left Blank]
9
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective officers duly authorized as of the day and year first above written.
| ACAR LEASING LTD., |
| as Borrower |
| By: Wilmington Trust Company, |
| not in its individual capacity, but solely as Owner Trustee |
| By: _______________________________________________ |
| Name: |
| Title: |
| AMERICREDIT FINANCIAL SERVICES, INC. |
| d/b/a GM FINANCIAL, as Lender and as Servicer |
| By: _______________________________________________ |
| Name: |
| Title: |
| COMPUTERSHARE TRUST COMPANY, N.A., |
| as Administrative Agent and as Collateral Agent |
| By: ______________________________________________ |
| Name: |
| Title: |
[Signature Page to the 2024-3 Exchange Note Supplement]
Schedule A
Collateral Lease Agreements and Collateral Leased Vehicles in 2024-3 Designated Pool
(On File with Collateral Agent)
SA-1
Exhibit A
Form of 2024-3 Exchange Note
THIS 2024-3 EXCHANGE NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER ANY SECURITIES OR BLUE SKY LAW OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS 2024-3 EXCHANGE NOTE, AGREES THAT THIS 2024-3 EXCHANGE NOTE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS, AND ONLY TO EITHER (1) A “QUALIFIED INSTITUTIONAL BUYER” WITHIN THE MEANING THEREOF IN RULE 144A UNDER THE SECURITIES ACT, THAT IS ALSO A QUALIFIED PURCHASER (A “QUALIFIED PURCHASER”) WITHIN THE MEANING THEREOF IN SECTION 3(C)(7) OF THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED, (2) AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING THEREOF IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT THAT IS A QUALIFIED PURCHASER OR (3) TO APGO TRUST OR ITS AFFILIATES, IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE UNITED STATES AND SECURITIES AND BLUE SKY LAWS OF THE STATES OF THE UNITED STATES, AND SUBJECT TO THE RECEIPT BY THE BORROWER OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE BORROWER THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS.
THIS 2024-3 EXCHANGE NOTE MAY BE TRANSFERRED ONLY IN WHOLE AND NOT IN PART. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID FROM THE BEGINNING, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE PURCHASER OR TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE LENDER, THE BORROWER, THE ADMINISTRATIVE AGENT OR ANY INTERMEDIARY.
EACH HOLDER OF THIS 2024-3 EXCHANGE NOTE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT, AND IS NOT ACTING ON BEHALF OF OR INVESTING THE ASSETS OF, (A) AN “EMPLOYEE BENEFIT PLAN” (AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”)) THAT IS SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF TITLE I OF ERISA, (B) A “PLAN” (AS DEFINED IN SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”)) THAT IS SUBJECT TO SECTION 4975 OF THE CODE, (C) AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE ASSETS OF AN EMPLOYEE BENEFIT PLAN OR A PLAN DESCRIBED IN (A) OR (B) ABOVE BY REASON OF SUCH EMPLOYEE BENEFIT PLAN’S OR PLAN’S INVESTMENT IN THE ENTITY (COLLECTIVELY, A “BENEFIT PLAN INVESTOR”), OR (D) AN EMPLOYEE BENEFIT PLAN, A PLAN OR OTHER SIMILAR ARRANGEMENT THAT IS NOT A BENEFIT PLAN INVESTOR BUT IS SUBJECT TO FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS
EA-1
SUBSTANTIALLY SIMILAR TO SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE.
EA-2
REGISTERED
No. 1
2024-3 EXCHANGE NOTE
ACAR LEASING LTD., as Borrower (the “Borrower”), for value received, hereby promises to pay to GM FINANCIAL AUTOMOBILE LEASING TRUST 2024-3, as 2024-3 Exchange Noteholder (the “2024-3 Exchange Noteholder”), for its benefit and the benefit of the other transferees from time to time acquiring interests herein pursuant to the 2024-3 Exchange Note Supplement, dated as of August 20, 2024 (the “Exchange Note Supplement”), among the Borrower, AmeriCredit Financial Services, Inc. d/b/a GM Financial (“GM Financial”), as Lender and Servicer, and Computershare Trust Company, N.A. (“Computershare”), as Administrative Agent and Collateral Agent, and other transferees or registered assigns, a principal sum equal to $1,390,000,000, payable on each Payment Date in an amount equal to the Exchange Note Principal Payment Amount for such Payment Date pursuant to Section 2.5 of the Exchange Note Supplement. The entire unpaid principal amount of this 2024-3 Exchange Note will be due and payable on March 20, 2029. Capitalized terms used but not defined in this 2024-3 Exchange Note are defined in Appendix 1 to the Exchange Note Supplement or Appendix A to the Third Amended and Restated Credit and Security Agreement, dated as of October 3, 2022 (the “Credit and Security Agreement”), among the Borrower, GM Financial, as Lender and Servicer, and Computershare, as Administrative Agent and Collateral Agent.
The Borrower will pay interest on this 2024-3 Exchange Note in an amount equal to the Exchange Note Interest Payment Amount until the principal of this 2024-3 Exchange Note is paid or made available for payment. The amount of interest due on this 2024-3 Exchange Note on each Payment Date will be calculated on the basis of the Exchange Note Balance outstanding on each day of such Exchange Note Interest Period (after giving effect to all payments of principal made on the preceding Payment Date), and will be subject to certain limitations contained in Section 2.4 of the Exchange Note Supplement. Such principal of and interest on this 2024-3 Exchange Note will be paid in the manner specified on the reverse hereof.
The principal of and interest on this 2024-3 Exchange Note are payable in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. All payments made by the Borrower with respect to this 2024-3 Exchange Note will be applied to interest on and principal of this 2024-3 Exchange Note in the manner set forth in the Exchange Note Supplement.
Reference is made to the further provisions of this 2024-3 Exchange Note set forth on the reverse hereof, which will have the same effect as though fully set forth on the face of this 2024-3 Exchange Note.
Unless the certificate of authentication hereon has been executed by the Administrative Agent whose name appears below by manual or facsimile signature, this 2024-3 Exchange Note will not be entitled to any benefit under the Credit and Security Agreement or the Exchange Note Supplement referred to on the reverse hereof, or be valid or obligatory for any purpose.
[Remainder of This Page Intentionally Left Blank]
EA-3
IN WITNESS WHEREOF, the Borrower has caused this instrument to be signed, manually or in facsimile, by its Authorized Person, as of the date set forth below.
Date: October 2, 2024
| ACAR LEASING LTD., as Borrower | ||
| By: |
Wilmington Trust Company, | |
| not in its individual capacity but solely as Owner Trustee | ||
| By: |
_______________________________ | |
| Authorized Signatory | ||
EA-4
ADMINISTRATIVE AGENT’S CERTIFICATE OF AUTHENTICATION
This is the 2024-3 Exchange Note designated above and referred to in the within-mentioned Exchange Note Supplement.
Date: October 2, 2024
| COMPUTERSHARE TRUST COMPANY, N.A., not in its individual capacity but solely as Administrative Agent |
| By: _______________________________ |
| Authorized Signatory |
EA-5
REVERSE OF 2024-3 EXCHANGE NOTE
This 2024-3 Exchange Note is one of the duly authorized issue of Exchange Notes, which may be issued under the Credit and Security Agreement, to which Credit and Security Agreement and all Exchange Note Supplements that are supplemental thereto reference is made for a statement of the respective rights and obligations thereunder of the Borrower, the Lender, the Servicer, the Administrative Agent, the Collateral Agent and the 2024-3 Exchange Noteholders. This 2024-3 Exchange Note is subject to all terms of the Credit and Security Agreement and the Exchange Note Supplement. In the event of a conflict between the terms of this 2024-3 Exchange Note, the terms of the Credit and Security Agreement and the terms of the Exchange Note Supplement, the Exchange Note Supplement will prevail.
Interest on and principal of this 2024-3 Exchange Note will be payable in accordance with the priority of payments set forth in Section 5.1 of the Exchange Note Supplement.
Principal of this 2024-3 Exchange Note will be payable on each Payment Date in an amount equal to the Exchange Note Principal Payment Amount for such Payment Date. “Payment Date” means the twentieth (20th) day of each calendar month or, if any such day is not a Business Day, the next Business Day, commencing October 21, 2024.
As described on the face hereof, the entire unpaid principal amount of this 2024-3 Exchange Note will be due and payable on the Exchange Note Final Scheduled Payment Date. Notwithstanding the foregoing, the entire unpaid principal amount of this 2024-3 Exchange Note will be due and payable on the date on which an Exchange Note Default with respect to this 2024-3 Exchange Note has occurred and is continuing and the 2024-3 Exchange Noteholder has declared this 2024-3 Exchange Note to be immediately due and payable, or the 2024-3 Exchange Note has automatically been declared immediately due and payable, in each case in the manner provided in the Credit and Security Agreement and the Exchange Note Supplement.
Payments of interest on this 2024-3 Exchange Note on each Payment Date, together with the installment of principal, if any, to the extent not in full payment of this 2024-3 Exchange Note, will be made either by wire transfer in immediately available funds, to the account of the 2024-3 Exchange Noteholder or an account designated by the 2024-3 Exchange Noteholder at a bank or other entity having appropriate facilities therefor if such 2024-3 Exchange Noteholder has provided to the Exchange Note Registrar appropriate written instructions at least five Business Days prior to such Payment Date or, if not, by check mailed first-class mail postage prepaid to the 2024-3 Exchange Noteholder’s address as it appears on the Exchange Note Register prior to such Payment Date, except that the final installment of principal payable on this 2024-3 Exchange Note on a Payment Date or the Exchange Note Final Scheduled Payment Date will be payable only upon the presentation and surrender of this 2024-3 Exchange Note in the manner set forth the Credit and Security Agreement. Such payments will be made without requiring that this 2024-3 Exchange Note be submitted for notation of payment. Any reduction in the principal amount of this 2024-3 Exchange Note effected by any payments made on any Payment Date or due to a reallocation of any Collateral Lease Agreements and Collateral Leased Vehicle from the 2024-3 Designated Pool will be binding upon all future 2024-3 Exchange Noteholders of this 2024-3 Exchange Note and of any 2024-3 Exchange Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not noted hereon. If funds are expected to be available, as provided
EA-6
in the Exchange Note Supplement and the Credit and Security Agreement, for payment in full of the then remaining unpaid principal amount of this 2024-3 Exchange Note on a Payment Date, then the Administrative Agent will notify the 2024-3 Exchange Noteholder of the date on which the Borrower expects that the final installment of principal of and interest on this 2024-3 Exchange Note will be paid not later than 5 days prior to such date. Such notice will specify that such final installment will be payable only upon presentation and surrender of this 2024-3 Exchange Note and will specify the place where this 2024-3 Exchange Note may be presented and surrendered for payment of such installment.
As provided in the Exchange Note Supplement, the principal amount of this 2024-3 Exchange Note may be decreased from time to time, in the manner and to the extent described in Section 2.6 of the Exchange Note Supplement.
The transfer of this 2024-3 Exchange Note is subject to the restrictions on transfer specified on the face hereof and to the other limitations set forth in the Credit and Security Agreement and the Exchange Note Supplement. Subject to the satisfaction of such restrictions and limitations, the transfer of this 2024-3 Exchange Note may be registered on the Exchange Note Register upon surrender of this 2024-3 Exchange Note for registration of transfer at the office or agency designated by the Borrower pursuant to the Credit and Security Agreement, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Administrative Agent duly executed by the 2024-3 Exchange Noteholder hereof or the 2024-3 Exchange Noteholder’s attorney duly authorized in writing, with such signature guaranteed by an “eligible guarantor institution” meeting the requirements of the Exchange Note Registrar, and thereupon a new 2024-3 Exchange Note in the same aggregate principal amount will be issued to the designated transferee. No service charge will be charged for any registration of transfer or exchange of this 2024-3 Exchange Note, but the transferor may be required to pay a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any such registration of transfer or exchange.
The 2024-3 Exchange Noteholder, by accepting this 2024-3 Exchange Note acknowledges and agrees that (i) if an Insolvency Event occurs with respect to the Borrower, any claim that the 2024-3 Exchange Noteholder may seek to enforce at any time against the Borrower will be limited in recourse to the 2024-3 Designated Pool and (ii) if, notwithstanding clause (i), the 2024-3 Exchange Noteholder is deemed to have any claim against the assets of the Borrower other than the assets included in the 2024-3 Designated Pool, whether by operation of law, legal process, pursuant to insolvency laws or otherwise (including by virtue of Section 1111(b) of the Bankruptcy Code), such claim will be subordinate to the payment in full, including post-petition interest, of the claims of the Lender and the holders of (A) all other Exchange Notes and (B) in the case of assets allocated to a Series Interest other than the Series CSA Interest, all other asset-backed securities, the payments on which are derived primarily from collections on designated assets of the Borrower and all related hedging arrangements.
THE RECITATION SET FORTH IN THE PRECEDING PARAGRAPH WILL BE DEEMED TO CONSTITUTE AN ENFORCEABLE SUBORDINATION AGREEMENT WITHIN THE MEANING OF SECTION 510(A) OF THE BANKRUPTCY CODE.
EA-7
The 2024-3 Exchange Noteholder, by accepting this 2024-3 Exchange Note, covenants and agrees that for a period of one year and one day (or, if longer, any applicable preference period) after payment in full of all obligations under the Credit and Security Agreement, the Exchange Note Supplement, the Exchange Notes, the outstanding Certificates and any other outstanding Securities, it will not institute against the Borrower or the Settlor, or join in any institution against the Borrower or the Settlor of, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings under any federal or state bankruptcy or similar law in connection with any obligations relating to this 2024-3 Exchange Note, the Credit and Security Agreement, the Exchange Note Supplement or any of the other Program Documents.
The Borrower has entered into the Exchange Note Supplement and this 2024-3 Exchange Note is issued with the intention that, for U.S. federal, State and local income, single business and franchise tax purposes, this 2024-3 Exchange Note will qualify as indebtedness of the Borrower. The 2024-3 Exchange Noteholder, by its acceptance of this 2024-3 Exchange Note, will be deemed to agree to treat this 2024-3 Exchange Note for U.S. federal, State and local income, single business and franchise tax purposes as indebtedness of the Borrower.
Prior to the due presentment for registration of transfer of this 2024-3 Exchange Note, the Borrower and the Administrative Agent and any agent of the Borrower or the Administrative Agent may treat the Person in whose name this 2024-3 Exchange Note (as of the day of determination or as of such other date as may be specified in the Exchange Note Supplement) is registered as the owner hereof for all purposes, whether or not this 2024-3 Exchange Note be overdue, and, to the fullest extent permitted by applicable law, none of the Borrower, the Administrative Agent or any such agent will be affected by notice to the contrary.
The Credit and Security Agreement permits the amendment thereof (in any manner and for any purpose) by the Borrower, the Collateral Agent, the Lender and the Administrative Agent so long as each Exchange Noteholder of an Outstanding Exchange Note has consented to such amendment. The Credit and Security Agreement also permits the amendment thereof to amend or waive certain terms and conditions set forth therein without the consent of the Noteholders provided that certain conditions are satisfied. Any such consent by the 2024-3 Exchange Noteholder will be conclusive and binding upon the 2024-3 Exchange Noteholder and upon all future holders of this 2024-3 Exchange Note and of any 2024-3 Exchange Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent or waiver is made upon this 2024-3 Exchange Note.
The term “Borrower”, as used in this 2024-3 Exchange Note, includes any successor to the Borrower under the Credit and Security Agreement.
This 2024-3 Exchange Note is issuable only in registered form as provided in the Credit and Security Agreement and the Exchange Note Supplement, subject to certain limitations therein set forth.
This 2024-3 Exchange Note, the Credit and Security Agreement and the Exchange Note Supplement will be governed by, and construed in accordance with the laws of the State of New York.
EA-8
No reference herein to the Credit and Security Agreement or the Exchange Note Supplement, and no provision of this 2024-3 Exchange Note or of the Credit and Security Agreement will alter or impair the obligation of the Borrower, which is absolute and unconditional, to pay the principal of and interest on this 2024-3 Exchange Note at the time, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly provided in the Program Documents, none of Computershare Trust Company, N.A., in its individual capacity, or any of its affiliates, partners, beneficiaries, agents, officers, directors, employees or successors or assigns will be personally liable for, nor will recourse be had to any of them for, the payment of principal or of interest on this 2024-3 Exchange Note or performance of, or omission to perform, any of the covenants, obligations or indemnifications contained in the Credit and Security Agreement or the Exchange Note Supplement. The 2024-3 Exchange Noteholder, by its acceptance hereof, agrees that, except as expressly provided in the Program Documents, in the case of an Exchange Note Default under the Credit and Security Agreement or the Exchange Note Supplement, the 2024-3 Exchange Noteholder will have no claim against any of the foregoing for any deficiency, loss or claim therefrom; provided, however, that nothing contained herein will be taken to prevent recourse to, and enforcement against, the assets of the Borrower for any and all liabilities, obligations and undertakings contained in the Credit and Security Agreement, the Exchange Note Supplement or in this 2024-3 Exchange Note.
EA-9
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee. ________________________________________________________________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers without recourse unto ________________________________________________________________________________________
(name and address of assignee)
the within 2024-3 Exchange Note and all rights thereunder, and hereby irrevocably constitutes and appoints ________________, attorney, to transfer said 2024-3 Exchange Note on the books kept for registration thereof, with full power of substitution in the premises.
Date:
| ___________________________________ |
| Signature Guaranteed:* |
* Note: The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within 2024-3 Exchange Note in every particular, without alteration, enlargement or any change whatsoever. Such signature must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Exchange Note Registrar, which requirements include membership or participation in STAMP or such other “signature guarantee program” as may be determined by the Exchange Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
EA-10
APPENDIX 1
To 2024-3 Exchange Note Supplement
DEFINITIONS
“2024-3 Asset Representations Review Agreement” means the 2024-3 Asset Representations Review Agreement, dated as of August 20, 2024, as the same may be amended, restated, supplemented or otherwise modified from time to time, among the Servicer, the Issuer, and Clayton.
“2024-3 Closing Date” means October 2, 2024.
“2024-3 Designated Pool” means the Collateral Lease Agreements and Collateral Leased Vehicles listed on the Schedule of 2024-3 Lease Agreements and 2024-3 Leased Vehicles attached as Schedule A to the 2024-3 Exchange Note Supplement.
“2024-3 Designated Pool Collections” means with respect to any Collection Period, all Collections relating to the 2024-3 Designated Pool.
“2024-3 Eligible Deposit Account” means either (i) a segregated account with a 2024-3 Eligible Institution, (ii) a segregated trust account with the corporate trust department of a depository institution organized under the laws of the United States of America or any one of the states thereof or the District of Columbia (or any domestic branch of a foreign bank), having corporate trust powers and acting as trustee for funds deposited in such account, so long as (1) the long-term unsecured debt of such depository institution shall have a credit rating from S&P and from Fitch of at least “A” and from Moody’s of at least “A2” and (2) such depository institution’s deposits are insured by the Federal Deposit Insurance Corporation, or (iii) to the extent the requirements of clauses (i) and (ii) are not met, any account consented to by the Rating Agencies.
“2024-3 Eligible Institution” means a depository institution organized under the laws of the United States of America or any one of the States (or any domestic branch of a foreign bank), which (i) has either (A) a long-term unsecured debt rating of “A” or better by Fitch and “A” or better by S&P or (B) a certificate of deposit rating of “F-1” by Fitch and “A-1” by S&P and (ii) whose deposits are insured by the FDIC.
“2024-3 Exchange Note” means the note, substantially in the form set forth in Exhibit A to the 2024-3 Exchange Note Supplement, executed and authenticated in accordance with the Credit and Security Agreement and under the 2024-3 Exchange Note Supplement.
“2024-3 Exchange Note Assets” means as of any date, the Collateral Lease Agreements and Collateral Leased Vehicles allocated to the 2024-3 Designated Pool and the related rights with respect thereto.
“2024-3 Exchange Note Collections Account” has the meaning set forth in Section 2.3(a) of the 2024-3 Servicing Supplement.
A1-1
“2024-3 Exchange Note Collections” means with respect to any Payment Date, all amounts paid to the Issuer as the 2024-3 Exchange Noteholder since the immediately preceding Payment Date (or, with respect to the first Payment Date, since the Cutoff Date).
“2024-3 Exchange Note Sale Agreement” means the 2024-3 Exchange Note Sale Agreement, dated as of August 20, 2024, as the same may be amended, restated, supplemented or otherwise modified from time to time, between the Lender and the Depositor.
“2024-3 Exchange Note Supplement” means the 2024-3 Exchange Note Supplement to the Credit and Security Agreement, dated as of August 20, 2024, as the same may be amended, restated, supplemented or otherwise modified from time to time, among the parties to the Credit and Security Agreement.
“2024-3 Exchange Note Transfer Agreement” means the 2024-3 Exchange Note Transfer Agreement, dated as of August 20, 2024, as the same may be amended, restated, supplemented or otherwise modified from time to time, between the Depositor and the Issuer.
“2024-3 Exchange Noteholder” means the Issuer or any endorsee of the 2024-3 Exchange Note.
“2024-3 Lease Agreements” means as of any date, the Collateral Lease Agreements allocated to the 2024-3 Designated Pool.
“2024-3 Leased Vehicles” means the Leased Vehicles leased under the 2024-3 Lease Agreements.
“2024-3 Permitted Investments” means book-entry securities, negotiable instruments or securities represented by instruments in bearer or registered form which evidence:
| (i) | direct obligations of, and obligations fully guaranteed as to full and timely payment by, the full faith and credit of the United States of America; |
| (ii) | demand deposits, time deposits or certificates of deposit of any depository institution or trust company incorporated under the laws of the United States of America or any State thereof (or any domestic branch of a foreign bank) and subject to supervision and examination by federal or State banking or depository institution authorities (which may include the Administrative Agent); provided, however, that at the time of the investment or contractual commitment to invest therein the commercial paper or other short-term unsecured debt obligations (other than such obligations the rating of which is based on the credit of a Person other than such depository institution or trust company) thereof shall have a short-term credit rating of “A-1” or better from S&P and “F1” or better from Fitch; provided, that, if the Notes are rated by Fitch, such demand deposits, time deposits or certificates of deposit eligible under this clause (ii) shall have a credit rating from Fitch of “F1”; |
| (iii) | commercial paper, variable amount notes or other short term debt obligations having, at the time of the investment or contractual commitment to invest therein, a short-term credit rating of “A-1” or better from S&P and “F1” or better from Fitch; |
A1-2
| provided, that if the Notes are rated by Fitch, such commercial paper and demand notes investing solely in commercial paper eligible under this clause (iii) shall have a credit rating from Fitch of “F1”; |
| (iv) | investments in money market funds (including funds for which the Collateral Agent or the Indenture Trustee in each of their individual capacities or any of their respective Affiliates is investment manager, controlling party or advisor) having, at the time the investment or contractual commitment to invest is made, a rating in the highest investment grade category from each of Moody’s and S&P, and, if rated by Fitch, Fitch’s equivalent rating; and to the extent the Notes are rated by Fitch, such investments in money market funds eligible under this clause (iv) shall have a credit rating in the highest investment grade category from Moody’s, or from Fitch of Fitch’s equivalent rating; |
| (v) | bankers’ acceptances issued by any depository institution or trust company referred to in clause (ii) above; or |
| (vi) | repurchase obligations with respect to any security that is a direct obligation of, or fully guaranteed by, the United States of America or any agency or instrumentality thereof, the obligations of which are backed by the full faith and credit of the United States of America, in either case entered into with a depository institution or trust company (acting as principal) described in clause (ii) above. |
“2024-3 Secured Parties” means the Noteholders.
“2024-3 Servicing Agreement” means the Basic Servicing Agreement, as supplemented by the 2024-3 Servicing Supplement.
“2024-3 Servicing Supplement” means the 2024-3 Servicing Supplement, dated as of August 20, 2024, as the same may be amended, restated, supplemented or otherwise modified from time to time, among the parties to the Basic Servicing Agreement and the Indenture Trustee.
“Accelerated Principal Amount” means, for a Payment Date, the lesser of (i) the excess, if any, of (A) Total Available Funds for such Payment Date, minus (B) the aggregate amount payable pursuant to clauses (i) through (xii) of Section 8.3(a) of the Indenture on such Payment Date, and (ii) the excess, if any, of (A) the Pro Forma Note Balance for such Payment Date, minus (B) the Required Pro Forma Note Balance for such Payment Date.
“Accounts” means the 2024-3 Exchange Note Collections Account, the Indenture Collections Account, the Note Payment Account and the Reserve Account.
“Act” has the meaning set forth in Section 11.3(a) of the Indenture.
“Administration Agreement” means the Administration Agreement, dated as of August 20, 2024, as the same may be amended, restated, supplemented or otherwise modified from time to time, among the Administrator, the Issuer, the Depositor and the Indenture Trustee.
A1-3
“Administrator” means GM Financial, in its capacity as administrator of the Issuer under the Administration Agreement, and its successors in such capacity.
“ADR Organization” means The American Arbitration Association or, if The American Arbitration Association no longer exists or if its ADR Rules would no longer permit mediation or arbitration, as applicable, of the dispute, another nationally recognized mediation or arbitration organization selected by GM Financial.
“ADR Rules” means the relevant rules of the ADR Organization for mediation (including non-binding arbitration) or binding arbitration, as applicable, of commercial disputes in effect on the Closing Date.
“Aggregate Securitization Value” means on any date of determination, the sum of the Securitization Values of the Collateral Assets that are allocated to the 2024-3 Designated Pool as of such date.
“Asset Representations Reviewer” means Clayton Fixed Income Services LLC, a Delaware limited liability company.
“Asset Review” has the meaning set forth in the 2024-3 Asset Representations Review Agreement.
“Asset Review Notice” means the notice from the Indenture Trustee to the Asset Representations Reviewer and the Servicer directing the Asset Representations Reviewer to perform an Asset Review.
“Asset Review Receivable” means, with respect to any Asset Review, any 2024-3 Exchange Note Asset that is not a Defaulted Lease or a Liquidated Lease and the related lessee fails to make at least 90% of a Monthly Payment by the related Payment Due Date and, as of the last day of the Collection Period prior to the date the related Asset Review Notice was delivered, remained unpaid for 60 days or more from the Payment Due Date.
“Asset Test” means, for an Asset Review, each Test, as defined in the 2024-3 Asset Representations Review Agreement to be performed by the Asset Representations Reviewer on the related Asset Review Receivables.
“Available Funds” means for any Payment Date and the related Collection Period, the sum of the following amounts:
(i) 2024-3 Exchange Note Collections with respect to such Collection Period;
(ii) Investment Earnings for such Payment Date;
(iii) in the case of an Optional Purchase, the Optional Purchase Price;
(iv) in the case of a sale or other disposition of Collateral pursuant to Section 5.4 of the Indenture, any money or property available therefrom after application by the Indenture Trustee pursuant to Section 5.4(b) of the Indenture; and
A1-4
(v) amounts, if any, released from the Reserve Account pursuant to Section 2.14(b)(ii) of the 2024-3 Servicing Supplement on such Payment Date.
“Base Residual Value” means, with respect to any 2024-3 Lease Agreement, the least of (i) the Contract Residual Value, (ii) the residual value of the total manufacturer’s suggested retail price of the related 2024-3 Leased Vehicle (including all options authorized by the Servicer in connection with the origination of the related 2024-3 Lease Agreement, without making a distinction between value-adding options that add little or no value to the resale price of the related 2024-3 Leased Vehicle) on the related Maturity Date as determined in accordance with the then-current Automotive Lease Guide upon origination of the related 2024-3 Lease Agreement, (iii) the residual value of the total manufacturer’s suggested retail price of the related 2024-3 Leased Vehicle (including all options authorized by the Servicer in connection with the origination of the related 2024-3 Lease Agreement, without making a distinction between value-adding options that add little or no value to the resale price of the related 2024-3 Leased Vehicle) on the related Maturity Date calculated utilizing as a “mark-to-market” value a residual value estimate as determined in accordance with the September/October 2024 Automotive Lease Guide, (iv) the residual value of the Maximum Residualizable MSRP of the related 2024-3 Leased Vehicle on the related Maturity Date as determined in accordance with the then-current Automotive Lease Guide upon origination of the related 2024-3 Lease Agreement, and (v) the residual value of the Maximum Residualizable MSRP of the related 2024-3 Leased Vehicle on the related Maturity Date calculated utilizing as a “mark-to-market” value a residual value estimate as determined in accordance with the September/October 2024 Automotive Lease Guide.
“Benefit Plan Entity” has the meaning specified in Section 2.4 of the Indenture.
“Benefit Plan Investor” has the meaning specified in Section 2.4 of the Indenture.
“Book Entry Notes” means a beneficial interest in the Notes, ownership and transfers of which shall be made through book entries by a Clearing Agency as described in Section 2.11 of the Indenture.
“Calculation Agent” has the meaning set forth in Section 11.20 of the Indenture.
“Certificate” means a trust certificate evidencing the beneficial interest of a Certificateholder in the Trust.
“Certificate Register” has the meaning specified in Section 1.1 of the Trust Agreement.
“Certificateholder” means the Person in whose name a Certificate is registered on the Certificate Register.
“Certificate of Trust” means the certificate of trust of the Issuer substantially in the form of Exhibit B to the Issuer Trust Agreement.
“Class” means the Class A Notes, the Class B Notes and/or the Class C Notes, as the context requires.
A1-5
“Class A Notes” means the Class A-1 Notes, the Class A-2-A Notes, the Class A-2-B Notes, the Class A-3 Notes and the Class A-4 Notes.
“Class A-1 Interest Rate” means 4.745% per annum (computed on the basis of a 360-day year and the actual number of days in the related Interest Accrual Period).
“Class A-1 Notes” means the Class A-1 4.745% Asset Backed Notes, substantially in the form of Exhibit A-1 to the Indenture.
“Class A-2 Notes” means the Class A-2-A Notes and the Class A-2-B Notes.
“Class A-2-A Interest Rate” means 4.29% per annum (computed on the basis of a 360-day year consisting of twelve 30-day months).
“Class A-2-A Notes” means the Class A-2-A 4.29% Asset Backed Notes, substantially in the form of Exhibit A-2-A to the Indenture.
“Class A-2-B Interest Rate” means the greater of (i) SOFR plus 0.47% per annum and (ii) 0.00% (computed on the basis of a 360-day year and the actual number of days in the related Interest Accrual Period).
“Class A-2-B Notes” means the Class A-2-B Floating Rate Asset Backed Notes, substantially in the form of Exhibit A-2-B to the Indenture.
“Class A-3 Interest Rate” means 4.21% per annum (computed on the basis of a 360-day year consisting of twelve 30-day months).
“Class A-3 Notes” means the Class A-3 4.21% Asset Backed Notes, substantially in the form of Exhibit A-3 to the Indenture.
“Class A-4 Interest Rate” means 4.22% per annum (computed on the basis of a 360-day year consisting of twelve 30-day months).
“Class A-4 Notes” means the Class A-4 4.22% Asset Backed Notes, substantially in the form of Exhibit A-4 to the Indenture.
“Class A Principal Parity Amount” means, with respect to any Payment Date, the lesser of (i) the excess, if any, of (A) the aggregate remaining principal balance of the Class A Notes immediately prior to such Payment Date, over (B) the Aggregate Securitization Value as of the end of the immediately preceding Collection Period, and (ii) the amount of Total Available Funds remaining on deposit in the Indenture Collections Account after the funding of the items described in clauses (i) and (ii) of Section 8.3(a) of the Indenture on such Payment Date.
“Class B Interest Rate” means 4.49% per annum (computed on the basis of a 360-day year consisting of twelve 30-day months).
“Class B Notes” means the Class B 4.49% Asset Backed Notes, substantially in the form of Exhibit B to the Indenture.
A1-6
“Class B Principal Parity Amount” means, with respect to any Payment Date, the lesser of (i) the excess of (A) the excess, if any, of (1) the aggregate remaining principal balance of the Class A Notes and of the Class B Notes, in each case immediately prior to such Payment Date, over (2) the Aggregate Securitization Value as of the end of the immediately preceding Collection Period, over (B) the sum of the Class A Principal Parity Amount for such Payment Date plus any payments made on the Class A Notes as a Matured Principal Shortfall on such Payment Date, and (ii) the amount of Total Available Funds remaining on deposit in the Indenture Collections Account after the funding of the items described in clauses (i) through (v) of Section 8.3(a) of the Indenture on such Payment Date.
“Class C Interest Rate” means 4.58% per annum (computed on the basis of a 360-day year consisting of twelve 30-day months).
“Class C Notes” means the Class C 4.58% Asset Backed Notes, substantially in the form of Exhibit C to the Indenture.
“Class C Principal Parity Amount” means, with respect to any Payment Date, the lesser of (i) the excess of (A) the excess, if any, of (1) the aggregate remaining principal balance of the Class A Notes, of the Class B Notes and of the Class C Notes, in each case immediately prior to such Payment Date, over (2) the Aggregate Securitization Value as of the end of the immediately preceding Collection Period, over (B) the sum of the Class A Principal Parity Amount and the Class B Principal Parity Amount for such Payment Date plus any payments made on the Class A Notes or the Class B Notes as a Matured Principal Shortfall on such Payment Date, and (ii) the amount of Total Available Funds remaining on deposit in the Indenture Collections Account after the funding of the items described in clauses (i) through (viii) of Section 8.3(a) of the Indenture on such Payment Date.
“Clayton” means Clayton Fixed Income Services LLC.
“Clearing Agency” means an organization registered as a “clearing agency” pursuant to Section 17A of the Exchange Act.
“Clearing Agency Participant” means a broker, dealer, bank, other financial institution or other Person for whom from time to time a Clearing Agency effects book-entry transfers and pledges of securities deposited with the Clearing Agency.
“Code” means the Internal Revenue Code of 1986, as amended.
“Collection Period” means, with respect to the 2024-3 Exchange Note and the Notes, a calendar month (or in the case of the first Collection Period, with respect to the 2024-3 Exchange Note and the Notes, the period from and excluding the Cutoff Date and ending at the close of business on September 30, 2024). The “related Collection Period” for a Payment Date is the Collection Period ending immediately prior to such Payment Date.
“Commission” means the United States Securities and Exchange Commission.
“Commonly Controlled Entity” means with respect to a Person, an entity, whether or not incorporated, which is under common control with such Person within the meaning of Section
A1-7
4001 of ERISA or is part of a group which includes such Person and which is treated as a single employer under Section 414 of the Code.
“Contractual Obligation” means as to any Person as of any day, any provision of any security issued by such Person or of any agreement, instrument or undertaking to which such Person is a party or by which it or any of its property is bound as of such day.
“Controlling Party” means the Indenture Trustee, acting on behalf of the Noteholders and solely at the prior written direction of the Majority Noteholders.
“Corporate Trust Office” means with respect to the Indenture Trustee, the principal office of the Indenture Trustee at which any particular time its corporate trust business shall be administered which office at the date of the execution of the Indenture is located at 1505 Energy Park Drive St. Paul, Minnesota 55108 Attention: Computershare Corporate Trust or at any other time at such other address as the Indenture Trustee may designate from time to time by notice to the Noteholders.
“Credit Risk Retention Rules” has the meaning set forth in Section 2.9(a) of the 2024-3 Servicing Supplement.
“Cutoff Date” means the close of business on August 20, 2024.
“Default” means any occurrence that is, or with notice or the lapse of time or both would become, an Event of Default.
“Defaulted Lease” means any 2024-3 Lease Agreement (other than a Liquidated Lease) with respect to which at any time prior to the related Maturity Date, (i) an amount at least equal to 10% of any Monthly Payment remains unpaid for more than one hundred and twenty (120) days from the original Payment Due Date, (ii) the related 2024-3 Leased Vehicle has been repossessed, or (iii) such 2024-3 Lease Agreement has been written off by the Servicer in accordance with its Customary Servicing Practices.
