EXHIBIT 99.4
SCHEDULE
TO THE
MASTER AGREEMENT
(this "AGREEMENT")
---------
dated as of April 19, 2000
between
CAPITAL AUTO RECEIVABLES ASSET TRUST 2000-1
(the "TRUST")
and
MORGAN STANLEY CAPITAL SERVICES INC.
(the "COUNTERPARTY")
PART 1. TERMINATION PROVISIONS
(a) "SPECIFIED ENTITY" means in relation to the Counterparty for
the purpose of:
Section 5(a)(v), Morgan Stanley Dean Witter & Co.
Section 5(a)(vi), Morgan Stanley Dean Witter & Co.
Section 5(a)(vii), Morgan Stanley Dean Witter & Co.
Section 5(b), Morgan Stanley Dean Witter & Co.
and in relation to the Trust for the purpose of:
Section 5(a)(v), none
Section 5(a)(vi), none
Section 5(a)(vii), none
Section 5(b), none
(b) "SPECIFIED SWAP" has the meaning specified in Section 14.
(c) All references to "POTENTIAL EVENTS OF DEFAULT" in this
Agreement shall be deleted.
(d) EVENTS OF DEFAULT.
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(i) The following Events of Default will not apply to the
Trust and the definition of "EVENT OF DEFAULT" in Section 14 is deemed
to be modified accordingly:
Section 5(a)(ii), (Breach of Agreement)
Section 5(a)(iii), (Credit Support Default)
Section 5(a)(iv), (Misrepresentation)
Section 5(a)(v), (Default Under Specified Transaction)
Section 5(a)(vi), (Cross Default)
(ii) The following Events of Default will not apply to the
Counterparty and the definition of "EVENT OF DEFAULT" in Section 14 is
deemed to be modified accordingly:
Section 5(a)(iii), (Credit Support Default)
Section 5(a)(v), (Default Under Specified Transaction)
Section 5(a)(vi), (Cross Default)
(iii) It shall be an additional Event of Default under Section
5(a), and the Trust shall be deemed to be the Defaulting Party with
respect thereto, if (x) there occurs an Indenture "Event of Default"
under Sections 5.1(a), (b), (c) or (d) of the Indenture and (y) after
such Indenture "Event of Default", remedies are commenced with respect
to the Collateral under Section 5.4(a)(iv) of the Indenture or any
other sale or liquidation of the Collateral occurs under Article V of
the Indenture.
(iv) It shall be an additional Event of Default under Section
5(a), and the Trust shall be deemed to be the Defaulting Party with
respect thereto, if any Trust Document is amended, modified or
supplemented, with the consent of the holders of not less than a
majority of the outstanding principal balance of the Notes and not less
than a majority of the Certificate Balance, in a manner that materially
and adversely affects any interest of the Counterparty without the
prior written consent of the Counterparty. The procedures for amending
the Trust Documents are set forth in Section 9.01 of the Trust Sale and
Servicing Agreement, Article IX of the Indenture, Section 7.01 of the
Pooling and Servicing Agreement, Section 13 of the Administration
Agreement, Article VIII of the Trust Agreement and Section 8 of the
Custodian Agreement.
(e) TERMINATION EVENTS.
(i) The "CREDIT EVENT UPON MERGER" provisions of Section
5(b)(iv) will not apply to the Counterparty or the Trust.
(ii) Section 5(b)(ii) shall hereby be deleted and the
following provision shall be inserted in its place:
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Due to (x) any action taken by a taxing authority, or brought
in a court of competent jurisdiction, on or after the date on
which a Swap Transaction is entered into (regardless of
whether such action is taken or brought with respect to a
party to this Agreement) or (y) a Change in Tax Law, a party
will on the next succeeding Scheduled Payment Date receive a
payment from which an amount is required to be deducted or
withheld for or on account of a Tax (except in respect of
interest under Section 2(e), 6(d)(ii) or 6(e)). In such
circumstances, (a) if such Tax would constitute an
Indemnifiable Tax, then the party making such payment shall be
the "Affected Party" or (b) if such Tax would not constitute
an Indemnifiable Tax, then the party receiving such payment
shall be the "Affected Party."
