Exhibit 99.4
SCHEDULE
TO THE
MASTER AGREEMENT
(this "Agreement")
dated as of August 8, 2002
between
CAPITAL AUTO RECEIVABLES ASSET TRUST 2002-3
(the "Trust")
and
DEUTSCHE BANK AG NEW YORK BRANCH
(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.
(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)
Section 5(a)(vii), (Bankruptcy)
(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), (d), (e) or (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. The "Credit Event Upon Merger" provisions of
Section 5(b)(iv) will not apply to the Counterparty or the Trust.
(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 August 8, 2002 (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
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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 by Moody's Investors Service ("Moody's") or Standard &
Poor's Rating Services ("S&P") would be reduced or adversely
affected or (y) the position of the Trust would otherwise
materially be prejudiced under this Agreement or any Confirmation
(it being
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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
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
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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) of this Agreement, the Trust and the Counterparty each 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:
Party required to deliver
document Form/Document/Certificate Date by which to be delivered
- ------------------------- ------------------------------------ -------------------------------------
Counterparty and Trust Any document required or reasonably Promptly upon the earlier of (i)
requested to allow the other party reasonable demand by the other party
to make payments under this and (ii) learning that the form or
Agreement without any deduction or document is required.
withholding for or on account of any
Tax or with such deduction or
withholding at a reduced rate.
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(b) Other documents to be delivered are:
Party required to Date by which to be Covered by Section 3(d)
deliver document Form/Document/Certificate delivered Representation
- ----------------- ------------------------- ------------------- -----------------------
Counterparty and Trust Certificate or other documents At or promptly following Yes
evidencing the authority of the execution of this
the party to enter into this Agreement, and, if a
Agreement and the persons acting Confirmation so requires
on behalf of such party. it, on or before the date
set forth therein.
Counterparty and Trust A legal opinion, in the form At or promptly following No
reasonably acceptable to the the execution of this
other party. Agreement.
Trust The Trust Sale and Servicing At or promptly following Yes
Agreement and all other the execution of this
documents to be executed by Agreement.
the Trust as contemplated thereby.
Part 4. Miscellaneous
(a) Addresses for Notices. For purpose of Section 12(a):
(i) Address for notices or communications to the Trust:
Address: Deutsche Bank Trust Company Americas
60 Wall Street
New York, New York 10005
Attention: Corporate Trust & Agency Services -
Structured Finance Services
Facsimile No.: (212) 250-2500
Telephone No.: (212) 250-6431
with a copy to:
Address: Deutsche Bank Trust Company Americas
c/o DB Services New Jersey Inc.
100 Plaza One, MSJ CY03-0606
Jersey City, NJ 07331
Attention: Corporate Trust & Agency Services -
Structured Finance Services
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with a copy to:
Address: GMAC
200 Renaissance Center
12/th/ 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:
Address: Deutsche Bank AG New York Branch
31 West 52/nd/ Street
New York, New York 10019
Attention: Raj Bhattacharyya
Facsimile No.: (212) 469-7875
Telephone No.: (212) 469-8468
with a copy to:
Address: Deutsche Bank AG New York Branch
31 West 52/nd/ Street
New York, New York 10019
Attention: Steven Kessler, Legal Division
Facsimile No.: (212) 469-2929
Telephone No.: (212) 469-8202
(iii) Address for notices to the Counterparty under Section 5 or 6
of this Agreement:
Address: Deutsche Bank AG London Branch
Global Head of OTC Trading
Winchester House
1 Great Winchester Street
London EC2N 2DB
United Kingdom
Attention: Michele Faissola
Facsimile No.: 44 (207) 547-3025
Telephone No.: 44 (207) 541-2409
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with a copy to:
Address: Deutsche Bank AG New York Branch
31 West 52/nd/ Street
New York, New York 10019
Attention: Philip Weingord
Facsimile No.: (212) 469-5445
Telephone No.: (212) 469-3138
(b) Notices. 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.
(f) Credit Support Provider. Details of any Credit Support Provider:
The Counterparty: Not applicable.
The Trust: Not applicable.
(g) Credit Support Document. Details of any Credit Support Document
The Counterparty: Not applicable.
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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 BUT WITHOUT PREJUDICE TO
THE PROVISIONS OF SECTION 5-1401 OF ITS GENERAL OBLIGATIONS LAW.
(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)(ii) 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 2000
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.
(c) Litigation Representation. Each instance of the words "or any of its
Affiliates" shall be deleted from Section 3(c).
(d) Gross-Up; Liability. The Counterparty agrees that the Trust will not in
any circumstance be required to pay additional amounts in respect of any
Indemnifiable Tax pursuant to Section 2(d)(i)(4) of this Agreement.
(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
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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) Eligible Contract Participant. It is an "eligible contract
participant" as that term is defined in Section 1a(12) of the
Commodity Exchange Act, as amended by the Commodity Futures
Modernization Act of 2000, and it has entered into this Agreement and
it is entering into the Transaction in connection with its line of
business (including financial intermediation services) or the
financing of its business; and the material terms of this Agreement
and the Transaction have been individually tailored and negotiated.
(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 S&P and Moody's, 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 .
(h) Confirmations. Each Confirmation supplements, forms part of, and will
be read and construed as one with this Agreement.
(i) 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 August 8, 2002, among GMAC, as Servicer, Capital Auto
Receivables, Inc., as Seller, and Capital Auto Receivables Asset Trust 2002-3 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.
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(j) 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.
(k) Liability to Trustee. 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 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
Deutsche Bank Trust Company Delaware but is made and intended for the purpose of
binding only the Trust and (c) 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 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.
(l) 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.
* * * *
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IN WITNESS WHEREOF, the parties have executed this Schedule by their
duly authorized officers as of the date hereof.
CAPITAL AUTO RECEIVABLES ASSET TRUST 2002-3
By: DEUTSCHE BANK TRUST COMPANY DELAWARE, not in its
individual capacity but solely as Owner Trustee
By: /s/ Man Wing Li
---------------------
Name: Man Wing Li
Title: Attorney-In-Fact
DEUTSCHE BANK AG NEW YORK BRANCH
By:______________________
Name:____________________
Title:___________________
By:______________________
Name:____________________
Title:___________________