“Definitive Notes” has the meaning set forth in Section 2.11 of the Indenture.
“Delinquency Rate” means, for any Collection Period, the number, expressed as a percentage, equal to (i) the aggregate Securitization Value of all Delinquent Trigger Leases as of the end of such Collection Period divided by (ii) the Aggregate Securitization Value as of the end of such Collection Period.
“Delinquency Trigger” means, that (i) as of the end of any of the first through twelfth Collection Periods, the Delinquency Rate exceeds 1.40%, (ii) as of the end of any of the thirteenth through twenty-fourth Collection Periods, the Delinquency Rate exceeds 2.10% or (iii) as of the end of any subsequent Collection Period, the Delinquency Rate exceeds 2.90%.
“Delinquent Lease” means any 2024-3 Lease Agreement that is not a Defaulted Lease or a Liquidated Lease and a lessee fails to make at least 90% of a Monthly Payment by the related Payment Due Date and remains unpaid for more than thirty (30) days from the original Payment Due Date for such payment.
A1-8
“Delinquent Trigger Lease” means any 2024-3 Lease Agreement that is not a Defaulted Lease or a Liquidated Lease and which a lessee fails to make at least 90% of a Monthly Payment by the related Payment Due Date and remains unpaid for sixty-one (61) or more days from the original Payment Due Date for such payment.
“Deposit Date” means with respect to a Collection Period and Payment Date, the Business Day immediately preceding such Payment Date.
“Depositor” means GMF Leasing LLC, a Delaware limited liability company.
“Depositor Administration Agreement” means the Administration Agreement, dated as of January 31, 2011, between the Depositor and GM Financial, as the administrator of the Depositor.
“Depositor Certificate of Formation” means the certificate of formation of the Depositor filed with the Secretary of State of the State of Delaware.
“Depositor LLC Agreement” means the limited liability company agreement of the Depositor, dated January 31, 2011, as amended, modified and supplemented from time to time.
“Designated Pool Balance” means on any date of determination and with respect to the 2024-3 Designated Pool, the sum of the Securitization Values of the Collateral Assets that are allocated to the 2024-3 Designated Pool on such date that are not Defaulted Leases as of such date.
“Designated Pool Servicing Fee” has the meaning set forth in Section 2.7 of the 2024-3 Servicing Supplement.
“Discount Rate” means with respect to each 2024-3 Lease Agreement, the greater of (i) the APR of such 2024-3 Lease Agreement, and (ii) 9.50%.
“Eligible Collateral Assets” means, on any date of determination, all 2024-3 Lease Agreements and the related 2024-3 Leased Vehicles that (i) satisfy the respective criteria on Exhibit A to this Appendix 1, and (ii) are not (and are not 2024-3 Leased Vehicles leased under) Delinquent Leases, Defaulted Leases, Matured Leases, Terminated Leases or 2024-3 Lease Agreements that the Servicer is required to have reallocated from the 2024-3 Designated Pool pursuant to Section 2.5 of the 2024-3 Servicing Supplement but has not so reallocated.
“Eligible Collateral Balance” means the sum of the Securitization Values of all Eligible Collateral Assets.
“Event of Default” means any of the events specified in Section 5.1 of the Indenture; provided, that any requirement for the giving of notice, the lapse of time, or both, or any other condition, has been satisfied.
“Excess Exchange Note Payments” means, for each Payment Date, all amounts payable pursuant to Section 5.1(e) of the 2024-3 Exchange Note Supplement.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
A1-9
“Exchange Note Balance” means as of any date of determination, the Exchange Note Initial Principal Balance, as reduced by all amounts distributed on the 2024-3 Exchange Note pursuant to Section 5.1 of the 2024-3 Exchange Note Supplement and allocable to principal through and including such date.
“Exchange Note Final Scheduled Payment Date” means March 20, 2029.
“Exchange Note Initial Principal Balance” has the meaning set forth in Section 2.1(b)(ii) of the 2024-3 Exchange Note Supplement.
“Exchange Note Interest Payment Amount” has the meaning set forth in Section 2.4 of the 2024-3 Exchange Note Supplement.
“Exchange Note Interest Period” means for the 2024-3 Exchange Note and with respect to any Payment Date, the period from and including the most recent Payment Date on which interest has been paid on the 2024-3 Exchange Note (or in the case of the first Payment Date, from and including the 2024-3 Closing Date) to, but excluding, the following Payment Date.
“Exchange Note Interest Rate” has the meaning set forth in Section 2.1(b)(iv) of the 2024-3 Exchange Note Supplement.
“Exchange Note Issuance Date” has the meaning set forth in Section 2.1(b)(i) of the 2024-3 Exchange Note Supplement.
“Exchange Note Principal Payment Amount” has the meaning set forth in Section 2.5 of the 2024-3 Exchange Note Supplement.
“Final Scheduled Payment Date” means with respect to (i) the Class A-1 Notes, the October 20, 2025 Payment Date, (ii) the Class A-2-A Notes, the January 20, 2027 Payment Date, (iii) the Class A-2-B Notes, the January 20, 2027 Payment Date, (iv) the Class A-3 Notes, the October 20, 2027 Payment Date, (v) the Class A-4 Notes, the October 20, 2028 Payment Date, (vi) the Class B Notes, the October 20, 2028 Payment Date and (vii) the Class C Notes, the March 20, 2029 Payment Date.
“Financial Assets” has the meaning set forth in Section 2.3(g)(i) of the 2024-3 Servicing Supplement.
“Fitch” means Fitch Inc. d/b/a Fitch Ratings.
“Force Majeure Event” means an act of God or other forces beyond control, acts of declared or undeclared war (including acts of terrorism), civil or military disturbances, nuclear or natural catastrophes, public disorder, strikes, work stoppages, rebellion or sabotage, interruptions, loss or malfunctions of utilities, epidemics, pandemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes.
“Foreign Noteholder” means any Noteholder that is organized under the laws of a jurisdiction other than that in which the Issuer is located. For purposes of this definition, the United
A1-10
States of America, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.
“GM Financial” means AmeriCredit Financial Services, Inc. d/b/a GM Financial.
“Indenture” means the Indenture, dated as of August 20, 2024, as the same may be amended, restated, supplemented or otherwise modified from time to time, among the Issuer, the Servicer and the Indenture Trustee.
“Indenture Collateral” has the meaning set forth in the Granting Clause of the Indenture.
“Indenture Collections Account” has the meaning set forth in Section 2.3(b) of the 2024-3 Servicing Supplement.
“Indenture Trustee” means Computershare Trust Company, N.A., a national banking association, as Indenture Trustee under the Indenture, or any successor Indenture Trustee under the Indenture.
“Independent” means, when used with respect to any specified Person, that the Person (i) is in fact independent of the Issuer, any other obligor upon the Notes, the Depositor and any Affiliate of any of the foregoing Persons, (ii) does not have any direct financial interest or any material indirect financial interest in the Issuer, any such other obligor, the Depositor or any Affiliate of any of the foregoing Persons, and (iii) is not connected with the Issuer, any such other obligor, the Depositor or any Affiliate of any of the foregoing Persons as an officer, employee, promoter, underwriter, trustee, partner, director or Person performing similar functions.
“Independent Accountants” shall have the meaning set forth in Section 2.10(a) of the 2024-3 Servicing Supplement.
“Independent Certificate” means a certificate or opinion to be delivered to the Indenture Trustee under the circumstances described in, and otherwise complying with, the applicable requirements of Section 11.1 of the Indenture, prepared by an Independent appraiser or other expert appointed by an Issuer Order and approved by the Indenture Trustee in the exercise of reasonable care, and such opinion or certificate shall state that the signer has read the definition of “Independent” (as such term is defined for purposes of the Indenture) and that the signer is Independent within the meaning thereof.
“Interest Accrual Period” means the period from and including the most recent Payment Date on which interest has been paid (or, in the case of the first Payment Date, the 2024-3 Closing Date) to but excluding the following Payment Date.
“Issuer” means GM Financial Automobile Leasing Trust 2024-3, a Delaware statutory trust.
“Issuer Obligations” means all amounts and obligations which the Issuer may at any time owe to the Indenture Trustee, the Noteholders or the Issuer Owner Trustee under any of the Program Documents.
A1-11
“Issuer Order” or “Issuer Request” means a written order or request signed in the name of the Issuer by any one of its Authorized Officers and delivered to the Indenture Trustee.
“Issuer Owner Trustee” means Wilmington Trust Company, not in its individual capacity but solely as owner trustee under the Issuer Trust Agreement, or any successor Issuer Owner Trustee under the Issuer Trust Agreement.
“Issuer Trust Agreement” means the Amended and Restated Trust Agreement of the Issuer, dated as of August 20, 2024, as the same may be amended, restated, supplemented or otherwise modified from time to time, between the Depositor and the Issuer Owner Trustee.
“Issuer Trust Certificate” means a “Trust Certificate”, as defined in Section 1.1 of the Issuer Trust Agreement.
“Issuer Trust Certificateholder” means a “Trust Certificateholder”, as defined in Section 1.1 of the Issuer Trust Agreement.
“Issuer Trust Estate” means all money, instruments, rights and other property that are subject or intended to be subject to the lien and security interest of the Indenture for the benefit of the Noteholders (including all property and interests Granted to the Indenture Trustee and all Indenture Collateral), including all proceeds thereof.
“Liquidated Lease” means with respect to any Collection Period, a 2024-3 Lease Agreement: (i) in respect of which the related 2024-3 Leased Vehicle was sold or otherwise disposed of by the Servicer following the scheduled or early termination of such 2024-3 Lease Agreement, (ii) that became a Terminated Lease or a Matured Lease more than one hundred and eighty (180) days prior to the end of such Collection Period and the related 2024-3 Leased Vehicle has not been sold or otherwise disposed of by the Servicer as of the end of such Collection Period, or (iii) in respect of which the Servicer’s records, in accordance with the Customary Servicing Practices, indicate that all Insurance Proceeds expected to be received have been received following a casualty or other loss with respect to the related 2024-3 Leased Vehicle.
“Majority Noteholders” means the Holders of Notes representing a majority of the principal balance of the most senior Class of Notes then outstanding; provided, that neither Holders of Notes who are employees or Affiliates of the Issuer, the Seller, the Servicer or General Motors Financial Company, Inc. nor the Notes held by such Holders shall be counted when calculating such majority of the related principal balance.
“Matured Principal Shortfall” means, with respect to any Payment Date and for any Class of Notes which would have a remaining principal balance greater than zero on such Payment Date after taking into account the payment of all other principal amounts to such Class on such Payment Date and as to which such Payment Date is either the Final Scheduled Payment Date for such Class, or a Payment Date subsequent to such Final Scheduled Payment Date, the remaining principal balance of such Class on such Payment Date.
“Moody’s” means Moody’s Investors Service, Inc., or its successor.
“Note” means a Class A-1 Note, a Class A-2-A Note, a Class A-2-B Note, a Class A-3
A1-12
Note, a Class A-4 Note, a Class B Note or a Class C Note.
“Note Interest Rate” means, with respect to the (i) Class A-1 Notes, the Class A-1 Interest Rate, (ii) Class A-2-A Notes, the Class A-2-A Interest Rate, (iii) Class A-2-B Notes, the Class A-2-B Interest Rate, (iv) Class A-3 Notes, the Class A-3 Interest Rate, (v) Class A-4 Notes, the Class A-4 Interest Rate, (vi) Class B Notes, the Class B Interest Rate, and (vii) Class C Notes, the Class C Interest Rate.
“Note Owner” means, with respect to a Book Entry Note, the person who is the owner of such Book Entry Note, as reflected on the books of the Clearing Agency, or on the books of a Person maintaining an account with such Clearing Agency (directly as a Clearing Agency Participant or as an indirect participant, in each case in accordance with the rules of such Clearing Agency).
“Note Paying Agent” means the Indenture Trustee or any other Person that meets the eligibility standards for the Indenture Trustee specified in Section 6.10 of the Indenture and is authorized by the Issuer to make the payments to and distributions from the Indenture Collections Account and the Note Payment Account, including payment of principal of or interest on the Notes on behalf of the Issuer.
“Note Payment Account” has the meaning set forth in Section 2.3(c) of the 2024-3 Servicing Supplement.
“Note Principal Balance” means (i) on the 2024-3 Closing Date, $1,317,100,000, and (ii) on any other date, an amount equal to the excess, if any, of (a) the Note Principal Balance on the 2024-3 Closing Date, over (b) the aggregate amount of all Noteholders’ Principal Distributable Amounts and other payments of principal in respect of the Notes, in each case, made on Payment Dates pursuant to the Indenture through and including such date.
“Note Register” and “Note Registrar” have the meanings specified in Section 2.4 of the Indenture.
“Noteholder” or “Holder” means the Person in whose name a Note is registered in the Note Register.
“Noteholders’ Distributable Amount” means, with respect to any Payment Date, the sum of the Noteholders’ Principal Distributable Amount and the Noteholders’ Interest Distributable Amount.
“Noteholders’ Interest Carryover Amount” means, with respect to any Class of Notes and any date of determination, any Noteholders’ Interest Distributable Amount for such Class of Notes from the immediately preceding Payment Date which remains unpaid as of such date of determination, plus interest on such unpaid amount, to the extent permitted by law, at the respective Note Interest Rate borne by the applicable Class of Notes from such immediately preceding Payment Date to but excluding the related Payment Date.
“Noteholders’ Interest Distributable Amount” means, with respect to any Payment Date, the sum of the Noteholders’ Monthly Interest Distributable Amount for each Class of Notes for
A1-13
such Payment Date and the Noteholders’ Interest Carryover Amount, if any, for each Class of Notes, calculated as of such Payment Date.
“Noteholders’ Monthly Interest Distributable Amount” with respect to any Payment Date and any Class of Notes, the interest accrued at the respective Note Interest Rate during the applicable Interest Accrual Period that shall accrue (i) on the principal amount of the Notes of such Class Outstanding as of the end of the prior Payment Date or, in the case of the first Payment Date, as of the 2024-3 Closing Date, and (ii) on either an “actual/360” basis (with respect to the Class A-1 Notes and the Class A-2-B Notes) or, a “30/360” basis (with respect to all other Classes of Notes).
“Noteholders’ Principal Carryover Amount” means, as of any date of determination, all or any portion of the Noteholders’ Principal Distributable Amount from the preceding Payment Date which remains unpaid as of such date of determination.
“Noteholders’ Principal Distributable Amount” means, with respect to any Payment Date (other than the Final Scheduled Payment Date for any Class of Notes), the sum of:
| (1) | the lesser of (a) the sum of the Principal Distributable Amount for such Payment Date, plus the Noteholders’ Principal Carryover Amount, if any, as of the close of business on the preceding Payment Date, and (b) the positive amount, if any, necessary to reduce the Outstanding Amount on such Payment Date, after giving effect to distributions made pursuant to clauses (i) through (x) of Section 8.3(a) of the Indenture, to the Required Pro Forma Note Balance for such Payment Date, |
plus
| (2) | on the Final Scheduled Payment Date for any Class of Notes, the excess of the outstanding principal amount of such Class of Notes, if any, over the amount described in clause (1). |
“Notice of Event of Default” means a Notice of Event of Default delivered to the Issuer, the Depositor, the Settlor, the Titling Trust or GM Financial, as the case may be, pursuant to Section 5.1(c) or (d) of the Indenture.
“Optional Purchase” has the meaning set forth in Section 10.1 of the Indenture
“Optional Purchase Price” has the meaning set forth in Section 10.1 of the Indenture.
“Outstanding” means as of the date of determination, all Notes theretofore authenticated and delivered under the Indenture except:
(i) Notes theretofore cancelled by the Note Registrar or delivered to the Note Registrar for cancellation;
(ii) Notes or portions thereof the payment for which money in the necessary amount has been theretofore deposited with the Indenture Trustee in trust for the Noteholders of such Notes (provided, however, that if such Notes are to be redeemed, notice of such redemption has been
A1-14
duly given pursuant to the Indenture or provision for such notice has been made, satisfactory to the Indenture Trustee); and
(iii) Notes in exchange for or in lieu of which other Notes have been authenticated and delivered pursuant to the Indenture unless proof satisfactory to the Indenture Trustee is presented that any such Notes are held by a bona fide purchaser;
provided, that in determining whether the Holders of the requisite principal amount of the Notes have given any request, demand, authorization, direction, notice, consent or waiver hereunder or under any Program Document, Notes owned by the Issuer, any other obligor upon the Notes or any Affiliate thereof shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Indenture Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Notes that the Indenture Trustee knows to be so owned shall be so disregarded. Notes so owned that have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Indenture Trustee the pledgee’s right so to act with respect to such Notes and that the pledgee is not the Issuer, any other obligor upon the Notes or any Affiliate thereof.
“Outstanding Amount” means the aggregate principal amount of all Notes, or Class of Notes, as applicable, Outstanding at the date of determination.
“Payment Date” means the twentieth (20th) day of each month, or, if such day is not a Business Day, the immediately following Business Day, commencing on October 21, 2024.
“PBGC” means the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA.
“Predecessor Note” means with respect to any particular Note, every previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note; and, for the purpose of this definition, any Note authenticated and delivered under Section 2.5 of the Indenture in lieu of a mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same debt as the mutilated, lost, destroyed or stolen Note.
“Principal Distributable Amount” means, with respect to any Payment Date, the amount, if any, equal to the difference of:
| (1) | the Aggregate Securitization Value at the close of business on the last day of the prior Collection Period, |
minus
| (2) | the Aggregate Securitization Value at the close of business on the last day of the related Collection Period. |
“Pro Forma Note Balance” means, with respect to any Payment Date, the aggregate remaining principal amount of the Notes outstanding on such Payment Date, after giving effect to distributions pursuant to clauses (i) through (xii) of Section 8.3(a) of the Indenture.
A1-15
“Program Documents” means the Indenture, the Underwriting Agreement, the Issuer Trust Agreement, the Administration Agreement, the Certificate of Trust, the 2024-3 Exchange Note Sale Agreement, the 2024-3 Exchange Note Transfer Agreement, the Titling Trust Agreement, the 2024-3 Exchange Note Supplement, the Credit and Security Agreement, the Basic Servicing Agreement, the 2024-3 Servicing Supplement, the 2024-3 Asset Representations Review Agreement, the Depositor Certificate of Formation, APGO’s trust agreement, the Depositor LLC Agreement and the Depositor Administration Agreement.
“Prohibited Transaction Class Exemption” means U.S. Department of Labor prohibited transaction class exemption 84-14, 90-1, 91-38, 95-60 or 96-23, or any similar prohibited transaction class exemption issued by the U.S. Department of Labor.
“Protected Purchaser” means a protected purchaser within the meaning of Section 8-303 of the UCC of the Notes.
“Rating Agency” means each of Fitch and S&P so long as such Persons maintain a rating on the Notes; and if any of Fitch and S&P no longer maintains a rating on the Notes, such other nationally recognized statistical rating organization engaged by the Depositor.
“Rating Agency Condition” means, with respect to any action, that each Rating Agency shall have been given 10 days (or such shorter period as shall be acceptable to each Rating Agency) prior notice thereof by GM Financial and that such Rating Agency has not notified the Depositor, the Servicer, the Indenture Trustee, the Issuer Owner Trustee or the Issuer in writing that such action will result in a reduction or withdrawal of the then current rating of any Class of Notes.
“Redemption Date” means in the case of a redemption of the Notes pursuant to Section 10.1 of the Indenture, the Payment Date specified by the Administrator or the Issuer pursuant to Section 10.1 of the Indenture.
“Redemption Price” means in connection with a redemption of the Notes pursuant to Section 10.1 of the Indenture, an amount equal to the sum of the Note Principal Balance plus accrued and unpaid interest thereon to and excluding the Redemption Date.
“Regulation AB” means Subpart 229.1100- Asset Backed Securities (Regulation AB), 17 C.F.R. §§ 229.1100-229.1125, as such may be amended from time to time and subject to such clarification and interpretation as have been provided by the Commission in the adopting releases (Asset-Backed Securities, Securities Act Release No. 33-8518.70 Fed. Reg. 1,506,1,531 (January 7, 2005) and Asset-Backed Securities Disclosure and Registration, Securities Act Release No. 33-9638, 79 Fed. Reg. 57,184 (September 24, 2014)) or by the staff of the Commission, or as may be provided by the Commission or its staff from time to time.
“Representatives” means Wells Fargo Securities, LLC, Credit Agricole Securities (USA) Inc., MUFG Securities Americas Inc. and TD Securities (USA) LLC, in each case, as a representative of the underwriters set forth in the Underwriting Agreement.
“Repurchase Payment” means, with respect to any 2024-3 Lease Agreement that is to be purchased by the Servicer pursuant to Section 2.6 of the Basic Servicing Agreement or reallocated from the 2024-3 Designated Pool to the Lending Facility Pool in accordance with the 2024-3
A1-16
Servicing Supplement due to the breach of any representation, warranty or covenant under the 2024-3 Servicing Supplement, the difference of (i) the Securitization Value of such 2024-3 Lease Agreement as of the end of the Collection Period in which (a) the cure period ended with respect to Section 2.6(b) of the Basic Servicing Agreement or Section 2.5 of the 2024-3 Servicing Supplement, as applicable or (b) the Servicer discovers or receives notice of such change with respect to Section 2.6(c) of the Basic Servicing Agreement, minus (ii) any Monthly Payments received by the Servicer from the related Lessee as of the date of purchase or reallocation by the Servicer that were not yet due from the Lessee as of such date.
“Required Noteholders” means Holders of Outstanding Notes evidencing more than 66 2/3% of the principal balance of the most senior Class of Notes Outstanding.
“Required Pro Forma Note Balance” means, for any Payment Date, (1) on or prior to the payment in full of the Class A-2 Notes, a dollar amount equal to the difference of (i) the Aggregate Securitization Value at the close of business on the last day of the related Collection Period minus (ii) 11.00% of the initial Aggregate Securitization Value, and (2) after the Payment Date on which the Class A-2 Notes have been paid in full, a dollar amount equal to the difference of (i) the Aggregate Securitization Value at the close of business on the last day of the related Collection Period minus (ii) 10.50% of the initial Aggregate Securitization Value; provided, that, if the resulting value is less than $0, the “Required Pro Forma Note Balance” will be deemed to equal $0.
“Reserve Account” means the account designated as such, established and maintained pursuant to Section 2.3(d) of the 2024-3 Servicing Supplement.
“Reserve Account Required Amount” means, with respect to any Payment Date, the lesser of (i) the excess of (A) the Specified Reserve Balance, over (B) the amount on deposit in the Reserve Account on such Payment Date, after taking into account the amount of any Reserve Account Withdrawal Amount on such Payment Date, and (ii) the amount remaining in the Indenture Collections Account after taking into account the distributions therefrom described in clauses (i) through (xi) of Section 8.3(a) of the Indenture.
“Reserve Account Redemption Date” means the first Payment Date on which the sum of (i) Available Funds for such Payment Date, plus (ii) the amount on deposit in the Reserve Account immediately prior to such Payment Date, is greater than the sum of all amounts due on that Payment Date pursuant to clauses (i) through (xi) and clause (xiv) of Section 8.3(a) of the Indenture (calculated assuming the total outstanding principal amount of each Class of Notes then Outstanding is due and payable pursuant to the definition of Noteholders’ Principal Distributable Amount).
“Reserve Account Withdrawal Amount” means, with respect to any Payment Date, the lesser of (x) any shortfall in the amount of Available Funds available to pay the amounts specified in clauses (i) through (x) of Section 8.3 of the Indenture (taking into account application of Available Funds to the priority of payments specified in Section 8.3 of the Indenture and ignoring any provision thereof which otherwise limits the amounts described in such clauses to the amount of funds available) and (y) the amount on deposit in the Reserve Account on such Payment Date prior to application of amounts on deposit therein pursuant to Section 8.3 of the Indenture;
A1-17
provided, that on the Reserve Account Redemption Date the Reserve Account Withdrawal Amount will equal the entire amount on deposit in the Reserve Account.
“Retained Interest” has the meaning set forth in Section 3.17 of the 2024-3 Servicing Supplement.
“S&P” means S&P Global Ratings, or its successor.
“Schedule of 2024-3 Lease Agreements and 2024-3 Leased Vehicles” means the schedule of Lease Agreements and Leased Vehicles leased under those Lease Agreements attached as Schedule A to the 2024-3 Exchange Note Supplement, which shall set forth certain information with respect to each 2024-3 Lease Agreement as of the Cutoff Date.
“Secretary of State” means the Secretary of State of the State of Delaware.
“Securities Act” means the Securities Act of 1933, as amended.
“Securities Intermediary” has the meaning set forth in Section 2.3(g) of the 2024-3 Servicing Supplement.
“Securitization Value” means, on any date of determination, with respect to any 2024-3 Lease Agreement that is not a Defaulted Lease, a Liquidated Lease, a Terminated Lease or a Matured Lease, the sum of: (i) the present values, as of the last day of the immediately preceding Collection Period, of each remaining Monthly Payment due under such 2024-3 Lease Agreement as of such day, discounted from the last day of the Collection Period in which such Monthly Payment is due (or, in the case of a delinquent Monthly Payment, from the last day of the Collection Period in which the next Monthly Payment is due) to such day, at a rate equal to the Discount Rate applicable on such date of determination with respect to such 2024-3 Lease Agreement, in each case, computed on the basis of the assumption that each Collection Period is thirty (30) days, plus (ii) the present value of the Base Residual Value with respect to such 2024-3 Lease Agreement, as of the last day of the immediately preceding Collection Period, discounted from the last day of the Collection Period in which the Maturity Date with respect to such 2024-3 Lease Agreement is scheduled to occur to such day, at a rate equal to the Discount Rate applicable on such date of determination with respect to such 2024-3 Lease Agreement, in each case, computed on the basis of the assumption that each Collection Period is thirty (30) days. The Securitization Value of a Defaulted Lease will be reduced to zero at the close of business on the last day of the Collection Period in which it becomes a Defaulted Lease; the Securitization Value of a Liquidated Lease will be reduced to zero at the close of business on the last day of the Collection Period in which it becomes a Liquidated Lease; the Securitization Value of a Terminated Lease will be the Base Residual Value from and after the time it becomes a Terminated Lease and prior to the time it becomes a Liquidated Lease; and the Securitization Value of a Matured Lease will be the Base Residual Value from and after the time it becomes a Matured Lease and prior to the time it becomes a Liquidated Lease.
“Servicer Default” has the meaning set forth in Section 2.11(a) of the 2024-3 Servicing Supplement.
A1-18
“Servicer Report” means the monthly report prepared by the Servicer pursuant to the 2024-3 Servicing Supplement containing the information listed on Exhibit A thereto.
“Servicing Fee Rate” means 1.00% per annum.
“Similar Law” has the meaning specified in Section 2.4 of the Indenture.
“SOFR” means, for any Interest Accrual Period, the following rate, as determined by the Indenture Trustee:
(a) the compounded average of the secured overnight financing rate over a rolling 30-calendar day period, as such rate is published by the Relevant Governmental Body on the Federal Reserve Bank of New York’s Website under “30-Day Average SOFR” at 3:00 p.m., New York time, on the related SOFR Determination Date; or
(b) if the rate described in clause (a) above does not appear on the Federal Reserve Bank of New York’s Website on the related SOFR Determination Date (including due to a discontinuance of such rate), the rate determined in clause (a) above on the first preceding SOFR Determination Date for which such rate was published on the Federal Reserve Bank of New York’s Website under “30-Day Average SOFR”, which rate shall remain in effect until (i) the next succeeding SOFR Determination Date for which the rate described in clause (a) above can be determined, if any, or (ii) GM Financial adopts an alternative benchmark rate that aligns with the current market practice for other similar asset-backed floating rate notes; provided, that the Indenture Trustee will have no obligation to determine such alternative benchmark rate.
“SOFR Business Day” means a business day determined in accordance with the SOFR publication calendar of the Federal Reserve Bank of New York.
“SOFR Determination Date” means, with respect to an Interest Accrual Period, the date that is two (2) SOFR Business Days before the first day of such Interest Accrual Period.
“Specified Reserve Balance” means, $3,658,528.24.
“STAMP” has the meaning specified in Section 2.4 of the Indenture.
“State” means any one of the fifty states of the United States of America or the District of Columbia.
“Statutory Exemption” means the statutory exemption under Section 408(b)(17) of ERISA and Section 4975(d)(20) of the Code.
“Termination Date” means the date on which the Indenture Trustee shall have received payment and performance of all Obligations.
“Total Available Funds” has the meaning set forth in Section 8.3 of the Indenture.
“Trust Indenture Act” or “TIA” means the Trust Indenture Act of 1939, as amended and as in force on the date hereof, unless otherwise specifically provided.
A1-19
“Trust Officer” means in the case of the Indenture Trustee, any Officer within the Corporate Trust Office of the Indenture Trustee, including any Vice President, Assistant Vice President, Secretary, Assistant Secretary or any other officer of the Indenture Trustee customarily performing functions similar to those performed by any of the above designated officers and also, with respect to a particular matter, any other officer to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject.
“Underwriting Agreement” means the Underwriting Agreement, dated as of September 24, 2024, as the same may be amended, restated, supplemented or otherwise modified from time to time, among GM Financial, the Depositor and the Representatives.
A1-20
EXHIBIT A
ELIGIBLE COLLATERAL ASSETS CRITERIA
(1) Origination. The 2024-3 Lease Agreement (a) was originated in the United States by the Titling Trust or a Dealer in the ordinary course of business and in accordance with GM Financial’s underwriting guidelines for lease agreements, and, in the case of a 2024-3 Lease Agreement originated by a Dealer, pursuant to a Dealer Agreement which allows for recourse to the Dealer in the event of certain defects in the 2024-3 Lease Agreement (but not for a default by the related Lessee), and (b) was not originated under a master lease contract.
(2) Good Title. The Titling Trust has good title, or the Servicer has commenced procedures that will result in good title, to each 2024-3 Lease Agreement and each 2024-3 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 2024-3 Lease Agreement and the related 2024-3 Leased Vehicle which was validly created and is a perfected, first priority security interest, and is noted as lienholder on the related Certificate of Title, provided, that, with respect to any 2024-3 Lease Agreement and 2024-3 Leased Vehicle originated on or prior to December 31, 2022, a Certificate of Title may list Wells Fargo Bank, N.A. as lienholder on such Certificate of Title provided, further, that Wells 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 2024-3 Leased Vehicle have been paid.
(3) Compliance with Law. Each 2024-3 Lease Agreement complied in all material respects at the time it was originated, and as of the date of the 2024-3 Servicing Supplement will comply in all material respects, with all requirements of federal, State and local laws.
(4) Necessary Licenses and Approvals. All material consents, licenses, approvals or authorizations of, or registrations or declarations with, any Governmental Authority required to be obtained, effected or given by the originator of such 2024-3 Lease Agreement in connection with (a) the origination or acquisition of such 2024-3 Lease Agreement, (b) the execution, delivery and performance of such 2024-3 Lease Agreement by the Titling Trust, and (c) the acquisition of such 2024-3 Lease Agreement and the related 2024-3 Leased Vehicle by the Titling Trust, were duly obtained, effected or given and were in full force and effect as of such date of creation or acquisition.
(5) Binding Obligation. The 2024-3 Lease Agreement and all related Lease Documents were fully and properly executed by the parties thereto and such 2024-3 Lease Agreement represents the legal, valid and binding full-recourse payment obligation of the related Lessee, enforceable against such Lessee in accordance with its terms, except as enforceability is subject to or limited by bankruptcy, reorganization, insolvency, fraudulent conveyance, moratorium and other similar laws affecting the enforcement of creditors’ rights in general or principles of equity (whether considered in a suit at law or in equity).
(6) No Defenses. The 2024-3 Lease Agreement is not subject, to the best of the Seller’s and Servicer’s knowledge, to any right of rescission, cancellation, setoff, claim, counterclaim or any other defense (including defenses arising out of violations of usury laws) of the related Lessee
EX-1
to payment of the amounts due thereunder, and no such right of rescission, cancellation, setoff, claim, counterclaim or any other defense (including defenses arising out of violations of usury laws) has been asserted or threatened.
(7) Satisfaction of Obligations. Each of GM Financial, the Titling Trust and, to the best of the Seller’s and Servicer’s knowledge, the Dealer which originated the 2024-3 Lease Agreement, if any, has satisfied all respective obligations required to be fulfilled on its part with respect to such 2024-3 Lease Agreement and the related 2024-3 Leased Vehicle.
(8) U.S. Dollars. The 2024-3 Lease Agreement is payable solely in Dollars in the United States.
(9) No Government Obligors. The related Lessee is a Person other than GM Financial, any Affiliate or employee thereof or a Governmental Authority and at the time of origination of the 2024-3 Lease Agreement, based on information provided by the Lessee, the Lessee is located in and has a billing address within the United States or a United States territory.
(10) No Bankrupt Lessees. As of the Cutoff Date, the related Lessee has not been identified on the records of GM Financial as being the subject of a current bankruptcy proceeding.
(11) Insurance. The 2024-3 Lease Agreement requires the Lessee thereunder to maintain (a) physical damage and liability insurance covering the related 2024-3 Leased Vehicle, and (b) insurance against loss and damage due to fire, theft, transportation, collision and other risks generally covered by comprehensive and collision coverage.
(12) Security Interest in Financed Vehicle. The related 2024-3 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 2024-3 Leased Vehicle, or the Servicer has commenced procedures that will result in such 2024-3 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 2024-3 Leased Vehicle; provided, that, with respect to any 2024-3 Lease Agreement and 2024-3 Leased Vehicle originated on or prior to December 31, 2022, a Certificate of Title may list Wells Fargo Bank, N.A. as lienholder on such Certificate of Title provided that Wells Fargo Bank, N.A. has validly assigned the lien to the Collateral Agent.
(13) Simple Interest. The 2024-3 Lease Agreement is a closed-end lease that provides for equal monthly payments by the Lessee, which scheduled payments, if made when due, fully amortize the net capitalized cost of such 2024-3 Lease Agreement to the Contract Residual Value by the end of the Lease Term, based on the related APR.
(14) Lawful Assignment. The 2024-3 Lease Agreement is fully assignable by the lessor and does not require the consent of the related Lessee or any other Person as a condition to any transfer, sale, assignment or granting of a security interest of the rights thereunder to or by the Titling Trust.
(15) No Material Amendments or Modifications. The 2024-3 Lease Agreement has not been modified in any way except in accordance with the Customary Servicing Practices.
EX-2
(16) No Default. As of the Cutoff Date, the 2024-3 Lease Agreement is not a Liquidated Lease, a Defaulted Lease or a Delinquent Lease and, except as permitted in this paragraph, to the best of the Seller’s and Servicer’s knowledge, no default, breach, violation or event permitting acceleration under its terms has occurred; and to the best of the Seller’s and Servicer’s knowledge, no continuing condition that with notice or the lapse of time would constitute a default, breach, violation or event permitting acceleration under its terms has arisen; and GM Financial has not waived, and shall not waive, any of the foregoing.
(17) Vehicle. The related 2024-3 Leased Vehicle is a car, light truck or utility vehicle manufactured by General Motors Company or an Affiliate thereof.
(18) Chattel Paper. The 2024-3 Lease Agreement constitutes “tangible chattel paper” or “electronic chattel paper” within the meaning of the UCC.
(19) Leases in Force. The 2024-3 Lease Agreement is in full force and effect and, to the best of the Seller’s and the Servicer’s knowledge, has not been satisfied, subordinated, rescinded, cancelled or terminated.
