EXHIBIT 99.4
SCHEDULE
TO THE
MASTER AGREEMENT
(this "Agreement")
---------
dated as of December 14, 2000
between
CAPITAL AUTO RECEIVABLES ASSET TRUST 2000-2
(the "Trust")
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and
DEUTSCHE BANK AG, NEW YORK BRANCH
(the "Counterparty")
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Part 1. Termination Provisions
(a) "Specified Entity" means in relation to the Counterparty for the
purpose of:
Section 5(a)(v), none
Section 5(a)(vi), none
Section 5(a)(vii), none
Section 5(b), none
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) [Reserved.]
(c) All references to "Potential Events of Default" in this Agreement shall
be deleted.
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(d) Events of Default.
(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.
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(ii) Section 5(b)(ii) shall hereby be deleted and the following provision
shall be inserted in its place:
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
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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 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
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being understood that it shall be the responsibility of the 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 and effectiveness of any document
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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) Trust and Counterparty Representation. For the purpose of Section
3(f), the Counterparty makes the following representations:
The Trust and the Counterparty each represent to the other that, in
respect of each Specified Transaction which it enters into through an
Office or discretionary agent in the United States of America
("U.S."), each payment received or to be received by it under that
Specified Transaction will be effectively connected with its conduct
of a trade or business in the U.S.
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
document Form/Document/Certificate Date by which to be delivered
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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 deliver 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 it,
and the persons acting on 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) 250-2500
Telephone No.: (212) 250-6431
with a copy to: General Motors Acceptance Corporation
Address: 200 Renaissance Center
12th Floor
Detroit, Michigan 48265
Attention: Director - Securitization and Cash Management
Facsimile No.: (313) 665-6351
Telephone No.: (313) 665-6274
Telex No.: 425543
Answerback: GM COMM DET
(ii) Address for notices or communications to the Counterparty:
Address: Deutsche Bank AG, New York Branch
31 West 52nd Street
New York, New York 10019
Attention: Swap Group
Facsimile No.: (212) 469-4654
Telephone No.: (212) 469-4338
Telex: 429166
Answerback: DEUTNYK
(b) Notices.
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(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 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: Not applicable.
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The Trust: Not applicable.
(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 to the 1991 ISDA
Definitions (as published by the International Swaps 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.
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(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:
(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 Transaction 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, who are
then
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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
Revolving Notes.
(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 December 14, 2000, among General Motors Acceptance Corporation, as
Servicer, Capital Auto Receivables, Inc., as Seller, and Capital Auto
Receivables Asset Trust 2000-2, 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,
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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.
(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 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 trustee of the
Trust, in the exercise of the powers and authority conferred and vested in it
under the Trust Agreement, (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 of binding only the Trust
and (c) 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 the other Basic
Documents. For all purposes of this Agreement, in the performance of any duties
or obligations of the Trust or the Owner Trustee hereunder, the Owner Trustee
shall be entitled to the benefits of the terms and provisions of the Trust
Agreement.
(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
Counterparty 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 the
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.
DEUTSCHE BANK AG, NEW YORK
BRANCH
By:
-------------------------------
Name:
Title:
DEUTSCHE BANK AG, NEW YORK
BRANCH
By:
-------------------------------
Name:
Title:
CAPITAL AUTO RECEIVABLES ASSET
TRUST 2000-2
By: BANKERS TRUST (DELAWARE),
not in its individual capacity but solely
as Owner Trustee on behalf of the
Trust,
By: CHARLES C. GREITER
_____________________________
Name: Charles C. Greiter
Title: Attorney-in-Fact
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