(iii) Section 5(b)(iii) shall hereby be deleted and the
following provision shall be inserted in its place.
The party (the "recipient") on the next succeeding Scheduled
Payment Date will receive a payment from which an amount has
been deducted or withheld for or on account of any Tax as a
result of either party consolidating or amalgamating with, or
merging with or into, or transferring all or substantially all
its assets to, another entity where such action does not
constitute an event described in Section 5(a)(viii). In such
circumstances, (a) the party other than the recipient will be
the "Burdened Party" and the "Affected Party" if such Tax
would constitute an Indemnifiable Tax or (b) the recipient
will be the "Burdened Party" and the "Affected Party" if such
Tax would not constitute an Indemnifiable Tax.
(f) "EARLY TERMINATION."
(i) In the event that the Counterparty fails to make, when
due, any payment under this Agreement or delivery under Section 2(a)(i)
or 2(e) required to be made by the Counterparty, the Trust shall
immediately notify General Motors Acceptance Corporation ("GMAC") of
such failure to pay or deliver.
(ii) Notwithstanding any other provision to the contrary in
this Agreement, upon (A) the occurrence of a Designated Event (as
defined in the Triparty Contingent Assignment Agreement among the
Trust, the Counterparty and GMAC dated as of the date hereof (the
"TRIPARTY AGREEMENT"), GMAC shall accede to rights and obligations
equivalent to those set out herein in accordance with the terms of the
Fallback Swap Agreement (as defined in the Triparty Agreement). If such
a Designated Event has occurred, then upon (A) the effectiveness of the
Fallback Swap Agreement (as defined in the Triparty Agreement) and (B)
the payment by GMAC in a timely fashion of all Delinquent Payments (as
defined in the Triparty Agreement), if any, (x) the Event of Default or
Termination Event, if any, constituting such Designated Event shall be
deemed to be cured on and as of the date of
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assignment and (y) no Early Termination Date may be designated as a
result of such Designated Event. As of the Assignment Date (as defined
in the Triparty Agreement) the Counterparty shall have no further
liability hereunder (including in respect of rights, liabilities and
duties accrued prior to the Assignment Date). Furthermore, any and all
collateral posted by the Counterparty shall be returned to it within
three Business Days of the Assignment Date and the Credit Support
Document of the Counterparty's Credit Support Provider and any other
form of collateral arrangement (including letters of credit, surety
bond or other guarantee) provided by or on behalf of the Counterparty
shall terminate as of the Assignment Date.
(iii) Section 6(b) is hereby amended by deleting the heading
to such section and replacing it with the following words: "Early
Termination Following Termination Event."
(iv) Section 6(b)(ii) is hereby deleted and the following
shall be inserted in its place:
"(1) If an Illegality, a Tax Event or a Tax Event Upon Merger
occurs, if the Counterparty is the Affected Party it will, and
if the Trust is the Affected Party it may request the
Counterparty to (and the Counterparty upon notice thereof
will), use its best efforts (provided that using its best
efforts will not require the Counterparty to incur any loss,
excluding immaterial, incidental expenses) to transfer prior
to the 20th day following the occurrence of such event (the
"TRANSFER CUT-OFF DATE"), all of its rights and obligations
under this Agreement in respect of Affected Transactions to
another of its offices or affiliates or third party so that
such Termination Event ceases to exist.
If the Counterparty is not able to make such a transfer it
will give notice to the Trust to that effect prior to the
Transfer Cut-Off Date.
Any such transfer under this Section 6(b)(ii) will be subject
to and conditional upon the prior written consent of the
Trust, which consent will not be withheld if the Trust's
policies in effect at such time would permit it to enter into
transactions with the transferee on the terms proposed and may
not be refused if it is pursuant to the Triparty Agreement.