(20) Schedule of Leases. The 2024-3 Lease Agreement has been identified in the Schedule of 2024-3 Lease Agreements and 2024-3 Leased Vehicles and such Schedule of 2024-3 Lease Agreements and 2024-3 Leased Vehicles is accurate in all material respects and the 2024-3 Lease Agreement has not been allocated to any other Designated Pool.
(21) Maturity Date. At origination the Maturity Date with respect to the 2024-3 Lease Agreement was not less than twelve (12) months or more than sixty (60) months after the date of origination.
(22) Securitization Value. As of the 2024-3 Cutoff Date, each 2024-3 Lease Agreement had a Securitization Value not less than $5,000.00 and no more than $150,000.00.
(23) One Original. With respect to any 2024-3 Lease Agreement that constitutes “electronic chattel paper” under the UCC, (a) a single electronically authenticated authoritative copy (within the meaning of the UCC) of the 2024-3 Lease Agreement is continuously maintained by the Servicer, and (b) the Servicer is able (1) to transfer the electronically authenticated authoritative copy of the related 2024-3 Lease Agreement to a separate electronic vault at the related econtracting facilitator that is controlled by the applicable Successor Servicer or to an electronic vault at the applicable Successor Servicer, or (2) to export the electronically authenticated authoritative copy from the electronic vault and deliver a physical copy of the exported 2024-3 Lease Agreement to the successor Servicer.
EX-3
Exhibit 10.1
GM FINANCIAL,
as Lender
and
GMF LEASING LLC,
as Depositor
2024-3 EXCHANGE NOTE SALE AGREEMENT
Dated as of August 20, 2024
TABLE OF CONTENTS
| Page | ||||||
| ARTICLE I DEFINITIONS |
2 | |||||
| SECTION 1.1. |
Definitions | 2 | ||||
| ARTICLE II TRANSFER OF THE CONVEYED ASSETS |
2 | |||||
| SECTION 2.1. |
Transfer of the Conveyed Assets | 2 | ||||
| SECTION 2.2. |
True Sale | 3 | ||||
| SECTION 2.3. |
Representations and Warranties of the Lender and the Depositor | 4 | ||||
| SECTION 2.4. |
Financing Statements and Books and Records | 7 | ||||
| SECTION 2.5. |
Affirmative Covenants of the Lender | 7 | ||||
| SECTION 2.6. |
Acceptance by the Depositor | 8 | ||||
| ARTICLE III CONDITIONS |
8 | |||||
| SECTION 3.1. |
Conditions Precedent to Effectiveness of this Agreement | 8 | ||||
| ARTICLE IV MISCELLANEOUS |
9 | |||||
| SECTION 4.1. |
Amendment | 9 | ||||
| SECTION 4.2. |
GOVERNING LAW | 9 | ||||
| SECTION 4.3. |
Severability | 10 | ||||
| SECTION 4.4. |
Binding Effect | 10 | ||||
| SECTION 4.5. |
Table of Contents and Headings | 10 | ||||
| SECTION 4.6. |
Counterparts and Consent to Do Business Electronically | 10 | ||||
| SECTION 4.7. |
Further Assurances | 10 | ||||
| SECTION 4.8. |
Third-Party Beneficiaries | 10 | ||||
| SECTION 4.9. |
No Petition | 11 | ||||
| SECTION 4.10. |
Limited Recourse | 11 | ||||
| SECTION 4.11. |
Subordination | 11 | ||||
i
2024-3 EXCHANGE NOTE SALE AGREEMENT, dated as of August 20, 2024 (as the same may be amended, restated, supplemented or otherwise modified from time to time, this “Agreement”), between AmeriCredit Financial Services, Inc. d/b/a GM Financial, a Delaware corporation (“GM Financial”), as Lender (in such capacity, the “Lender”), and GMF Leasing LLC, a Delaware limited liability company, as Depositor (the “Depositor”).
RECITALS
WHEREAS, pursuant to an Amended and Restated Trust Agreement, dated as of January 31, 2011 (the “Titling Trust Agreement”), among APGO Trust, as Settlor, and Wilmington Trust Company, as Owner Trustee, Administrative Trustee and Delaware Trustee, the Titling Trust (the “Titling Trust”) was continued to, among other things, take assignments and conveyances of and hold in trust various assets (the “Trust Assets”);
WHEREAS, pursuant to a Third Amended and Restated Credit and Security Agreement, dated as of October 3, 2022 (as the same may be further amended, restated, supplemented or otherwise modified from time to time, the “Credit and Security Agreement”), among the Titling Trust, the Lender, and Computershare Trust Company, N.A. (“Computershare”), as Administrative Agent (in such capacity, the “Administrative Agent”) and as Collateral Agent (in such capacity, the “Collateral Agent”), the Lender has agreed to lend money to the Titling Trust from time to time to acquire Trust Assets and the Lender is entitled, from time to time thereunder, to request that the Titling Trust issue, execute and deliver Exchange Notes to the Lender representing a portion of the debt incurred by the Titling Trust thereunder;
WHEREAS, pursuant to the Credit and Security Agreement and the 2024-3 Exchange Note Supplement, dated as of August 20, 2024 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “2024-3 Exchange Note Supplement”), among the parties to the Credit and Security Agreement, the Titling Trust has so issued, executed and delivered to the Lender such an Exchange Note (the “2024-3 Exchange Note”);
WHEREAS, pursuant to (i) a 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 “Basic Servicing Agreement”), among the Titling Trust, the Collateral Agent, and GM Financial, as the Servicer (in such capacity, the “Servicer”) and as the Lender, the Servicer has agreed to perform certain servicing duties with respect to the Trust Assets, and (ii) a 2024-3 Servicing Supplement, dated as of August 20, 2024 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “2024-3 Servicing Supplement”), among the Titling Trust, the Servicer, the Lender, the Collateral Agent and Computershare, as Indenture Trustee, the Servicer has agreed to perform certain additional and/or revised servicing duties with respect to those Trust Assets comprising the 2024-3 Designated Pool relating to the 2024-3 Exchange Note;
WHEREAS, the Lender and the Depositor desire to provide for the transfer and assignment by the Lender to the Depositor, without recourse, of all of the Lender’s right, title and interest in the Conveyed Assets (as defined below); and
1
WHEREAS, immediately after the transfer and assignment of the Conveyed Assets to the Depositor pursuant to this Agreement, the Depositor shall transfer and assign all of its right, title and interest in the Conveyed Assets and this Agreement to GM Financial Automobile Leasing Trust 2024-3 (the “Issuer”), pursuant to the 2024-3 Exchange Note Transfer Agreement, dated as of August 20, 2024 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “2024-3 Exchange Note Transfer Agreement”), between the Depositor and the Issuer.
NOW, THEREFORE, in consideration of the mutual agreements herein contained, and of other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. Capitalized terms used in this Agreement that are not otherwise defined herein shall have the meanings assigned to them in Appendix 1 to the 2024-3 Exchange Note Supplement or, if not defined therein, in Appendix A to the Credit and Security Agreement.
ARTICLE II
TRANSFER OF THE CONVEYED ASSETS
SECTION 2.1. Transfer of the Conveyed Assets.
(a) Effective as of the 2024-3 Closing Date and immediately before the transactions contemplated by the 2024-3 Exchange Note Transfer Agreement, the Lender sells and assigns to the Depositor, without recourse, all right, title and interest of the Lender, whether now owned or hereunder acquired, in the following “Conveyed Assets”:
(i) the 2024-3 Exchange Note;
(ii) all of the Lender’s rights and benefits, as Exchange Noteholder of the 2024-3 Exchange Note under the 2024-3 Exchange Note, the Credit and Security Agreement, the 2024-3 Exchange Note Supplement and the 2024-3 Servicing Agreement; and
(iii) all proceeds, accounts, money, general intangibles, instruments, chattel paper, goods, investment property and other property consisting of, arising from or relating to the foregoing.
(b) In consideration for the Conveyed Assets, the Depositor will pay to the Lender an amount equal to the net proceeds of the sale of the Notes in cash by federal wire transfer on the 2024-3 Closing Date. The Depositor and the Lender each represents and warrants to the other that the amount of cash paid by the Depositor, together with the increase in the value in the Lender’s capital in the Depositor, is equal to the fair market value of the Conveyed Assets.
2
(c) The sale, transfer, assignment and conveyance of the Conveyed Assets pursuant to this Agreement is without recourse, and the Lender does not guarantee payment on the 2024-3 Exchange Note or collection of any underlying asset included in the 2024-3 Designated Pool.
SECTION 2.2. True Sale.
(a) The parties hereto intend that the sale, transfer, assignment and conveyance of the Conveyed Assets hereunder constitutes a true sale and assignment of the Conveyed Assets such that any interest in and title to the Conveyed Assets would not be property of the Lender’s estate in the event the Lender becomes a debtor in a case under any Insolvency Law. To the extent that the conveyance of any Conveyed Asset hereunder is characterized by a court or similar Governmental Authority as a financing (a “Recharacterization”), it is intended by the Lender and the Depositor that the interest conveyed constitute a grant of a first priority perfected security interest under the UCC as in effect in the State of New York by the Lender to the Depositor to secure the payment of the sale price of the Conveyed Assets to the Lender. The Lender does hereby grant to the Depositor a security interest in all of its rights, title and privileges and interest, whether now owned or existing or hereafter acquired or arising, in the Conveyed Assets and the parties hereto agree that this Agreement constitutes a “security agreement” under all applicable law. In the case of any Recharacterization, each of the Depositor and the Lender represents and warrants as to itself that each remittance of 2024-3 Exchange Note Collections made to the Depositor will have been (i) in payment of a debt incurred by the Lender in the ordinary course of business or financial affairs of the Lender and the Depositor, and (ii) made in the ordinary course of business or financial affairs of the Lender and the Depositor.
(b) The Lender makes the following representations and warranties to the Depositor in the event that, notwithstanding the express intent of the parties, the sale, transfer, assignment and conveyance of the Conveyed Assets hereunder is not a true sale and assignment of the Conveyed Assets to the Depositor. The representations and warranties speak as of the 2024-3 Closing Date and shall survive the sale of the Conveyed Assets to the Depositor hereunder, the transfer of the Conveyed Assets to the Issuer pursuant to the 2024-3 Exchange Note Transfer Agreement and the pledge thereof by the Issuer to the Indenture Trustee pursuant to the Indenture.
(i) This Agreement creates a valid and continuing security interest (as defined in the UCC) in the Conveyed Assets in favor of the Depositor, which security interest is prior to all other Liens, and is enforceable as such as against creditors of and purchasers from the Lender.
(ii) The 2024-3 Exchange Note constitutes a “certificated security” within the meaning of the relevant UCC.
(iii) The Lender has caused or will have caused, within ten (10) days, the filing of all appropriate financing statements in the proper filing offices in the appropriate jurisdictions under applicable law in order to perfect the Depositor’s security interest in the Conveyed Assets.
3
(iv) Other than the security interest granted to the Depositor pursuant to this Agreement, the Lender has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed the Conveyed Assets. The Lender has not authorized the filing of and is not aware of any financing statements against the Lender that include a description of collateral covering the Conveyed Assets other than any financing statement relating to the security interest granted to the Depositor hereunder or that has been terminated. The Lender is not aware of any judgment or tax lien filings against it.
SECTION 2.3. Representations and Warranties of the Lender and the Depositor.
(a) The Lender hereby represents and warrants to the Depositor as of the 2024-3 Closing Date that:
(i) Organization and Good Standing. The Lender is a corporation duly formed, validly existing and in good standing under the laws of the State of Delaware, and has power and authority to own its properties and to conduct its business as such properties are currently owned and such business is presently conducted, and had at all relevant times, and shall have, power, authority and legal right to acquire, own and sell the Conveyed Assets.
(ii) Due Qualification. The Lender is duly qualified to do business as a foreign corporation in good standing, and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business shall require such qualifications, except where the failure to have any such license, approval or qualification could not reasonably be expected to have a material adverse effect with respect to the Lender.
(iii) Power and Authority. The Lender has the power and authority to execute and deliver this Agreement, and all other Program Documents to which it is a party, and to carry out their respective terms; and the execution, delivery and performance of this Agreement and all other Program Documents to which it is a party have been or will be duly authorized by the Lender by all necessary action.
(iv) Binding Obligation. Each of this Agreement and all other Program Documents to which the Lender is a party constitutes a legal, valid and binding obligation of the Lender, enforceable against it in accordance with its terms, except as enforceability may be subject to or limited by bankruptcy, insolvency, reorganization, moratorium, liquidation or other similar laws affecting the enforcement of creditors’ rights in general and by general principles of equity, regardless of whether such enforceability shall be considered in a proceeding in equity or at law.
(v) No Violation. The execution, delivery and performance by the Lender of this Agreement and all other Program Documents to which it is a party will not violate any Requirement of Law or Contractual Obligation applicable to the Lender, and will not, except as otherwise provided herein, result in, or require, the creation or imposition of any Lien on any of its property, assets or revenues pursuant to any such Requirement of Law or Contractual Obligation, except as contemplated by the Program Documents.
4
(vi) No Proceedings. There are no proceedings or investigations pending or, to the best of its knowledge, threatened before any court, arbitrator or other Governmental Authority having jurisdiction over the Lender or any of its properties which could reasonably be expected to have a material adverse effect with respect to the Lender.
(vii) No Consent. Except as expressly contemplated by the Program Documents, no consent or authorization of, filing with, or other act by or in respect of, any Governmental Authority or any other Person is required in connection with its execution, delivery or performance or the validity or enforceability against the Lender of the Program Documents.
(viii) No Default. The Lender is not in default in any material respect under or with respect to any of its Contractual Obligations.
(ix) Compliance with Law. The Lender has complied in all material respects with all Requirements of Law.
(x) Title to Conveyed Assets. Immediately prior to the transfer of the Conveyed Assets pursuant to this Agreement, the Lender (A) is the true and lawful owner of the Conveyed Assets and has the legal right to transfer the Conveyed Assets, (B) has good and valid title to the Conveyed Assets and the Conveyed Assets are on such date free and clear of all Liens and (C) will convey good, valid and indefeasible title to the Conveyed Assets to the Depositor under this Agreement.
(xi) Investment Company Act. The Lender is not an “investment company” within the meaning of the Investment Company Act of 1940.
(xii) Solvency of the Lender. The Lender is, and after giving effect to the transactions contemplated to occur on such date, will be, Solvent and is not the subject of any Insolvency Event.
(xiii) Tax Returns. The Lender has filed or caused to be filed all tax returns which are required to be filed and has paid all taxes shown to be due and payable on said returns or on any assessments made against it or any of its property and has paid or properly accrued and provided for payment at such time as is required or permitted all other taxes, fees or other charges imposed on it or any of its property by any Governmental Authority (other than any of the amount or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided on the books and records of the Lender); no tax Lien has been filed and, to the knowledge of the Lender, no claim is being asserted with respect to any such tax, fee or other charge.
(b) The Depositor hereby represents and warrants to the Lender as of the 2024-3 Closing Date that:
(i) Organization and Good Standing. The Depositor is a limited liability company duly formed, validly existing and in good standing under the laws of the State of Delaware, and has power and authority to own its properties and to conduct its
5
business as such properties are currently owned and such business is presently conducted, and had at all relevant times, and shall have, power, authority and legal right to acquire, own and pledge the Conveyed Assets.
(ii) Due Qualification. The Depositor is duly qualified to do business as a foreign limited liability company in good standing, and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business shall require such qualifications, except where the failure to have any such license, approval or qualification could not reasonably be expected to have a material adverse effect with respect to the Depositor.
(iii) Power and Authority. The Depositor has the power and authority to execute and deliver this Agreement and all other Program Documents to which it is a party and to carry out its terms; and the execution, delivery and performance of this Agreement and all other Program Documents to which it is a party have been duly authorized by the Depositor by all necessary action.
(iv) Binding Obligation. Each of this Agreement and all other Program Documents to which the Depositor is a party constitutes a legal, valid and binding obligation of the Depositor, enforceable against it in accordance with its terms, except as enforceability may be subject to or limited by bankruptcy, insolvency, reorganization, moratorium, liquidation or other similar laws affecting the enforcement of creditors’ rights in general and by general principles of equity, regardless of whether such enforceability shall be considered in a proceeding in equity or at law.
(v) No Violation. The execution, delivery and performance by the Depositor of this Agreement and all other Program Documents to which it is a party will not violate any Requirement of Law or Contractual Obligation applicable to the Depositor, and will not, except as otherwise provided herein, result in, or require, the creation or imposition of any Lien on any of its property, assets or revenues pursuant to any such Requirement of Law or Contractual Obligation.
(vi) No Proceedings. There are no proceedings or investigations pending or, to the best of its knowledge, threatened before any court, arbitrator or other Governmental Authority having jurisdiction over the Depositor or any of its properties which could reasonably be expected to have a material adverse effect with respect to the Depositor.
(vii) No Consent. Except as expressly contemplated by the Program Documents, no consent or authorization of, filing with, or other act by or in respect of, any Governmental Authority or any other Person is required in connection with its execution, delivery or performance or the validity or enforceability against the Depositor of the Program Documents.
(viii) No Default. The Depositor is not in default in any material respect under or with respect to any of its Contractual Obligations.
(ix) Compliance with Law. The Depositor has complied in all material respects with all Requirements of Law.
6
(c) The representations and warranties set forth in this Section shall survive the transfer, sale, assignment and conveyance of the Conveyed Assets by the Lender to the Depositor hereunder, the transfer, sale, assignment and conveyance of the Conveyed Assets by the Depositor to the Issuer pursuant to the 2024-3 Exchange Note Transfer Agreement and the pledge of the Conveyed Assets by the Issuer to the Indenture Trustee pursuant to the Indenture. Upon discovery by the Lender or the Depositor of a breach of any of the foregoing representations and warranties, the party discovering such breach shall give prompt written notice to the other, the Noteholders and the Indenture Trustee. In addition to the foregoing, the Depositor shall comply with the obligations set forth in Section 2.5(b) of the Servicing Supplement.
SECTION 2.4. Financing Statements and Books and Records.
(a) In connection with the conveyance of the Conveyed Assets hereunder, the Lender agrees that on or prior to the 2024-3 Closing Date, it will deliver at the direction of the Lender to the Depositor, with all requisite endorsements, the 2024-3 Exchange Note and will file, at its own expense, one or more financing statements with respect to the Conveyed Assets meeting the requirements of applicable State law in such manner as necessary to perfect the transfer of the Conveyed Assets to the Lender, and the proceeds thereof (and any continuation statements as are required by applicable State law), and to deliver a file-stamped copy of each such financing statement (or continuation statement) or other evidence of such filings (which may, for purposes of this Section, consist of telephone confirmation of such filings with the file stamped copy of each such filings to be provided to the Depositor in due course), as soon as is practicable after receipt by the Lender thereof.
(b) The Lender further agrees that it will treat the transfer of the Conveyed Assets as a sale for accounting purposes, take no actions inconsistent with the Depositor’s ownership of the assets sold to the Depositor pursuant to Section 2.1 hereof and on or prior to the 2024-3 Closing Date indicate on its books, records and statements that the 2024-3 Exchange has been sold to the Depositor.
SECTION 2.5. Affirmative Covenants of the Lender. Until the date on which all Issuer Obligations are paid in full, the Lender shall:
(a) Preservation of Existence. Preserve, renew and keep in full force and effect its existence and good standing and take all necessary action to maintain all rights, privileges and franchises necessary or desirable in the normal conduct of its business and comply with all Contractual Obligations, including, without limitation, all its obligations under the Program Documents, and all Requirements of Law.
(b) Payment of Taxes. File (or cause to be filed on its behalf as a member of a consolidated group) all tax returns required by law to be filed by it and pay all taxes, assessments and governmental charges shown to be owing by it, except for any such taxes, assessments or charges which are not yet delinquent or are being diligently contested in good faith by appropriate proceedings, for which adequate reserves in accordance with GAAP shall have been set aside on its books and that have not given rise to any Liens.
7
(c) Books and Records. Keep proper books and records of account in which full, true and correct entries in conformity with GAAP and all Requirements of Law shall be made of all dealings and transactions in relation to its business and activities; and, at its expense, shall permit representatives or designees of the Indenture Trustee, the Owner Trustee or any Noteholder or their duly authorized attorneys or auditors to visit and inspect any of its properties, to examine and make abstracts from any of its books and records and to discuss its affairs, finances and accounts with its officers, directors, employees and independent public accountants, all at such reasonable times upon reasonable notice and as often as may reasonably be requested.
(d) Maintenance of Separate Existence. Do all things necessary to remain readily distinguishable from the Depositor and maintain its corporate existence separate and apart from that of the Depositor, including maintaining in place all policies and procedures and taking all action, described in the factual assumptions set forth in the opinion letter of Katten Muchin Rosenman LLP, dated October 2, 2024 addressing the issues of substantive consolidation as they may relate to the Titling Trust, the Depositor and the Issuer on the one hand and the Lender on the other hand.
SECTION 2.6. Acceptance by the Depositor. The Depositor agrees to comply with all covenants and restrictions applicable to an Exchange Noteholder of the 2024-3 Exchange Note, whether set forth in the 2024-3 Exchange Note, in the Credit and Security Agreement, in the 2024-3 Exchange Note Supplement or otherwise, and assumes all obligations and liabilities, if any, associated therewith.
ARTICLE III
CONDITIONS
SECTION 3.1. Conditions Precedent to Effectiveness of this Agreement. The effectiveness of this Agreement and of the obligation of the Depositor to purchase, and of the Lender to sell, the Conveyed Assets in accordance with the terms hereof is subject to the satisfaction of the following conditions:
(a) Agreement. The Depositor shall have received this Agreement, duly executed and delivered by the Lender.
(b) 2024-3 Exchange Note Transfer Agreement. The Depositor shall have received the 2024-3 Exchange Note Transfer Agreement, duly executed and delivered by the Issuer.
(c) 2024-3 Exchange Note Supplement. The Depositor shall have received the 2024-3 Exchange Note Supplement, duly executed and delivered by the parties thereto.
(d) 2024-3 Servicing Agreement. The Depositor shall have received the 2024-3 Servicing Agreement, duly executed and delivered by the parties thereto.
(e) Effective Date. All conditions set forth in Section 6 of the Underwriting Agreement shall have been satisfied.
8
(f) Certificate of Incorporation; Bylaws. The Depositor shall have received a true and complete copy of the certificate of incorporation and bylaws of the Lender, each certified as a true and correct copy by an Authorized Officer of GM Financial.
(g) Resolutions. The Depositor shall have received copies of duly adopted resolutions of the Lender as in effect on the date hereof and in form and substance reasonably satisfactory to the Depositor, authorizing the execution, delivery and performance of this Agreement, the 2024-3 Exchange Note Supplement and the 2024-3 Servicing Agreement, the other documents to be delivered by the Lender hereunder and thereunder and the transactions contemplated hereby and thereby, certified by an Authorized Officer of GM Financial.
(h) Lien Searches. The Depositor shall have received certified copies of requests for information or copies dated a date reasonably near the date hereof listing all effective financing statements which name the Lender (under its present name or any previous name) as transferor or debtor and which are filed in jurisdictions in which the filings were made pursuant to item (i) below and in any other jurisdictions that are necessary or appropriate, together with copies of such financing statements (none of which shall cover any 2024-3 Lease Agreements or other 2024-3 Exchange Note Assets, except any filing made in connection with a security interest granted under the Credit and Security Agreement), and tax and judgment lien searches showing no such liens that are not permitted by the Program Documents.
(i) UCCs. The Depositor shall have received acknowledgement copies of proper financing statements (Form UCC-1), naming the Lender as the seller (debtor) of the Conveyed Assets and the Depositor as buyer (secured party) or other similar instruments or documents as may be necessary or in the opinion of the Depositor desirable under the UCC or any comparable law to perfect the Depositor’s interest in the Conveyed Assets and executed copies of proper financing statements (Form UCC-3), if any, necessary to release all security interests and other rights of any Person in the Conveyed Assets previously granted by the Lender.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1. Amendment.
(a) This Agreement may be amended by the parties hereto, with the prior written consent of the Indenture Trustee (acting at the direction of the Majority Noteholders).
(b) The parties hereto acknowledge and agree that the right of the Indenture Trustee to consent to any amendment of this Agreement is subject to the terms and provisions of Section 3.7(g) of the Indenture and that any consent provided by the Indenture Trustee in violation of such terms and provisions shall be of no force or effect hereunder.
SECTION 4.2. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO
9
OTHERWISE APPLICABLE PRINCIPLES OF CONFLICTS OF LAW (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
SECTION 4.3. Severability. If any one or more of the covenants, agreements, provisions or terms of this Agreement shall be for any reason whatsoever held invalid, then such covenants, agreements, provisions or terms shall be deemed severable from the remaining covenants, agreements, provisions and terms of this Agreement, as applicable, and shall in no way affect the validity or enforceability of the other covenants, agreements, provisions and terms of this Agreement.
SECTION 4.4. Binding Effect. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns.
SECTION 4.5. Table of Contents and Headings. The Table of Contents and Article and Section headings herein are for convenience of reference only and shall not define or limit any of the terms or provisions hereof.
SECTION 4.6. Counterparts and Consent to Do Business Electronically. This Agreement 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 Agreement and any documents to be delivered in connection with this Agreement 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 Agreement 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 4.7. Further Assurances. Each party hereto shall do such acts, and execute and deliver to the other party such additional documents or instruments as may be reasonably requested in order to effect the purposes of this Agreement and to better assure and confirm unto the requesting party its rights, powers and remedies hereunder. For the avoidance of doubt, the parties hereto agree to take all necessary actions (including filing of financing statements in accordance with the relevant UCC) to maintain perfections with respect to the Conveyed Assets.
SECTION 4.8. Third-Party Beneficiaries. This Agreement shall inure to the benefit of and be binding upon the parties hereto and each 2024-3 Exchange Noteholder or pledgee of the 2024-3 Exchange Note and each Noteholder who shall be considered third-party beneficiaries hereof. Except as otherwise provided in this Agreement, no other Person shall have any right or obligation hereunder.
10
SECTION 4.9. No Petition. Each of the parties hereto, by entering into this Agreement, hereby covenants and agrees that it will not institute, or join in instituting, any bankruptcy, reorganization, arrangement, insolvency or liquidation Proceeding, or other Proceeding under any Insolvency Law for a period of one (1) year and one (1) day after the date upon which all the Notes and all other Issuer Obligations have been paid in full, against the Titling Trust or the Issuer.
SECTION 4.10. Limited Recourse. Each of the parties hereto, by entering into this Agreement, agrees that any claim that the Lender or the Depositor may seek to enforce against each other is limited to the Conveyed Assets only and does not represent a claim against the assets of the Lender or the Depositor as a whole or any assets other than the Conveyed Assets.
SECTION 4.11. Subordination.
(a) The Lender and the Depositor agree that any claim that the Lender or the Depositor may seek to enforce at any time against any assets of the Lender or the Depositor other than the Conveyed Assets will be subordinate to payment in full of all other claims with respect to such other assets. However, this Section will not limit, subordinate or otherwise modify any claims against the Lender or the Depositor with respect to any right to indemnification or other obligation of the Lender or the Depositor relating to (i) the Conveyed Assets, (ii) any related credit enhancement, (iii) any transaction entered into in connection with the Conveyed Assets, (iv) any administrative services performed in connection with the Conveyed Assets, or (v) any obligation to any Person acting as a trustee or an administrator. The Depositor hereby releases all claims to the assets of the Titling Trust that are not allocated to the 2024-3 Designated Pool, and, in the event that such release is not given effect, the Depositor hereby agrees to fully subordinate any claims it may have against such other assets of the Titling Trust.
(b) The Lender agrees that any claim the Lender may seek to enforce against the Depositor or any of its assets will be subordinate to the payment in full of all obligations of the Depositor under the 2024-3 Exchange Note Transfer Agreement and the Note Purchase Agreement.
(c) The parties to this Agreement intend that Section 4.11(a) constitutes an enforceable subordination agreement under Section 510(a) of the Bankruptcy Code.
[Remainder of Page Intentionally Left Blank]
11
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective officers duly authorized as of the day and year first above written.
| AMERICREDIT FINANCIAL SERVICES, INC. d/b/a GM FINANCIAL, as Lender | ||||
| By: |
|
| ||
| Name: |
||||
| Title: |
||||
| GMF LEASING LLC, as Depositor | ||||
| By: |
|
|||
| Name: |
||||
| Title: |
||||
[Signature Page to the 2024-3 Exchange Note Sale Agreement]
Exhibit 10.2
GMF LEASING LLC,
as Transferor,
and
GM FINANCIAL AUTOMOBILE LEASING TRUST 2024-3,
as Transferee
2024-3 EXCHANGE NOTE TRANSFER AGREEMENT
Dated as of August 20, 2024
TABLE OF CONTENTS
| Page | ||||||
| ARTICLE I DEFINITIONS |
2 | |||||
| SECTION 1.1. |
Definitions | 2 | ||||
| ARTICLE II TRANSFER OF THE TRANSFERRED ASSETS |
2 | |||||
| SECTION 2.1. |
Transfer of the Transferred Assets | 2 | ||||
| SECTION 2.2. |
True Sale | 3 | ||||
| SECTION 2.3. |
Representations and Warranties of the Transferor and the Transferee | 4 | ||||
| SECTION 2.4. |
Financing Statements and Books and Records | 7 | ||||
| SECTION 2.5. |
Covenants of the Transferor | 7 | ||||
| SECTION 2.6. |
Acceptance by the Transferee | 8 | ||||
| ARTICLE III CONDITIONS |
8 | |||||
| SECTION 3.1. |
Conditions Precedent to Transfer | 8 | ||||
| ARTICLE IV MISCELLANEOUS |
9 | |||||
| SECTION 4.1. |
Amendment | 9 | ||||
| SECTION 4.2. |
Governing Law | 10 | ||||
| SECTION 4.3. |
Severability | 10 | ||||
| SECTION 4.4. |
Binding Effect | 10 | ||||
| SECTION 4.5. |
Table of Contents and Headings | 10 | ||||
| SECTION 4.6. |
Counterparts and Consent to Do Business Electronically | 10 | ||||
| SECTION 4.7. |
Further Assurances | 10 | ||||
| SECTION 4.8. |
Third-Party Beneficiaries | 11 | ||||
| SECTION 4.9. |
No Petition | 11 | ||||
| SECTION 4.10. |
Limitation of Liability of Owner Trustee | 11 | ||||
| SECTION 4.11. |
Limited Recourse | 11 | ||||
| SECTION 4.12. |
Subordination | 11 | ||||
i
2024-3 EXCHANGE NOTE TRANSFER AGREEMENT, dated as of August 20, 2024 (as the same may be amended, restated, supplemented or otherwise modified from time to time, this “Agreement”), between GMF Leasing LLC, a Delaware limited liability company, as transferor (the “Transferor”), and GM Financial Automobile Leasing Trust 2024-3, a Delaware statutory trust (the “Issuer”), as transferee (the “Transferee”).
RECITALS
WHEREAS, pursuant to an Amended and Restated Trust Agreement, dated as of January 31, 2011 (the “Titling Trust Agreement”), among APGO Trust, as Settlor, and Wilmington Trust Company, as Owner Trustee, Administrative Trustee and Delaware Trustee, the Titling Trust (the “Titling Trust”) was continued to, among other things, take assignments and conveyances of and hold in trust various assets (the “Trust Assets”);
WHEREAS, pursuant to a Third Amended and Restated Credit and Security Agreement, dated as of October 3, 2022 (as the same may be further amended, restated, supplemented or otherwise modified from time to time, the “Credit and Security Agreement”), among the Titling Trust, the Lender, and Computershare Trust Company, N.A. (“Computershare”), as Administrative Agent (in such capacity, the “Administrative Agent”) and as Collateral Agent (in such capacity, the “Collateral Agent”), the Lender has agreed to lend money to the Titling Trust from time to time to acquire Trust Assets and the Lender is entitled, from time to time thereunder, to request that the Titling Trust issue, execute and deliver Exchange Notes to the Lender representing a portion of the debt incurred by the Titling Trust thereunder;
WHEREAS, pursuant to the Credit and Security Agreement and the 2024-3 Exchange Note Supplement, dated as of August 20, 2024 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “2024-3 Exchange Note Supplement”), among the parties to the Credit and Security Agreement, the Titling Trust has so issued, executed and delivered to the Lender such an Exchange Note (the “2024-3 Exchange Note”);
WHEREAS, pursuant to (i) a 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 “Basic Servicing Agreement”), among the Titling Trust, the Collateral Agent, and AmeriCredit Financial Services, Inc. d/b/a GM Financial (“GM Financial”), as Servicer (in such capacity, the “Servicer”) and as the Lender, the Servicer has agreed to perform certain servicing duties with respect to the Trust Assets and (ii) a 2024-3 Servicing Supplement, dated as of August 20, 2024 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “2024-3 Servicing Supplement”), among the Titling Trust, the Servicer, the Lender, the Collateral Agent and Computershare, as Indenture Trustee, the Servicer has agreed to perform certain additional and/or revised servicing duties with respect to those Trust Assets comprising the 2024-3 Designated Pool relating to the 2024-3 Exchange Note;
WHEREAS, the Lender has agreed to transfer and assign, without recourse, all of its right, title and interest in the 2024-3 Exchange Note and certain related property to the Transferor pursuant to an 2024-3 Exchange Note Sale Agreement, dated as of August 20, 2024
(as the same may be amended, restated, supplemented or otherwise modified from time to time, the “2024-3 Exchange Note Sale Agreement”), among the Lender and the Depositor, as transferee (in such capacity, the “Sale Agreement Transferee”);
WHEREAS, the Transferee is governed by its Amended and Restated Trust Agreement, dated as of August 20, 2024 (the “Trust Agreement”), between the Transferor and Wilmington Trust Company, as Owner Trustee (not in its individual capacity, but solely as Owner Trustee, the “Owner Trustee”); and
WHEREAS, the Transferor and the Transferee desire to provide for the transfer and assignment by the Transferor to the Transferee, without recourse, of all of the Transferor’s right, title and interest in the Transferred Assets (as defined below).
NOW, THEREFORE, in consideration of the mutual agreements herein contained, and of other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. Capitalized terms used in this Agreement that are not otherwise defined herein shall have the meanings assigned to them in Appendix 1 to the 2024-3 Exchange Note Supplement or, if not defined therein, in Appendix A to the Credit and Security Agreement.
ARTICLE II
TRANSFER OF THE TRANSFERRED ASSETS
SECTION 2.1. Transfer of the Transferred Assets.
(a) Effective as of the 2024-3 Closing Date and immediately after the transactions contemplated by the 2024-3 Exchange Note Sale Agreement and the Trust Agreement and immediately before the transaction contemplated by the Indenture, the Transferor sells and assigns to the Transferee, without recourse, all right, title and interest of the Transferee, whether now owned or hereafter acquired, in the following “Transferred Assets”:
(i) the 2024-3 Exchange Note;
(ii) all of the Lender’s rights and benefits, as Exchange Noteholder of the 2024-3 Exchange Note under the 2024-3 Exchange Note, the Credit and Security Agreement, the 2024-3 Exchange Note Supplement and the 2024-3 Servicing Agreement;
(iii) all of the Depositor’s rights and benefits, as Exchange Noteholder of the 2024-3 Exchange Note under the 2024-3 Exchange Note, the Credit and Security Agreement, the 2024-3 Exchange Note Supplement and the 2024-3 Servicing Agreement;
2
(iv) all of the Transferor’s rights and benefits, as Sale Agreement Transferee under the 2024-3 Exchange Note Sale Agreement (including, without limitation, its rights pursuant to Section 2.5 thereof); and
(v) all proceeds, accounts, money, general intangibles, instruments, chattel paper, goods, investment property and other property consisting of, arising from or relating to the foregoing.
