EXHIBIT 99.6
TRIPARTY CONTINGENT ASSIGNMENT AGREEMENT dated as of January 24, 2002 (the
"Agreement"), among Capital Auto Receivables Asset Trust 2002-1 (the "Trust"),
General Motors Acceptance Corporation ("GMAC") and Bank of America, N.A. (the
"Primary Swap Counterparty").
WHEREAS, the Trust and the Primary Swap Counterparty have entered into the
Primary Swap Agreement (hereinafter defined);
WHEREAS, GMAC and the Primary Swap Counterparty have entered into the
Back-to-Back Swap Agreement (hereinafter defined);
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.
"Back-to-Back Swap Agreement" means the ISDA Interest Rate and Currency
Exchange Agreement (including the Schedule thereto), dated as of March 8, 1994,
between the Primary Swap Counterparty and GMAC, and the Back-to-Back Swap
Confirmation.
"Back-to-Back Confirmations" means (i) the Confirmation of Back-to-Back
Swap Transaction relating to the Class A-2 Notes and (ii) the Confirmation of
Back-to-Back Swap Transaction relating to the Class A-3 Notes, each of which is
between GMAC and the Primary Swap Counterparty and which have been entered into
pursuant to the ISDA Interest Rate and Currency Exchange Agreement (including
the Schedule thereto), dated as of March 8, 1994, between GMAC and the Primary
Swap Counterparty.
"Back-to-Back Swap Transaction" means the transaction described in each of
the Back-to- Back Confirmations.
"Delinquent Payments" means any payments owed to the Trust as a result of
liabilities, obligations and duties of the Primary Swap Counterparty pursuant to
the Primary Swap Agreement accruing prior to the Assignment Date that have not
been made by the Primary Swap Counterparty.
A "Designated Event" shall occur (a) if one or more Events of Default
occurs under the Primary Swap Agreement with the Primary Swap Counterparty as
the Defaulting Party and the Trust notifies the Primary Swap Counterparty 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 the
Primary Swap Counterparty 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 the
Primary Swap Counterparty, no appropriate arrangements pursuant to the Primary
Confirmation's credit downgrade provisions are made within thirty (30) days
unless, within thirty (30) days after such reduction, the applicable Rating
Agency has reconfirmed the rating of the Reference Notes that was in effect
immediately prior to such reduction) 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 the Primary Swap Counterparty or (c) if the Trust
receives a notice from the Primary Swap Counterparty pursuant to the provisions
of Section 2.03 herein.
"Fallback Swap Agreement" means the ISDA Master Agreement (including the
Schedule), dated as of the date hereof, between GMAC and the Trust, and the
Fallback Confirmations.
"Fallback Confirmations" means (i) the Confirmation of Fallback Swap
Transaction relating to the Class A- 2 Notes and (ii) the Confirmation of
Fallback Swap Transaction relating to the Class A-3, 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 the date hereof, between
GMAC and the Trust.
"Fallback Swap Transaction" means the transaction described in each of the
Fallback Confirmations.
"GMAC" means General Motors Acceptance Corporation.
"Joint Probability" has the meaning given in each Primary 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 thereto), dated as of the date hereof, between the Primary Swap
Counterparty and the Trust, and the Primary Confirmations.
"Primary Confirmations" means (i) the Confirmation of Primary Swap
Transaction relating to the Class A-2 Notes and (ii) the Confirmation of Primary
Swap Transaction relating to the Class
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A-3 Notes, each of which is between the Primary Swap Counterparty and the Trust
and which have been entered into pursuant to the ISDA Master Agreement
(including the Schedule thereto), dated as of the date hereof between the
Primary Swap Counterparty and the Trust.
"Primary Swap Transaction" means the transaction described in each of the
Primary 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.
"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 Back-to-Back 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 the date hereof 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
the Primary Swap Counterparty 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). If , on or after the Assignment Date,
GMAC has made payments to the Primary Swap Counterparty under the
Back-to-Back Swap Agreement, the Primary Swap Counterparty
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agrees to reimburse GMAC in an amount equal to the full amount of any such
payments up to the amount of the Delinquent Payments. In the event that the
Primary Swap Counterparty has made payments to the Trust as a result of
liabilities, obligations and duties of the Primary Swap Counterparty
accruing prior to the Assignment Date in circumstances where GMAC has not
made all or any part of such payments to the Primary Swap Counterparty
under the Back-to-Back Swap Agreement, GMAC agrees to reimburse the Primary
Swap Counterparty 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, the
Primary Swap Counterparty 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 Back-to-Back 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 the Primary Swap Counterparty or by the Primary Swap
Counterparty 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
Back-to-Back 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 the Primary Swap Counterparty 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. The Primary Swap Counterparty 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
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Event of Default or otherwise lead to the designation of an Early Termination
Date under the Operative Swap Agreement.
SECTION 2.03 Notice. The Primary Swap Counterparty 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 the Primary Swap Counterparty to undertake any affirmative action or
inquiry to ascertain whether it will be able to make any such payment or
delivery. Any failure by the Primary Swap Counterparty to provide notice to the
Trust of such inability shall be without prejudice to the Primary Swap
Counterparty'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 Back-to-Back 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 Back-to- Back 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 Back-to- Back Swap Agreement, the provisions
hereof shall prevail.
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(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 in its individual capacity but solely as Owner Trustee of
Capital Auto Receivables Asset Trust 2002-1 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) 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
2002-1
By Bankers Trust (Delaware) not in its
individual capacity, but solely as trustee
By -------------------------------------------
Name:
Title:
GENERAL MOTORS ACCEPTANCE
CORPORATION
By -------------------------------------------
Name:
Title:
BANK OF AMERICA, N.A.
By -------------------------------------------
Name:
Title:
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