(2) No transfer or substitution pursuant to this Section
6(b)(ii) shall occur if (x) then the current ratings of the
Class A Notes by Moody's or Standard & Poor's would be reduced
or adversely affected or (y) the position of the Trust would
otherwise materially be prejudiced under this Agreement or any
Confirmation (it being understood that it shall be the
responsibility of the
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Trust to verify such matters prior to the occurrence of such
transfer or substitution)"
(v) Section 6(b)(iii) shall hereby be amended by replacing the
words "within 30 days" with the words "by the Transfer Cut-Off Date (as
defined above)."
(vi) Section 6(b)(iv) is hereby deleted and the following
shall be inserted in its place:
"Early Termination.
If a Termination Event has occurred and a transfer under
Section 6(b)(ii) or an agreement under Section 6(b)(iii), as
the case may be, has not been effected with respect to all
Affected Transactions by the Transfer Cut-Off Date, an Early
Termination Date in respect of all outstanding Swap
Transactions will occur immediately."
(g) PAYMENTS ON EARLY TERMINATION.
(i) "Market Quotation" and "Second Method" will apply for
purposes of Section 6(e).
(ii) The Trust will be obligated to pay interest to the
Counterparty on any amounts due and unpaid under Section 6(e) at a rate
equal to the USD Floating Rate Option under the Confirmation.
(h) "TERMINATION CURRENCY" means United States Dollars.
PART 2. TAX REPRESENTATIONS
(a) PAYER TAX REPRESENTATIONS. For the purpose of Section 3(e),
each of the Counterparty and the Trust makes the following representation:
It is not required by any applicable law, as modified by the
practice, of any Relevant Jurisdiction to make any deduction
or withholding for or on account of any Tax from any payment
(other than interest under Section 2(e), 6(d)(ii) or 6(e)) to
be made by it to the other party under this Agreement. In
making this representation, it may rely on (i) the accuracy of
any representation made by the other party pursuant to Section
3(f); (ii) the satisfaction of the agreement of the other
party contained in Section 4(a)(i) or 4(a)(iii) and the
accuracy
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and effectiveness of any document provided by the other party
pursuant to Section 4(a)(i) or 4(a)(iii) and (iii) the
satisfaction of the agreement of the other party contained in
Section 4(d), provided that it shall not be a breach of this
representation where reliance is placed on clause (ii) and the
other party does not deliver a form or document under Section
4(a)(iii) by reason of material prejudice to its legal or
commercial position.
(b) PAYEE TAX REPRESENTATIONS.
(i) Trust Representation. For the purpose of Section 3(f)
of this Agreement, the Trust makes the following representations:
It is a business trust organized or formed under the laws of
the State of Delaware.
It is (A) a "United States person" as defined in Section
7701(a)(30) of the Internal Revenue Code of 1986, as amended,
or (B) wholly- owned by a "United States person" and
disregarded as an entity separate from its owner for U.S.
federal tax purposes.
(ii) Counterparty Representation. For the purpose of Section
3(f), the Counterparty makes the following representations:
It is a corporation duly organized under the laws of the State
of Delaware.
PART 3. AGREEMENT TO DELIVER DOCUMENTS
For the purpose of Sections 4(a)(i) and (ii), each party agrees to deliver the
following documents, as applicable:
(a) Tax forms, documents or certificates to be delivered are:
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PARTY REQUIRED TO DELIVER FORUM/DOCUMENT/CERTIFICATE DATE BY WHICH TO BE DELIVERED
- ------------------------------------------------------------------------------- -----------------------------------
Counterparty and Trust Any document required or reason Promptly upon the earlier of (i) rea
ably requested to allow the other sonable demand by the other party
party to make payments under this and (ii) learning that the form or
Agreement without any deduction or document is required.
withholding for or on account of any
Tax or with such deduction or
withholding at a reduced rate.
(b) Other documents to be delivered are:
PARTY REQUIRED TO FORM/DOCUMENT/ DATE BY WHICH TO BE COVERED BY SECTION 3(D)
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Counterparty and Trust Certificate or other docu At or promptly following Yes
ments evidencing the the execution of this
authority of the party to Agreement, and, if a
enter into this Agreement Confirmation so requires
and the persons acting on it, on or before the date set
behalf of such party. forth therein.