(b) In consideration for (i) the Transferred Assets, and (ii) the Transferor’s performance of its obligations under Section 2.14(a) of the 2024-3 Servicing Supplement to deposit the Specified Reserve Balance into the Reserve Account on the 2024-3 Closing Date, the Transferee will transfer to the Transferor, without recourse, all right, title and interest of the Transferee, whether now owned or hereafter acquired, in, to and under the Notes and the rights to distributions under Section 8.3 of the Indenture, as payment for the Transferred Assets.
(c) The sale, transfer, assignment and conveyance of the Transferred Assets pursuant to this Agreement is without recourse, and the Transferor does not guarantee payment on the 2024-3 Exchange Note or any collection of underlying asset included in the 2024-3 Designated Pool.
SECTION 2.2. True Sale.
(a) The parties hereto intend that the sale, transfer, assignment and conveyance of the Transferred Assets hereunder constitutes a true sale and assignment of the Transferred Assets such that any interest in and title to the Transferred Assets would not be property of the Transferor’s estate in the event the Transferor becomes a debtor in a case under any Insolvency Law. To the extent that the conveyance of the Transferred Assets hereunder is characterized by a court or similar Governmental Authority as a financing (a “Recharacterization”), it is intended by the Transferor and the Transferee that the interest conveyed constitute a grant of a first priority perfected security interest under the UCC as in effect in the State of New York by the Transferor to the Transferee to secure the sale price of the Transferred Assets to the Transferor. The Transferor does hereby grant to the Transferee a security interest in and to all of its rights, title and privileges and interest, whether now owned or existing or hereafter acquired or arising, in the Transferred Assets and the parties hereto agree that this Agreement constitutes a “security agreement” under all applicable law. In the case of any Recharacterization, each of the Transferor and the Transferee represents and warrants as to itself that each remittance of 2024-3 Exchange Note Collections made to the Transferee will have been (i) in payment of a debt incurred by the Transferor in the ordinary course of business or financial affairs of the Transferor and the Transferee, and (ii) made in the ordinary course of business or financial affairs of the Transferor and the Transferee.
(b) The Transferor makes the following representations and warranties to the Transferee in the event that, notwithstanding the express intent of the parties, the sale, transfer, assignment and conveyance of the Transferred Assets hereunder is not a true sale and assignment of the Transferred Assets to the Transferee. The representations and warranties speak as of the 2024-3 Closing date and shall survive the sale of the Transferred Assets to the Transferee
3
hereunder and the pledge thereof by the Transferee to the Indenture Trustee pursuant to the Indenture.
(i) This Agreement creates a valid and continuing security interest (as defined in the UCC) in the Transferred Assets in favor of the Transferee, which security interest is prior to all other Liens, and is enforceable as such as against creditors of and purchasers from the Transferor.
(ii) The 2024-3 Exchange Note constitutes a “certificated security” within the meaning of the relevant UCC.
(iii) The Transferor has caused or will have caused, within ten (10) days, the filing of all appropriate financing statements in the proper filing offices in the appropriate jurisdictions under applicable law in order to perfect the Transferee’s security interest in the Transferred Assets.
(iv) Other than the security interest granted to the Transferee pursuant to this Agreement, the Transferor has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed the Transferred Assets. The Transferor has not authorized the filing of and is not aware of any financing statements against the Transferor that include a description of collateral covering the Transferred Assets other than any financing statement relating to the security interest granted to the Transferee hereunder or that has been terminated. The Transferor is not aware of any judgment or tax lien filings against it.
SECTION 2.3. Representations and Warranties of the Transferor and the Transferee.
(a) The Transferor hereby represents and warrants to the Transferee as of the 2024-3 Closing Date that:
(i) Organization and Good Standing. The Transferor is a limited liability company duly formed, validly existing and in good standing under the laws of the State of Delaware, and has power and authority to own its properties and to conduct its business as such properties are currently owned and such business is presently conducted, and had at all relevant times, and shall have, power, authority and legal right to acquire, own and sell the Transferred Assets.
(ii) Due Qualification. The Transferor is duly qualified to do business as a foreign limited liability company in good standing, and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business shall require such qualifications, except where the failure to have any such license, approval or qualification could not reasonably be expected to have a material adverse effect with respect to the Transferor.
(iii) Power and Authority. The Transferor has the power and authority to execute and deliver this Agreement and all other Program Documents to which it is a party and to carry out their respective terms; and the execution, delivery and performance
4
of this Agreement and all other Program Documents to which it is a party have been or will be duly authorized by the Transferor by all necessary action.
(iv) Binding Obligation. Each of this Agreement and all other Program Documents to which the Transferor is a party constitutes a legal, valid and binding obligation of the Transferor, enforceable against it in accordance with its terms, except as enforceability may be subject to or limited by bankruptcy, insolvency, reorganization, moratorium, liquidation or other similar laws affecting the enforcement of creditors’ rights in general and by general principles of equity, regardless of whether such enforceability shall be considered in a proceeding in equity or at law.
(v) No Violation. The execution, delivery and performance by the Transferor of this Agreement and all other Program Documents to which it is a party will not violate any Requirement of Law or Contractual Obligation applicable to the Transferor, and will not, except as otherwise provided herein, result in, or require, the creation or imposition of any Lien on any of its property, assets or revenues pursuant to any such Requirement of Law or Contractual Obligation, except as contemplated hereby.
(vi) No Proceedings. There are no proceedings or investigations pending or, to the best of its knowledge, threatened before any court, arbitrator or other Governmental Authority having jurisdiction over the Transferor or any of its properties which could reasonably be expected to have a material adverse effect with respect to the Transferor.
(vii) No Consent. Except as expressly contemplated by the Program Documents, no consent or authorization of, filing with, or other act by or in respect of, any Governmental Authority or any other Person is required in connection with its execution, delivery or performance or the validity or enforceability against the Transferor of the Program Documents.
(viii) No Default. The Transferor is not in default in any material respect under or with respect to any of its Contractual Obligations.
(ix) Compliance with Law. The Transferor has complied in all material respects with all Requirements of Law.
(x) Title to Transferred Assets. Immediately prior to the transfer of the Transferred Assets pursuant to this Agreement, the Transferor (A) is the true and lawful owner of the Transferred Assets and it has the legal right to transfer the Transferred Assets, (B) has good and valid title to the Transferred Assets and the Transferred Assets are on such date free and clear of all Liens and (C) will convey good, valid and indefeasible title to the Transferred Assets to the Transferee under this Agreement.
(xi) Investment Company Act. The Transferor is not an “investment company” within the meaning of the Investment Company Act of 1940.
(xii) Solvency of the Transferor. The Transferor is, and after giving effect to the transactions contemplated to occur on such date, will be, Solvent and is not the subject of any Insolvency Event.
5
(xiii) Tax Returns. The Transferor has filed or caused to be filed all tax returns which are required to be filed and has paid all taxes shown to be due and payable on said returns or on any assessments made against it or any of its property and has paid or properly accrued and provided for payment at such time as is required or permitted all other taxes, fees or other charges imposed on it or any of its property by any Governmental Authority (other than any of the amount or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided on the books and records of the Transferor); no tax Lien has been filed and, to the knowledge of the Transferor, no claim is being asserted with respect to any such tax, fee or other charge.
(b) The Transferee hereby represents, and warrants to the Transferor as of the 2024-3 Closing Date that:
(i) Organization and Good Standing. The Transferee is a statutory trust duly formed, validly existing; and in good standing under the laws of the State of Delaware, and has power and authority to own its properties and to conduct its business as such properties are currently owned and such business is presently conducted, and had at all relevant times, and shall have, power, authority and legal right to acquire, own and pledge the Transferred Assets.
(ii) Due Qualification. The Transferee is duly qualified to do business as a foreign statutory trust in good standing, and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business shall require such qualifications, except where the failure to have any such license, approval or qualification could not reasonably be expected to have a material adverse effect with respect to the Transferee.
(iii) Power and Authority. The Transferee has the power and authority to execute and deliver this Agreement and all other Program Documents to which it is a party and to carry out its terms; and the execution, delivery and performance of this Agreement and all other Program Documents to which it is a party have been duly authorized by the Transferee by all necessary action.
(iv) Binding Obligation. Each of this Agreement and all other Program Documents to which the Transferee is a party constitutes a legal, valid and binding obligation of the Transferee, enforceable against it in accordance with its terms, except as enforceability may be subject to or limited by bankruptcy, insolvency, reorganization, moratorium, liquidation or other similar laws affecting the enforcement of creditors’ rights in general and by general principles of equity, regardless of whether such enforceability shall be considered in a proceeding in equity or at law.
(v) No Violation. The execution, delivery and performance by the Transferee of this Agreement and all other Program Documents to which it is a party will not violate any Requirement of Law or Contractual Obligation applicable to the Transferee, and will not, except as otherwise provided herein, result in, or require, the creation or imposition
6
of any Lien on any of its property, assets or revenues pursuant to any such Requirement of Law or Contractual Obligation.
(vi) No Proceedings. There are no proceedings or investigations pending or, to the best of its knowledge, threatened before any court, arbitrator or other Governmental Authority having jurisdiction over the Transferee or any of its properties which could reasonably be expected to have a material adverse effect with respect to the Transferee.
(vii) No Consent. Except as expressly contemplated by the Program Documents, no consent or authorization of, filing with, or other act by or in respect of, any Governmental Authority or any other Person is required in connection with its execution, delivery or performance or the validity or enforceability against the Transferee of the Program Documents.
(c) The representations and warranties set forth in this Section shall survive the transfer, sale, assignment and conveyance of the Transferred Assets by the Transferor to the Transferee and the pledge of the Transferred Assets by the Transferee to the Indenture Trustee pursuant to the Indenture. Upon discovery by the Transferor or the Transferee of a breach of any of the foregoing representations and warranties, the party discovering such breach shall give prompt written notice to the other, the Noteholders and the Indenture Trustee.
SECTION 2.4. Financing Statements and Books and Records.
(a) In connection with the conveyance of the Transferred Assets hereunder, the Transferor agrees that on or prior to the 2024-3 Closing Date, it will deliver at the direction of the Lender to the Transferee, with all requisite endorsements, the 2024-3 Exchange Note and will file, at its own expense, one or more financing statements with respect to the Transferred Assets meeting the requirements of applicable State law in such manner as necessary to perfect the transfer of the Transferred Assets to the Transferee, and the proceeds thereof (and any continuation statements as are required by applicable State law), and to deliver a file-stamped copy of each such financing statement (or continuation statement) or other evidence of such filings (which may, for purposes of this Section, consist of telephone confirmation of such filings with the file stamped copy of each such filings to be provided to the Transferee in due course), as soon as is practicable after receipt by the Transferor thereof.
(b) The Transferor further agrees that it will treat the transfers of the Transferred Assets as a sale for accounting purposes, take no actions inconsistent with the Transferee’s ownership of the assets sold to the Transferee pursuant to Section 2.1 hereof and on the 2024-3 Closing Date indicate on its books, records and statements that the Transferred Assets have been sold to the Transferee.
SECTION 2.5. Covenants of the Transferor. Until the date on which all Issuer Obligations are paid in full:
(a) Preservation of Existence. The Transferor shall preserve, renew and keep in full force and effect its existence and good standing and take all necessary action to maintain all rights, privileges and franchises necessary or desirable in the normal conduct of its business and
7
comply with all Contractual Obligations, including, without limitation, all its obligations under the Program Documents, and all Requirements of Law.
(b) Payment of Taxes. The Transferor shall file (or cause to be filed on its behalf as a member of a consolidated group) all tax returns required by law to be filed by it and pay all taxes, assessments and governmental charges shown to be owing by it, except for any such taxes, assessments or charges which are not yet delinquent or are being diligently contested in good faith by appropriate proceedings, for which adequate reserves in accordance with GAAP shall have been set aside on its books and that have not given rise to any Liens.
(c) Books and Records. The Transferor shall keep proper books and records of account in which full, true and correct entries in conformity with GAAP and all Requirements of Law shall be made of all dealings and transactions in relation to its business and activities; and, at its expense, shall permit representatives or designees of the Indenture Trustee, the Owner Trustee or any Noteholder or their duly authorized attorneys or auditors to visit and inspect any of its properties, to examine and make abstracts from any of its books and records and to discuss its affairs, finances and accounts with its officers, directors; employees and independent public accountants, all at such reasonable times upon reasonable notice and as often as may reasonably be requested.
(d) Maintenance of Separate Existence. The Transferor shall do all things necessary to remain readily distinguishable from GM Financial and its Affiliates (other than the Transferee) and maintain its limited liability company existence separate and apart from that of the Transferee, including maintaining in place all policies and procedures and taking all action, described in the factual assumptions set forth in the opinion letter of Katten Muchin Rosenman LLP, dated October 2, 2024, addressing the issues of substantive consolidation as they may relate to the Transferee, the Transferor and the Titling Trust on the one hand and GM Financial on the other hand.
SECTION 2.6. Acceptance by the Transferee. The Transferee agrees to comply with all covenants and restrictions applicable to an Exchange Noteholder of the 2024-3 Exchange Note, whether set forth in the 2024-3 Exchange Note, in the Credit and Security Agreement, in the 2024-3 Exchange Note Supplement or otherwise, and assumes all obligations and liabilities, if any, associated therewith.
ARTICLE III
CONDITIONS
SECTION 3.1. Conditions Precedent to Transfer. The effectiveness of this Agreement and of the obligation of the Transferee to purchase, and of the Transferor to sell, the Transferred Assets in accordance with the terms hereof is subject to the satisfaction of the following conditions:
(a) Agreement. The Transferee shall have received this Agreement, duly executed and delivered by the Transferor.
8
(b) 2024-3 Exchange Note Sale Agreement. The Transferee shall have received the 2024-3 Exchange Note Sale Agreement, duly executed and delivered by the Transferor and the Lender.
(c) 2024-3 Exchange Note Supplement. The Transferee shall have received the 2024-3 Exchange Note Supplement, duly executed and delivered by the parties thereto.
(d) 2024-3 Servicing Agreement. The Transferee shall have received the 2024-3 Servicing Agreement, duly executed and delivered by the parties thereto.
(e) Effective Date. All conditions set forth in Section 6 of the Underwriting Agreement shall have been satisfied.
(f) Depositor Certificate of Formation; Limited Liability Company Agreement. The Transferee shall have received a true and complete copy of certificate of formation and the limited liability company agreement of the Transferor, each certified as a true and correct copy by an Authorized Officer of the Transferor.
(g) Lien Searches. The Transferee shall have received certified copies of requests for information or copies dated a date reasonably near the date hereof listing all effective financing statements which name the Transferor (under its present name or any previous name) as transferor or debtor and which are filed in jurisdictions in which the filings were made pursuant to item (h) below and in any other jurisdictions that are necessary or appropriate, together with copies of such financing statements (none of which shall cover any 2024-3 Lease Agreements or other 2024-3 Exchange Note Assets, except any filing made in connection with a security interest granted under the Credit and Security Agreement), and tax and judgment lien searches showing no such liens that are not permitted by the Program Documents.
(h) UCCs. The Transferee shall have received acknowledgement copies of proper financing statements (Form UCC-1), naming the Transferor as the seller (debtor) of the Transferred Assets the Transferee as buyer (secured party) or other similar instruments or documents as may be necessary or in the opinion of the Transferee desirable under the UCC or any comparable law to perfect the Transferee’s interest in the Transferred Assets and executed copies of proper financing statements (Form UCC-3), if any, necessary to release all security interests and other rights of any Person in the Transferred Assets previously granted by the Transferor.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1. Amendment.
(a) This Agreement may be amended by the parties hereto, with the prior written consent of the Indenture Trustee (acting at the direction of the Majority Noteholders).
(b) The parties hereto acknowledge and agree that the right of the Indenture Trustee to consent to any amendment of this Agreement is subject to the terms and provisions of Section
9
3.7(g) of the Indenture and that any consent provided by the Indenture Trustee in violation of such terms and provisions shall be of no force or effect hereunder.
SECTION 4.2. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO OTHERWISE APPLICABLE PRINCIPLES OF CONFLICTS OF LAW (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
SECTION 4.3. Severability. If any one or more of the covenants, agreements, provisions or terms of this Agreement shall be for any reason whatsoever held invalid, then such covenants, agreements, provisions or terms shall be deemed severable from the remaining covenants, agreements, provisions and terms of this Agreement, as applicable, and shall in no way affect the validity or enforceability of the other covenants, agreements, provisions and terms of this Agreement.
SECTION 4.4. Binding Effect. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns.
SECTION 4.5. Table of Contents and Headings. The Table of Contents and Article and Section headings herein are for convenience of reference only and shall not define or limit any of the terms or provisions hereof.
SECTION 4.6. Counterparts and Consent to Do Business Electronically. This Agreement 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 Agreement and any documents to be delivered in connection with this Agreement 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 Agreement 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 4.7. Further Assurances. Each party hereto shall do such acts, and execute and deliver to the other party such additional documents or instruments as may be reasonably requested in order to effect the purposes of this Agreement and to better assure and confirm unto the requesting party its rights, powers and remedies hereunder. For the avoidance of doubt, the parties hereto agree to take all necessary actions (including filing of financing statements in accordance with the relevant UCC) to maintain perfections with respect to the Transferred Assets.
10
SECTION 4.8. Third-Party Beneficiaries. This Agreement shall inure to the benefit of and be binding upon the parties hereto and each 2024-3 Exchange Noteholder or Pledgee of the 2024-3 Exchange Note and each Noteholder who shall be considered third-party beneficiaries hereof. Except as otherwise provided in this Agreement, no other Person shall have any right or obligation hereunder.
SECTION 4.9. No Petition. Each of the parties hereto, by entering into this Agreement, hereby covenants and agrees that it will not institute, or join in instituting, any bankruptcy, reorganization, arrangement, insolvency or liquidation Proceeding, or other Proceeding under any Insolvency Law for a period of one (1) year and one (1) day after the date upon which all the Notes and all other Issuer Obligations have been paid in full, against the Titling Trust or the Issuer.
SECTION 4.10. Limitation of Liability of Owner Trustee. It is expressly understood and agreed by the parties hereto that (a) this Agreement is executed and delivered by Wilmington Trust Company, not individually or personally but solely as Owner Trustee of the Transferee, in the exercise of the powers and authority conferred and vested in it under the Trust Agreement, (b) each of the representations, covenants, undertakings and agreements herein made on the part of the Transferee is made and intended not as personal representations, covenants, undertakings and agreements by Wilmington Trust Company but is made and intended for the purpose for binding only the Transferee, (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 not verified or made any investigation as to the accuracy or completeness of any representations or warranties made by the Transferee in this Agreement, and (e) under no circumstances shall Wilmington Trust Company be personally liable for the payment of any indebtedness or expenses of the Transferee or be liable for the breach or failure of any obligation, duty (including fiduciary duty, if any), representation, warranty or covenant made or undertaken by the Transferee under this Agreement or any other Program Documents.
SECTION 4.11. Limited Recourse. Each of the parties hereto, by entering into this Agreement, agrees that any claim that the Transferor or the Transferee may seek to enforce against each other is limited to the Transferred Assets only and does not represent a claim against the assets of the Transferor or the Transferee as a whole or any assets other than the Transferred Assets.
SECTION 4.12. Subordination.
(a) The Transferor and the Transferee agree that any claim that the Transferor or the Transferee may seek to enforce at any time against any assets of the Transferor or the Transferee other than the Transferred Assets, will be subordinate to payment in full of all other claims with respect to such other assets. However, this Section will not limit, subordinate or otherwise modify any claims against the Transferor or the Transferee with respect to any right to indemnification or other obligation of the Transferor or the Transferee relating to (i) the Transferred Assets, (ii) any related credit enhancement, (iii) any transaction entered into in connection with the Transferred Assets, (iv) any administrative services performed in connection
11
with the Transferred Assets, or (v) any obligation to any Person acting as a trustee or an administrator. The Transferee hereby releases all claims to the assets of the Titling Trust that are not allocated to the 2024-3 Designated Pool, and, in the event that such release is not given effect, the Transferee hereby agrees to fully subordinate any claims it may have against such other assets of the Titling Trust.
(b) The Transferor agrees that any claim the Transferor may seek to enforce against the Transferee or any of its assets will be subordinate to the payment in full of the principal of and interest on the Notes and all other Issuer Obligations.
(c) The parties to this Agreement intend that Section 4.12(a) constitutes an enforceable subordination agreement under Section 510(a) of the Bankruptcy Code.
[Remainder of This Page Intentionally Left Blank]
12
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective officers duly authorized as of the day and year first above written.
| GMF LEASING LLC, as Transferor | ||
| By: | ||
| Name: | ||
| Title: | ||
| GM FINANCIAL AUTOMOBILE LEASING | ||
| TRUST 2024-3, as Transferee | ||
| By: | Wilmington Trust Company, not in its individual capacity but solely as Owner Trustee | |
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page to the 2024-3 Exchange Note Transfer Agreement]
Exhibit 10.4
ACAR LEASING LTD.,
as the Titling Trust
GM FINANCIAL,
as Servicer
APGO TRUST,
as Settlor
and
COMPUTERSHARE TRUST COMPANY, N.A.,
as Indenture Trustee and Collateral Agent
2024-3 SERVICING SUPPLEMENT
Dated as of August 20, 2024
TABLE OF CONTENTS
| Page | ||||||
| ARTICLE I DEFINITIONS AND INTERPRETIVE PROVISIONS |
1 | |||||
| SECTION 1.1. |
General Definitions | 1 | ||||
| ARTICLE II SERVICING OF 2024-3 DESIGNATED POOL |
2 | |||||
| SECTION 2.1. |
Servicing of 2024-3 Designated Pool | 2 | ||||
| SECTION 2.2. |
Identification of 2024-3 Lease Agreements and 2024-3 Leased Vehicles; Securitization Value | 2 | ||||
| SECTION 2.3. |
Accounts | 2 | ||||
| SECTION 2.4. |
General Provisions Regarding Accounts | 4 | ||||
| SECTION 2.5. |
Reallocation and Repurchase of 2024-3 Lease Agreements and 2024-3 Leased Vehicles; Purchase of Matured Vehicles | 6 | ||||
| SECTION 2.6. |
2024-3 Designated Pool Collections | 8 | ||||
| SECTION 2.7. |
Servicing Compensation; Expenses | 8 | ||||
| SECTION 2.8. |
Third Party Claims | 9 | ||||
| SECTION 2.9. |
Reporting by the Servicer; Delivery of Certain Documentation; Inspection; Asset-Level Information | 9 | ||||
| SECTION 2.10. |
Annual Independent Accountant’s Report | 10 | ||||
| SECTION 2.11. |
Servicer Defaults; Termination of the Servicer | 11 | ||||
| SECTION 2.12. |
Representations and Warranties | 13 | ||||
| SECTION 2.13. |
Custody of Lease Documents | 13 | ||||
| SECTION 2.14. |
Reserve Account | 14 | ||||
| SECTION 2.15. |
Liability of Successor Servicer | 14 | ||||
| SECTION 2.16. |
Merger or Consolidation of, or Assumption of Obligations of the Servicer | 15 | ||||
| SECTION 2.17. |
Resignation of the Servicer | 15 | ||||
| SECTION 2.18. |
Separate Existence | 16 | ||||
| SECTION 2.19. |
Like Kind Exchange Program; Pull Ahead Program | 16 | ||||
| SECTION 2.20. |
Dispute Resolution | 17 | ||||
| ARTICLE III MISCELLANEOUS |
20 | |||||
| SECTION 3.1. |
Termination of 2024-3 Servicing Supplement | 20 | ||||
| SECTION 3.2. |
Amendment | 20 | ||||
| SECTION 3.3. |
GOVERNING LAW | 21 | ||||
| SECTION 3.4. |
Relationship of 2024-3 Servicing Supplement to Other Trust Documents | 21 | ||||
| SECTION 3.5. |
[Reserved] | 21 | ||||
| SECTION 3.6. |
Notices | 21 | ||||
| SECTION 3.7. |
Severability of Provisions | 21 | ||||
| SECTION 3.8. |
Binding Effect | 21 | ||||
i
| SECTION 3.9. |
Table of Contents and Headings | 21 | ||||
| SECTION 3.10. |
Counterparts and Consent to Do Business Electronically | 21 | ||||
| SECTION 3.11. |
Further Assurances | 22 | ||||
| SECTION 3.12. |
Third-Party Beneficiaries | 22 | ||||
| SECTION 3.13. |
No Petition | 22 | ||||
| SECTION 3.14. |
Limitation of Liability | 22 | ||||
| SECTION 3.15. |
Preparation of Securities and Exchange Commission Filings | 23 | ||||
| SECTION 3.16. |
Review Reports | 23 | ||||
| SECTION 3.17. |
Regulation RR Risk Retention | 23 |
| EXHIBITS |
|
|||||
| Exhibit A – Form of Servicer Report |
A-1 | |||||
ii
2024-3 SERVICING SUPPLEMENT, dated as of August 20, 2024 (as the same may be amended, restated, supplemented or otherwise modified from time to time, this “2024-3 Servicing Supplement” or this “Agreement”), among ACAR Leasing Ltd., a Delaware statutory trust (the “Titling Trust”), AmeriCredit Financial Services, Inc. d/b/a GM Financial, a Delaware corporation (“GM Financial”), as servicer (in such capacity, the “Servicer”), APGO Trust (“APGO”), a Delaware statutory trust, as settlor of the Titling Trust (in such capacity, the “Settlor”), and Computershare Trust Company, N.A. (“Computershare”), as indenture trustee (in such capacity, the “Indenture Trustee”) and as collateral agent (in such capacity, the “Collateral Agent”).
RECITALS
WHEREAS, pursuant to an Amended and Restated Trust Agreement, dated as of January 31, 2011 (the “Titling Trust Agreement”), between APGO as settlor (the “Settlor”) and Wilmington Trust Company, as owner trustee (in such capacity, the “Owner Trustee”), administrative trustee (in such capacity, the “Administrative Trustee”) and Delaware trustee (in such capacity, the “Delaware Trustee”), the Titling Trust was created to, among other things, take assignments and conveyances of and hold in trust various assets (the “Trust Assets”);
WHEREAS, the Titling Trust, the Servicer, the Settlor and the Collateral Agent, have entered into a 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 “Basic Servicing Agreement”), which provides for, among other things, the servicing of the Trust Assets by the Servicer; and
WHEREAS, the parties hereto acknowledge that in connection with the execution of the 2024-3 Exchange Note Supplement, dated as of August 20, 2024 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “2024-3 Exchange Note Supplement”) to the Third Amended and Restated Credit and Security Agreement, dated as of October 3, 2022 (as the same may be further amended, restated, supplemented or otherwise modified from time to time, the “Credit and Security Agreement”), each among the Titling Trust, as borrower, GM Financial, as lender and Servicer, and Computershare, as Collateral Agent and as administrative agent, pursuant to which an Exchange Note (the “2024-3 Exchange Note”) will be created, it is necessary and desirable to enter into a supplement to the Basic Servicing Agreement to provide for, among other things, the servicing of the Trust Assets allocated to the 2024-3 Designated Pool.
NOW, THEREFORE, in consideration of the mutual agreements herein contained, and of other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETIVE PROVISIONS
SECTION 1.1. General Definitions. Capitalized terms used in this 2024-3 Servicing Supplement that are not otherwise defined herein shall have the meanings assigned to them in
Appendix 1 to the 2024-3 Exchange Note Supplement or, if not defined therein, in Appendix A to the Credit and Security Agreement. The “Other Definitional Provisions” set forth in Section 1.2 of the Basic Servicing Agreement are incorporated by reference into this 2024-3 Servicing Supplement.
ARTICLE II
SERVICING OF 2024-3 DESIGNATED POOL
SECTION 2.1. Servicing of 2024-3 Designated Pool. The parties hereto agree that the Servicer shall service, administer and make collections on the 2024-3 Designated Pool in accordance with the terms and provisions of the Basic Servicing Agreement, as amended and supplemented by the terms and provisions of this 2024-3 Servicing Supplement.
SECTION 2.2. Identification of 2024-3 Lease Agreements and 2024-3 Leased Vehicles; Securitization Value. On the 2024-3 Closing Date, the Servicer shall identify as 2024-3 Exchange Note Assets the Lease Agreements and the Leased Vehicles relating to such Lease Agreements listed on the Schedule of 2024-3 Lease Agreements and 2024-3 Leased Vehicles attached as Schedule A to the 2024-3 Exchange Note Supplement. The Servicer shall calculate the Securitization Value for each 2024-3 Lease Agreement as of the Cutoff Date.
SECTION 2.3. Accounts.
(a) The Indenture Trustee has established and shall maintain a 2024-3 Eligible Deposit Account in the name of and under the control of the Indenture Trustee for the benefit of the Noteholders (said account being called the “2024-3 Exchange Note Collections Account” and being initially identified as “GM Financial 2024-3 Exchange Note Collections Account”). Deposits to and withdrawals from the 2024-3 Exchange Note Collections Account shall be made as set forth in the 2024-3 Servicing Agreement, the 2024-3 Exchange Note Supplement and the Indenture.
(b) The Indenture Trustee has established and shall maintain a 2024-3 Eligible Deposit Account in the name of and under the control of the Indenture Trustee for the benefit of the Noteholders (said account being called the “Indenture Collections Account” and being initially identified as “GM Financial 2024-3 Indenture Collections Account”). Deposits to and withdrawals from the 2024-3 Indenture Collections Account shall be made as set forth in the 2024-3 Exchange Note Supplement and the Indenture.
(c) The Indenture Trustee has established and shall maintain a 2024-3 Eligible Deposit Account in the name of and under the control of the Indenture Trustee for the benefit of the Noteholders (said account being called the “Note Payment Account” and being initially identified as “GM Financial 2024-3 Note Payment Account”). Deposits to and withdrawals from the Note Payment Account shall be made as set forth in the Indenture.
(d) The Indenture Trustee has established and shall maintain a 2024-3 Eligible Deposit Account in the name of and under control of the Indenture Trustee for the benefit of the Noteholders (said account being called the “Reserve Account” and being initially identified as “GM Financial 2024-3 Reserve Account”).
2
(e) All monies deposited from time to time in the Accounts pursuant to this 2024-3 Servicing Supplement and the other Program Documents and the Accounts shall be held in the name of the Indenture Trustee as part of the Indenture Collateral and shall be applied to the purposes herein and therein provided. If any Account shall cease to be a 2024-3 Eligible Deposit Account, the Indenture Trustee and the Collateral Agent shall, as necessary, assist the Servicer in causing such Account to be moved to an institution at which it shall be a 2024-3 Eligible Deposit Account.
(f) If, at any time, any of the Accounts ceases to be a 2024-3 Eligible Deposit Account, the Servicer shall within thirty (30) days (or such longer period as to which the Rating Agencies rating any securities backed by the related Exchange Note may consent) establish a new Account as a 2024-3 Eligible Deposit Account and shall transfer any cash and/or any investments on deposit or credited to such earlier existing Account into such new Account.
(g) The Collateral Agent or Person holding the Accounts shall be the “Securities Intermediary” with respect to the Accounts. If the Securities Intermediary in respect of the Accounts is not the Collateral Agent, the Collateral Agent shall obtain the express written agreement of such Person to (x) comply with the obligations of the Securities Intermediary set forth in this Section 2.3(g) and (y) subordinate any claim or interests of such Person in the Accounts to the interests of the Collateral Agent. The Collateral Agent shall provide a copy of such agreement to the Servicer. The Securities Intermediary agrees that:
(i) Each of the Accounts is an account to which “financial assets” within the meaning of Section 8-102(a)(9) (“Financial Assets”) of the UCC in effect in the State of New York will be credited;
(ii) All securities or other property underlying any Financial Assets credited to any Account shall be registered in the name of the Securities Intermediary, endorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to an Account be registered in the name of the Issuer, payable to the order of the Issuer or specially endorsed to the Issuer;
(iii) All property delivered to the Securities Intermediary pursuant to the 2024-3 Servicing Agreement and the Indenture will be promptly credited to the applicable Account;
(iv) Each item of property (whether investment property, security, instrument or cash) credited to an Account shall be treated as a Financial Asset;
(v) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to an Account, the Securities Intermediary shall comply with such entitlement order without further consent by the Issuer or the Servicer;
(vi) Each Account shall be governed by the laws of the State of New York, regardless of any provision of any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Accounts (as well
3
as the “securities entitlements” (as defined in Section 8-102(a)(17) of the UCC) related thereto) shall be governed by the laws of the State of New York;
(vii) The Securities Intermediary has not entered into, and until termination of the Indenture, will not enter into, any agreement with any other Person relating to the Accounts and/or any Financial Assets credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of the Indenture will not enter into, any agreement with the Issuer purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 2.4; and
(viii) Except for the claims and interest of the Indenture Trustee and the Issuer in the Accounts, the Securities Intermediary knows of no claim to, or interest in, the Accounts or in any Financial Asset credited thereto. If any other Person asserts any Lien, encumbrance, or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Noteholders and the Issuer thereof.
The Indenture Trustee shall possess all right, title and interest in all funds on deposit from time to time in the Accounts and in all proceeds thereof, and shall be the only Person authorized to originate entitlement orders in respect of the Accounts.
(h) Except as otherwise set forth in this Section 2.3, if the Collateral Agent transfers any Account to another 2024-3 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 2024-3 Eligible Institution.
(i) Notwithstanding anything to the contrary contained in this Agreement, the Servicer hereby agrees that if any or all of the Accounts are transferred to any 2024-3 Eligible Institution, other than Wells Fargo Bank, N.A., it shall cause its legal counsel, Katten Muchin Rosenman LLP, to deliver an opinion of counsel addressed to each party to the Corporate Opinion of Katten Muchin Rosenman LLP, dated as of the Closing Date, confirming that, following the transfer of the related Account or Accounts to such 2024-3 Eligible Institution, Computershare, as Collateral Agent, shall have a security interest in the applicable Account or Accounts that is perfected by control. Such opinion letter will be in form and substance reasonably acceptable to Computershare and the Agent and shall be subject to customary assumptions and qualifications. Computershare hereby agrees to pay, promptly upon its receipt of an invoice therefor, the reasonable and documented fees and out-of-pocket expenses of Katten Muchin Rosenman LLP agreed in advance by Computershare in connection with the preparation, execution, and delivery of the opinion letter described above.
SECTION 2.4. General Provisions Regarding Accounts.
(a) So long as no Event of Default shall have occurred and be continuing, all or a portion of the funds in the 2024-3 Exchange Note Collections Account, the Indenture Collections
4
Account, the Note Payment Account and the Reserve Account shall be invested at the direction of the Servicer in 2024-3 Permitted Investments that mature no later than the Business Day prior to the next Payment Date in the Collection Period following the Collection Period during which the investment is made. All income or other gain from investments of monies deposited in the 2024-3 Exchange Note Collections Account, the Indenture Collections Account and the Reserve Account during a Collection Period shall be deposited into the 2024-3 Exchange Note Collections Account, the Indenture Collections Account or the Reserve Account, as applicable, on the related Payment Date, and any loss resulting from such investments shall be charged to 2024-3 Exchange Note Collections Account, the Indenture Collections Account or the Reserve Account, as applicable. The Titling Trust will be the tax owner of the 2024-3 Exchange Note Collections Account and all investment earnings on the 2024-3 Exchange Note Collections Account will be taxable to the Titling Trust. The Issuer or, if there is a single Issuer Trust Certificateholder, such Issuer Trust Certificateholder will be the tax owner of the Indenture Collections Account and all investment earnings on the Indenture Collections Account will be taxable to the Issuer or such Issuer Trust Certificateholder, as the case may be. The Issuer or, if there is a single Issuer Trust Certificateholder, such Issuer Trust Certificateholder, will be the tax owner of the Reserve Account and all investment earnings on the Reserve Account will be taxable to the Issuer or such Issuer Trust Certificateholder, as the case may be.
