EXHIBIT 99.6
TRIPARTY CONTINGENT ASSIGNMENT AGREEMENT dated as of April 19, 2000
(the "AGREEMENT"), among Capital Auto Receivables Asset Trust 2000-1 (the
"TRUST"), General Motors Acceptance Corporation ("GMAC") and MORGAN STANLEY
CAPITAL SERVICES INC. ("MSCS").
WHEREAS, the Trust and MSCS have entered into the Primary Swap
Agreement;
WHEREAS, GMAC and MSCS have entered into the Secondary Swap Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 The following terms shall have the meanings set forth
below:
"ADDITIONAL CONTINGENT COUNTERPARTY" means a Person with the Requisite
Rating entering into an agreement substantially similar to this Agreement
pursuant to Section 2.02.
"ASSIGNMENT DATE" means the date upon which GMAC receives notice from
the Trust of the occurrence of a Designated Event, or if such date is not a
Business Day, the next succeeding Business Day.
"DELINQUENT PAYMENTS" means any payments owed to the Trust as a result
of liabilities, obligations and duties of MSCS pursuant to the Primary Swap
Agreement accruing prior to the Assignment Date that have not been made by MSCS.
A "DESIGNATED EVENT" shall occur if (a) one or more Events of Default
occurs under the Primary Swap Agreement with MSCS as the Defaulting Party, (b)
the occurrence of any applicable Termination Event under the Primary Swap
Agreement in which MSCS is an Affected Party, if no transfer is effected under
Part 1(f)(iv) of the Schedule to the Primary Swap Agreement (or in the case of a
credit downgrade, no appropriate arrangements pursuant to the Primary Swap
Confirmation's credit downgrade provisions are made within 30 days) with respect
to such event and an assignment pursuant to Section 2.01 would result in the
non-occurrence of such event as it pertains to MSCS or (c) the Trust receives a
notice from MSCS pursuant to the provisions of Section 2.03 herein.
"FALLBACK SWAP AGREEMENT" means the ISDA Master Agreement, together
with a Schedule and Confirmation, dated as of the date hereof, between the Trust
and GMAC.
"GMAC" means General Motors Acceptance Corporation.
"OPERATIVE SWAP AGREEMENT" means (i) prior to the Assignment Date, the
Primary Swap Agreement and (ii) on and after the Assignment Date, the Fallback
Swap Agreement.
"OPERATIVE SWAP TRANSACTION" means (i) prior to the Assignment Date,
the Primary Swap Transaction and (ii) on and after the Assignment Date, the
transaction described in the confirmation contained in the Fallback Swap
Agreement.
"PRIMARY SWAP AGREEMENT" means the ISDA Master Agreement (including the
Schedule) dated as of the date hereof between MSCS and the Trust, and the
Primary Swap Confirmation.
"PRIMARY SWAP CONFIRMATION" means the confirmation related to the ISDA
Master Agreement, dated as of the date hereof, between MSCS and the Trust.
"PRIMARY SWAP TRANSACTION" means the transaction described in the
Primary Swap Confirmation.
"REQUISITE RATING" means a long-term, unsecured and unsubordinated debt
rating from S&P which, when considered together with the long-term, unsecured
debt rating of GMAC, would result in a Joint Rating of at least AA-.
"SECONDARY SWAP AGREEMENT" means the ISDA Master Agreement (including
the Schedule thereto), dated as of January 15, 1998, between MSCS and GMAC and
the Secondary Swap Confirmation.
"SECONDARY SWAP CONFIRMATION" means the confirmation dated as of the
date hereof between GMAC and MSCS, Transaction Ref. No. ______.
"SECONDARY SWAP TRANSACTION" means the transaction described in the
Secondary Swap Confirmation.
"SERVICER" means GMAC or its successor as servicer pursuant to the
Trust Sale and Servicing Agreement.
"S&P" means Standard and Poor's Ratings Services, a Division of the
McGraw-Hill Companies and any successor.
