EXHIBIT 99.4
SCHEDULE
TO THE
MASTER AGREEMENT
(this "Agreement")
dated as of June 14, 2001
between
CAPITAL AUTO RECEIVABLES ASSET TRUST 2001-2
(the "Trust")
and
CITIBANK, N.A.
(the "Counterparty")
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)(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 or, to the extent not covered by
Section 5(a)(vii) of the definition of "Event of Default", Sections 5.1(e)
and (f) 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
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(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, 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
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or (y) the position of the Trust would otherwise materially be
prejudiced 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 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
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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) Counterparty Representation. For the purpose of Section 3(f), the
Counterparty makes the following representations:
It is a national banking association organized under the laws of the
United States.
It's taxpayer identification number is 13-5266470.
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
- --------------------------------------------- ------------------------------------- ------------------------------------------
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: GMAC
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
(ii) Address for notices or communications to the Counterparty:
With respect to a particular Transaction, all notices or
communications to the Counterparty shall be sent to the address
or facsimile number indicated in the Confirmation of that
Transaction.
In addition, in the case of notices or communications relating to
Section 5, 6, 11 or 13 of this Agreement, a copy of any such
notice or communication shall be addressed to the attention of
the Counterparty's legal department as follows:
Address: Capital Markets Legal Department
388 Greenwich Street
New York, New York 10013
Attention: Department Head
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(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.
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, GMAC. 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.
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(f) Credit Support Provider. Details of any Credit Support Provider:
Not applicable.
The Trust: None.
(g) Credit Support Document. Details of any Credit Support Document
The Counterparty: Not applicable
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.
(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 after the date hereof which provide for payments
upon termination that are senior to or pari passu with any payment due under any
Confirmation.
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(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
(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. s35.1(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
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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 no such amendments, modifications
or waivers shall be effective until such time as the Trust
has obtained 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.
(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 June 26, 2001, among GMAC, as Servicer, Capital Auto Receivables,
Inc., as Seller, and Capital Auto Receivables Asset Trust 2001-2 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, such capitalized term shall be deemed to be amended only if the
amendment of the
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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.
(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.
CITIBANK, N.A.
By:
Name:
Title:
CAPITAL AUTO RECEIVABLES ASSET
TRUST 2001-2
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