The Indenture Trustee will not be directed to make any investment of any funds or to sell any 2024-3 Permitted Investment held in the 2024-3 Exchange Note Collections Account, the Indenture Collections Account and the Reserve Account unless the security interest Granted and perfected in the 2024-3 Exchange Note Collections Account, the Indenture Collections Account and the Reserve Account will continue to be perfected in such 2024-3 Permitted Investment or the proceeds of such sale, in either case without any further action by any Person. Except as directed by the Note Purchaser after the occurrence and during the continuance of an Event of Default, no such 2024-3 Permitted Investment shall be sold prior to maturity. The Servicer acknowledges that upon its written request and at no additional cost, it has the right to receive notification after the completion of each such investment or the Indenture Trustee’s receipt of a broker’s confirmation. The Servicer agrees that such notifications will not be provided by the Indenture Trustee hereunder, and the Indenture Trustee shall make available, upon request and in lieu of notifications, periodic account statements that reflect such investment activity. No statement need be made available if no activity has occurred in the relevant Account during such period.
(b) If (i) the Servicer shall have failed to give investment directions for funds on deposit in the 2024-3 Exchange Note Collections Account, the Indenture Collections Account and the Reserve Account to the Indenture Trustee by 12:00 noon, New York City time (or such other time as may be agreed by the Indenture Trustee), on any Business Day, (ii) an Event of Default shall have occurred and be continuing but the Notes shall not have been declared due and payable pursuant to Section 5.2 of the Indenture, or (iii) if the Notes shall have been declared due and payable following an Event of Default but amounts collected or receivable from the Issuer Trust Estate are being applied as if there had not been such a declaration, then the Indenture Trustee shall cause the Collateral Agent to hold funds on deposit in the 2024-3 Exchange Note Collections Account, the Indenture Collections Account and the Reserve Account uninvested.
5
(c) Subject to Section 6.1(c) of the Indenture, the Indenture Trustee shall not in any way be held liable by reason of any insufficiency in the 2024-3 Exchange Note Collections Account, the Indenture Collections Account and the Reserve Account resulting from any loss on any 2024-3 Permitted Investment included therein except for losses attributable to the Indenture Trustee as obligor as a result of the Indenture Trustee’s failure to make payments on such 2024-3 Permitted Investments issued by the Indenture Trustee, in its commercial capacity as principal obligor and not as trustee, in accordance with their terms.
SECTION 2.5. Reallocation and Repurchase of 2024-3 Lease Agreements and 2024-3 Leased Vehicles; Purchase of Matured Vehicles.
(a) In the event the Servicer (i) grants certain payment deferments or end of lease extensions with respect to any 2024-3 Lease Agreement that are inconsistent with the Customary Servicing Practices or that extend the term of such 2024-3 Lease Agreement past the Exchange Note Final Scheduled Payment Date, (ii) modifies any 2024-3 Lease Agreement to change the related Contract Residual Value or Monthly Payment, or (iii) is notified the Titling Trust no longer owns any 2024-3 Leased Vehicle, except to the extent that any such modification listed in clauses (i) and (ii) of this Section 2.5(a) is required by law or court order, the Servicer shall, on the Deposit Date related to the Collection Period in which such extension was granted, modification was made or notice was received, as applicable, cause the reallocation of the affected 2024-3 Lease Agreement and the related 2024-3 Leased Vehicle to the Lending Facility Pool by depositing to the 2024-3 Exchange Note Collections Account an amount equal to the Repurchase Payment with respect to such 2024-3 Lease Agreement and the related 2024-3 Leased Vehicle.
(b) Upon (i) discovery by the Servicer, the Depositor or any Noteholder, or (ii) the receipt of written notice by or actual knowledge of an Authorized Officer of the Owner Trustee or Indenture Trustee, that any representation or warranty contained in Section 2.12 was incorrect in respect of any 2024-3 Lease Agreement or the related 2024-3 Leased Vehicle as of the Cutoff Date or the 2024-3 Closing Date, as applicable, in a manner that materially adversely affects the interest of the Issuer or the Noteholders in such 2024-3 Lease Agreement or such 2024-3 Leased Vehicle, the entity discovering such incorrectness, (i) in the case such entity is a Noteholder, may, and (ii) in the case such entity is the Depositor, Owner Trustee or Indenture Trustee, shall, give prompt written notice to the Servicer requesting that the Servicer reallocate the affected 2024-3 Lease Agreement and the related 2024-3 Leased Vehicle to the Lending Facility Pool; provided, that if the Noteholder providing such notice is not a Noteholder of record, such Noteholder must provide the Servicer with a written certification stating that it is a beneficial owner of a Note, together with supporting documentation supporting that statement (which may include, but is not limited to, a trade confirmation, an account statement or a letter from a broker or dealer verifying ownership) together with such notice. If Noteholders representing five percent or more of the Outstanding Amount of the most senior Class of Notes inform the Indenture Trustee, by notice in writing, of any breach of the Servicer’s representations and warranties made pursuant to Section 2.12(c), the Indenture Trustee shall inform the Servicer in the manner specified in the preceding sentence on behalf of such Noteholders. By no later than the end of the Collection Period including the date that is two (2) months after the date on which the Servicer discovers or is notified of such incorrectness, the Servicer shall cure in all material respects the circumstance or condition with respect to which the representation or warranty was
6
incorrect as of the Cutoff Date or the 2024-3 Closing Date, as applicable. If the Servicer does not cure such circumstance or condition by such date, then the Servicer shall cause the reallocation of the affected 2024-3 Lease Agreement and the related 2024-3 Leased Vehicle to the Lending Facility Pool by depositing to the 2024-3 Exchange Note Collections Account on the Deposit Date relating to the next succeeding Payment Date an amount equal to the Repurchase Payment with respect to such 2024-3 Lease Agreement and the related 2024-3 Leased Vehicle. The Indenture Trustee will (i) notify the Servicer, GM Financial and the Depositor, as soon as practicable and in any event within five (5) Business Days and in the manner set forth for providing notices hereunder, of all demands or requests communicated (in writing or orally) to the Indenture Trustee for the reallocation of any 2024-3 Lease Agreement and the related 2024-3 Leased Vehicle pursuant to this clause (b), (ii) promptly upon request by the Servicer, GM Financial or the Depositor, provide to them any other information reasonably requested to facilitate compliance by them with Rule 15Ga-1 under the Exchange Act and Items 1104(e) and 1121(c) of Regulation AB, and (iii) if requested by the Servicer, GM Financial or the Depositor, provide a written certification no later than fifteen (15) days following any calendar quarter or calendar year that the Indenture Trustee has not received any reallocation demands for such period, or if reallocation demands have been received during such period, that the Indenture Trustee has provided all the information reasonably requested under clause (ii) above with respect to such demands. In no event will the Indenture Trustee or the Issuer have any responsibility or liability in connection with any filing required to be made by a securitizer under the Exchange Act or Regulation AB.
(c) Notwithstanding the provisions of Section 2.6(b) of the Basic Servicing Agreement, if the Servicer discovers a breach, or is provided with any notice of a breach pursuant to such section, regarding a Lease Agreement or Leased Vehicle that is a 2024-3 Lease Agreement or 2024-3 Leased Vehicle on the date that such breach is discovered or such notice is provided, the Servicer shall be obligated to take the actions described in such Section 2.6(b) by no later than the Payment Date following the Collection Period in which the related breach is discovered or the related notice is provided (rather than by the Payment Date following the Collection Period that ends at least thirty (30) days after the Servicer discovers or is notified of such breach).
(d) The Servicer shall provide written notice to the Indenture Trustee and the Noteholders of each reallocation to the Lending Facility Pool of a 2024-3 Lease Agreement and the related 2024-3 Leased Vehicle pursuant to Section 2.5(a) or (b) that was made during a Collection Period in the Servicer Report that is delivered for such Collection Period.
(e) The Servicer may purchase any 2024-3 Leased Vehicle that becomes a Matured Vehicle pursuant to Section 2.6(f) of the Basic Servicing Agreement for a purchase price equal to the Contract Residual Value of the related 2024-3 Lease Agreement.
(f) The obligation of the Servicer under this Section 2.5 shall survive any termination of the Servicer hereunder.
(g) For so long as the Notes are Outstanding, the Servicer will not be permitted to reallocate any 2024-3 Lease Agreements and related 2024-3 Leased Vehicles from the 2024-3
7
Designated Pool to the Lending Facility Pool except in accordance with the terms of this Section 2.5 and Section 3.1 of the 2024-3 Exchange Note Supplement.
(h) If a Lessee changes its domicile and such change would reasonably be expected to result in the Titling Trust doing business in a jurisdiction in which it is not licensed and authorized to conduct business in the manner contemplated by the Program Documents, then on the Payment Date related to the Collection Period that ends at least thirty (30) days after the Servicer discovers or is notified of such change, the Servicer shall purchase such 2024-3 Lease Agreement and the related 2024-3 Leased Vehicle by either (i) depositing to the Indenture Collections Account an amount equal to the Repurchase Payment, or (ii) appropriately segregating and designating an amount equal to the Repurchase Payment on its records, pending application thereof pursuant to 2024-3 Servicing Agreement.
SECTION 2.6. 2024-3 Designated Pool Collections.
(a) The Servicer shall, with respect to all 2024-3 Designated Pool Collections, from time to time determine the amount of such 2024-3 Designated Pool Collections and during each Collection Period shall deposit all such 2024-3 Designated Pool Collections in the 2024-3 Exchange Note Collections Account when required pursuant to clause (b).
(b) Notwithstanding Section 2.7(b) of the Basic Servicing Agreement, the Servicer shall remit, or shall cause its agent to remit, all 2024-3 Designated Pool Collections to the 2024-3 Exchange Note Collections Account by the close of business on the second (2nd) Business Day after receipt thereof or, in the case of any 2024-3 Designated Pool Collections received by the Servicer or such agent for which the Servicer or such agent, as applicable, does not have all Payment Information by the close of business on such second (2nd) Business Day, by the close of business on the day on which all such Payment Information is received. Pending deposit into the 2024-3 Exchange Note Collections Account, 2024-3 Designated Pool Collections may be employed by the Servicer at its own risk and for its own benefit and need not be segregated from its own funds.
SECTION 2.7. Servicing Compensation; Expenses. As compensation for the performance of its obligations under the 2024-3 Servicing Agreement, on each Payment Date the Servicer shall be entitled to receive a fee for its performance during the immediately preceding Collection Period or, with respect to the first Payment Date, the period from and excluding the Cutoff Date to and including September 30, 2024 (the “Designated Pool Servicing Fee”) in accordance with Article V of the 2024-3 Exchange Note Supplement in an amount equal the sum of (x) to the product of (i) one-twelfth (1/12th) (or, with respect to the first Payment Date, a fraction equal to the number of days from and excluding the Cutoff Date through and including September 30, 2024, over 360), times (ii) the Servicing Fee Rate, times (iii) the Aggregate Securitization Value as of the opening of business on the first day of such Collection Period, plus (y) any Administrative Charges collected on the 2024-3 Lease Agreements and 2024-3 Leased Vehicles and any other expenses reimbursable to the Servicer.
8
SECTION 2.8. Third Party Claims. In addition to the requirements set forth in Section 2.14 of the Basic Servicing Agreement, upon learning of a Claim or Lien of whatever kind of a third party that would be likely to have a material adverse effect on the interests of the Depositor or the Issuer with respect to the 2024-3 Exchange Note Assets, the Servicer shall immediately notify the Depositor, the Indenture Trustee and the Noteholders of any such Claim or Lien.
SECTION 2.9. Reporting by the Servicer; Delivery of Certain Documentation; Inspection; Asset-Level Information.
(a) On each Determination Date, prior to 12:00 p.m. (Central time), the Issuer shall cause the Servicer to deliver to the Indenture Trustee, the Titling Trust and the Collateral Agent, a Servicer Report with respect to the next Payment Date and the related Collection Period. The Issuer shall also cause the Servicer to deliver a Servicer Report to each Rating Agency on the same date the Servicer Report is publicly available (provided that if the Servicer Report is not made publicly available, the Servicer will deliver it to each Rating Agency, no later than the twenty-second (22nd) of each month (or if not a Business Day, the next succeeding Business Day)). Solely in the case of the Servicer Report delivered on the first Determination Date, such Servicer Report will contain the disclosure required by Rule 4(c)(1)(ii) of Regulation RR, 17 C.F.R. §246.1, et seq. (the “Credit Risk Retention Rules”). Notwithstanding Section 3.2(a) of the Basic Servicing Agreement, the Servicer shall deliver such Servicer Reports in accordance with this Section 2.9 until the date on which the Notes are no longer Outstanding.
(b) In addition to the report with respect to the 2024-3 Exchange Note which the Servicer is obligated to deliver pursuant to Section 3.1(c) of the Basic Servicing Agreement, the Servicer shall deliver to the Depositor, the Indenture Trustee and the Titling Trust, on or before March 31 (or ninety (90) days after the end of the Servicer’s fiscal year, if other than December 31) of each year, beginning March 31, 2025, an Officer’s Certificate, dated as of March 31 (or other applicable date) of such year, stating that (i) a review of the activities of the Servicer during the preceding twelve (12) month period (or, in the case of the first such Officer’s Certificate, the period from the Closing Date to the date of the first such Officer’s Certificate) and of its performance under the 2024-3 Servicing Agreement has been made under such officer’s supervision, and (ii) to such officer’s knowledge, based on such review, the Servicer has fulfilled all its obligations under the 2024-3 Servicing Agreement throughout such period, or, if there has been a default in the fulfillment of any such obligation, specifying each such default known to such officer and the nature and status thereof.
(c) The Servicer will deliver to the Issuer, on or before March 31 of each year, beginning on March 31, 2025, a report regarding the Servicer’s assessment of compliance with certain minimum servicing criteria during the immediately preceding calendar year, as required under Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation AB.
(d) To the extent required by Regulation AB, the Servicer will cause any affiliated servicer or any other party deemed to be participating in the servicing function pursuant to Item 1122 of Regulation AB to provide to the Issuer, on or before March 31 of each year, beginning on March 31, 2025, a report regarding such party’s assessment of compliance with certain
9
minimum servicing criteria during the immediately preceding calendar year, as required under Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation AB.
(e) Computershare, in its capacity as Collateral Agent under this 2024-3 Servicing Supplement and in its capacity as Indenture Trustee under the Program Documents, acknowledges that to the extent it is deemed to be participating in the servicing function pursuant to Item 1122 of Regulation AB, it will take any action reasonably requested by the Servicer to ensure compliance with the requirements of Section 2.9(d) and Section 2.10(b) hereof and with Item 1122 of Regulation AB. Such required documentation will be delivered to the Servicer by March 15 of each calendar year.
(f) The Servicer shall deliver copies of all reports, notices and certificates delivered by it pursuant to the 2024-3 Servicing Agreement to the Depositor, the Indenture Trustee and the Titling Trust on the date or dates due, including any notice of material failure given pursuant to Section 2.2(a) of the Basic Servicing Agreement and the Officer’s Certificate relating to the 2024-3 Exchange Note delivered by it pursuant to Section 2.9(b) of this 2024-3 Servicing Supplement.
(g) On or before the fifteenth (15th) day following each Payment Date, the Servicer will prepare a Form ABS-EE, including an asset data file and asset-related document containing the asset-level information for each 2024-3 Exchange Note Asset for the prior Collection Period as required by Item 1A of Form 10-D.
SECTION 2.10. Annual Independent Accountant’s Report.
(a) The Servicer shall cause the cause a firm of nationally recognized independent certified public accountants (the “Independent Accountants”), who may also render other services to the Servicer or its Affiliates, to deliver to the Indenture Trustee, the Owner Trustee and the Collateral Agent, on or before March 31 (or 90 days after the end of the Issuer’s fiscal year, if other than December 31) of each year, beginning on March 31, 2025, a report with respect to the preceding calendar year, addressed to the board of directors of the Servicer, providing its attestation report on the servicing assessment delivered pursuant to Section 2.9(c), including disclosure of any material instance of non-compliance, as required by Rule 13a-18 and 15d-18 of the Exchange Act and Item 1122(b) of Regulation AB. Such attestation will be in accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act and the Exchange Act.
(b) Each party required to deliver an assessment of compliance described in Section 2.9(d) shall cause Independent Accountants, who may also render other services to such party or its Affiliates, to deliver to the Indenture Trustee, the Owner Trustee, the Collateral Agent and the Servicer, on or before March 31 (or 90 days after the end of the Issuer’s fiscal year, if other than December 31) of each year, beginning on March 31, 2025, a report with respect to the preceding calendar year, addressed to the board of directors of such party, providing its attestation report on the servicing assessment delivered pursuant to Section 2.9(d), including disclosure of any material instance of non-compliance, as required by Rule 13a-18 and 15d-18 of the Exchange Act and Item 1122(b) of Regulation AB. Such attestation will be in accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act and the Exchange Act.
10
(c) The Servicer shall cause the Independent Accountants to deliver to the Depositor, the Indenture Trustee, the Issuer and the Titling Trust, on or before April 30 (or one-hundred and twenty (120) days after the end of the Servicer’s fiscal year, if other than December 31) of each year, beginning on April 30, 2025 with respect to the twelve (12) months ended the immediately preceding December 31 (or other applicable date) (or such other period as shall have elapsed from the 2024-3 Closing Date to the date of such certificate (which period shall not be less than six (6) months)), a statement (the “Accountants’ Report”) addressed to the Board of Directors of the Servicer, to the effect that such firm has audited the books and records of GM Financial, in which the Servicer is included as a consolidated subsidiary, and issued its report thereon in connection with the audit report on the consolidated financial statements of GM Financial and that (i) such audit was made in accordance with generally accepted auditing standards, and accordingly included such tests of the accounting records and such other auditing procedures as such firm considered necessary in the circumstances, and (ii) the firm is independent of the Servicer within the meaning of the Code of Professional Ethics of the American Institute of Certified Public Accountants.
SECTION 2.11. Servicer Defaults; Termination of the Servicer.
(a) Each of the following acts or occurrences constitutes a “Servicer Default” under the 2024-3 Servicing Agreement with respect to the 2024-3 Exchange Note:
(i) any failure by the Servicer to deposit in the 2024-3 Exchange Note Collections Account any required payment, any failure by the Servicer to make or cause the Titling Trust to make any required payments from the 2024-3 Exchange Note Collections Account on account of the 2024-3 Exchange Note or any failure of the Servicer to make any required payment under any other Program Document, which failure continues unremedied for a period of five (5) Business Days after the earlier of the date on which (1) notice of such failure is given to the Servicer by the Indenture Trustee, or (2) an Authorized Officer of the Servicer has actual knowledge of such failure;
(ii) any failure by the Servicer duly to observe or to perform any covenants or agreements of the Servicer set forth in the 2024-3 Servicing Agreement or any other Program Document (other than a covenant or agreement a default in the observance or performance of which is elsewhere in this Section specifically dealt with), which failure shall materially and adversely affects the interests of the 2024-3 Secured Parties and shall continue unremedied for a period of sixty (60) days after written notice of such failure is received by the Servicer from the Indenture Trustee or after discovery of such failure by the Servicer;
(iii) any representation or warranty made or deemed made by the Servicer in the 2024-3 Servicing Agreement or in any other Program Document or which is contained in any certificate, document or financial or other statement furnished at any time under or in connection herewith or therewith shall prove to have been incorrect, and such incorrectness has a material adverse effect on the interests of the 2024-3 Secured Parties or the Issuer which failure, if capable of being cured, has not been cured for a period of sixty (60) days after written notice of such breach is received by the Servicer from the Indenture Trustee or after discovery of such breach by the Servicer; or
11
(iv) an Insolvency Event occurs with respect to the Servicer.
provided, however, that if any event described in clauses (i), (ii) or (iii) above shall have been caused solely by a Force Majeure Event, then the applicable grace period referred to in such clause shall be extended for an additional ten (10) calendar days; provided, further, that if there is no cure period, then such cure period shall be ten (10) calendar days.
(b) Promptly after having obtained knowledge of any Servicer Default, but in no event later than two (2) Business Days thereafter, the Servicer shall deliver to the Indenture Trustee and the Noteholders, written notice thereof in an Officer’s Certificate, accompanied in each case by a description of the nature of the default and the efforts of the Servicer to remedy the same.
(c) In addition to the provisions of Section 4.1(d) of the Basic Servicing Agreement, if a Servicer Default shall have occurred and be continuing with respect to the 2024-3 Exchange Note, the Titling Trust shall, acting at the written direction of the Majority Noteholders, or, if there are no Notes Outstanding, the Titling Trust, acting at the direction of Issuer Trust Certificateholder, by notice given to the Servicer, terminate the rights and obligations of the Servicer under the 2024-3 Servicing Agreement in accordance with such Section and the Indenture Trustee, acting at the written direction of the Majority Noteholders, shall appoint a Successor Servicer to fulfill the obligations of the Servicer hereunder in respect of the 2024-3 Lease Agreements and 2024-3 Leased Vehicles. Any such Person shall accept its appointment by a written assumption in a form acceptable to the Indenture Trustee. In the event the Servicer is removed as servicer of the 2024-3 Exchange Note Assets, (i) the Servicer shall deliver or cause to be delivered to or at the direction of the Successor Servicer all Lease Documents with respect to the 2024-3 Lease Agreements and the 2024-3 Leased Vehicles that are then in the possession of the Servicer, (ii) the Servicer shall deliver or cause to be delivered to or at the direction of the Successor Servicer all Security Deposits held by the Servicer with respect to the 2024-3 Exchange Note Assets, and (iii) the Servicer shall deliver to the Successor Servicer all servicing records directly maintained by the Servicer, containing as of the close of business on the date of demand all of the data maintained by the Servicer, in computer format in connection with servicing the 2024-3 Exchange Note Assets. If no Person has accepted its appointment as Successor Servicer when the predecessor Servicer ceases to act as Servicer in accordance with this Section 2.11, the Indenture Trustee, will, without further action, be automatically appointed the Successor Servicer. Notwithstanding the above, if the Indenture Trustee is unwilling or legally unable to act as Successor Servicer, it may appoint, or petition a court of competent jurisdiction to appoint, an institution whose business includes the servicing of lease agreements and the related lease assets, as Successor Servicer. The Indenture Trustee will be released from its duties and obligations as Successor Servicer on the date that a new servicer agrees to appointment as Successor Servicer hereunder. All reasonable costs and expenses incurred in connection with transferring the servicing of the 2024-3 Exchange Note Assets to the successor Servicer and amending this agreement to reflect such succession as Servicer pursuant to this Section shall be paid by the predecessor Servicer upon presentation of reasonable documentation of such costs and expenses. Any Successor Servicer shall be entitled to such compensation as the Servicer would have been entitled to under this 2024-3 Servicing Supplement if the Servicer had not resigned or been terminated hereunder or such additional compensation as the Majority Noteholders and such Successor Servicer may agree on.
12
(d) Notwithstanding the provisions of Section 4.1(f) of the Basic Servicing Agreement, with respect to any Servicer Default related to the 2024-3 Exchange Note Assets, only the Indenture Trustee, acting at the written direction of the Majority Noteholders, or, if there are no Notes Outstanding, the Titling Trust, acting at the direction of the Issuer Trust Certificateholder, may waive any default of the Servicer in the performance of its obligations under the 2024-3 Servicing Agreement and its consequences with respect to the 2024-3 Exchange Note and, upon any such waiver, such default shall cease to exist and any Servicer Default arising therefrom shall be deemed to have been remedied for every purpose of the 2024-3 Exchange Note Servicing Agreement. No such waiver shall extend to any subsequent or other default or impair any right consequent thereto.
SECTION 2.12. Representations and Warranties. The Servicer makes the following representations and warranties to the Depositor, the Indenture Trustee and the Noteholders as of the 2024-3 Closing Date:
(a) The representations and warranties contained in Section 2.6(a) of the Basic Servicing Agreement as to each 2024-3 Lease Agreement and the related 2024-3 Leased Vehicle were true and correct as of the Cutoff Date;
(b) The representations and warranties set forth in Section 5.1 of the Basic Servicing Agreement are true and correct as of the date hereof;
(c) Each 2024-3 Lease Agreement and 2024-3 Leased Vehicle is an Eligible Collateral Asset as of the date hereof;
(d) All information heretofore furnished by the Servicer or any of its Affiliates to the Indenture Trustee or the Owner Trustee for purposes of or in connection with the 2024-3 Servicing Agreement or any of the other Program Documents or any transaction contemplated hereby or thereby is, and all information hereafter furnished by the Servicer or any of its Affiliates to the Indenture Trustee, the Owner Trustee or any of the Noteholders will be, (i) true and accurate in every material respect on the date such information is stated or certified, and (ii) does not and will not contain any material misstatement of fact or omit to state a material fact or any fact necessary to make the statements contained therein misleading, in the case of each of (i) and (ii) when taken together with all other information provided on or prior to the date hereof; and
(e) No Servicer Default or event which with the giving of notice or lapse of time, or both, would become a Servicer Default has occurred and is continuing as of the 2024-3 Closing Date.
(f) With respect to any 2024-3 Lease Agreement that constitutes “electronic chattel paper” under the UCC, the Servicer, as custodian of the Lease Documents relating to the 2024-3 Designated Pool, maintains control of a single electronically authenticated authoritative copy of the related 2024-3 Lease Agreement.
SECTION 2.13. Custody of Lease Documents.
13
(a) Pursuant to Section 2.3 of the Basic Servicing Agreement, the Servicer, either directly or through an agent, will act as custodian of the Lease Documents relating to the 2024-3 Designated Pool, as agent and bailee for the benefit of the Issuer and the Indenture Trustee. All Lease Documents relating to the 2024-3 Designated Pool shall be identified and maintained in such a manner so as to permit retrieval and access. If a Successor Servicer has been appointed hereunder, the Servicer shall promptly deliver all such Lease Documents to the Successor Servicer. If the Servicer is terminated under the 2024-3 Servicing Agreement upon the occurrence of a Servicer Default, the costs associated with transferring all such Lease Documents shall be paid by the Servicer.
(b) With respect to any 2024-3 Lease Agreement that constitutes “electronic chattel paper” under the UCC, the Servicer, as custodian of the Lease Documents relating to the 2024-3 Designated Pool, shall at all times maintain control of a single electronically authenticated authoritative copy of the related 2024-3 Lease Agreement.
(c) In accordance with Section 2.10(h)(ii) of the Indenture and with respect to any Indenture Collateral that constitutes an instrument or tangible chattel paper, the Servicer, as custodian of the Lease Documents relating to the 2024-3 Designated Pool, acknowledges that it is holding such instruments and tangible chattel paper solely on behalf and for the benefit of the Indenture Trustee.
SECTION 2.14. Reserve Account.
(a) On the 2024-3 Closing Date, GMF Leasing LLC shall deposit the Specified Reserve Balance into the Reserve Account. Amounts held from time to time in the Reserve Account shall be held in the name of the Indenture Trustee for the benefit of the Noteholders.
(b) On each Payment Date (i) if the amount on deposit in the Reserve Account (without taking into account any amount on deposit in the Reserve Account representing net investment earnings) is less than the Specified Reserve Balance, then the Indenture Trustee shall, after payment of any amounts required to be distributed pursuant to clauses (i) through (xi) of Section 8.3(a) of the Indenture, deposit in the Reserve Account the Reserve Account Required Amount pursuant to Section 8.3(a)(xii) of the Indenture, and (ii) if the amount on deposit in the Reserve Account, after giving effect to all other deposits thereto and withdrawals therefrom to be made on such Payment Date is greater than the Specified Reserve Balance, in which case the Indenture Trustee shall distribute the amount of such excess as part of Available Funds on such Payment Date.
(c) On each Payment Date, the Servicer shall instruct the Indenture Trustee to withdraw the Reserve Account Withdrawal Amount from the Reserve Account and deposit such amounts in the Indenture Collections Account to be included as Total Available Funds for that Payment Date.
SECTION 2.15. Liability of Successor Servicer. No Successor Servicer will have any responsibility and will not be in default hereunder or incur any liability for any failure, error, malfunction or any delay in carrying out any of their duties under this Supplement if such failure or delay results from such Successor Servicer acting in accordance with information prepared or
14
supplied by any Person other than the Successor Servicer or the failure of any such other Person to prepare or provide such information. No Successor Servicer will have any responsibility for and will not be in default and will incur no liability for, (a) any act or failure to act of any third party, including the Servicer, (b) any inaccuracy or omission in a notice or communication received by such Successor Servicer from any third party, (c) the invalidity or unenforceability of any 2024-3 Lease Agreement under applicable law, (d) the breach or inaccuracy of any representation or warranty made with respect to any 2024-3 Lease Agreement or 2024-3 Leased Vehicle, or (e) the acts or omissions of any successor to it as Successor Servicer.
SECTION 2.16. Merger or Consolidation of, or Assumption of Obligations of the Servicer. Notwithstanding the provisions of Section 5.3 of the Basic Servicing Agreement, GM Financial shall not merge or consolidate with any other Person, convey, transfer or lease substantially all its assets as an entirety to another Person, or permit any other Person to become the successor to GM Financial’s business unless, after the merger, consolidation, conveyance, transfer, lease or succession, the successor or surviving entity shall be capable of fulfilling the duties of GM Financial contained in this Agreement. Any corporation (a) into which GM Financial may be merged or consolidated, (b) resulting from any merger or consolidation to which GM Financial shall be a party, (c) which acquires by conveyance, transfer, or lease substantially all of the assets of GM Financial, or (d) succeeding to the business of GM Financial, in any of the foregoing cases shall execute an agreement of assumption to perform every obligation of GM Financial under this Agreement and, whether or not such assumption agreement is executed, shall be the successor to GM Financial under this Agreement without the execution or filing of any paper or any further act on the part of any of the parties to this Agreement, anything in this Agreement to the contrary notwithstanding; provided, however, that nothing contained herein shall be deemed to release GM Financial from any obligation. GM Financial shall provide notice of any merger, consolidation or succession pursuant to this Section to the Owner Trustee, the Indenture Trustee and the Noteholders. Notwithstanding the foregoing, GM Financial shall not merge or consolidate with any other Person or permit any other Person to become a successor to GM Financial’s business, unless (x) immediately after giving effect to such transaction, no representation or warranty made pursuant to Section 2.12 shall have been breached (for purposes hereof, such representations and warranties shall speak as of the date of the consummation of such transaction), (y) GM Financial shall have delivered to the Owner Trustee, the Indenture Trustee and the Noteholders an Officer’s Certificate and an Opinion of Counsel each stating that such consolidation, merger or succession and such agreement of assumption comply with this Section and that all conditions precedent, if any, provided for in this Agreement relating to such transaction have been complied with, and (z) GM Financial shall have delivered to the Owner Trustee, the Collateral Agent and the Indenture Trustee an Opinion of Counsel stating, in the opinion of such counsel, either that (i) all financing statements and continuation statements and amendments thereto have been executed and filed that are necessary to preserve and protect the interest of the Trust in the 2024-3 Exchange Note and the Other Conveyed Property (and reciting the details of the filings), or (ii) no such action shall be necessary to preserve and protect such interest.
SECTION 2.17. Resignation of the Servicer. Notwithstanding Section 5.4 of the Basic Servicing Agreement, the Servicer shall not resign as Servicer under the 2024-3 Servicing Agreement except if it is prohibited by law from performing its obligations in respect of the 2024-3 Exchange Note Assets under the Basic Servicing Agreement or hereunder and delivers to
15
the Owner Trustee, the Indenture Trustee and the Noteholders an Opinion of Counsel to such effect concurrently with the delivery of any notice of resignation pursuant to Section 5.4 of the Basic Servicing Agreement.
SECTION 2.18. Separate Existence. The Servicer shall take all reasonable steps to maintain the Titling Trust’s, the Settlor’s, the Depositor’s and the Issuer’s identities as separate legal entities, and shall make it manifest to third parties that each of the Titling Trust, the Settlor, the Depositor and the Issuer is an entity with assets and liabilities distinct from those of the Servicer and not a division of the Servicer. All transactions and dealings between the Servicer, on the one hand, and the Settlor, the Titling Trust, the Depositor and the Issuer, on the other hand, will be conducted on an arm’s-length basis. The Servicer shall take all other actions necessary on its part to ensure that the Depositor complies with Section 2.5(d) of the Exchange Note Transfer Agreement and, to the extent within its control, take all action necessary to ensure that the Issuer complies with Section 3.16 of the Indenture. The Servicer shall take all action necessary to ensure that the Titling Trust shall not take any of the following actions:
(a) engage in any business other than that contemplated by the Titling Trust Agreement or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking which is not directly or indirectly related to the transactions contemplated by the Titling Trust Documents; and
(b) issue, incur, assume, guarantee or otherwise become liable, directly or indirectly, for any obligations, liabilities or responsibilities other than as set forth in the Titling Trust Documents.
SECTION 2.19. Like Kind Exchange Program; Pull Ahead Program.
(a) Notwithstanding the provisions of the Basic Servicing Agreement, a 2024-3 Leased Vehicle may be reallocated from the 2024-3 Designated Pool to the Lending Facility Pool in connection with a Like Kind Exchange if the full Base Residual Value of the related 2024-3 Leased Vehicle is deposited to the 2024-3 Exchange Note Collections Account by no later than the second (2nd) Business Day following the date of such reallocation; provided, that if the Net Liquidation Proceeds with respect to such 2024-3 Leased Vehicle are determined prior to the deposit of such Base Residual Value to the 2024-3 Exchange Note Collections Account, then such Net Liquidation Proceeds may instead be deposited to the 2024-3 Exchange Note Collections Account in full satisfaction of this Section 2.19(a). If the Servicer has deposited the full Base Residual Value of a 2024-3 Leased Vehicle to the 2024-3 Exchange Note Collections Account in connection with a Like Kind Exchange and (i) the related Net Liquidation Proceeds are determined thereafter to be less than such Base Residual Value, then the Servicer shall be permitted to withdraw the excess of the related Base Residual Value so deposited over the related Net Liquidation Proceeds from the 2024-3 Exchange Note Collections Account for its own account, and (ii) the related Net Liquidation Proceeds are determined thereafter to be greater than such Base Residual Value, then the Servicer shall be obligated to deposit the excess of the related Net Liquidation Proceeds over the Base Residual Value to the 2024-3 Exchange Note Collections Account from its own funds by no later than the second (2nd) Business Day following the date on which such Net Liquidation Proceeds are determined.
16
(b) Notwithstanding the provisions of the Basic Servicing Agreement, a 2024-3 Lease Agreement may be a Pull Ahead Lease Agreement pursuant to a Pull Ahead Program if all amounts due and payable under the related 2024-3 Lease Agreement (other than (i) Excess Mileage/Wear and Tear Fees, which shall be charged to such Lessee to the extent applicable in accordance with the terms of such 2024-3 Lease Agreement and the Servicer’s Customary Servicing Practices, and (ii) Monthly Payments that are waived in connection with such Lessee’s participation in the Pull Ahead Program and in connection with which a Pull Ahead Payment is received by the Titling Trust or by the Servicer on its behalf and allocated to the 2024-3 Exchange Note Collections Account) are deposited to the 2024-3 Exchange Note Collections Account by no later than the second (2nd) Business Day following the date that such 2024-3 Lease Agreement would terminate pursuant to the Pull Ahead Program. The Servicer will not be entitled to reimbursement from any 2024-3 Designated Pool Collections for any amounts that it deposits to the 2024-3 Collections Account from its own funds in connection with any Pull Ahead Lease Agreement.
