Exhibit 99.4
SCHEDULE
TO THE
MASTER AGREEMENT
(this "AGREEMENT")
dated as of November 13, 2002
between
CAPITAL AUTO RECEIVABLES ASSET TRUST 2002-5
(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.
(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 "Event of Default" with respect to
Sections 5.1(a), (b), (c), (d) or (e) of the Indenture, 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 the date hereof (the
"Triparty Agreement"), GMAC shall accede to rights and obligations
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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 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
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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). It is agreed and understood that the
parties shall use commercially reasonable efforts to obtain
five quotations.
(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),
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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 statutory 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 law
of the United States of America.
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 Promptly upon the earlier of
reasonably requested to (i) reasonable demand by the
allow the other party to other party and this (ii) learning
make payments under this that the for or document is required.
Agreement without any
deduction 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:
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PARTY REQUIRED TO DELIVER DATE BY WHICH TO BE COVERED BY SECTION 3(d)
DOCUMENT FORM/DOCUMENT/CERTIFICATE DELIVERED REPRESENTATION
Counterparty and Trust Certificate or other At or promptly following Yes
documents 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
behalf of such party. date 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.
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
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.
(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.
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(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.
The Trust: Not applicable.
(h) GOVERNING LAW; JURISDICTION. 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.
(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.
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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. 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 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.
(h) Evaluation and Understanding. It is capable of
evaluating and understanding (on its own behalf or
through independent professional advice), and
understands and accepts, the terms, conditions and
risks of that Transaction.
(i) Status of Parties. The other party is not acting
as a fiduciary or an advisor for it in respect of
that Transaction.
(j) No Agency. It is entering into this Agreement and
each Transaction as principal and not as agent.
(g) Amendments. Section 9(b) of this Agreement is hereby amended
by adding the following:
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; 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 Moody's and S&P, 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 November 13, 2002, among GMAC, as Servicer,
Capital Auto Receivables, Inc., as Seller, and Capital Auto Receivables Asset
Trust 2002-5 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.
(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
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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 2002-5
By: DEUTSCHE BANK TRUST COMPANY
DELAWARE, not in its individual
capacity but solely as Owner
Trustee on behalf of the Trust,
By:
--------------------------------
Man Wing Li
Attorney-In-Fact
CITIBANK, N.A.
By:
-----------------------------------
Name:
Title:
Schedule to Primary ISDA Master Agreement - Signature Page