SECTION 1.02 DEFINITIONS. Capitalized terms used in this Agreement and
not otherwise defined herein shall have the meanings specified for such terms
(i) in the Primary Swap Agreement or the Secondary Swap Agreement, as dictated
by its context or (ii) if not defined therein, in Appendix A to the Trust Sale
and Servicing Agreement, dated as of April 19, 2000 between the Trust, the
Seller and the Servicer (the "TRUST SALE AND SERVICING AGREEMENT").
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ARTICLE II
ASSIGNMENT UPON DESIGNATED EVENT
SECTION 2.01 ASSIGNMENT. In the event that a Designated Event shall
have occurred and is then continuing and the Trust has notified GMAC in writing
of such occurrence and continuance and has provided evidence reasonably
satisfactory to GMAC that a Designated Event has occurred and is then
continuing, each of the following shall automatically occur on the Assignment
Date:
(a) GMAC shall accede to rights and obligations equivalent to
those of MSCS under the Primary Swap Transaction in accordance with the
terms of the Fallback Swap Agreement (including rights, title and
interests and liabilities, obligations and duties accruing prior to the
Assignment Date). In connection with the foregoing, in the event that
there are Delinquent Payments, GMAC shall promptly (and in any event no
later than the next Business Day) make the full amount of such
Delinquent Payments to the Trust (but only to the extent that GMAC has
not made a corresponding payment under the Fallback Swap Agreement). In
the event that MSCS has been paid an amount corresponding to the
Delinquent Payments under the Secondary Swap Agreement, MSCS agrees to
reimburse GMAC in an amount equal to the full amount of any such
payments. In the event that MSCS has made payments to the Trust as a
result of liabilities, obligations and duties of MSCS accruing prior to
the Assignment Date in circumstances where GMAC has not made the
corresponding payments to MSCS under the Secondary Swap Agreement, GMAC
agrees to reimburse MSCS in an amount equal to the full amount of any
such payments. Except as expressly provided in the third sentence of
this paragraph (a), on and at all times following the Assignment Date,
MSCS shall have no liabilities, obligations and duties, including
payment obligations of any kind, under the Primary Swap Agreement. As
of the Assignment Date, the Primary Swap Transaction shall be governed
by the terms of the Fallback Swap Agreement, and the Primary Swap
Agreement shall no longer govern the Primary Swap Transaction (except
with respect to rights, liabilities, obligations and duties accrued
prior to the Assignment Date).
For the avoidance of doubt, on and with effect from the
Assignment Date, the Guarantee of Morgan Stanley Dean Witter & Co. in
favor of the Trust under the Primary Swap Agreement shall be terminated
and cease to be in effect (except in respect of liabilities,
obligations and duties which may have accrued under such guarantee
prior to the Assignment Date).
(b) The Secondary Swap Transaction shall be terminated on and
as of the Assignment Date without further liability or obligation of
either party thereto, without prejudice to those rights, liabilities,
obligations and duties accruing prior to the Assignment Date.
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(c) Upon (i) the effectiveness of the Fallback Swap Agreement
and (ii) the payment by GMAC to the Trust in a timely fashion of all
Delinquent Payments, if any, (x) the Event of Default or Termination
Event under the Primary Swap Agreement constituting such Designated
Event, if any, shall be deemed to be cured on and as of the Assignment
Date, and (y) no Early Termination Date (as defined in the Primary Swap
Agreement) may be designated as a result of such Designated Event.
There shall be no breakage fees or other termination costs or expenses
payable by the Trust to MSCS or by MSCS to GMAC in connection with an assignment
of the Primary Swap Agreement to GMAC in accordance with this Section 2.01 and
the termination of the Secondary Swap Transaction as a result of the occurrence
and continuance of a Designated Event.
SECTION 2.02 ADDITIONAL CONTINGENT COUNTERPARTY. If GMAC has acceded to
the rights and obligations of MSCS under the Primary Swap Agreement in
accordance with the provisions of this Article II, GMAC shall have the option to
find a Person with the Requisite Rating that will either (i) enter into an
assignment agreement that is substantially similar to this Agreement pursuant to
which such Person will become the Additional Contingent Counterparty or (ii)
enter into a swap transaction substantially similar to the Primary Swap
Transaction and a contingent assignment agreement that is substantially similar
to this Agreement under which such Person would accede to the rights and
obligations of GMAC under the Primary Swap Agreement and GMAC will become the
Additional Contingent Counterparty. MSCS shall reimburse GMAC for any costs
associated with finding a party to serve as the Additional Contingent
Counterparty. Any delay or inability in finding a party to serve as the
Additional Contingent Counterparty will not result in the occurrence of a
Termination Event, an Event of Default or otherwise lead to the designation of
an Early Termination Date under the Operative Swap Agreement.
