Exhibit 99.6
TRIPARTY CONTINGENT ASSIGNMENT AGREEMENT dated as of January 17, 2001 (the
"Agreement"), among Capital Auto Receivables Asset Trust 2001-1 (the "Trust"),
General Motors Acceptance Corporation ("GMAC") and Merrill Lynch Capital
Services, Inc. ("MLCS").
WHEREAS, the Trust and MLCS have entered into the Primary Swap
Agreement;
WHEREAS, GMAC and MLCS 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 MLCS pursuant to the Primary Swap
Agreement accruing prior to the Assignment Date that have not been made by MLCS.
A "Designated Event" shall occur (a) if one or more Events of Default
occurs under the Primary Swap Agreement with MLCS as the Defaulting Party and
the Trust notifies MLCS that it is declaring a Designated Event to have
occurred, (b) upon the occurrence of any applicable Termination Event under the
Primary Swap Agreement in which MLCS 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 MLCS or (c) if the
Trust receives a notice from MLCS pursuant to the provisions of Section 2.03
herein.
"Fallback Swap Agreement" means the ISDA Master Agreement (including the
Schedule) and the three Fallback Swap Confirmations.
"Fallback Swap Confirmations" means (i) the Confirmation of Interest Rate
Swap Transaction re Class A-4 Notes, (ii) the Confirmation of Interest Rate Swap
Transaction re Class A-5 Notes and the Confirmation of Interest Rate Swap
Transaction re VPRNs, each of which is between GMAC and the Trust and each of
which have been entered into pursuant to the ISDA Master Agreement (including
the Schedule thereto) dated as of January 9, 2001 between GMAC and the Trust.
"Fallback Swap Transaction" means the transaction described in a
Primary Swap Confirmation.
"GMAC" means General Motors Acceptance Corporation.
"Joint Probability" has the meaning given in each Primary Swap
Confirmation and each Fallback Swap Confirmation.
"Moody's" means Moody's Investors Service.
"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 Transactions" means (i) prior to the Assignment Date,
the Primary Swap Transactions and (ii) on and after the Assignment Date, the
Fallback Swap Transactions.
"Primary Swap Agreement" means the ISDA Master Agreement (including the
Schedule) dated as of January 9, 2001 between MLCS and the Trust, and the three
Primary Swap Confirmations.
"Primary Swap Confirmations" means (i) the Confirmation of Interest
Rate Swap Transaction re Class A-4 Notes, (ii) the Confirmation of Interest Rate
Swap Transaction re Class A-5 Notes and the Confirmation of Interest Rate Swap
Transaction re VPRNs, each of which is between MLCS and the Trust and each of
which have been entered into pursuant to the ISDA Master Agreement (including
the Schedule thereto) dated as of January 9, 2001 between MLCS and the Trust.
"Primary Swap Transaction" means the transaction described in a Primary
Swap Confirmation.
"Requisite Rating" means a long-term, unsecured and unsubordinated debt
rating from S&P or Moody's which, when considered together with the long-term,
unsecured and unsubordinated debt rating of GMAC, would result in a Joint
Probability of at least AA- in the case of S&P, or Aa3 in the case of Moody's.
"Secondary Swap Agreement" means the ISDA Master Agreement (including
the Schedule thereto), dated as of November 15, 1996, between MLCS and GMAC and
the Secondary Swap Confirmations.
"Secondary Swap Confirmations" means the Confirmation of Interest Rate
Swap Transaction re Class A-4 Notes, (ii) the Confirmation of Interest Rate Swap
Transaction re Class A-5 Notes and the Confirmation of Interest Rate Swap
Transaction re VPRNs, each of which is between GMAC and MLCS and each of which
have been entered into pursuant to the ISDA Master Agreement (including the
Schedule thereto) dated as of November 15, 1996 between GMAC and MLCS.
"Secondary Swap Transaction" means the transaction described in a
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 January 17, 2001 between the
Trust, the Seller and the Servicer (the "Trust Sale and Servicing Agreement").
The rules of construction specified in Part II of such Appendix A shall apply to
this Agreement.
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
MLCS under each of the Primary Swap Transactions 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 under any Primary Swap Transaction, 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 MLCS has been paid an amount corresponding to the Delinquent
Payments under the Secondary Swap Agreement, MLCS agrees to reimburse GMAC
in an amount equal to the full amount of any such payments. In the event
that MLCS has made payments to the Trust as a result of liabilities,
obligations and duties of MLCS accruing prior to the Assignment Date in
circumstances where GMAC has not made the corresponding payments to MLCS
under the Secondary Swap Agreement, GMAC agrees to reimburse MLCS 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, MLCS 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 Transactions
shall be governed by the terms of the Fallback Swap Agreement, and the
Primary Swap Agreement shall no longer govern the Primary Swap Transactions
(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 Merrill Lynch & Co., Inc. 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 Transactions 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.
(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 MLCS or by MLCS 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 MLCS 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
Transactions 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. MLCS 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. MLCS 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 MLCS to
undertake any affirmative action or inquiry to ascertain whether it will be able
to make any such payment or delivery. Any failure by MLCS to provide notice to
the Trust of such inability shall be without prejudice to MLCS'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.
(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 2001-1 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.
IN WITNESS WHEREOF, the parties have executed this agreement by their duly
authorized officers as of the date hereof.
CAPITAL AUTO RECEIVABLES ASSET TRUST
2001-1
By BANKERS TRUST (DELAWARE) not in
its individual capacity, but solely
as trustee
By CHARLES C. GREITER
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Name: Charles C. Greiter
Title: Attorney-in-Fact
GENERAL MOTORS ACCEPTANCE CORPORATION
By
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Name:
Title:
MERRILL LYNCH CAPITAL SERVICES, INC.
By
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Name:
Title: