EXHIBIT 99.6
TRIPARTY CONTINGENT ASSIGNMENT AGREEMENT dated as of June 26, 2001 (the
"Agreement"), among Capital Auto Receivables Asset Trust 2001-2 (the "Trust"),
General Motors Acceptance Corporation ("GMAC") and Citibank, N.A. ("Citibank").
WHEREAS, the Trust and Citibank have entered into the Primary Swap
Agreement;
WHEREAS, GMAC and Citibank 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 Citibank pursuant to the Primary Swap
Agreement accruing prior to the Assignment Date that have not been made by
Citibank.
A "Designated Event" shall occur (a) if one or more Events of Default
occurs under the Primary Swap Agreement with Citibank as the Defaulting Party
and the Trust notifies Citibank 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 Citibank 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 which results in GMAC having a higher credit
rating than Citibank, 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 Citibank or (c) if the Trust
receives a notice from Citibank pursuant to the provisions of Section 2.03
herein.
"Fallback Swap Agreement" means the ISDA Master Agreement (including the
Schedule) and the Fallback Swap Confirmations.
"Fallback Swap Confirmations" means (i) the Confirmation of Interest Rate
Swap Transaction re Class A-1 Notes, (ii) the Confirmation of Interest Rate Swap
Transaction re Class A-2 Notes, (iii) the Confirmation of Interest Rate Swap
Transaction re Certificates and (iv) the Confirmation of Interest Rate Swap
Transaction re VPRNs, each of which is between GMAC and the Trust and which have
been entered into pursuant to the ISDA Master Agreement (including the Schedule
thereto) dated as of June14, 2001 between GMAC and the Trust.
"Fallback Swap Transaction" means the transaction described in each of the
Fallback Swap Confirmations.
"GMAC" means General Motors Acceptance Corporation.
"Joint Probability" has the meaning given in each Primary 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 June 14, 2001 between Citibank and the Trust, and the
Primary Swap Confirmations.
"Primary Swap Confirmations" means (i) the Confirmation of Interest Rate
Swap Transaction re Class A-1 Notes, (ii) the Confirmation of Interest Rate Swap
Transaction re Class A-2 Notes, (iii) the Confirmation of Interest Rate Swap
Transaction re Certificates and (iv) the Confirmation of Interest Rate Swap
Transaction re VPRNs, each of which is between Citibank and the Trust and which
have been entered into pursuant to the ISDA Master Agreement (including the
Schedule thereto) dated as of June 14, 2001 between Citibank and the Trust.
"Primary Swap Transaction" means the transaction described in each of the
Primary Swap Confirmations.
"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 March 22, 1988, between Citibank and GMAC and the
Secondary Swap Confirmations.
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"Secondary Swap Confirmations" means (i) the Confirmation of Interest Rate
Swap Transaction re Class A-1 Notes, (ii) the Confirmation of Interest Rate Swap
Transaction re Class A-2 Notes, (iii) the Confirmation of Interest Rate Swap
Transaction re Certificates, and (iv) the Confirmation of Interest Rate Swap
Transaction re VPRNs, each of which is between GMAC and Citibank and which have
been entered into pursuant to the ISDA Master Agreement (including the Schedule
thereto) dated as of ___________, ____ between GMAC and Citibank.
"Secondary Swap Transaction" means the transaction described in each of the
Secondary Swap Confirmations.
"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 June 26, 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
Citibank 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 Citibank has been paid an amount corresponding to the
Delinquent Payments under the Secondary Swap Agreement, Citibank agrees to
reimburse GMAC in an amount equal to the full amount of any such payments.
In the event that Citibank has made payments to the Trust as a result
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of liabilities, obligations and duties of Citibank accruing prior to the
Assignment Date in circumstances where GMAC has not made the corresponding
payments to Citibank under the Secondary Swap Agreement, GMAC agrees to
reimburse Citibank 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, Citibank
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).
(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 Citibank or by Citibank 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 a 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 Citibank 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. Citibank 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. Citibank 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
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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 Citibank to undertake any affirmative action or
inquiry to ascertain whether it will be able to make any such payment or
delivery. Any failure by Citibank to provide notice to the Trust of such
inability shall be without prejudice to Citibank'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.
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(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 in its individual capacity but solely as Owner Trustee of
Capital Auto Receivables Asset Trust 2001-2 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) in its individual, corporate capacity, 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
2001-2
By BANKERS TRUST (DELAWARE) not in
its individual capacity, but solely as trustee
By CHARLES C. GREITER
-------------------------------------------
Name: Charles C. Greiter
Title: Attorney-in-Fact
GENERAL MOTORS ACCEPTANCE
CORPORATION
By ------------------------------------------
Name:
Title:
CITIBANK, N.A.
By ------------------------------------------
Name:
Title:
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