Counterparty and Trust A legal opinion, in the At or promptly following No
form reasonably the execution of this
acceptable to the other Agreement.
party.
Trust The Trust Sale and At or promptly following Yes
Servicing Agreement and the execution of this
all other documents to be Agreement.
executed by the Trust as
contemplated thereby.
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PART 4. MISCELLANEOUS
(a) ADDRESSES FOR NOTICES. For purpose of Section 12(a):
(i) Address for notices or communications to the Trust:
Address: Bankers Trust Company
4 Albany Street, 10th Floor
New York, NY 10006
Attention: Corporate Trust Department
Facsimile No.: (212) 250-8360
Telephone No.: (212) 250-6439
with a copy to: General Motors Acceptance Corporation
Address: 3031 West Grand Boulevard
Suite 695
Detroit, Michigan 48202
Attention: Director - Securitization and Cash Management
Facsimile No.: (313) 974-0533
Telephone No.: (313) 974-1955
Telex No.: 425543
Answerback: GM COMM DET
(ii) Address for notices or communications to the Counterparty:
Address: Morgan Stanley Capital Services Inc.
1585 Broadway, 3rd Floor
New York, New York 10036
Attention: DPG Transaction Management
Facsimile No.: (212) 761-0162
Telephone No.: (212) 761-2566
Telex: [___________]
Answerback: [___________]
(b) NOTICES.
(i) Section 12(a) is amended by adding in the fourth line
thereof after the phrase "Part 4 of the Schedule" the
words, "; provided, however, any such notice or other
communication may be given by facsimile transmission
if telex is
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unavailable, no telex number is supplied to the party
providing notice, or if answer back confirmation is
not received from the party to whom the telex is
sent."
(ii) Section 12(a)(iv) of this Agreement shall be deleted
in its entirety and replaced with the following:
"(iv) if sent by certified or registered mail
(airmail, if overseas) or the equivalent (return
receipt requested), on the date that mail is
delivered or its delivery is attempted, provided,
however, it is understood that, if feasible, a party
shall first attempt to send notice by overnight
couriers, telex or facsimile before attempting to
send notice by certified or registered mail; or,"
(c) PROCESS AGENT. For the purpose of Section 13(c) of this
Agreement:
The Counterparty appoints as its Process Agent: Not
Applicable.
The Trust appoints as its Process Agent: Not Applicable.
(d) MULTIBRANCH PARTY. For the purpose of Section 10:
The Counterparty is not a Multibranch Party.
The Trust is not a Multibranch Party.
(e) "CALCULATION AGENT" means, unless otherwise designated by a
Confirmation for a particular Swap Transaction, General Motors Acceptance
Corporation. All calculations by the Calculation Agent shall be made in good
faith and through the exercise of the Calculation Agent's commercially
reasonable judgment. All such calculations shall be final and binding upon the
Counterparty and the Trust absent manifest error. Upon the request of the
Counterparty, the Trust shall provide the Counterparty with such information as
is reasonably necessary to enable the Counterparty to confirm the accuracy of
such calculations.
(f) CREDIT SUPPORT DOCUMENT. Details of any Credit Support
Document:
The Counterparty: Guarantee of Morgan Stanley Dean Witter &
Co., a copy of which is annexed hereto as Exhibit A.
The Trust: Not applicable.
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(G) GOVERNING LAW; JURISDICTION. THIS AGREEMENT AND EACH
CONFIRMATION WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CHOICE OF LAW DOCTRINE.
(h) WAIVER OF JURY TRIAL. Each party waives, to the fullest extent
permitted by applicable law, any right it may have to a trial by jury in
respect of any Proceedings relating to this Agreement.
(i) NETTING OF PAYMENTS. Section 2(c) will apply to any amounts
payable with respect to Swap Transactions from the date of this Agreement.
