Exhibit 99.8
TRIPARTY CONTINGENT ASSIGNMENT AGREEMENT dated as of November 13, 2002
(the "Agreement"), among Capital Auto Receivables Asset Trust 2002-5 (the
"Trust"), General Motors Acceptance Corporation ("GMAC"), Citibank, N.A.
("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 1,
1988 between the Primary Swap Counterparty and GMAC, and the Back-to-Back
Confirmations.
"Back-to-Back Confirmations" means the (i) Confirmation of Back-to-Back
Swap Transaction relating to the Class A-1 Note, (ii) Confirmation of
Back-to-Back Swap relating to the Class A-2a Notes and (iii) Confirmation of
Back-to-Back Swap relating to the Class A-3a Notes, in each case, between GMAC
and the Primary Swap Counterparty, which have been entered into pursuant to the
ISDA Interest Rate and Currency Exchange Agreement (including the Schedule
thereto), dated as of November 1, 1988 between GMAC and the Primary Swap
Counterparty.
"Back-to-Back Swap Transactions" means the transactions described in
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)(v) 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 November 13, 2002, between GMAC and the
Trust, and the Fallback Confirmations.
"Fallback Confirmations" means the (i) Confirmation of Fallback Swap
Transaction relating to the Class A-1 Note, (ii) Confirmation of Fallback Swap
Transaction relating to the Class A-2a Notes and (iii) Confirmation of Fallback
Swap Transaction relating to the Class A-3a Notes, in each case, between GMAC
and the Trust, which have been entered into pursuant to the ISDA Master
Agreement (including the Schedule thereto), dated as November 13, 2002, between
GMAC and the Trust.
"Fallback Swap Transactions" means the transactions described in the
Fallback Confirmations.
"Joint Probability" has the meaning given in the Primary Confirmations.
"Moody's" means Moody's Investors Service.
"Operative Swap Agreements" 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 November 13, 2002, between the Primary Swap
Counterparty and the Trust, and the Primary Confirmations.
"Primary Confirmations" means the (i) Confirmation of Primary Swap
Transaction relating to the Class A-1 Note, (ii) Confirmation of Primary Swap
Transaction relating to the Class A-2a Notes and (iii) Confirmation of Primary
Swap Transaction relating to the Class A-3a Notes, in each case, between the
Primary Swap Counterparty and the Trust, which have been
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entered into pursuant to the ISDA Master Agreement (including the Schedule
thereto), dated as of November 13, 2002, between the Primary Swap Counterparty
and the Trust.
"Primary Swap Transactions" means the transactions described in 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 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
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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).
(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 Transactions 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 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. 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
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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 SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS BUT WITHOUT PREJUDICE TO
THE PROVISIONS OF SECTION 5-1401 OF ITS GENERAL OBLIGATIONS LAW, AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
(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 Deutsche Bank Trust Company Delaware, not in its
individual capacity but solely as Owner Trustee of Capital Auto
Receivables Asset Trust 2002-5 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 2002-5
By: DEUTSCHE BANK TRUST COMPANY
DELAWARE, not in its individual
capacity but solely as Owner Trustee
By: ____________________________________
Name: Man Wing Li
Title: Attorney-In-Fact
GENERAL MOTORS ACCEPTANCE CORPORATION
By: ____________________________________
Name: Karen A. Sabatowski
Title: Director - Securitization and Cash
Management
CITIBANK, N.A.
By: ____________________________________
Name: ____________________________________
Title: ____________________________________
Triparty Contingent Assignment Agreement