SECTION 2.20. Dispute Resolution.
(a) If the Owner Trustee, the Indenture Trustee, any Noteholder, the Depositor or the Indenture Trustee on behalf of certain Noteholders in accordance with Section 2.5(b) hereof has requested that the Servicer reallocate any 2024-3 Lease Agreement and the related 2024-3 Leased Vehicle to the Lending Facility Pool pursuant to Section 2.5(b) hereof due to an alleged breach of a representation and warranty with respect to such 2024-3 Lease Agreement and the related 2024-3 Leased Vehicle (each, a “Reallocation Request”), and the Reallocation Request has not been resolved within 180 days of the receipt of notice of the Reallocation Request by the Servicer (which resolution may take the form of a reallocation of the related 2024-3 Lease Agreement and the related 2024-3 Leased Vehicle to the Lending Facility Pool against payment of the related Repurchase Amount by GM Financial, a withdrawal of the related Reallocation Request by the party that originally requested the reallocation or a cure of the condition that led to the related breach in the manner set forth herein), then the Servicer or Depositor shall describe the unresolved Reallocation Request on the Form 10-D that is filed that relates to the Collection Period during with the related 180-day period ended, and any of the party that originally requested the reallocation, any Noteholder or the Indenture Trustee on behalf of certain Noteholders in accordance with the following sentence (any such Person, a “Requesting Party”) may refer the matter, in its discretion, to either mediation (including non-binding arbitration) or binding third-party arbitration; provided, that if the Noteholder seeking to refer the matter to mediation or arbitration is not a Noteholder of record, such Noteholder must provide the Servicer and the Indenture Trustee with a written certification stating that it is a beneficial owner of a Note, together with supporting documentation supporting that statement (which may include, but is not limited to, a trade confirmation, an account statement or a letter from a broker or dealer verifying ownership) before the Servicer will be obligated to participate in the related mediation or arbitration. Noteholders representing five percent or more of the Outstanding Amount of the most senior Class of Notes may direct the Indenture Trustee, by notice in writing, in relation to any matter described in the preceding sentence, to initiate either mediation (including non-binding arbitration) or binding third party arbitration, as directed by such Noteholders, on behalf of such Noteholders and to conduct such mediation or arbitration pursuant to instructions provided by such Noteholders in accordance with the Indenture. The Requesting Party shall provide notice to the Sponsor and the Depositor and refer the matter to mediation or arbitration
17
according to the ADR Rules of the ADR Organization within 90 days following the date on which the Form 10-D is filed that relates to the Collection Period during which the related 180-day period ended. The Servicer agrees to participate in the dispute resolution method selected by the Requesting Party.
(b) If the Requesting Party selects mediation for dispute resolution:
(i) The mediation will be administered by the ADR Organization using its ADR Rules. However, if any ADR Rules are inconsistent with the procedures for mediation stated in this Section 2.20, the procedures in this Section 2.20 will control.
(ii) A single mediator will be selected by the ADR Organization from a list of neutrals maintained by it according to the ADR Rules. The mediator must be impartial, an attorney admitted to practice in the State of New York and have at least 15 years of experience in commercial litigation and, if possible, consumer finance or asset-backed securitization matters.
(iii) Commercially reasonable efforts shall be used to begin the mediation within 15 Business Days after the selection of the mediator and conclude within 30 days after the start of the mediation.
(iv) Expenses of the mediation will be allocated to the parties as mutually agreed by them as part of the mediation.
(v) If the parties fail to agree at the completion of the mediation, the Requesting Party may refer the Reallocation Request to arbitration under this Section 3.13 or may initiate litigation regarding such Reallocation Request.
(c) If the Requesting Party selects arbitration for dispute resolution:
(i) The arbitration will be administered by the ADR Organization using its ADR Rules. However, if any ADR Rules are inconsistent with the procedures for arbitration stated in this Section 2.20, the procedures in this Section 2.20 will control.
(ii) A single arbitrator will be selected by the ADR Organization from a list of neutrals maintained by it according to the ADR Rules. The arbitrator must be an attorney admitted to practice in the State of New York and have at least 15 years of experience in commercial litigation and, if possible, consumer finance or asset-backed securitization matters. The arbitrator will be independent and impartial and will comply with the Code of Ethics for Arbitrators in Commercial Disputes in effect at the time of the arbitration. Before accepting an appointment, the arbitrator must promptly disclose any circumstances likely to create a reasonable inference of bias or conflict of interest or likely to preclude completion of the proceedings within the stated time schedule. The arbitrator may be removed by the ADR Organization for cause consisting of actual bias, conflict of interest or other serious potential for conflict.
(iii) The arbitrator will have the authority to schedule, hear and determine any motions, according to New York law, and will do so at the motion of any party.
18
Discovery will be completed with 30 days of selection of the arbitrator and will be limited for each party to two witness depositions, each not to exceed five hours, two interrogatories, one document request and one request for admissions. However, the arbitrator may grant additional discovery on a showing of good cause that the additional discovery is reasonable and necessary. Briefs will be limited to no more than ten pages each, and will be limited to initial statements of the case, motions and a pre-hearing brief. The evidentiary hearing on the merits will start no later than 60 days after selection of the arbitrator and will proceed for no more than six consecutive Business Days with equal time allocated to each party for the presentation of evidence and cross examination. The arbitrator may allow additional time for discovery and hearings on a showing of good cause or due to unavoidable delays.
(iv) The arbitrator will make its final determination no later than 90 days after its selection. The arbitrator will resolve the dispute according to the terms of this Agreement and the other Basic Documents, and may not modify or change this Agreement or the other Basic Documents in any way. The arbitrator will not have the power to award punitive damages or consequential damages in any arbitration conducted by them. In its final determination, the arbitrator will determine and award the expenses of the arbitration (including filing fees, the fees of the arbitrator, expense of any record or transcript of the arbitration and administrative fees) to the parties in its reasonable discretion. The determination of the arbitrator will be in writing and counterpart copies will be promptly delivered to the parties. The determination will be final and non-appealable, except for actions to confirm or vacate the determination permitted under federal or State law, and may be entered and enforced in any court of competent jurisdiction. The arbitrator may not award remedies that are not consistent with this Agreement and the other Basic Documents.
(v) By selecting arbitration, the Requesting Party is giving up the right to sue in court, including the right to a trial by jury.
(vi) The Requesting Party may not bring a putative or certificated class action to arbitration. If this waiver of class action rights is found to be unenforceable for any reason, the Requesting Party agrees that it will bring its claims in a court of competent jurisdiction.
(d) For each mediation or arbitration:
(i) Any mediation or arbitration will be held in New York, New York at the offices of the mediator or arbitrator or at another location selected by the Servicer. Any party or witness may participate by teleconference or video conference.
(ii) The Servicer and the Requesting Party will have the right to seek provisional relief from a competent court of law, including a temporary restraining order, preliminary injunction or attachment order, if such relief is available by law.
19
(e) The Servicer will not be required to produce personally identifiable customer information for purposes of any mediation or arbitration. The existence and details of any unresolved Reallocation Request, any informal meetings, mediations or arbitration proceedings, the nature and amount of any relief sought or granted, any offers or statements made and any discovery taken in the proceeding will be confidential, privileged and inadmissible for any purpose in any other mediation, arbitration, litigation or other proceeding. The parties will keep this information confidential and will not disclose or discuss it with any third party (other than a party’s attorneys, experts, accountants and other advisors, as reasonably required in connection with the mediation or arbitration proceeding under this Section 2.6), except as required by law, regulatory requirement or court order. If a party to a mediation or arbitration proceeding receives a subpoena or other request for information from a third party (other than a governmental regulatory body) for confidential information of the other party to the mediation or arbitration proceeding, the recipient will promptly notify the other party and will provide the other party with the opportunity to object to the production of its confidential information.
ARTICLE III
MISCELLANEOUS
SECTION 3.1. Termination of 2024-3 Servicing Supplement. This 2024-3 Servicing Supplement (and, accordingly, the Basic Servicing Agreement insofar as it relates to the 2024-3 Exchange Note) will be terminated in the event that the Basic Servicing Agreement is terminated in accordance therewith and may also be terminated at the option of the Servicer or the Titling Trust at any time following the payment in full of the 2024-3 Exchange Note.
SECTION 3.2. Amendment.
(a) This 2024-3 Servicing Supplement (and, accordingly, the Basic Servicing Agreement, insofar as it relates to the 2024-3 Exchange Note) may be amended by the parties hereto with the consent of the Majority Noteholders; provided, that to the extent that any such amendment materially affects any Other Exchange Note, such amendment shall require the consent of the Exchange Noteholder thereof affected thereby.
(b) The parties hereto acknowledge and agree that (i) the right of the Indenture Trustee to consent to any amendment of this 2024-3 Servicing Supplement is subject to the following terms: the parties hereto will not (1) without the prior written consent of the Required Noteholders, waive timely performance or observance by the Servicer under the 2024-3 Servicing Agreement and (2) without the prior written consent of all Noteholders, reduce the required percentage of the Notes that is required to consent to any amendment pursuant to this Section 3.2 and (ii) any consent provided by the Indenture Trustee in violation of such terms shall be of no force or effect hereunder.
20
SECTION 3.3. GOVERNING LAW. THIS SUPPLEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO OTHERWISE APPLICABLE PRINCIPLES OF CONFLICTS OF LAW (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
SECTION 3.4. Relationship of 2024-3 Servicing Supplement to Other Trust Documents. Unless the context otherwise requires, this 2024-3 Servicing Supplement and the other Trust Documents shall be interpreted so as to give full effect to all provisions hereof and thereof. In the event of any actual conflict between the provisions of this 2024-3 Servicing Supplement and the Basic Servicing Agreement, with respect to the servicing of any 2024-3 Exchange Note Assets, the provisions of this 2024-3 Servicing Supplement shall prevail. This 2024-3 Servicing Supplement shall supplement the Basic Servicing Agreement as it relates to the 2024-3 Exchange Note and the 2024-3 Designated Pool and not to any other Exchange Note or Designated Pool or the Lending Facility Pool.
SECTION 3.5. [Reserved].
SECTION 3.6. Notices. For purposes of the 2024-3 Servicing Agreement, all demands, notices, directions, requests and communications hereunder shall be in writing and shall be delivered or mailed by registered or certified first-class United States mail, postage prepaid, hand delivery, prepaid courier service, or facsimile transmission, and addressed in each case as follows: (a) if to the Servicer, GM Financial, 801 Cherry Street, Suite 3500, Fort Worth, Texas, 76102, Attention: Chief Financial Officer, and (b) if to the Indenture Trustee, Computershare Trust Company, N.A., 1505 Energy Park, St. Paul, Minnesota 55108. Notices to the other parties to this 2024-3 Servicing Supplement shall be delivered as provided in Section 6.5 of the Basic Servicing Agreement.
SECTION 3.7. Severability of Provisions. If any one or more of the covenants, agreements, provisions or terms of this 2024-3 Servicing Supplement or the 2024-3 Servicing Agreement shall be for any reason whatsoever held invalid, then such covenants, agreements, provisions or terms shall be deemed severable from the remaining covenants, agreements, provisions and terms of this 2024-3 Servicing Supplement or the 2024-3 Servicing Agreement, as applicable, and shall in no way affect the validity or enforceability of the other covenants, agreements, provisions and terms of this 2024-3 Servicing Supplement or the 2024-3 Servicing Agreement.
SECTION 3.8. Binding Effect. The provisions of this 2024-3 Servicing Supplement and the 2024-3 Servicing Agreement shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns.
SECTION 3.9. Table of Contents and Headings. The Table of Contents and Article and Section headings herein are for convenience of reference only and shall not define or limit any of the terms or provisions hereof.
SECTION 3.10. Counterparts and Consent to Do Business Electronically. This 2024-3 Servicing Supplement may be executed in multiple counterparts, each of which shall be deemed
21
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 2024-3 Servicing Supplement and any documents to be delivered in connection with this 2024-3 Servicing Supplement 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 2024-3 Servicing Supplement 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 3.11. Further Assurances. Each party shall take such acts, and execute and deliver to any other party such additional documents or instruments as may be reasonably requested in order to effect the purposes of this 2024-3 Servicing Supplement and the 2024-3 Servicing Agreement and to better assure and confirm unto the requesting party its rights, powers and remedies hereunder.
SECTION 3.12. Third-Party Beneficiaries. The Issuer, the Depositor and each Noteholder shall be third-party beneficiaries of the 2024-3 Servicing Agreement. Except as otherwise provided in the 2024-3 Servicing Agreement, no other Person shall have any rights hereunder.
SECTION 3.13. No Petition. Each of the parties hereto, in addition to the provisions of Section 6.13 of the Basic Servicing Agreement, covenants and agrees that prior to the date that is one (1) year and one (1) day after the date on which all Notes have been paid in full, it will not institute against, or join any other person in instituting against the Titling Trust or the Settlor, any bankruptcy, reorganization, arrangement, insolvency or liquidation Proceeding or other Proceeding under any Insolvency Law.
SECTION 3.14. Limitation of Liability. It is expressly understood and agreed by the parties hereto that (a) this 2024-3 Servicing Supplement is executed and delivered by Wilmington Trust Company, not individually or personally but solely as owner trustee of the Titling Trust and the Settlor, in the exercise of the powers and authority conferred and vested in it under the Titling Trust Agreement and Settlor Trust Agreement, as applicable, (b) each of the representations, covenants, undertakings and agreements herein made on the part of the Titling Trust and the Settlor is made and intended not as personal representations, covenants, undertakings and agreements by Wilmington Trust Company but is made and intended for the purpose of binding only the Titling Trust and the Settlor, 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 not verified or made any investigation as to the accuracy or completeness of any representations and warranties made by the Titling Trust or Settlor in this 2024-3 Servicing Supplement, and (e) under no
22
circumstances shall Wilmington Trust Company be personally liable for the payment of any indebtedness or expenses of the Titling Trust and the Settlor or be liable for the breach or failure of any obligation, duty (including fiduciary duty, if any), representation, warranty or covenant made or undertaken by the Titling Trust and the Settlor under this 2024-3 Servicing Supplement or any other Program Documents.
SECTION 3.15. Preparation of Securities and Exchange Commission Filings. The Servicer will file or will cause to be filed, on behalf of the Issuer and the Depositor, any documents, forms or other items required to be filed by the Issuer or the Depositor pursuant to the rules and regulations set by the Commission and relating to the Notes or the Program Documents.
SECTION 3.16. Review Reports.
Upon the request of any Noteholder to the Servicer for a copy of any Review Report (as defined in the 2024-3 Asset Representations Review Agreement), the Servicer shall promptly provide a copy of such Review Report to such Noteholder; provided, that if the requesting Noteholder is not a Noteholder of record, such Noteholder must provide the Servicer with a written certification stating that it is a beneficial owner of a Note, together with supporting documentation supporting that statement (which may include, but is not limited to, a trade confirmation, an account statement or a letter from a broker or dealer verifying ownership) before the Servicer delivers such Review Report to such Noteholder; provided, further, that if such Review Report contains personally identifiable information regarding Lessees, then the Servicer may condition its delivery of that portion of the Review Report to the requesting Noteholder on such Noteholder’s delivery to the Servicer of an agreement acknowledging that such Noteholder may use such information only for the limited purpose of assessing the nature of the related breaches of representations and warranties and may not use that information for any other purpose.
SECTION 3.17. Regulation RR Risk Retention. GM Financial, as Sponsor, agrees that (a) GM Financial will cause the Depositor to, and the Depositor will, retain the “eligible horizontal residual interest” (the “Retained Interest”) (as defined in the Credit Risk Retention Rules) on the 2024-3 Closing Date, and (b) GM Financial will not, and will cause the Depositor and each affiliate of GM Financial not to, sell, transfer, finance, pledge or hedge the Retained Interest except as permitted by the Credit Risk Retention Rules. The representations and warranties set forth in this Section 3.17 shall survive the termination of this Agreement and resignation by, or termination of, GM Financial in its capacity as Servicer hereunder.
[Remainder of Page Intentionally Left Blank]
23
IN WITNESS WHEREOF, the parties hereto have caused this 2024-3 Servicing Supplement to be duly executed by their respective officers duly authorized as of the day and year first above written.
| ACAR LEASING LTD., | ||
| By: | Wilmington Trust Company, not in its individual capacity but solely as Owner Trustee | |
| By: |
| |
| Name: | ||
| Title: | ||
| AMERICREDIT FINANCIAL SERVICES, INC. d/b/a GM Financial, in its individual capacity and as Servicer | ||
| By: |
| |
| Name: | ||
| Title: | ||
| APGO TRUST, as Settlor | ||
| By: | Wilmington Trust Company, not in its individual capacity but solely as Owner Trustee | |
| By: |
| |
| Name: | ||
| Title: | ||
| COMPUTERSHARE TRUST COMPANY, N.A., not in its individual capacity but solely as Indenture Trustee and as Collateral Agent | ||
| By: |
| |
| Name: | ||
| Title: | ||
[Signature Page to the 2024-3 Servicing Supplement]
EXHIBIT A
FORM OF SERVICER REPORT
[See Attached]
A-1
Exhibit 10.5
ASSET REPRESENTATIONS REVIEW AGREEMENT
among
GM FINANCIAL AUTOMOBILE LEASING TRUST 2024-3,
as Issuer
GM FINANCIAL,
as Servicer
and
CLAYTON FIXED INCOME SERVICES LLC,
as Asset Representations Reviewer
Dated as of August 20, 2024
TABLE OF CONTENTS
| ARTICLE I DEFINITIONS |
1 | |||||
| Section 1.1. |
Definitions | 1 | ||||
| Section 1.2. |
Additional Definitions | 1 | ||||
| ARTICLE II ENGAGEMENT OF ASSET REPRESENTATIONS REVIEWER |
2 | |||||
| Section 2.1. |
Engagement; Acceptance | 2 | ||||
| Section 2.2. |
Confirmation of Status | 2 | ||||
| ARTICLE III ASSET REPRESENTATIONS REVIEW PROCESS |
3 | |||||
| Section 3.1. |
Asset Review Notices | 3 | ||||
| Section 3.2. |
Identification of Asset Review Receivables | 3 | ||||
| Section 3.3. |
Asset Review Materials | 3 | ||||
| Section 3.4. |
Performance of Asset Reviews | 3 | ||||
| Section 3.5. |
Asset Review Reports | 4 | ||||
| Section 3.6. |
Asset Review Representatives | 5 | ||||
| Section 3.7. |
Dispute Resolution | 5 | ||||
| Section 3.8. |
Limitations on Asset Review Obligations | 5 | ||||
| ARTICLE IV ASSET REPRESENTATIONS REVIEWER |
6 | |||||
| Section 4.1. |
Representations and Warranties | 6 | ||||
| Section 4.2. |
Covenants | 7 | ||||
| Section 4.3. |
Fees and Expenses | 8 | ||||
| Section 4.4. |
Limitation on Liability | 9 | ||||
| Section 4.5. |
Indemnification | 9 | ||||
| Section 4.6. |
Right to Audit | 10 | ||||
| Section 4.7. |
Delegation of Obligations | 10 | ||||
| Section 4.8. |
Confidential Information | 10 | ||||
| Section 4.9. |
Security and Safeguarding Information | 13 | ||||
| ARTICLE V RESIGNATION AND REMOVAL |
14 | |||||
| Section 5.1. |
Resignation and Removal of Asset Representations Reviewer | 14 | ||||
| Section 5.2. |
Engagement of Successor | 15 | ||||
| Section 5.3. |
Merger, Consolidation or Succession | 15 | ||||
| ARTICLE VI OTHER AGREEMENTS |
16 | |||||
| Section 6.1. |
Independence of Asset Representations Reviewer | 16 | ||||
| Section 6.2. |
No Petition | 16 | ||||
| Section 6.3. |
Limitation of Liability of Issuer Owner Trustee | 16 | ||||
| Section 6.4. |
Termination of Agreement | 16 | ||||
| ARTICLE VII MISCELLANEOUS PROVISIONS |
17 | |||||
| Section 7.1. |
Amendments | 17 | ||||
| Section 7.2. |
Assignment; Benefit of Agreement; Third Party Beneficiaries | 17 | ||||
| Section 7.3. |
Notices | 17 | ||||
| Section 7.4. |
GOVERNING LAW | 18 | ||||
| Section 7.5. |
Submission to Jurisdiction | 18 | ||||
| Section 7.6. |
No Waiver; Remedies | 18 | ||||
| Section 7.7. |
Severability | 19 | ||||
| Section 7.8. |
Headings | 19 | ||||
| Section 7.9. |
Counterparts and Consent to Do Business Electronically | 19 | ||||
SCHEDULES
Schedule A Representations and Warranties and Procedures to be Performed
i
ASSET REPRESENTATIONS REVIEW AGREEMENT dated as of August 20, 2024 (this “Agreement”), among GM FINANCIAL AUTOMOBILE LEASING TRUST 2024-3, a Delaware statutory trust (the “Issuer”), AMERICREDIT FINANCIAL SERVICES, INC., a Delaware corporation (“GM Financial”), in its capacity as Servicer (the “Servicer”) and CLAYTON FIXED INCOME SERVICES LLC, a Delaware limited liability company, as Asset Representations Reviewer (the “Asset Representations Reviewer”).
WHEREAS, in the regular course of its business, GM Financial causes its affiliated titling trust to purchase leased vehicles and to originate lease agreements related to such leased vehicles.
WHEREAS, in connection with a securitization transaction sponsored by GM Financial, GM Financial sold an exchange note backed by the 2024-3 Exchange Note Assets (a designated pool of leased vehicles and associated lease agreements) to GMF Leasing LLC (the “Depositor”) which, in turn, sold that exchange note to the Issuer.
WHEREAS, the Issuer has granted a security interest in the exchange note to the Indenture Trustee, for the benefit of the Issuer Secured Parties, pursuant to the Indenture.
WHEREAS, the Issuer has determined to engage the Asset Representations Reviewer to perform reviews of certain 2024-3 Exchange Note Assets for compliance with the representations and warranties made by GM Financial about such 2024-3 Exchange Note Assets in the 2024-3 Servicing Supplement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, the parties agree as follows.
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. Capitalized terms that are used but are not otherwise defined in this Agreement have the meanings assigned to them in Appendix 1 of the 2024-3 Exchange Note Supplement, dated as of August 20, 2024, to the Third Amended and Restated Credit and Security Agreement, dated as of October 3, 2022, both by and between ACAR Leasing Ltd., as borrower, GM Financial, as lender and servicer, and Computershare Trust Company, N.A., as administrative agent and collateral agent.
Section 1.2. Additional Definitions. The following terms have the meanings given below:
“Asset Review” means the performance by the Asset Representations Reviewer of the testing procedures for each Test and each Asset Review Receivable in accordance with Section 3.4.
“Asset Review Demand Date” means, for an Asset Review, the date when the Indenture Trustee determines that each of (a) the Delinquency Trigger has occurred and (b) the required percentage of Noteholders has voted to direct an Asset Review under Section 7.2(f) of the Indenture.
“Asset Review Fee” has the meaning assigned to such term in Section 4.3(b).
“Asset Review Materials” means, with respect to an Asset Review and an Asset Review Receivable, the documents and other materials for each Test listed under “Documents” in Schedule A.
“Asset Review Notice” means the notice from the Indenture Trustee to the Asset Representations Reviewer and the Servicer directing the Asset Representations Reviewer to perform an Asset Review.
“Asset Review Receivables” means, with respect to any Asset Review, any 2024-3 Exchange Note Asset that is not a Defaulted Lease or a Liquidated Lease and which the related lessee fails to make at least the lesser of (i) 90% of a Monthly Payment or (ii) all but $25 of the Monthly Payment in either case by the related Payment Due Date and, as of the last day of the Collection Period prior to the date the related Asset Review Notice was delivered, remained unpaid for 60 days or more from the Payment Due Date.
“Asset Review Report” means, with respect to any Asset Review, the report of the Asset Representations Reviewer prepared in accordance with Section 3.5.
“Clayton” means Clayton Fixed Income Services LLC.
“Confidential Information” has the meaning assigned to such term in Section 4.8(a).
“Eligible Asset Representations Reviewer” means a Person that (a) is not an Affiliate of GM Financial, the Seller, the Servicer, the Indenture Trustee, the Issuer Owner Trustee or any of their Affiliates and (b) was not, and is not an Affiliate of a Person that was, engaged by GM Financial or any Underwriter to perform any due diligence on the Lease Assets prior to the 2024-3 Closing Date.
“Test” has the meaning assigned to such term in Section 3.4(a).
“Test Complete” has the meaning assigned to such term in Section 3.4(c).
“Test Fail” has the meaning assigned to such term in Section 3.4(a).
“Test Pass” has the meaning assigned to such term in Section 3.4(a).
ARTICLE II
ENGAGEMENT OF ASSET REPRESENTATIONS REVIEWER
Section 2.1. Engagement; Acceptance. The Issuer hereby engages Clayton to act as the Asset Representations Reviewer for the Issuer. Clayton accepts the engagement and agrees to perform the obligations of the Asset Representations Reviewer on the terms stated in this Agreement.
Section 2.2. Confirmation of Status. The parties confirm that the Asset Representations Reviewer is not responsible for (a) reviewing the Asset Review Receivables for
2
compliance with the representations and warranties under the Program Documents, except as described in this Agreement, or (b) determining whether noncompliance with the representations or warranties constitutes a breach of the Program Documents.
ARTICLE III
ASSET REPRESENTATIONS REVIEW PROCESS
Section 3.1. Asset Review Notices. Upon receipt of an Asset Review Notice from the Indenture Trustee in the manner set forth in Section 7.2(f) of the Indenture, the Asset Representations Reviewer will start an Asset Review. The Asset Representation Reviewer will have no obligation to start an Asset Review unless and until an Asset Review Notice is received.
Section 3.2. Identification of Asset Review Receivables. Within ten (10) Business Days of receipt of an Asset Review Notice, the Servicer will deliver to the Asset Representations Reviewer and the Indenture Trustee a list of the related Asset Review Receivables.
Section 3.3. Asset Review Materials.
(a) Access to Asset Review Materials. The Servicer will give the Asset Representations Reviewer access to the Asset Review Materials for all of the Asset Review Receivables within sixty (60) days of receipt of the Asset Review Notice in one or more of the following ways: (i) by providing access to the Servicer’s lease asset systems, either remotely or at one of the properties of the Servicer; (ii) by electronic posting to a password-protected website to which the Asset Representations Reviewer has access; (iii) by providing originals or photocopies at one of the properties of the Servicer where the Asset Receivable Files are located; or (iv) in another manner agreed by the Servicer and the Asset Representations Reviewer. The Servicer may redact or remove Non-Public Personal Information (as defined in Section 4.8) from the Asset Review Materials so long as such redaction or removal does not change the meaning or usefulness of the Asset Review Materials for purposes of the Asset Review.
(b) Missing or Insufficient Asset Review Materials. If any of the Asset Review Materials are missing or insufficient for the Asset Representations Reviewer to perform any Test, the Asset Representations Reviewer will notify the Servicer promptly, and in any event no less than twenty (20) days before completing the Asset Review, and the Servicer will have fifteen (15) days to give the Asset Representations Reviewer access to such missing Asset Review Materials or other documents or information to correct the insufficiency. If the missing or insufficient Asset Review Materials have not been provided by the Servicer within fifteen (15) days, the parties agree that the Asset Review Receivable will have a Test Fail for the related Test(s) and the Test(s) will be considered completed and the Asset Review Report will indicate the reason for the Test Fail.
Section 3.4. Performance of Asset Reviews.
(a) Test Procedures. For an Asset Review, the Asset Representations Reviewer will perform for each Asset Review Receivable the procedures listed under “Procedures to be Performed” in Schedule A for each representation and warranty (each, a “Test”), using the Asset Review Materials listed for each such Test in Schedule A. For each Test and Asset Review
3
Receivable, the Asset Representations Reviewer will determine if the Test has been satisfied (a “Test Pass”) or if the Test has not been satisfied (a “Test Fail”).
(b) Asset Review Period. The Asset Representations Reviewer will complete the Asset Review of all of the Asset Review Receivables within sixty (60) days of receiving access to the Asset Review Materials under Section 3.3(a). However, if additional Asset Review Materials are provided to the Asset Representations Reviewer in accordance with Section 3.3(b), the Asset Review period will be extended for an additional thirty (30) days.
(c) Completion of Asset Review for Certain Asset Review Receivables. Following the delivery of the list of the Asset Review Receivables and before the delivery of the Asset Review Report by the Asset Representations Reviewer, the Servicer may notify the Asset Representations Reviewer if an Asset Review Receivable is paid in full by the related Obligor or purchased from the Issuer by GM Financial, the Seller or the Servicer according to the Program Documents. On receipt of any such notice, the Asset Representations Reviewer will immediately terminate all Tests of the related Asset Review Receivables and the Asset Review of such Receivables will be considered complete (a “Test Complete”). In this case, the Asset Review Report will indicate a Test Complete for the related Asset Review Receivables and the related reason.
(d) Previously Reviewed Receivable. If any Asset Review Receivable was included in a prior Asset Review, then the Asset Representations Reviewer will not perform any Tests on it, but will include the results of the previous Tests in the Asset Review Report for the current Asset Review, unless (i) any representation or warranty about such Asset Review Receivable that would be subject to a Test as part of the Asset Review relates to a date that is after the date on which the prior Asset Review was performed with respect to such Asset Review Receivable or (ii) the Asset Representations Reviewer has provided the Servicer with evidence that reasonably demonstrates that the Asset Representations Reviewer was unable during such prior Asset Review to conduct a review of such Asset Review Receivable in a manner that would have ascertained compliance or non-compliance with a specific representation or warranty.
(e) Termination of Asset Review. If an Asset Review is in process and the Notes will be paid in full on the next Distribution Date, the Servicer will notify the Asset Representations Reviewer and the Indenture Trustee no less than ten (10) days before that Distribution Date. On receipt of the notice, the Asset Representations Reviewer will terminate the Asset Review immediately and will have no obligation to deliver an Asset Review Report.
Section 3.5. Asset Review Reports. Within five (5) days of the end of the Asset Review period under Section 3.4(b), the Asset Representations Reviewer will deliver to the Issuer, the Servicer and the Indenture Trustee an Asset Review Report indicating for each Asset Review Receivable whether there was a Test Pass or a Test Fail for each Test, or whether the Asset Review Receivable was a Test Complete and the related reason. The Asset Review Report will contain a summary of the Asset Review results to be included in the Issuer’s Form 10-D report for the Collection Period in which the Asset Review Report is received. The Asset Representations Reviewer will ensure that the Asset Review Report does not contain any Non-Public Personal Information.
4
Section 3.6. Asset Review Representatives.
(a) Servicer Representative. The Servicer will designate one or more representatives who will be available to assist the Asset Representations Reviewer in performing the Asset Review, including responding to requests and answering questions from the Asset Representations Reviewer about access to Asset Review Materials on the Servicer’s receivables systems, obtaining missing or insufficient Asset Review Materials and/or providing clarification of any Asset Review Materials or Tests.
(b) Asset Representations Reviewer Representative. The Asset Representations Reviewer will designate one or more representatives who will be available to the Issuer and the Servicer during the performance of an Asset Review.
(c) Questions About Asset Review. The Asset Representations Reviewer will make appropriate personnel available to respond in writing to written questions or requests for clarification of any Asset Review Report from the Indenture Trustee or the Servicer until the earlier of (i) the payment in full of the Notes and (ii) one year after the delivery of the Asset Review Report. The Asset Representations Reviewer will have no obligation to respond to questions or requests for clarification from Noteholders or any other Person and will direct such Persons to submit written questions or requests to the Indenture Trustee.
Section 3.7. Dispute Resolution. If an Asset Review Receivable that was reviewed by the Asset Representations Reviewer is the subject of a dispute resolution proceeding under Section 2.20 of the 2024-3 Servicing Supplement, the Asset Representations Reviewer will participate in the dispute resolution proceeding on request of a party to the proceeding. The reasonable out-of-pocket expenses of the Asset Representations Reviewer for its participation in any dispute resolution proceeding will be considered expenses of the requesting party for the dispute resolution and will be paid by a party to the dispute resolution as determined by the parties to the dispute resolution in the course of the mediation (in the case of a mediation) or by the arbitrator for the dispute resolution (in the case of an arbitration), in either case according to Section 2.20 of the 2024-3 Servicing Supplement. If not paid by a party to the dispute resolution, the expenses will be reimbursed by the Issuer according to Section 4.3(d).
Section 3.8. Limitations on Asset Review Obligations.
(a) Asset Review Process Limitations. The Asset Representations Reviewer will have no obligation:
(i) to determine whether a Delinquency Trigger has occurred or whether the required percentage of Noteholders has voted to direct an Asset Review under the Indenture, and is entitled to rely on the information in any Asset Review Notice delivered by the Indenture Trustee;
(ii) to determine which Receivables are subject to an Asset Review, and is entitled to rely on the lists of Asset Review Receivables provided by the Servicer;
5
(iii) to obtain or confirm the validity of the Asset Review Materials and no liability for any errors contained in the Asset Review Materials and will be entitled to rely on the accuracy and completeness of the Asset Review Materials;
(iv) to obtain missing or insufficient Asset Review Materials from any party or any other source;
(v) to take any action or cause any other party to take any action under any of the Program Documents or otherwise to enforce any remedies against any Person for breaches of representations or warranties about the Asset Review Receivables.
(vi) to determine the reason for the delinquency of any Asset Review Receivable, the creditworthiness of any Obligor, the overall quality of any Asset Review Receivable or the compliance by the Servicer with its covenants with respect to the servicing of such Asset Review Receivable; or
(vii) to establish cause, materiality or recourse for any failed Test as described in Section 3.4.
(b) Testing Procedure Limitations. The Asset Representations Reviewer will only be required to perform the testing procedures listed under “Procedures to be Performed” in Schedule A, and will have no obligation to perform additional procedures on any Asset Review Receivable or to provide any information other than an Asset Review Report indicating for each Asset Review Receivable whether there was a Test Pass or a Test Fail for each Test, or whether the Asset Review Receivable was a Test Complete and the related reason. However, the Asset Representations Reviewer may provide additional information about any Asset Review Receivable that it determines in good faith to be material to the Asset Review.
ARTICLE IV
ASSET REPRESENTATIONS REVIEWER
Section 4.1. Representations and Warranties.
(a) Representations and Warranties. The Asset Representations Reviewer represents and warrants to the Issuer as of the date of this Agreement:
(i) Organization and Qualification. The Asset Representations Reviewer is duly organized and validly existing as a limited liability company in good standing under the laws of Delaware. The Asset Representations Reviewer is qualified as a limited liability company in good standing and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of its properties or the conduct of its activities requires the qualification, license or approval, unless the failure to obtain the qualifications, licenses or approvals would not reasonably be expected to have a material adverse effect on the Asset Representations Reviewer’s ability to perform its obligations under this Agreement.
(ii) Power, Authority and Enforceability. The Asset Representations Reviewer has the power and authority to execute, deliver and perform its obligations under this
6
Agreement. The Asset Representations Reviewer has authorized the execution, delivery and performance of this Agreement. This Agreement is the legal, valid and binding obligation of the Asset Representations Reviewer enforceable against the Asset Representations Reviewer, except as may be limited by insolvency, bankruptcy, reorganization or other laws relating to the enforcement of creditors’ rights or by general equitable principles.