PART 5. OTHER PROVISIONS
(a) ISDA DEFINITIONS: Except as otherwise defined in this Schedule
or a Confirmation, this Agreement and each Swap Transaction are subject to the
1991 ISDA Definitions as supplemented by the 1998 Supplement (as published
by the International Swap and Derivatives Association, Inc., the "DEFINITIONS"),
and will be governed in all relevant respects by the provisions set forth in
the Definitions, without regard to any amendments to the Definitions subsequent
to the date hereof. The provisions of the Definitions are incorporated by
reference in, and shall be deemed a part of, this Agreement and each
Confirmation, as if set forth in full in this Agreement or that Confirmation.
In the event of any inconsistency between the provisions of this Agreement and
the Definitions, this Agreement will prevail. In the event of any inconsistency
between the provisions of any Confirmation and this Agreement, such
Confirmation will prevail for the purpose of the relevant Swap Transaction.
(b) OTHER SWAPS. The Trust agrees that it has not and will not
enter into any other swap transactions which provide for payments upon
termination that are senior to or pari passu with any payment due under any
Confirmation.
(c) LITIGATION REPRESENTATION. Each instance of the words "or any
of its Affiliates" shall be deleted from Section 3(c).
(d) GROSS-UP; LIABILITY. Neither the Counterparty nor the Trust
will in any circumstance be required to pay additional amounts in respect
of any Indemnifiable Tax or be under any obligation to pay to the other any
amount in respect of any liability of such other for or on account of any
Tax and, accordingly, Section 2(d)(i)(4) and Section 2(d)(ii) of this Agreement
shall not apply.
(e) TRANSFER. Section 7 is hereby amended by adding the following
provision: "PROVIDED HOWEVER, that, the Counterparty may make such a transfer
to another of its affiliates, offices, or branches, on ten Business Days' prior
written notice to the Trust, provided that:
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(i) the Counterparty delivers an opinion of independent
counsel of recognized standing, in form and substance
reasonably satisfactory to the Indenture Trustee and the
Servicer, confirming that as of the date of such transfer the
transferee will not, as a result of such transfer, be required
to withhold or deduct on account of Tax under this Agreement;
and
(ii) such transfer will not cause the occurrence of an Event
of Default or a Termination Event under this Agreement.
Notwithstanding the foregoing, prior written notice of
transfer shall not be required with respect to a transfer under Section
6(b)(ii).
(f) ADDITIONAL REPRESENTATIONS. Section 3 is hereby amended by
adding at the end thereof the following Subparagraphs:
(g) It is an "eligible swap participant" under, and
as defined in, 17 C.F.R.ss.35.1(b)(2) and was not
formed solely for the purposes of constituting an
"eligible swap participant."
(h) It has entered into this Agreement (including
each Swap Transaction evidenced hereby) in
conjunction with its line of business (including
financial intermediation services) or the financing
of its business.
(i) It is entering into this Agreement, each Swap
Transac tion and any other documentation relating to
this Agreement or any Swap Transaction as principal
(and not as agent or in any other capacity, fiduciary
or otherwise).
(g) AMENDMENTS. Section 9(b) of this Agreement is hereby amended
by adding the following:
; provided, however, that all such amendments,
modifications or waivers shall require the written
affirmation of each of Standard & Poor's Ratings
Services and Moody's Investors Service, Inc., who are
then rating any securities issued by the Trust that
such amendments, modifications or waivers shall not
adversely affect the then-current ratings of the
Class A Notes or the Variable Pay Term Notes.
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(h) CONFIRMATIONS. Each Confirmation supplements, forms part of,
and will be read and construed as one with this Agreement.