SECTION 2.03 NOTICE. MSCS agrees that, to the extent that it has actual
knowledge that it will be unable to make a payment or delivery on a scheduled
payment date under the Primary Swap Agreement, it shall provide notice to the
Trust of such inability at least two Business Days prior to such scheduled
payment date. This Section 2.03 shall not be construed to obligate MSCS to
undertake any affirmative action or inquiry to ascertain whether it will be able
to make any such payment or delivery. Any failure by MSCS to provide notice to
the Trust of such inability shall be without prejudice to MSCS's rights under
this Agreement and the Primary Swap Agreement.
ARTICLE III
MISCELLANEOUS
SECTION 3.01 MISCELLANEOUS. (a) ENTIRE AGREEMENT. This Agreement, the
Primary Swap Agreement and the Secondary Swap Agreement constitute the entire
agreement and understanding of the parties with respect to the subject matter
thereof and supersede all oral communications and prior writings (except as
otherwise provided therein) with respect thereto.
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(b) COUNTERPARTS. This Agreement may be executed and delivered in
counterparts (including by facsimile transmission) each of which will be deemed
an original.
(c) HEADINGS. The headings used in this agreement are for
convenience of reference only and are not to affect the construction of or to
be taken into consideration in interpreting this Agreement.
(d) GOVERNING LAW. This Agreement will be governed by and
construed in accordance with the laws of the State of New York (without
reference to choice of law doctrine).
(e) NOTICES. All demands, specifications and notices to a party
hereto under this Agreement will be made pursuant to the provisions of the
Primary Swap Agreement or the Secondary Swap Agreement, as applicable.
(f) NO WAIVER. Notwithstanding any other provision in this
Agreement to the contrary, no full or partial failure to exercise and no delay
in exercising, on the part of any party hereto, any right, remedy, power or
privilege under this Agreement, regardless of the frequency or constancy
of such failure or delay, shall operate in any way as a waiver thereof by such
party.
(g) INCONSISTENCIES. Except as expressly provided herein, the
Primary Swap Agreement shall not be deemed to be amended hereby in any respect.
In the event of any inconsistencies between the provisions of this Agreement
and those of the Primary Swap Agreement or the Secondary Swap Agreement, the
provisions hereof shall prevail.
(h) AMENDMENTS. This Agreement may not be amended except by the
execution of a written instrument by all parties hereto.
(i) LIMITATION OF LIABILITY. It is expressly understood and agreed
by the parties hereto that (a) this Agreement is executed and delivered by
Bankers Trust (Delaware), not individually or personally but solely as Owner
Trustee of Capital Auto Receivables Asset Trust 2000-1 in the exercise of the
powers and authority conferred and vested in it, (b) each of the
representations, undertakings and agreements herein made on the part of the
Trust is made and intended not as personal representations, undertakings and
agreements by Bankers Trust (Delaware) but is made and intended for the
purpose for binding only the Trust, (c) nothing herein contained shall be
construed as creating any liability on Bankers Trust (Delaware), 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 and
(d) under no circumstances shall Bankers Trust (Delaware) be personally
liable for the payment of any indebtedness or expenses of the Trust or be
liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken by the Trust under this Agreement or any
other related documents.
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IN WITNESS WHEREOF, the parties have executed this agreement
by their duly authorized officers as of the date hereof.
CAPITAL AUTO RECEIVABLES ASSET TRUST
2000-1
By BANKERS TRUST (DELAWARE) not in
its individual capacity, but solely as trustee
By: /S/ RAYMOND DELLICOLLI
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Name: Raymond DelliColli
Title: Attorney-in-Fact
GENERAL MOTORS ACCEPTANCE CORPORATION
By:
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Name:
Title:
MORGAN STANLEY CAPITAL SERVICES INC.
By:
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Name:
Title:
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