EXHIBIT 99.6
TRIPARTY CONTINGENT ASSIGNMENT AGREEMENT dated as of April 25, 2002 (the
"Agreement"), among Capital Auto Receivables Asset Trust 2002-2 (the "Trust"),
General Motors Acceptance Corporation ("GMAC") and Merrill Lynch Capital
Services, Inc. (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 November 15,
1996, between the Primary Swap Counterparty and GMAC, and the Back-to-Back Swap
Confirmation.
"Back-to-Back Confirmation" means the Confirmation of Back-to-Back Swap
Transaction relating to the Class A-1 Notes between GMAC and the Primary Swap
Counterparty, which has been entered into pursuant to the ISDA Interest Rate and
Currency Exchange Agreement (including the Schedule thereto), dated as of
November 15, 1996, between GMAC and the Primary Swap Counterparty.
"Back-to-Back Swap Transaction" means the transaction described in the
Back-to-Back Confirmation.
"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.
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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 of
receipt of notice of such reduction 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 Primary Swap Counterparty pursuant to
the provisions of Section 2.03 herein.
"Fallback Swap Agreement" means the ISDA Master Agreement (including the
Schedule thereto), dated as of April 15, 2002, between GMAC and the Trust, and
the Fallback Confirmation.
"Fallback Confirmation" means the Confirmation of Fallback Swap Transaction
relating to the Class A-1 Notes between GMAC and the Trust, which has been
entered into pursuant to the ISDA Master Agreement (including the Schedule
thereto), dated as April 15, 2002, between GMAC and the Trust.
"Fallback Swap Transaction" means the transaction described in the Fallback
Confirmation.
"Joint Probability" has the meaning given in the 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 Transaction" means (i) prior to the Assignment Date, the
Primary Swap Transaction and (ii) on and after the Assignment Date, the Fallback
Swap Transaction.
"Primary Swap Agreement" means the ISDA Master Agreement (including the
Schedule thereto), dated as of April 15, 2002, between the Primary Swap
Counterparty and the Trust, and the Primary Confirmation.
"Primary Confirmation" means the Confirmation of Primary Swap Transaction
relating to the Class A-1 Notes between the Primary Swap Counterparty and the
Trust, which has been entered into pursuant to the ISDA Master Agreement
(including the Schedule thereto), dated as of April 15, 2002, between the
Primary Swap Counterparty and the Trust.
"Primary Swap Transaction" means the transaction described in the Primary
Confirmation.
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"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 the Primary Swap Transaction 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 the 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 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 Transaction shall be governed by the terms of the Fallback
Swap Agreement, and the Primary Swap Agreement shall no longer govern the
Primary Swap Transaction (except with respect to rights, liabilities,
obligations and duties accrued prior to the Assignment Date).
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(b) The Back-to-Back Swap Transaction 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
the 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
Transaction 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 all reasonable out-of-pocket expenses and fees incurred by
GMAC in association with finding a party to serve as the Additional Contingent
Counterparty. For the avoidance of doubt, such out-of-pocket expenses and fees
will not include payments on early termination resulting from the early
termination of the Primary Swap Agreement. 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. 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.
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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.
(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
Deutsche Bank Trust Company Delaware, not in its individual capacity but
solely as Owner Trustee of Capital Auto Receivables Asset Trust 2002-2 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 Deutsche Bank Trust Company 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 Deutsche
Bank Trust Company 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 Deutsche Bank Trust Company 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 2002-2
By: DEUTSCHE BANK TRUST COMPANY DELAWARE, not in its
individual capacity but solely as Owner Trustee
By: _________________________________________________
Name: _________________________________________________
Title: _________________________________________________
GENERAL MOTORS ACCEPTANCE CORPORATION
By: _________________________________________________
Name: _________________________________________________
Title: _________________________________________________
MERRILL LYNCH CAPITAL SERVICES, INC.
By: _________________________________________________
Name: _________________________________________________
Title: _________________________________________________