Exhibit 99.4
SCHEDULE
TO THE
MASTER AGREEMENT
(this "Agreement")
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dated as of January 9, 2001
between
CAPITAL AUTO RECEIVABLES ASSET TRUST 2001-1
(the "Trust")
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and
MERRILL LYNCH CAPITAL SERVICES, INC.
(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.
(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)(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,
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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
or of the Variable Pay Revolving Notes by Moody's or S&P would be
reduced or adversely affected or (y) the position of the Trust
would otherwise materially be prejudiced
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under this Agreement or any Confirmation (it 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 of 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
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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 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 document is required.
or 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)
deliver document Certificate delivered Representation
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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
behalf of such party. set 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:
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Address: Merrill Lynch World Headquarters
4 World Financial Center, 22nd Floor
New York, New York 10080
Attention: Swap Group
Facsimile No.: (212) 449-1788
Telephone No.: (212) 449-0371
Telex: [ ___ ]
Answerback: [ ___ ]
with a copy to: CICG Counsel
Merrill Lynch World Headquarters
Address: 4 World Financial Center
12th Floor
New York, New York 10080
Attention: Swaps Legal
Facsimile No.: (212) 449-6993
Telephone No.:
(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
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.
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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 Provider. Details of any Credit Support Provider:
Credit Support Provider in relation to the Counterparty: Merrill
Lynch & Co., Inc.
The Trust: None.
(g) Credit Support Document. Details of any Credit Support Document
The Counterparty: Guarantee of Merrill Lynch & Co., Inc., a copy
of which is annexed hereto as Exhibit A.
The Trust: Not applicable.
(h) 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.
(i) 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.
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(j) 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.
(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
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(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, 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
Revolving Notes.
(h) Confirmations. Each Confirmation supplements, forms part of, and will
be read and construed as one with this Agreement.
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(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) 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.
(ii) 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 January 17, 2001, among General Motors Acceptance Corporation, as
Servicer, Capital Auto Receivables, Inc., as Seller, and Capital Auto
Receivables Asset Trust 2001-1, 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.
(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
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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 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 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.
(o) Acknowledgment and Ratification. The Trust acknowledges and agrees that
this Agreement is the valid and binding obligation of the Trust, enforceable in
accordance with its terms, notwithstanding that certain Confirmations entered
into hereunder have Trade Dates which precede the date upon which the Trust was
formed, and the Trust hereby ratifies and confirms all actions taken on its
behalf in respect of this Agreement prior to the date hereof.
* * * * * * * * * *
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IN WITNESS WHEREOF, the parties have executed this Schedule by their duly
authorized officers as of the date hereof.
MERRILL LYNCH CAPITAL SERVICES,
INC.
By:______________________________
Name:
Title:
CAPITAL AUTO RECEIVABLES ASSET
TRUST 2001-1
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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