(iii) No Conflicts and No Violation. The completion of the transactions contemplated by this Agreement and the performance of the Asset Representations Reviewer’s obligations under this Agreement will not (A) conflict with, or be a breach or default under, any indenture, agreement, guarantee or similar agreement or instrument under which the Asset Representations Reviewer is a party, (B) result in the creation or imposition of any Lien on any of the assets of the Asset Representations Reviewer under the terms of any indenture, agreement, guarantee or similar agreement or instrument, (C) violate the organizational documents of the Asset Representations Reviewer or (D) violate any law or, to the Asset Representations Reviewer’s knowledge, any order, rule or regulation that applies to the Asset Representations Reviewer of any court or of any federal or state regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Asset Representations Reviewer, in each case, which conflict, breach, default, Lien or violation would reasonably be expected to have a material adverse effect on the Asset Representations Reviewer’s ability to perform its obligations under this Agreement.
(iv) No Proceedings. To the Asset Representations Reviewer’s knowledge, there are no proceedings or investigations pending or threatened in writing before any court, regulatory body, administrative agency, or other governmental instrumentality having jurisdiction over the Asset Representations Reviewer or its properties: (A) asserting the invalidity of this Agreement, (B) seeking to prevent the completion of any of the transactions contemplated by this Agreement or (C) seeking any determination or ruling that would reasonably be expected to have a material adverse effect on the Asset Representations Reviewer’s ability to perform its obligations under, or the validity or enforceability of, this Agreement.
(v) Eligibility. The Asset Representations Reviewer is an Eligible Asset Representations Reviewer.
(b) Notice of Breach. Upon (i) the discovery by the Asset Representations Reviewer, the Issuer or the Servicer or (ii) the receipt of written notice by or actual knowledge of a Responsible Officer of the Issuer Owner Trustee or the Indenture Trustee, of a material breach of any of the representations and warranties in Section 4.1(a), the party discovering such breach will give prompt notice to the other parties.
Section 4.2. Covenants. The Asset Representations Reviewer covenants and agrees that:
(a) Eligibility. It will notify the Issuer and the Servicer promptly if it is not, or on the occurrence of any action that would result in it not being, an Eligible Asset Representations Reviewer.
7
(b) Review Systems. It will maintain business process management and/or other systems necessary to ensure that it can perform each Test and, on execution of this Agreement, will load each Test into these systems. The Asset Representations Reviewer will ensure that these systems allow for each Asset Review Receivable and the related Asset Review Materials to be individually tracked and stored as contemplated by this Agreement.
(c) Personnel. It will maintain adequate staff that is properly trained to conduct Asset Reviews as required by this Agreement. The Asset Representations Reviewer, at its discretion, may utilize the services of third parties, affiliates, and agents (“Agents”) to provide any Asset Review under this Agreement; provided, however, that the Asset Representations Reviewer has entered into confidentiality agreements with such Agents (or such Agents are otherwise bound by confidentiality obligations) the provisions of which are no less protective than those set forth in this Agreement. Any such Agent must be approved by Servicer prior to engaging in any Asset Review under this Agreement. The Asset Representations Reviewer shall be responsible to Servicer for the Asset Reviews provided by its Agents to the same extent as if provided by the Asset Representations Reviewer under this Agreement. Servicer agrees to look solely to the Asset Representations Reviewer and not to any Agent for satisfaction of any claims the Servicer may have arising out of this Agreement or due to the performance or non-performance of Services.
(d) Changes to Personnel. It will promptly notify Servicer in the event that it undergoes significant management or staffing changes which would negatively impact its ability to fulfill its obligations under this Agreement.
(e) Maintenance of Asset Review Materials. It will maintain copies of any Asset Review Materials, Asset Review Reports and other documents relating to an Asset Review, including internal correspondence and work papers, for a period of two years after the termination of this Agreement.
Section 4.3. Fees and Expenses.
(a) Annual Fee. The Issuer will, or will cause the Servicer to, pay the Asset Representations Reviewer, as compensation for agreeing to act as the Asset Representations Reviewer under this Agreement, an annual fee in the amount of $5,000. The annual fee will be paid on the 2024-3 Closing Date and on each anniversary of the 2024-3 Closing Date until this Agreement is terminated, payable pursuant to the priority of payments in Section 8.3 of the Indenture.
(b) Asset Review Fee. Following the completion of an Asset Review and the delivery to the Indenture Trustee of the Asset Review Report, or the termination of an Asset Review according to Section 3.4(e), and the delivery to the Servicer of a detailed invoice, the Asset Representations Reviewer will be entitled to a fee of up to $250 for each Asset Review Receivable for which the Asset Review was started (the “Asset Review Fee”). However, no Asset Review Fee will be charged for any Asset Review Receivable which was included in a prior Asset Review or for which no Tests were completed prior to the Asset Representations Reviewer being notified of a termination of the Asset Review according to Section 3.4(e). If the detailed invoice is submitted on or before the first day of a month, the Asset Review Fee will be paid by the Issuer
8
pursuant to the priority of payments in Section 8.3 of the Indenture starting on or before the Distribution Date in that month. However, if an Asset Review is terminated according to Section 3.4(e), the Asset Representations Reviewer must submit its invoice for the Asset Review Fee for the terminated Asset Review no later than five (5) Business Days before the final Distribution Date in order to be reimbursed no later than the final Distribution Date. To the extent that such amounts were not previously paid by the Servicer or any other party, upon receipt of a detailed invoice, the Asset Representations Reviewer shall be entitled to payment by the Servicer of incurred but otherwise unpaid Asset Review Fees.
(c) Reimbursement of Travel Expenses. If the Servicer provides access to the Asset Review Materials at one of its properties, the Issuer will, or will cause the Servicer to, reimburse the Asset Representations Reviewer for its reasonable travel expenses incurred in connection with the Asset Review upon receipt of a detailed invoice, payable pursuant to the priority of payments in Section 8.3 of the Indenture. To the extent that such amounts were not previously paid by the Servicer or any other party, upon receipt of a detailed invoice, the Asset Representations Reviewer shall be entitled to payment by the Servicer of incurred but otherwise unpaid travel expenses.
(d) Dispute Resolution Expenses. If the Asset Representations Reviewer participates in a dispute resolution proceeding under Section 3.7 and its reasonable out-of-pocket expenses it incurs in participating in the proceeding are not paid by a party to the dispute resolution within ninety (90) days of the end of the proceeding, the Issuer will reimburse the Asset Representations Reviewer for such expenses upon receipt of a detailed invoice, payable pursuant to the priority of payments in Section 8.3 of the Indenture. To the extent that such amounts were not previously paid by the Servicer or any other party, upon receipt of a detailed invoice, the Asset Representations Reviewer shall be entitled to payment by the Servicer of incurred but otherwise unpaid expenses.
Section 4.4. Limitation on Liability. The Asset Representations Reviewer will not be liable to any person for any action taken, or not taken, in good faith under this Agreement or for errors in judgment. However, the Asset Representations Reviewer will be liable for its willful misconduct, bad faith or negligence in performing its obligations under this Agreement. In no event shall either party be liable to the other party for any incidental, special, indirect, punitive, exemplary or consequential damages.
Section 4.5. Indemnification
(a) Indemnification by Asset Representations Reviewer. The Asset Representations Reviewer will indemnify each of the Issuer, the Seller, the Servicer, the Issuer Owner Trustee, the Collateral Agent and the Indenture Trustee (both in its individual capacity and in its capacity as Indenture Trustee on behalf of the Noteholders) and their respective directors, officers, employees and agents for all costs, expenses, losses, damages and liabilities resulting from (i) the willful misconduct, fraud, bad faith or negligence of the Asset Representations Reviewer in performing its obligations under this Agreement (ii) the Asset Representations Reviewer’s breach of any of its representations or warranties or other obligations under this Agreement (iii) its breach of confidentiality obligations or (iv) any third party intellectual property claim. The Asset Representations Reviewer’s obligations under this Section 4.5 will survive the termination of this
9
Agreement, the termination of the Issuer and the resignation or removal of the Asset Representations Reviewer.
(b) Indemnification of Asset Representations Reviewer. The Issuer will, or will cause the Servicer to, indemnify the Asset Representations Reviewer and its officers, directors, employees and agents, for all costs, expenses, losses, damages and liabilities resulting from the performance of its obligations under this Agreement (including the costs and expenses of defending itself against any loss, damage or liability), but excluding any cost, expense, loss, damage or liability resulting from (i) the Asset Representations Reviewer’s willful misconduct, bad faith or negligence or (ii) the Asset Representations Reviewer’s breach of any of its representations or warranties in this Agreement. The Issuer acknowledges and agrees that its obligation to indemnify the Asset Representations Reviewer in accordance with this Agreement shall survive termination of this Agreement. To the extent that such indemnities owed to the Asset Representations Reviewer were not previously paid by the Servicer or any other party, upon receipt of a detailed invoice, the Asset Representations Reviewer shall be entitled to payment by the Servicer of such incurred but otherwise unpaid indemnities.
Section 4.6. Right to Audit. During the term of this Agreement and not more than once per year (unless circumstances warrant additional audits as described below), Servicer may audit the Asset Representations Reviewer’s policies, procedures and records that relate to the performance of the Asset Representation Reviewer under this Agreement to ensure compliance with this Agreement upon at least 10 business days’ notice. Notwithstanding the foregoing, the parties agree that Servicer may conduct an audit at any time, in the event of (i) audits required by Servicer’s governmental or regulatory authorities, (ii) investigations of claims of misappropriation, fraud, or business irregularities of a potentially criminal nature, or (iii) Servicer reasonably believes that an audit is necessary to address a material operational problem or issue that poses a threat to Servicer’s business.
Section 4.7. Delegation of Obligations. Subject to the terms of Section 4.2(c) of this Agreement, the Asset Representations Reviewer may not delegate or subcontract its obligations under this Agreement to any Person without the consent of the Issuer and the Servicer.
Section 4.8. Confidential Information.
(a) Definitions.
(i) In performing its obligations pursuant to this Agreement, the parties may have access to and receive disclosure of certain Confidential Information about or belonging to the other, including but not limited to marketing philosophy, strategies (including tax mitigation strategies), techniques, and objectives; advertising and promotional copy; competitive advantages and disadvantages; financial results; technological developments; loan evaluation programs; customer lists; account information, profiles, demographics and Non-Public Personal Information (defined below); credit scoring criteria, formulas and programs; research and development efforts; any investor, financial, commercial, technical or scientific information (including, but not limited to, patents, copyrights, trademarks, service marks, trade names and dress, and applications relating to same, trade secrets,
10
software, code, inventions, know-how and similar information) and any and all other business information (hereinafter “Confidential Information”).
(ii) “Non-Public Personal Information” shall include all Personally Identifiable Financial Information in any list, description or other grouping of consumers/customers, and publicly available information pertaining to them, that is derived using any Personally Identifiable Financial Information that is not publicly available, and shall further include all Non-Public Personal Information as defined by Federal regulations implementing the Gramm-Leach-Bliley Act, as amended from time to time, and any state statutes or regulations governing this Agreement.
(iii) “Personally Identifiable Financial Information” means any information a consumer provides to a party in order to obtain a financial product or service, any information a party otherwise obtains about a consumer in connection with providing a financial product or service to that consumer, and any information about a consumer resulting from any transaction involving a financial product or service between a party and a consumer. Personally Identifiable Financial Information may include, without limitation, a consumer’s first and last name, physical address, zip code, e-mail address, phone number, Social Security number, birth date, account number and any information that identifies, or when tied to the above information may identify, a consumer.
(b) Use of Confidential Information. The parties agree that during the term of this Agreement and thereafter, Confidential Information is to be used solely in connection with satisfying their obligations pursuant to this Agreement, and that a party shall neither disclose Confidential Information to any third party, nor use Confidential Information for its own benefit, except as may be necessary to perform its obligations pursuant to this Agreement or as expressly authorized in writing by the other party, as the case may be.
Neither party shall disclose any Confidential Information to any other persons or entities, except on a “need to know” basis and then only: (i) to their own employees and Agents (as defined below); (ii) to their own accountants and legal representatives, provided that any such representatives shall be subject to subsection (d) below; (iii) to their own affiliates, provided that such affiliates shall be restricted in use and redisclosure of the Confidential Information to the same extent as the parties hereto. “Agents”, for purposes of this Section, mean each of the parties’ advisors, directors, officers, employees, contractors, consultants affiliated entities (i.e., an entity controlling, controlled by, or under common control with a party), or other agents. If and to the extent any Agent of the recipient receives Confidential Information, such recipient party shall be responsible for such Agent’s full compliance with the terms and conditions of this Agreement and shall be liable for any such Agent’s non-compliance.
(c) Compelled Disclosure. If a subpoena or other legal process seeking Confidential Information is served upon either party, such party will, to the extent not prohibited by law, rule or order, notify the other immediately and, to the maximum extent practicable prior to disclosure of any Confidential Information, will, at the other’s request and reasonable expense, cooperate in any lawful effort to contest the legal validity of such subpoena or other legal process. The restrictions set forth herein shall apply during the term and after the termination of this Agreement. All Confidential Information furnished to the Asset Representations Reviewer or
11
Servicer, as the case may be, or to which the Asset Representations Reviewer or Servicer gains access in connection with this Agreement, is the respective exclusive property of the disclosing party.
(d) Use by Agents, Employees, Subcontractors. The parties shall take reasonable measures to prevent its Agents, employees and subcontractors from using or disclosing any Confidential Information, except as may be necessary for each party to perform its obligations pursuant to this Agreement. Such measures shall include, but not be limited to, (i) education of such Agents, employees and subcontractors as to the confidential nature of the Confidential Information; and (ii) securing a written acknowledgment and agreement from such Agents, employees and subcontractors that the Confidential Information shall be handled only in accordance with provisions no less restrictive than those contained in this Agreement. This provision shall survive termination of this Agreement.
(e) Remedies. The parties agree and acknowledge that in order to prevent the unauthorized use or disclosure of Confidential Information, it may be necessary for a party to seek injunctive or other equitable relief, and that money damages may not constitute adequate relief, standing alone, in the event of actual or threatened disclosure of Confidential Information. In addition, the harmed party shall be entitled to all other remedies available at law or equity including injunctive relief.
(f) Exceptions. Confidential Information shall not include, and this Agreement imposes no obligations with respect to, information that:
(i) is or becomes part of the public domain other than by disclosure by a Party or its Agents in violation of this Agreement;
(ii) was disclosed to a Party prior to the Effective Date without a duty of confidentiality;
(iii) is independently developed by a Party outside of this Agreement and without reference to or reliance on any Confidential Information of the other Party; or
(iv) was obtained from a third party not known after reasonable inquiry to be under a duty of confidentiality.
The foregoing exceptions shall not apply to any Non-Public Personal Information or Personally Identifiable Financial Information, which shall remain confidential in all circumstances, except as required or permitted to be disclosed by applicable law, statute, or regulation.
(g) Return of Confidential Information. Subject to Section 4.2(e) of this Agreement, upon the request of a party, the other party shall return all Confidential Information to the other; provided, however, (i) each party shall be permitted to retain copies of the other party’s Confidential Information solely for archival, audit, disaster recovery, legal and/or regulatory purposes, and (ii) neither party will be required to search archived electronic back-up files of its computer systems for the other party’s Confidential Information in order to purge the other party’s Confidential Information from its archived files; provided further, that any Confidential
12
Information so retained will (x) remain subject to the obligations and restrictions contained in this Agreement, (y) will be maintained in accordance with the retaining party’s document retention policies and procedures, and (z) the retaining party will not use the retained Confidential Information for any other purpose.
Section 4.9. Security and Safeguarding Information
(a) Confidential Information that contains Non-Public Personal Information about customers is subject to the protections created by the Gramm-Leach-Bliley Act of 1999 (the “Act”) and under the standards for safeguarding Confidential Information, 16 CFR Part 314 (2002) adopted by Federal Trade Commission (“FTC”) (the “Safeguards Rule”). Additionally, state specific laws may regulate how certain confidential or personal information is safeguarded. The parties agree with respect to the Non-Public Personal Information to take all appropriate measures in accordance with the Act, and any state specific laws, as are necessary to protect the security of the Non-Public Personal Information and to specifically assure there is no disclosure of the Non-Public Personal Information other than as authorized under the Act, and any state specific laws, and this Agreement.
With respect to Confidential Information, including Non-Public Personal Information and Personally Identifiable Financial Information as applicable, each of the parties agrees that:
(i) It will use commercially reasonable efforts to safeguard and protect the confidentiality of any Confidential Information and agrees, warrants, and represents that it has or will implement and maintain appropriate safeguards designed to safeguard and protect the confidentiality of any Confidential Information.
(ii) It will not disclose or use Confidential Information provided except for the purposes as set in the Agreement, including as permitted under the Act and its implementing regulations, or other applicable law.
(iii) It acknowledges that the providing party is required by the Safeguards Rule to take reasonable steps to assure itself that its service providers maintain sufficient procedures to detect and respond to security breaches, and maintain reasonable procedures to discover and respond to widely-known security failures by its service providers. It agrees to furnish to the providing party that appropriate documentation to provide such assurance.
(iv) It understands that the FTC may, from time to time, issue amendments to and interpretations of its regulations implementing the provisions of the Act, and that pursuant to its regulations, either or both of the parties hereto may be required to modify their policies and procedures regarding the collection, use, protection, and/or dissemination of Non-Public Personal Information. Additionally, states may issue amendments to and interpretations of existing regulations, or may issue new regulations, which both of the parties hereto may be required to modify their policies and procedures. To the extent such regulations are so amended or interpreted, each party hereto agrees to use reasonable efforts to adjust the Agreement in order to comply with any such new requirements.
(v) By the signing of this Agreement, each party certifies that it has a written, comprehensive information security program that is in compliance with federal and state
13
laws that are applicable to its respective organization and the types of Confidential Information it receives.
(b) The Asset Representations Reviewer represents and warrants that it has, and will continue to have, adequate administrative, technical, and physical safeguards designed to (i) protect the security, confidentiality and integrity of Non-Public Personal Information, (ii) ensure against anticipated threats or hazards to the security or integrity of Non-Public Personal Information, (iii) protect against unauthorized access to or use of Non-Public Personal Information and (iv) otherwise comply with its obligations under this Agreement. These safeguards include a written data security plan, employee training, information access controls, restricted disclosures, systems protections (e.g., intrusion protection, data storage protection and data transmission protection) and physical security measures.
(c) Asset Representations Reviewer will promptly notify Servicer in the event it becomes aware of any unauthorized or suspected acquisition of data or Confidential Information that compromises the security, confidentiality or integrity of Servicer’s Confidential Information, whether internal or external. The disclosure will include the date and time of the breach along with specific information compromised along with the monitoring logs, to the extent then known. The Asset Representations Reviewer will use commercially reasonable efforts to take remedial action to resolve such breach.
(d) The Asset Representations Reviewer will cooperate with and provide information to the Issuer and the Servicer regarding the Asset Representations Reviewer’s compliance with this Section 4.9.
ARTICLE V.
RESIGNATION AND REMOVAL
Section 5.1. Resignation and Removal of Asset Representations Reviewer.
(a) Resignation of Asset Representations Reviewer. The Asset Representations Reviewer may not resign as Asset Representations Reviewer, except:
(i) upon determination that (A) the performance of its obligations under this Agreement is no longer permitted under applicable law, (B) there is no reasonable action that it could take to make the performance of its obligations under this Agreement permitted under applicable law and (C) it ceases to be an Eligible Asset Representations Reviewer; or
(ii) with the consent of the Issuer.
The Asset Representations Reviewer will give the Issuer and the Servicer sixty (60) days’ prior notice of its resignation. Any determination permitting the resignation of the Asset Representations Reviewer under subsection (i) above must be evidenced by an Opinion of Counsel delivered to the Issuer, the Servicer, the Issuer Owner Trustee, the Collateral Agent and the Indenture Trustee. No resignation of the Asset Representations Reviewer will become effective until a successor Asset Representations Reviewer is in place.
14
(b) Removal of Asset Representations Reviewer. The Issuer may remove the Asset Representations Reviewer and terminate all of its rights and obligations (other than as provided in Section 4.6) under this Agreement (i) if the Asset Representations Reviewer ceases to be an Eligible Asset Representations Reviewer, (ii) on a breach of any of the representations, warranties, covenants or obligations of the Asset Representations Reviewer contained in this Agreement and (iii) on the occurrence of an Insolvency Event with respect to the Asset Representations Reviewer, by notifying the Asset Representations Reviewer, the Indenture Trustee and the Servicer of the removal.
(c) Effectiveness of Resignation or Removal. No resignation or removal of the Asset Representations Reviewer will become effective until a successor Asset Representations Reviewer is in place. The predecessor Asset Representations Reviewer will continue to perform its obligations under this agreement until a successor asset Representations Reviewer is in place.
Section 5.2. Engagement of Successor.
(a) Successor Asset Representations Reviewer. Following the resignation or removal of the Asset Representations Reviewer under Section 5.1, the Issuer will engage as the successor Asset Representations Reviewer a Person that is an Eligible Asset Representations Reviewer. The successor Asset Representations Reviewer will accept its engagement or appointment by executing and delivering to the Issuer and the Servicer an agreement to assume the Asset Representations Reviewer’s obligations under this Agreement or entering into a new Asset Representations Review Agreement with the Issuer that is on substantially the same terms as this Agreement.
(b) Transition and Expenses. The predecessor Asset Representations Reviewer will cooperate with the successor Asset Representations Reviewer engaged by the Issuer in effecting the transition of the Asset Representations Reviewer’s obligations and rights under this Agreement. The predecessor Asset Representations Reviewer will pay the reasonable expenses of the successor Asset Representations Reviewer in transitioning the Asset Representations Reviewer’s obligations under this Agreement and preparing the successor Asset Representations Reviewer to take on the obligations on receipt of an invoice with reasonable detail of the expenses from the successor Asset Representations Reviewer.
Section 5.3. Merger, Consolidation or Succession. Any Person (a) into which the Asset Representations Reviewer is merged or consolidated, (b) resulting from any merger or consolidation to which the Asset Representations Reviewer is a party, (c) which acquires substantially all of the assets of the Asset Representations Reviewer, or (d) succeeding to the business of the Asset Representations Reviewer, which Person is an Eligible Asset Representations Reviewer, will be the successor to the Asset Representations Reviewer under this Agreement. Such Person will execute and deliver to the Issuer and the Servicer an agreement to assume the Asset Representations Reviewer’s obligations under this Agreement (unless the assumption happens by operation of law). No such transaction will be deemed to release the Asset Representations Reviewer from its obligations under this Agreement.
15
ARTICLE VI
OTHER AGREEMENTS
Section 6.1. Independence of Asset Representations Reviewer. The Asset Representations Reviewer will be an independent contractor and will not be subject to the supervision of the Issuer, the Indenture Trustee or the Issuer Owner Trustee for the manner in which it accomplishes the performance of its obligations under this Agreement. Unless expressly authorized by the Issuer and, with respect to the Issuer Owner Trustee, the Issuer Owner Trustee, the Asset Representations Reviewer will have no authority to act for or represent the Issuer, the Indenture Trustee or the Issuer Owner Trustee and will not be considered an agent of the Issuer, the Indenture Trustee or the Issuer Owner Trustee. Nothing in this Agreement will make the Asset Representations Reviewer and any of the Issuer, the Indenture Trustee or the Issuer Owner Trustee members of any partnership, joint venture or other separate entity or impose any liability as such on any of them.
Section 6.2. No Petition. Each of the Servicer and the Asset Representations Reviewer, by entering into this Agreement, and the Issuer Owner Trustee and the Indenture Trustee, by accepting the benefits of this Agreement, agrees that, before the date that is one year and one day (or, if longer, any applicable preference period) after payment in full of (a) all securities issued by the Seller or by a trust for which the Seller was a Seller or (b) the Notes, it will not start or pursue against, or join any other Person in starting or pursuing against, the Seller or the Issuer any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other proceedings under any bankruptcy or similar law. This Section 6.2 will survive the termination of this Agreement.
Section 6.3. Limitation of Liability of Issuer Owner Trustee. It is expressly understood and agreed by the parties hereto that (i) this Agreement is executed and delivered by Wilmington Trust Company, not individually or personally but solely as Issuer Owner Trustee of the Issuer, in the exercise of the powers and authority conferred and vested in it, (ii) each of the representations, covenants, undertakings and agreements herein made on the part of the Issuer is made and intended not as personal representations, covenants, undertakings and agreements by Wilmington Trust Company but is made and intended for the purpose of binding only the Issuer, (iii) nothing herein contained shall be construed as creating any liability on Wilmington Trust Company, individually or personally, to perform any covenant either expressed or implied contained herein, all such liability, if any, being expressly waived by the parties hereto and by any Person claiming by, through or under the parties hereto, (iv) Wilmington Trust Company has not verified or made any investigation as to the accuracy or completeness of any representations or warranties made by the Issuer in this Agreement and (v) under no circumstances shall Wilmington Trust Company be personally liable for the payment of any indebtedness or expenses of the Issuer or be liable for the breach or failure of any obligations, duty (including fiduciary duty, if any), representation, warranty or covenant made or undertaken by the Issuer under this Agreement or any other related documents.
Section 6.4. Termination of Agreement. This Agreement will terminate, except for the obligations under Section 4.6, on the earlier of (a) the payment in full of all outstanding Notes and the satisfaction and discharge of the Indenture and (b) the termination of the Issuer.
16
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.1. Amendments.
(a) The parties may amend this Agreement:
(i) without the consent of the Noteholders, to clarify an ambiguity or to correct or supplement any term of this Agreement that may be defective or inconsistent with the other terms of this Agreement or to provide for, or facilitate the acceptance of this Agreement by, a successor Asset Representations Reviewer;
(ii) without the consent of the Noteholders, if the Servicer delivers an Officer’s Certificate to the Issuer, the Issuer Owner Trustee, the Collateral Agent and the Indenture Trustee stating that the amendment will not have a material adverse effect on the Notes; or
(iii) with the consent of the Noteholders of a majority of the Note Balance of each Class of Notes materially and adversely affected by the amendment (with each affected Class voting separately, except that all Noteholders of Class A Notes will vote together as a single class).
(b) Notice of Amendments. The Servicer will give prior notice of any amendment to the Rating Agencies. Promptly after the execution of an amendment, the Servicer will deliver a copy of the amendment to the Rating Agencies.
Section 7.2. Assignment; Benefit of Agreement; Third Party Beneficiaries.
(a) Assignment. Except as stated in Section 5.3, this Agreement may not be assigned by the Asset Representations Reviewer without the consent of the Issuer and the Servicer.
(b) Benefit of the Agreement; Third-Party Beneficiaries. This Agreement is for the benefit of and will be binding on the parties to this Agreement and their permitted successors and assigns. The Issuer Owner Trustee and the Indenture Trustee (both in its individual capacity and in its capacity as Indenture Trustee, for the benefit of the Noteholders), will be third-party beneficiaries of this Agreement entitled to enforce this Agreement against the Asset Representations Reviewer and the Servicer. No other Person will have any right or obligation under this Agreement.
Section 7.3. Notices.
(a) Delivery of Notices. All notices, requests, demands, consents, waivers or other communications to or from the parties to this Agreement must be in writing and will be considered given:
(i) on delivery or, for a letter mailed by registered first class mail, postage prepaid, three (3) days after deposit in the mail;
17
(ii) for a fax, when receipt is confirmed by telephone, reply email or reply fax from the recipient;
(iii) for an email, when receipt is confirmed by telephone or reply email from the recipient; and
(iv) for an electronic posting to a password-protected website to which the recipient has access, on delivery (without the requirement of confirmation of receipt) of an email to that recipient stating that the electronic posting has occurred.
(b) Notice Addresses. Any notice, request, demand, consent, waiver or other communication will be delivered or addressed as follows: via electronic mail to ARRNotices@clayton.com, and to Clayton Fixed Income Services LLC, 720 S. Colorado Blvd., Suite 200, Glendale, CO 80246, Attn: Legal Department, or at any another address as the related party may designate by notice to the other parties hereto.
Section 7.4. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND THIS AGREEMENT AND ALL MATTERS ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT SHALL BE, GOVERNED BY, THE LAW OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
Section 7.5. Submission to Jurisdiction. Each of the parties hereto hereby irrevocably and unconditionally:
(a) submits for itself and, as applicable, its property, in any legal action relating to this Agreement, the Program Documents or any other documents executed and delivered in connection herewith, or for recognition and enforcement of any judgment in respect thereof, to the nonexclusive general jurisdiction of the courts of the State of New York, the courts of the United States of America for the Southern District of New York and appellate courts from any thereof;
(b) consents that any such action may be brought in such courts and waives any objection that it may now or hereafter have to the venue of such action in any such court or that such action was brought in an inconvenient court and agrees not to plead or claim the same; and
(c) waives, to the fullest extent permitted by law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement, the Program Documents or the transactions contemplated hereby.
Section 7.6. No Waiver; Remedies. No party’s failure or delay in exercising any power, right or remedy under this Agreement will operate as a waiver. No single or partial exercise of any power, right or remedy will preclude any other or further exercise of the power, right or remedy or the exercise of any other power, right or remedy. The powers, rights and remedies under this Agreement are in addition to any powers, rights and remedies under law.
18
Section 7.7. Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
Section 7.8. Headings. The headings of the various Articles and Sections herein are for convenience of reference only and shall not define or limit any of the terms or provisions hereof.
Section 7.9. Counterparts and Consent to Do Business Electronically. This Agreement 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 Agreement and any documents to be delivered in connection with this Agreement 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 Agreement 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.
[Remainder of Page Intentionally Left Blank]
19
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective duly authorized officers as of the day and the year first above written.
| GM FINANCIAL AUTOMOBILE LEASING TRUST 2024-3 |
| By: WILMINGTON TRUST COMPANY, not in its individual capacity but solely as Issuer Owner Trustee on behalf of the Trust |
| By: |
| Name: |
| Title: |
| AMERICREDIT FINANCIAL SERVICES, INC. d/b/a GM FINANCIAL, as Servicer |
| By: |
| Name: |
| Title: |
| CLAYTON FIXED INCOME SERVICES LLC, as Asset Representations Reviewer |
| By: |
| Name: |
| Title: |
[Signature Page to Asset Representations Review Agreement]
Schedule A
Representation
1. Origination. The 2024-3 Lease Agreement (a) was originated in the United States by the Titling Trust or a Dealer in the ordinary course of business and in accordance with GM Financial’s underwriting guidelines for lease agreements, and, in the case of a 2024-3 Lease Agreement originated by a Dealer, pursuant to a Dealer Agreement which allows for recourse to the Dealer in the event of certain defects in the 2024-3 Lease Agreement (but not for a default by the related Lessee), and (b) was not originated under a master lease contract.
Documents
Lease Documents
Procedures to be Performed
| i. | Confirm the Lease Agreement lists the Titling Trust or an approved Dealer as the Lessor |
| ii. | If the Lessor is listed as a Dealer, confirm the Dealer name on the Lease Agreement matches the Dealer name on the Dealer Agreement |
| iii. | If the Lessor is listed as a Dealer, confirm the Dealer Agreement allows for recourse to the Dealer in the event of certain defects in the Lease Agreement |
| iv. | Confirm the Lease Agreement was not originated under a master lease contract |
| v. | If Steps (i) through (iv) are confirmed, then Test Pass |
Schedule A-1
Representation
2. Good Title. The Titling Trust has good title, or the Servicer has commenced procedures that will result in good title, to each 2024-3 Lease Agreement and each 2024-3 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 2024-3 Lease Agreement and the related 2024-3 Leased Vehicle which was validly created and is a perfected, first priority security interest, and is noted as lienholder on the related Certificate of Title.
Documents
Lease Documents
Procedures to be Performed
| i. | Confirm the Certificate of Title or Application for Certificate of Title lists the Titling Trust as the titleholder of the Leased Vehicle |
| ii. | Confirm the Vehicle Identification Number (VIN) listed on the title documents matches the VIN number on the Lease Agreement |
| iii. | Confirm there is no evidence of any lien that would take priority over the Collateral Agent’s security interest |
| iv. | Confirm the Collateral Agent is listed on the Title Documents as the first priority lienholder |
| v. | If Steps (i) through (iv) are confirmed, then Test Pass |
Schedule A-2
Representation
3. Compliance with Law. Each 2024-3 Lease Agreement complied in all material respects at the time it was originated, and as of the date of the 2024-3 Servicing Supplement will comply in all material respects, with all requirements of federal, State and local laws.
Documents
Lease Documents
Procedures to be Performed
| i. | Confirm the following sections are present on the contract and filled out: |
| a. | Name and address of Lessor |
| b. | Name and address of Lessee |
| c. | Vehicle Description |
| d. | Amount Due at Lease Signing |
| e. | Amount of Monthly Payment |
| f. | Number of Monthly Payments |
| g. | Other Charges |
| h. | Total of Payments |
| ii. | Confirm there is an itemization of the Amount Due at Lease Signing. |
| iii. | Confirm there is an itemization of the Monthly Payment |
| iv. | Confirm the following disclosures are included in the contract: |
| a. | Early Termination |
| b. | Excessive Wear |
| c. | Purchase Option |
| d. | Insurance Requirements |
| e. | Late Charges |
| v. | If Steps (i) through (iv) are confirmed, then Test Pass |
Schedule A-3
Representation
4. Necessary Licenses and Approvals. All material consents, licenses, approvals or authorizations of, or registrations or declarations with, any Governmental Authority required to be obtained, effected or given by the originator of such 2024-3 Lease Agreement in connection with (a) the origination or acquisition of such 2024-3 Lease Agreement, (b) the execution, delivery and performance of such 2024-3 Lease Agreement by the Titling Trust, and (c) the acquisition of such 2024-3 Lease Agreement and the related 2024-3 Leased Vehicle by the Titling Trust, were duly obtained, effected or given and were in full force and effect as of such date of origination or acquisition.
Documents
Lease Documents
Dealer Agreement
Procedures to be Performed
| i. | If the Lease Agreement was originated by GM Financial, review the Lease Documents and confirm GM Financial had all necessary licenses and permits as required by the state in which it was originated |
| ii. | If the Lease Agreement was originated by a Dealer, confirm the Dealer Agreement contains language confirming the dealer was required to have all necessary licenses and permits and there was no evidence to the contrary. |
| iii. | If Steps (i) and (ii) are confirmed, then Test Pass |
Schedule A-4
Representation
5. Binding Obligation. The 2024-3 Lease Agreement and all related Lease Documents were fully and properly executed by the parties thereto and such 2024-3 Lease Agreement represents the legal, valid and binding full-recourse payment obligation of the related Lessee, enforceable against such Lessee in accordance with its terms, except as enforceability is subject to or limited by bankruptcy, reorganization, insolvency, fraudulent conveyance, moratorium and other similar laws affecting the enforcement of creditors’ rights in general or principles of equity (whether considered in a suit at law or in equity).
Documents
Lease Documents
Procedures to be Performed
| i. | Confirm the Lessee, Co-lessee and Lessor have signed the Lease Agreement |
| ii. | If confirmed, then Test Pass |
Schedule A-5
Representation
6. No Defenses. The 2024-3 Lease Agreement is not subject, to the best of the Seller’s and Servicer’s knowledge, any right of rescission, cancellation, setoff, claim, counterclaim or any other defense (including defenses arising out of violations of usury laws) of the related Lessee to payment of the amounts due thereunder, and no such right of rescission, cancellation, set-off, claim, counterclaim or any other defense (including defenses arising out of violations of usury laws) has been asserted or threatened.