(i) RELATIONSHIP BETWEEN PARTIES. Each party will be deemed to
represent to the other party on the date on which it enters into a Swap
Transaction that (absent a written agreement between the parties that expressly
imposes affirmative obligations to the contrary for that Swap Transaction):
(i) Non-Reliance. It is acting for its own account, and it
has made its own independent decisions to enter into that Swap
Transaction and as to whether that Swap Transaction is appropriate or
proper for it based upon its own judgment and upon advice from such
advisers as it has deemed necessary. It is not relying on any
communication (written or oral) of the Counterparty's investment
advice or as a recommendation to enter into that Swap Transaction;
it being understood that information and explanations related to
the terms and conditions of a Swap Transaction shall not be
considered investment advice or a recommendation to enter into that
Swap Transaction. No communication (written or oral) received from
the other party shall be deemed to be an assurance or guarantee as
to the expected results of that Swap Transaction.
(ii) Assessment and Understanding. It is capable of assessing
the merits of and understanding (on its own behalf or through
independent professional advice), and understands and accepts, the
terms, conditions and risks of that Swap Transaction.
(iii) Status of Parties. The other party is not acting as a
fiduciary for or an adviser to it in respect of that Swap Transaction.
(j) CAPITALIZED TERMS. Each capitalized term used in this
Agreement and not defined in this Agreement, the Confirmation or the
Definitions shall have the meaning given such term in Appendix A to the
Trust Sale and Servicing Agreement, dated as of April 19, 2000, among
General Motors Acceptance Corporation, as Servicer, Capital Auto Receivables,
Inc., as Seller, and Capital Auto Receivables Asset Trust 2000-1, as Issuer
(as amended, modified or supplemented from time to time in accordance with
its terms). To the extent that a capitalized term in this Agreement is
defined by reference to a related definition contained in the Trust Sale and
Servicing Agreement, the Indenture, the Pooling and Servicing Agreement, the
Swap Counterparty Rights Agreement, the Administration Agreement, the Trust
Agreement and the Custodian Agreement (the "TRUST DOCUMENTS"), for purposes of
this Agreement only, such capitalized term shall be deemed to be amended
only if the amendment of the term in a Trust Document relating to such
capitalized term occurs with the prior written consent of the Counterparty.
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(k) NO SET-OFF. Without affecting the provisions of this
Agreement requiring the calculation of certain net payment amounts, all
payments under this Agreement will be made without set-off or counterclaims.
(l) LIABILITY TO TRUSTEE. It is understood that the Trustee is
executing this Agreement solely in its capacity as Trustee of the Trust as set
forth in the Trust Agreement and that under this agreement there shall be no
claims against or liability of the Trustee in any other capacity or claims
against the assets of the Trustee held by it in its personal capacity. All
duties, obligations and liabilities of the Trust, including but not limited to
all representations, warranties and covenants of the Trust, shall apply to the
Trust and not to the Trustee in its individual capacity.
(m) DEFAULT INTEREST; OTHER AMOUNTS. Section 2(e) is hereby
amended by adding the following at the end of the first sentence thereof:
"PROVIDED, HOWEVER, that this Section 2(e) shall not apply to
Counter party or Trust if and to the extent failure to pay is
caused solely by such party being required to withhold or
deduct an amount of any Tax as set out in Section 2(d)(i)."
(n) SEVERABILITY. In the event that any one or more of the
provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability
of the remaining provisions in the Agreement shall not in any way be
affected or impaired. In thee event that any one or more of the provisions
contained in this Agreement should be held invalid, illegal or unenforceable,
the parties will negotiate in good faith to replace the invalid, illegal or
unenforceable provisions with valid provisions which will, as nearly as
possible, give the originally intended legal and economic effect of the invalid,
illegal or unenforceable provisions.
* * * * * * * * * *
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IN WITNESS WHEREOF, the parties have executed this Schedule by their
duly authorized officers as of the date hereof.
MORGAN STANLEY CAPITAL
SERVICES INC.
By: __________________________________
Name:
Title:
CAPITAL AUTO RECEIVABLES ASSET
TRUST 2000-1
By: BANKERS TRUST
(DELAWARE), not in its individual
capacity but solely as Owner Trustee
on behalf of the Trust,
By: /S/ RAYMOND DELLICOLLI
-----------------------------------
Name: Raymond DelliColli
Title: Attorney-in-Fact
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