Documents
Lease Documents
Procedures to be Performed
| i. | Confirm there is no indication the Lease Agreement is subject to any right or threat of rescission, cancellation, setoff, claim, counterclaim or other defense |
| ii. | If confirmed, then Test Pass |
Schedule A-6
Representation
7. Satisfaction of Obligations. Each of GM Financial, the Titling Trust and, to the best of the Seller’s and Servicer’s knowledge, the Dealer which originated the 2024-3 Lease Agreement, if any, has satisfied all respective obligations required to be fulfilled on its part with respect to such 2024-3 Lease Agreement and the related 2024-3 Leased Vehicle.
Documents
Lease Documents
Procedures to be Performed
| i. | Confirm the Lease Agreement contains a Truth in Lending statement |
| ii. | If confirmed, then Test Pass |
Schedule A-7
Representation
8. U.S. Dollars. The 2024-3 Lease Agreement is payable solely in Dollars in the United States.
Documents
Lease Documents
Procedures to be Performed
| i. | Confirm all dollar amounts within the Lease Agreement are denominated in US Dollars |
| ii. | If confirmed, then Test Pass |
Schedule A-8
Representation
9. No Government Obligors. The related Lessee is a Person other than GM Financial, any Affiliate or employee thereof or a Governmental Authority and at the time of origination of the 2024-3 Lease Agreement, based on information provided by the Lessee, the Lessee is located in and has a billing address within the United States or a United States territory.
Documents
Lease Documents
Procedures to be Performed
| i. | Confirm the Lessee is not GM Financial |
| ii. | Confirm the Lessee is not a Governmental Authority as of the origination of the Lease Agreement |
| iii. | Confirm the Lease Agreement reports the Lessee’s billing address within the United States or a United States territory |
| iv. | If Steps (i) through (iii) are confirmed, then Test Pass |
Schedule A-9
Representation
10. No Bankrupt Lessees. As of the Cutoff Date, the related Lessee has not been identified on the records of GM Financial as being the subject of a current bankruptcy proceeding.
Documents
Data Tape
Procedures to be Performed
| i. | Review the data tape and confirm the Lessee is not involved in active bankruptcy proceeding as of the Cutoff Date |
| ii. | If confirmed, then Test Pass |
Schedule A-10
Representation
11. Insurance. The 2024-3 Lease Agreement requires the Lessee thereunder to maintain (a) physical damage and liability insurance covering the related 2024-3 Leased Vehicle, and (b) insurance against loss and damage due to fire, theft, transportation, collision and other risks generally covered by comprehensive and collision coverage.
Documents
Lease Documents
Procedures to be Performed
| i. | Confirm the Lease Agreement contains language requiring the Lessee to maintain physical damage and liability insurance on the vehicle |
| ii. | Confirm the Lease Agreement contains language requiring the Lessee to obtain insurance against loss and damage due to fire, theft, transportation, collision and other risks generally covered by comprehensive and collision coverage |
| iii. | If Steps (i) and (ii) are confirmed, then Test Pass |
Schedule A-11
Representation
12. Security Interest in Leased Vehicle. The related 2024-3 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 2024-3 Leased Vehicle, or the Servicer has commenced procedures that will result in such 2024-3 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 2024-3 Leased Vehicle.
Documents
Lease Documents
Procedures to be Performed
| i. | Confirm the Certificate of Title or Application for Certificate of Title lists the Titling Trust as the titleholder of the Leased Vehicle |
| ii. | Confirm the Vehicle Identification Number (VIN) listed on the title documents matches the VIN number on the Lease Agreement |
| iii. | Confirm the Collateral Agent is listed on the Title Documents as the first priority lienholder |
| iv. | If Steps (i) through (iii) are confirmed, then Test Pass |
Schedule A-12
Representation
13. Simple Interest. The 2024-3 Lease Agreement is a closed-end lease that provides for equal monthly payments by the Lessee, which scheduled payments, if made when due, fully amortize the net capitalized cost of such 2024-3 Lease Agreement to the Booked Residual Value by the end of the Lease Term, based on the related APR.
Documents
Lease Documents
Procedures to be Performed
| i. | Confirm the monthly payment reported on the Lease Agreement are level |
| ii. | Confirm the product of the number of payments and the amount of the payments fully amortizes the net capitalized cost |
| iii. | If Steps (i) and (ii) are confirmed, then Test Pass |
Schedule A-13
Representation
14. Lawful Assignment. The 2024-3 Lease Agreement is fully assignable by the Lessor and does not require the consent of the related Lessee or any other Person as a condition to any transfer, sale, assignment or granting of a security interest of the rights thereunder to or by the Titling Trust.
Documents
Lease Documents
Procedures to be Performed
| i. | Confirm the Lease Agreement contains disclosures that grant the Lessor the ability to fully assign its interests without the consent of the related Lessee or any other Person |
| ii. | If confirmed, then Test Pass |
Schedule A-14
Representation
15. No Material Amendments or Modifications. The 2024-3 Lease Agreement has not been modified in any way except in accordance with the Customary Servicing Practices.
Documents
Lease Documents
Procedures to be Performed
| i. | Confirm the Lease Agreement has not been modified in any way except in accordance with the Customary Servicing Practices |
| ii. | If confirmed, then Test Pass |
Schedule A-15
Representation
16. No Default. As of the Cutoff Date, the 2024-3 Lease Agreement is not a Liquidated Lease, a Defaulted Lease or a Delinquent Lease and, except as permitted in this paragraph, to the best of the Seller’s and Servicer’s knowledge, no default, breach, violation or event permitting acceleration under its terms has occurred; and to the best of the Seller’s and Servicer’s knowledge, no continuing condition that with notice or the lapse of time would constitute a default, breach, violation or event permitting acceleration under its terms has arisen; and GM Financial has not waived, and shall not waive, any of the foregoing.
Documents
data tape
Procedures to be Performed
| i. | Confirm the Lease is active as of the Cutoff Date |
| ii. | Confirm the Lease is not delinquent as of the Cutoff Date |
| iii. | Confirm there is no evidence of a breach, violation or event permitting acceleration of the terms of the Lease Agreement |
| iv. | Confirm there is no continuing conditions that has arisen that would lead to a default, breach, violation or even permitting acceleration under the Lease terms |
| v. | If Steps (i) through (iv) are confirmed, then Test Pass |
Schedule A-16
Representation
17. Vehicle. The related 2024-3 Leased Vehicle is a car, light truck or utility vehicle manufactured by General Motors Company or an Affiliate thereof.
Documents
Lease Documents
Procedures to be Performed
| i. | Confirm the Vehicle is a car, light truck or utility vehicle |
| ii. | Confirm the Vehicle was manufactured by General Motors Company or an Affiliate |
| iii. | If Steps (i) and (ii) are confirmed, then Test Pass |
Schedule A-17
Representation
18. Chattel Paper. The 2024-3 Lease Agreement constitutes “tangible chattel paper” or “electronic chattel paper” within the meaning of the UCC.
Documents
Lease Documents
Procedures to be Performed
| i. | Confirm there is a signature under the appropriate lessee, co-lessee and lessor signature lines within the Lease Agreement |
| ii. | Confirm the Lease Agreement reports an monetary obligation greater than zero |
| iii. | Confirm the Title Documents report the Collateral Agent has a security interest in the Lease Agreement |
| iv. | If Steps (i) through (iii) are confirmed, then Test Pass |
Schedule A-18
Representation
19. Leases in Force. The 2024-3 Lease Agreement is in full force and effect and, to the best of the Seller’s and Servicer’s knowledge, has not been satisfied, subordinated, rescinded, cancelled or terminated.
Documents
Lease Documents
Procedures to be Performed
| i. | Confirm there is no evidence within the Lease Documents that the Lease has been subordinated, rescinded, cancelled or terminated |
| ii. | Confirm there is no evidence within the Lease Documents that the Lease has been satisfied prior to the Cutoff Date |
| iii. | If Steps (i) and (ii) are confirmed, then Test Pass |
Schedule A-19
Representation
20. Schedule of Leases. The 2024-3 Lease Agreement has been identified in the Schedule of 2024-3 Lease Agreements and 2024-3 Leased Vehicles and such Schedule of 2024-3 Lease Agreements and 2024-3 Leased Vehicles is accurate in all material respects and the 2024-3 Lease Agreement has not been allocated to any other Designated Pool.
Documents
data tape
Procedures to be Performed
| i. | Confirm the Lease number reported in the data tape matches the Lease number reported in the Schedule of 2024-3 Lease Agreements and 2024-3 Leased Vehicles |
| ii. | If confirmed, then Test Pass |
Schedule A-20
Representation
21. Maturity Date. At origination the Maturity Date with respect to the 2024-3 Lease Agreement was not less than twelve (12) months or more than sixty (60) months after the date of origination.
Documents
Lease Documents
Procedures to be Performed
| i. | Confirm the Lease Agreement reports the lease term within the allowable range |
| ii. | If confirmed, then Test Pass |
Schedule A-21
Representation
22. Securitization Value. As of the 2024-3 Cutoff Date, each 2024-3 Lease Agreement had a Securitization Value not less than $5,000.000 and no more than $150,000.00.
Documents
Lease Documents
Procedures to be Performed
| i. | Confirm the Lease Agreement reports the Securitization value within the allowable range. |
| ii. | If confirmed, then Test Pass |
Schedule A-22
Representation
23. One Original. With respect to any 2024-3 Lease Agreement that constitutes “electronic chattel paper” under the UCC, (a) a single electronically authenticated authoritative copy (within the meaning of the UCC) of the 2024-3 Lease Agreement is continuously maintained by the Servicer, and (b) the Servicer is able (1) to transfer the electronically authenticated authoritative copy of the related 2024-3 Lease Agreement to a separate electronic vault at the related econtracting facilitator that is controlled by the applicable Successor Servicer or to an electronic vault at the applicable successor Servicer, or (2) to export the electronically authenticated authoritative copy from the electronic vault and deliver a physical copy of the exported 2024-3 Lease Agreement to the successor Servicer.
Documents
Lease Documents
E-Vault
Procedures to be Performed
| i. | If the Lease Agreement constitutes “electronic chattel paper”, confirm it is an electronically authenticated authoritative copy and |
| ii. | Confirm the authoritative copy of the Lease Agreement was signed by all parties |
| iii. | If Steps (i) and (ii) are confirmed, then Test Pass |
Schedule A-23
Exhibit 36.1
Certification
I, Sheli D. Fitzgerald, certify as of September 24, 2024 that:
1. I have reviewed the prospectus relating to the Class A-1, Class A-2-A, Class A-2-B, Class A-3, Class A-4 and Class B Notes of GM Financial Automobile Leasing Trust 2024-3 (the “securities”) and am familiar with, in all material respects, the following: The characteristics of the securitized assets underlying the offering (the “securitized assets”), the structure of the securitization, and all material underlying transaction agreements as described in the prospectus;
2. Based on my knowledge, the prospectus does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading;
3. Based on my knowledge, the prospectus and other information included in the registration statement of which it is a part fairly present, in all material respects, the characteristics of the securitized assets, the structure of the securitization and the risks of ownership of the securities, including the risks relating to the securitized assets that would affect the cash flows available to service payments or distributions on the securities in accordance with their terms; and
4. Based on my knowledge, taking into account all material aspects of the characteristics of the securitized assets, the structure of the securitization, and the related risks as described in the prospectus, there is a reasonable basis to conclude that the securitization is structured to produce, but is not guaranteed by this certification to produce, expected cash flows at times and in amounts to service scheduled payments of interest and the ultimate repayment of principal on the securities (or other scheduled or required distributions on the securities, however denominated) in accordance with their terms as described in the prospectus.
The foregoing certifications are given subject to any and all defenses available to me under the federal securities laws, including any and all defenses available to an executive officer that signed the registration statement of which the prospectus referred to in this certification is part.
| Date: September 24, 2024. |
||||||
| By: |
/s/ Sheli D. Fitzgerald | |||||
| Name: Sheli D. Fitzgerald | ||||||
| Title: President and Chief Executive Officer of GMF Leasing LLC | ||||||
Exhibit 99.1
GM FINANCIAL AUTOMOBILE LEASING TRUST 2024-3,
GMF LEASING LLC,
as Depositor,
GM FINANCIAL,
as Administrator
and
COMPUTERSHARE TRUST COMPANY, N.A.
as Indenture Trustee
ADMINISTRATION AGREEMENT
Dated as of August 20, 2024
TABLE OF CONTENTS
| Page | ||||||
| Section 1.01. |
Capitalized Terms; Interpretive Provisions | 1 | ||||
| Section 1.02. |
Duties of the Administrator | 2 | ||||
| Section 1.03. |
Records | 7 | ||||
| Section 1.04. |
Compensation | 7 | ||||
| Section 1.05. |
Additional Information to be Furnished to the Issuer | 7 | ||||
| Section 1.06. |
Independence of the Administrator | 7 | ||||
| Section 1.07. |
No Joint Venture | 7 | ||||
| Section 1.08. |
Other Activities of the Administrator | 7 | ||||
| Section 1.09. |
Term of Agreement; Resignation and Removal of the Administrator | 7 | ||||
| Section 1.10. |
Action Upon Termination, Resignation or Removal | 8 | ||||
| Section 1.11. |
Notices | 8 | ||||
| Section 1.12. |
Amendments | 9 | ||||
| Section 1.13. |
Successors and Assigns | 9 | ||||
| Section 1.14. |
GOVERNING LAW | 9 | ||||
| Section 1.15. |
Headings | 9 | ||||
| Section 1.16. |
Counterparts and Consent to Do Business Electronically | 9 | ||||
| Section 1.17. |
Severability | 10 | ||||
| Section 1.18. |
Limitation of Liability of Owner Trustee and Indenture Trustee | 10 | ||||
| Section 1.19. |
Third-Party Beneficiary | 10 | ||||
i
ADMINISTRATION AGREEMENT, dated as of August 20, 2024 (as the same may be amended, restated, supplemented or otherwise modified from time to time, this “Agreement”), among GM Financial Automobile Leasing Trust 2024-3, a Delaware statutory trust (the “Issuer”), AmeriCredit Financial Services, Inc. d/b/a GM Financial (“GM Financial”), as administrator (the “Administrator”), GMF Leasing LLC, a Delaware limited liability company, as Depositor (the “Depositor”), and Computershare Trust Company, N.A. (“Computershare”), as Indenture Trustee (the “Indenture Trustee”).
RECITALS
WHEREAS, the Issuer is governed pursuant to an Amended and Restated Trust Agreement, dated as of August 20, 2024 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Trust Agreement”), between the Depositor and Wilmington Trust Company, as owner trustee (not in its individual capacity, but solely as owner trustee, the “Owner Trustee”); and
WHEREAS, the parties desire to enter into this Agreement to provide for, among other things, the providing of certain services by the Administrator to and on behalf of the Issuer.
NOW, THEREFORE, in consideration of the mutual agreements herein contained, and of other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
Section 1.01. Capitalized Terms; Interpretive Provisions.
(a) Capitalized terms used in this Agreement that are not otherwise defined herein shall have the meanings assigned to them in Appendix 1 to the 2024-3 Exchange Note Supplement, dated as of August 20, 2024 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “2024-3 Exchange Note Supplement”), among ACAR Leasing Ltd., as Borrower (in such capacity, the “Borrower”), GM Financial, as Lender (in such capacity, the “Lender”) and as Servicer (in such capacity, the “Servicer”), and Computershare, as Administrative Agent (in such capacity, the “Administrative Agent”) and as Collateral Agent (in such capacity, the “Collateral Agent”) or, if not defined therein, in Appendix A to the Third Amended and Restated Credit and Security Agreement, dated as of October 3, 2022 (as the same may be further amended, restated, supplemented or otherwise modified from time to time, the “Credit and Security Agreement”), among the Borrower, the Lender, the Servicer, the Administrative Agent and the Collateral Agent. Whenever used in this Agreement, unless the context otherwise requires, the following words and phrases shall have the following meanings. In the event of any conflict between a definition appearing below and in the Indenture, the definition appearing below shall control for purposes of this Agreement.
“2024-3 Servicing Agreement” means 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, among ACAR Leasing Ltd., the Servicer, APGO Trust and the Collateral Agent as supplemented by the 2024-3 Servicing Supplement, dated as of August 20, 2024, as the same may be amended, restated, supplemented
1
or otherwise modified from time to time, among ACAR Leasing Ltd., the Servicer, APGO Trust, the Collateral Agent and the Indenture Trustee.
“Agreement” has the meaning set forth in the preamble.
“Indenture” means the Indenture, dated as of August 20, 2024, as the same may be amended, restated, supplemented or otherwise modified from time to time, among the Issuer, the Servicer and the Indenture Trustee.
“Percentage Interests” has the meaning set forth in the Trust Agreement.
“Related Documents” means all Program Documents to which the Issuer or the Owner Trustee is a party.
“Trust Agreement” has the meaning set forth in the recitals.
“Trust Certificateholder” has the meaning set forth in the Trust Agreement.
“Trust Certificates” has the meaning set forth in the Trust Agreement.
(b) For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires, (i) terms used in this Agreement include, as appropriate, all genders and the plural as well as the singular, (ii) references to words such as “herein”, “hereof”, “hereunder” and the like shall refer to this Agreement as a whole and not to any particular, part or Section herein, (iii) references to a Section or Exhibit such as “Section 1.01” or “Exhibit A” shall refer to the applicable Section or Exhibit of this Agreement, (iv) the term “include” and all variations thereof shall mean “include without limitation”, (v) the term “or” shall include “and/or”, (vi) the term “proceeds” shall have the meaning ascribed to such term in the UCC, and (vii) any agreement, instrument or statute defined or referred to herein or in any instrument or certificate delivered in connection herewith means such agreement, instrument or statute as from time to time amended, restated, modified, supplemented or replaced (in the case of a statute) and includes (in the case of agreements or instruments) references to all attachments, annexes, exhibits and schedules thereto and instruments incorporated therein.
Section 1.02. Duties of the Administrator.
(a) The Administrator agrees to perform all its duties as Administrator and the obligations and duties of the Issuer and the Owner Trustee under the Related Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuer or the Owner Trustee under the Related Documents. The Administrator shall monitor the performance of the Issuer and shall advise the Owner Trustee when action is necessary to comply with the respective duties of the Issuer and the Owner Trustee under the Related Documents. The Administrator shall prepare for execution by the Issuer or the Owner Trustee, as the case may be, or shall cause the preparation by other appropriate persons of, all such documents, reports, notices, filings, instruments, certificates and opinions that it shall be the duty of the Issuer or the Owner Trustee to prepare, file or deliver pursuant to the Related Documents. In furtherance of the foregoing, the Administrator shall take (or, in the case of the immediately preceding sentence, cause to be taken) all appropriate action that the Issuer or the Owner Trustee
2
is required to take pursuant to the Indenture including such of the foregoing as are required with respect to the following matters under the Indenture (references are to Sections of the Indenture):
(i) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.2);
(ii) the duty to cause the Note Register to be kept and to give the Indenture Trustee notice of any appointment of a new Note Registrar and the location, or change in location, of the Note Register (Section 2.4);
(iii) the maintenance of an office at the Indenture Trustee in St. Paul, Minnesota for registration of transfer or exchange of Notes (Section 3.2);
(iv) the obtaining and preservation of the Issuer’s qualifications to do business (Section 3.4);
(v) the preparation of all supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments and the taking of such other action as are necessary or advisable to protect the Issuer Trust Estate (Section 3.5);
(vi) the delivery of the Opinion of Counsel on the 2024-3 Closing Date, and the annual delivery of the Officer’s Certificate and certain other statements as to compliance with the Indenture (Section 3.6 and 3.9);
(vii) the identification to the Indenture Trustee in an Officer’s Certificate of any Person with whom the Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(viii) the notification of the Indenture Trustee of each Servicer Default under the 2024-3 Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties or obligations under the 2024-3 Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(ix) the delivery of the Officer’s Certificate as to compliance with the Program Documents (Section 3.9);
(x) the notification of the Indenture Trustee and the Issuer Owner Trustee of each Event of Default or Servicer Default (Section 3.20);
(xi) the notification of the Indenture Trustee and the Issuer Owner Trustee of each event described in Section 3.22 of the Indenture (Section 3.21);
(xii) the delivery of the 2024-3 Exchange Note to the Indenture Trustee in St. Paul, Minnesota on the 2024-3 Closing Date (Section 3.23);
3
(xiii) the preparation and obtaining of documents and instruments required for the release of the Issuer from its obligations under the Indenture (Section 4.1);
(xiv) the maintenance of books and records of the Issuer (Section 3.24);
(xv) the monitoring of the Issuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel relating thereto (Section 4.1);
(xvi) the appointment of a successor Indenture Trustee or removal of the Indenture Trustee (Sections 6.7 and 6.10);
(xvii) the preparation of any written instruments required to confirm more fully the authority of any co-trustee or separate trustee and any written instruments necessary in connection with the resignation or removal of the Indenture Trustee or any co-trustee or separate trustee (Sections 6.7 and 6.9);
(xviii) the furnishing of the Indenture Trustee with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xix) the filing with the Indenture Trustee of copies of the annual reports and other information, documents and other reports the Issuer is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act within fifteen (15) days after the issuer is required to file the same with the Commission (Section 7.3(a)(i));
(xx) the filing with the Indenture Trustee and the Commission such additional information, documents and reports with respect to compliance by the Issuer with the conditions and covenants of the Indenture as may be required from time to time by the rules and regulations prescribed from time to time by the Commission (Section 7.3(a)(ii));
(xxi) the furnishing of the Indenture Trustee with summaries of any information, documents and reports required to be filed by the Issuer pursuant to Sections 7.3(a)(i) and (ii) of the Indenture as may be required by the regulations prescribed from time to time by the Commission (Section 7.3(a)(iii));
(xxii) the notification of the Indenture Trustee if and when the Notes are listed on any stock exchange (Section 7.4(b));
(xxiii) the preparation of an Issuer Request for the release of the Issuer Trust Estate (Section 8.4);
(xxiv) the preparation of Issuer Orders and the obtaining of Opinions of Counsel with respect to the execution of supplemental indentures and the mailing to the Noteholders of notices with respect to such supplemental indentures (Sections 9.1 and 9.2);
4
(xxv) the execution of new Notes conforming to any supplemental indenture (Section 9.6);
(xxvi) the preparation and delivery of all Officer’s Certificates and Opinions of Counsel with respect to any requests by the Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a)); and
(xxvii) the preparation and delivery of Officer’s Certificates for the release of property from the Lien of the Indenture (Section 11.1(b)).
(b) The Administrator shall:
(i) pay the Owner Trustee in its individual capacity from time to time reasonable compensation for all services rendered by the Owner Trustee under the Trust Agreement (which compensation shall not be limited by any provision of law in regard to the compensation for a trustee of an express trust);
(ii) except as otherwise expressly provided in the Trust Agreement, reimburse the Owner Trustee (as such or in its individual capacity) upon its request for all reasonable expenses, disbursements and advances incurred or made by the Owner Trustee (as such or in its individual capacity) in accordance with any provision of the Trust Agreement (including reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its own gross negligence or willful misconduct;
(iii) to the extent not paid pursuant to Section 8.3(a) of the Indenture, pay the Indenture Trustee from time to time reasonable compensation for all services rendered by the Indenture Trustee (including the fees and expenses of its counsel) under the Program Documents (which compensation shall not be limited by any provision of law in regard to the compensation for a trustee of an express trust); and
(iv) indemnify the Indenture Trustee in accordance with Section 6.6 of the Indenture and indemnify the Owner Trustee in accordance with Section 8.2 of the Trust Agreement.
(c) In addition to the duties set forth in Sections 1.02(a) and (b), the Administrator shall perform such calculations and shall prepare or shall cause the preparation by other appropriate Persons of, and shall execute on behalf of the Issuer or the Owner Trustee, all such documents, notices, reports, filings, instruments, certificates and opinions that the Issuer or the Owner Trustee are required to prepare, file or deliver pursuant to the Related Documents, including those required under or requested pursuant to the TIA, and at the request of the Owner Trustee shall take all appropriate action that the Issuer or the Owner Trustee are required to take pursuant to the Related Documents. Subject to Section 1.06, and in accordance with the directions of the Owner Trustee, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the Indenture Collateral (including the Related Documents) as are not covered by any of the foregoing provisions and as are expressly requested by the Owner Trustee and are reasonably within the capability of the Administrator.
5
(d) Notwithstanding anything in this Agreement or the Related Documents to the contrary, the Administrator shall be responsible for promptly notifying the Note Paying Agent in the event that any withholding tax is imposed on the Issuer’s payments (or allocations of income) to a Trust Certificateholder as contemplated in Section 5.1(d) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Note Paying Agent pursuant to such provision.
(e) Notwithstanding anything in this Agreement or the Related Documents to the contrary, the Administrator shall be responsible for performance of the duties of the Owner Trustee or the Note Paying Agent, as applicable, set forth (i) in Section 9.1(b) of the Trust Agreement with respect to notifying the Trust Certificateholders of the Payment Date with respect to which final payment of the Trust Certificates shall be made, and (ii) Section 5.3(b) of the Trust Agreement with respect to accounting and reports to Trust Certificateholders and preparation and filing of tax returns.
(f) The Administrator shall satisfy its obligations with respect to clauses (d) and (e) above by retaining, at the expense of the Issuer, payable by the Administrator, accountants, which shall perform the obligations of the Administrator thereunder.
(g) The Administrator shall perform any duties that are expressly required under the Trust Agreement to be performed by the Administrator.
(h) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions or otherwise deal with any of its Affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuer and shall be, in the Administrator’s opinion, no less favorable to the Issuer than would be available from unaffiliated parties.
(i) With respect to matters that in the reasonable judgment of the Administrator are non-ministerial, the Administrator shall not take any action unless within a reasonable time before the taking of such action, the Administrator shall have notified the Owner Trustee of the proposed action and the Owner Trustee shall not have withheld consent or provided an alternative direction. For the purpose of the preceding sentence, “non-ministerial matters” shall include:
(i) amendment of or any supplement to the Indenture;
(ii) the initiation of any claim or lawsuit by the Issuer and the compromise of any action, claim or lawsuit brought by or against the Issuer (other than in connection with the collection of the 2024-3 Exchange Note);
(iii) the amendment, change or modification of the Related Documents;
(iv) the appointment of successor Note Registrars and successor Indenture Trustees pursuant to the Indenture or the appointment of successor Administrators or Successor Servicers, or the consent to the assignment by the Note Registrar or the Indenture Trustee of its obligations under the Indenture; and
6
(v) the removal of the Indenture Trustee.
(j) Notwithstanding anything to the contrary in this Agreement, the Administrator shall not be obligated to, and shall not, (i) make any payments to the Noteholders under the Related Documents, or (ii) take any other action that the Issuer directs the Administrator not to take on its behalf.
Section 1.03. Records. The Administrator shall maintain appropriate books of account and records relating to services performed hereunder, which books of account and records shall be accessible for inspection by the Issuer and the Depositor at any time during normal business hours.
Section 1.04. Compensation. As compensation for the performance of the Administrator’s obligations under this Agreement and as reimbursement for its expenses related thereto, the Administrator shall be entitled to an annual payment of compensation, which shall be solely an obligation of the Servicer.
Section 1.05. Additional Information to be Furnished to the Issuer. The Administrator shall furnish to the Issuer from time to time such additional information regarding the Indenture Collateral as the Issuer shall reasonably request.
Section 1.06. Independence of the Administrator. For all purposes of this Agreement, the Administrator shall be an independent contractor and shall not be subject to the supervision of the Issuer or the Owner Trustee with respect to the manner in which it accomplishes the performance of its obligations hereunder. Unless expressly authorized by the Issuer, the Administrator shall have no authority to act for or represent the Issuer or the Owner Trustee in any way and shall not otherwise be deemed an agent of the Issuer or the Owner Trustee.
Section 1.07. No Joint Venture. Nothing contained in this Agreement (a) shall constitute the Administrator and either of the Issuer or the Owner Trustee as members of any partnership, joint venture, association, syndicate, unincorporated business or other separate entity, (b) shall be construed to impose any liability as such on any of them, or (c) shall be deemed to confer on any of them any express, implied or apparent authority to incur any obligation or liability on behalf of the others.
Section 1.08. Other Activities of the Administrator. Nothing herein shall prevent the Administrator or its Affiliates from engaging in other businesses or, in its sole discretion, from acting in a similar capacity as an Administrator for any other Person or entity, even though such person or entity may engage in business activities similar to those of the Issuer, the Owner Trustee or the Indenture Trustee.
Section 1.09. Term of Agreement; Resignation and Removal of the Administrator. This Agreement shall continue in force until the termination of the Issuer, upon which event this Agreement shall automatically terminate.
(a) Subject to Section 1.09(d), the Administrator may resign its duties hereunder by providing the Issuer with at least sixty (60) days’ prior written notice.
7
(b) Subject to Section 1.09(d), the Issuer may remove the Administrator without cause by providing the Administrator with at least sixty (60) days’ prior written notice.
(c) Subject to Section 1.09(d), at the sole option of the Issuer, the Administrator may be removed immediately upon written notice of termination from the Issuer to the Administrator if any of the following events shall occur:
(i) the Administrator shall default in the performance of any of its duties under this Agreement and, after notice of such default, shall not cure such default within ten (10) days; or
(ii) an Insolvency Event occurs with respect to the Administrator.
The Administrator agrees that if any Insolvency Event occurs with respect to it, it shall give written notice thereof to the Issuer and the Indenture Trustee within seven (7) days after the occurrence of such event.
(d) No resignation or removal of the Administrator pursuant to this Section shall be effective until (i) a successor Administrator acceptable to the Required Noteholders shall have been appointed by the Issuer, and (ii) such successor Administrator shall have agreed in writing to be bound by the terms of this Agreement in the same manner as the Administrator is bound hereunder.
(e) Subject to Section 1.09(d), the Administrator acknowledges that upon the appointment of a Successor Servicer pursuant to the 2024-3 Servicing Agreement, the Administrator shall immediately resign and such Successor Servicer shall automatically become the Administrator under this Agreement; provided, however, that any Successor Servicer shall not be obligated to perform the obligations of the Administrator set forth in Section 1.02(b).
Section 1.10. Action Upon Termination, Resignation or Removal. Promptly upon the effective date of termination of this Agreement pursuant to the first sentence of Section 1.09 or the resignation or removal of the Administrator pursuant to Section 1.09, the Administrator shall be entitled to be paid all fees and reimbursable expenses accruing to it to the date of such termination, resignation or removal. The Administrator shall forthwith upon such termination pursuant to the first sentence of Section 1.09 deliver to the Issuer all property and documents of or relating to the Indenture Collateral then in the custody of the Administrator. In the event of the resignation or removal of the Administrator pursuant to Section 1.09, the Administrator shall cooperate with the Issuer and take all reasonable steps requested to assist the Issuer in making an orderly transfer of the duties of the Administrator.
Section 1.11. Notices. All demands, notices and communications hereunder shall be in writing and shall be delivered or mailed by registered or certified first-class United States mail, postage prepaid, hand delivery, prepaid courier service, or by telecopier, and addressed in each case as follows: (a) if to the Issuer or the Administrator, at 801 Cherry Street, Suite 3500, Fort Worth, Texas 76102, Attention: Chief Financial Officer, (b) if to the Owner Trustee, at Wilmington Trust Company, Rodney Square North, 1100 North Market Street, Wilmington, Delaware, 19890-0001, Attention: Corporate Trust Administration, (c) if to the Indenture Trustee, at the Corporate Trust Office, or (d) at such other address as shall be designated by any
8
of the foregoing in a written notice to the other parties hereto. Delivery shall occur only upon receipt or reported tender of such communication by an officer of the recipient entitled to receive such notices located at the address of such recipient for notices hereunder.
Section 1.12. Amendments. This Agreement may be amended by the parties hereto with the written consent of the Owner Trustee, the Majority Noteholders and the holders of Trust Certificates evidencing at least a majority of the Percentage Interests for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement; provided, however, that no such amendment may (a) increase or reduce in any manner the amount of, or accelerate or delay the timing of, collections of payments on the 2024-3 Exchange Note, or (b) reduce the aforesaid percentage of the holders of Notes and Trust Certificates which are required to consent to any such amendment, without the consent of the holders of all outstanding Notes and Trust Certificates.
Section 1.13. Successors and Assigns. This Agreement may not be assigned by the Administrator unless the Administrator obtains (a) the consent in writing of the Issuer, the Indenture Trustee acting at the direction of the Majority Noteholders and the Owner Trustee in respect thereof, and (b) satisfaction of the Rating Agency Condition for such action. An assignment with such consent and satisfaction, if accepted by the assignee, shall bind the assignee hereunder in the same manner as the Administrator is bound hereunder.
Section 1.14. GOVERNING LAW. THIS AGREEMENT 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 CONFLICT LAWS (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
Section 1.15. Headings. The headings of the various Sections herein are for convenience of reference only and shall not define or limit any of the terms or provisions hereof.
Section 1.16. Counterparts and Consent to Do Business Electronically. This Agreement 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 Agreement and any documents to be delivered in connection with this Agreement 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 Agreement 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.
9
Section 1.17. Severability. If any one or more of the covenants, agreements, provisions or terms of this Agreement shall be for any reason whatsoever held invalid, then such covenants, agreements, provisions or terms shall be deemed severable from the remaining covenants, agreements, provisions or terms of this Agreement, and such invalidity shall in no way affect the validity or enforceability of the other covenants, agreements, provisions or terms of this Agreement.
Section 1.18. Limitation of Liability of Owner Trustee and Indenture Trustee.
(a) It is expressly understood and agreed by the parties hereto that (i) this Agreement is executed and delivered by Wilmington Trust Company, not individually or personally but solely in its capacity as Owner Trustee of the Issuer, in the exercise of the powers and authority conferred and vested in it under the Trust Agreement, (ii) each of the representations, covenants, undertakings and agreements herein made on the part of the Issuer are made and intended not as personal representations, covenants, undertakings and agreements by Wilmington Trust Company but is made and intended for the purpose for binding only the Issuer, (iii) 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, (iv) Wilmington Trust Company has not verified or made any investigation as to the accuracy or completeness of any representations and warranties made by the Issuer in this Agreement, and (v) under no circumstances shall Wilmington Trust Company be personally liable for the payment of any indebtedness or expenses of the Issuer or be liable for the breach or failure of any obligation, duty (including fiduciary duty, if any), representation, warranty or covenant made or undertaken by the Issuer under this Agreement or any other Program Documents.
(b) Notwithstanding anything contained herein to the contrary, this Agreement has been executed by Computershare, as Indenture Trustee and in no event shall Computershare have any liability for the representations, warranties, covenants, agreements or other obligations of the Issuer hereunder or in any of the certificates, notices or agreements delivered pursuant hereto, as to all of which recourse shall be had solely to the assets of the Issuer.
Section 1.19. Third-Party Beneficiary. Each of the Owner Trustee and the Indenture Trustee is a third-party beneficiary to this Agreement and is entitled to the rights and benefits hereunder and may enforce the provisions hereof as if it were a party hereto.
[Remainder of Page Intentionally Left Blank]
10
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered as of the day and year first above written.
| GM FINANCIAL AUTOMOBILE LEASING TRUST 2024-3, as Issuer | ||
| By: | Wilmington Trust Company, not in its individual capacity but solely as Owner Trustee | |
| By: |
| |
| Name: | ||
| Title: | ||
| GMF LEASING LLC, as Depositor | ||
| By: |
| |
| Name: | ||
| Title: | ||
| COMPUTERSHARE TRUST COMPANY, N.A., not in its individual capacity but solely as Indenture Trustee | ||
| By: |
| |
| Name: | ||
| Title: | ||
| AMERICREDIT FINANCIAL SERVICES, INC. d/b/a GM FINANCIAL, as Administrator | ||
| By: |
| |
| Name: | ||
| Title: | ||
[Signature Page to the Administration Agreement]