EXHIBIT 99.8
TRIPARTY CONTINGENT ASSIGNMENT AGREEMENT dated as of June 11, 2003 (the
"Agreement"), among Capital Auto Receivables Asset Trust 2003-2 (the "Trust"),
General Motors Acceptance Corporation ("GMAC"), and Deutsche Bank AG, New York
Branch ("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 Currency" means United States Dollars.
"Assignment Currency Equivalent" has the same meaning as the term
"Termination Currency Equivalent" as defined in the Primary Swap Agreement.
"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 August 1, 1995,
between the Primary Swap Counterparty and GMAC, and each Back-to-Back
Confirmation.
"Back-to-Back Confirmation" means each Confirmation evidencing the
terms of an interest rate swap relating to the Class A-1 Notes, Class A-2b
Notes, Class A-3b Notes, Class A-4b Notes and the Non-Retained Certificates,
between GMAC and the Primary Swap Counterparty, in effect on the Closing Date,
which has been or will be entered into pursuant to the ISDA Interest Rate and
Currency Exchange Agreement (including the Schedule thereto), dated as of August
1, 1995, between GMAC and the Primary Swap Counterparty.
"Back-to-Back Swap Transaction" means each transaction described in a
Back-to-Back Confirmation.
"Closing Date" means June 11, 2003.
"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
Section 6(b)(ii) of the Primary Swap Agreement with respect to such event and an
assignment pursuant to Section 2.01 would not result in the occurrence of an
independent Termination Event under the resulting Fallback Swap Agreement, (c)
upon the occurrence of a "Credit Downgrade" as described in any Primary
Confirmation, if no appropriate arrangements pursuant to such 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 Notes
that was in effect immediately prior to such reduction with respect to such
"Credit Downgrade" 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 (d) 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 thereto), dated as the date hereof, between GMAC and the Trust, and
each Fallback Confirmation.
"Fallback Confirmation" means each Confirmation between GMAC and the
Trust, documented under the Fallback Swap Agreement relating to the Class A-1
Notes, Class A-2b Notes, Class A-3b Notes, Class A-4b Notes and the Non-Retained
Certificates, evidencing the terms of an interest rate swap, assigned to GMAC by
the Primary Swap Counterparty in accordance with section 2.01 hereof following
the occurrence of a Designated Event.
"Fallback Swap Transaction" means each transaction resulting from the
assignment of a transaction under the Primary Swap Agreement upon the occurrence
of a Designated Event, the terms of which are set forth in a Fallback
Confirmation.
"Joint Probability" has the meaning given in the Primary Confirmation.
"Moody's" means Xxxxx'x Investors Service and any successor.
"Non-Retained Certificates" mean those Floating Rate Asset Backed
Certificates, issued by Capital Auto Receivables Asset Trust 2003-2 and the
beneficial ownership of which is held by any person other than the Seller,
General Motors Corporation, or any other subsidiary of General Motors
Corporation.
"Person" means any legal person, including any individual, corporation,
partnership, joint venture, association, limited liability company, joint stock
company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
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"Primary Swap Agreement" means the ISDA Master Agreement (including the
Schedule thereto), dated as the date hereof, between the Primary Swap
Counterparty and the Trust, and each Primary Confirmation.
"Primary Confirmation" means each Confirmation evidencing the terms of
an interest rate swap relating to the Class A-1 Notes, Class A-2b Notes, Class
A-3b Notes, Class A-4b Notes and the Non-Retained Certificates, between the
Primary Swap Counterparty and the Trust, in effect on the Closing Date, which
has been or will be 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 each transaction described in a
Primary Confirmation.
"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 and, Aa3 in the case of Moody's,
in each case so long as the Notes are rated by such Person.
"Seller" means the Person executing the Trust Sale and Servicing
Agreement as the Seller, or its successor in interest pursuant to Section 3.03
of the Trust Sale and Servicing Agreement.
"Settlement Amount" shall mean the amount determined as such under the
Primary Swap Agreement, except that any reference to the term "Termination" or
"Terminated" therein is deemed to be "Assignment and "Assigned" respectively and
reference to "Early Termination Date" shall be a reference to the "Assignment
Date".
"Servicer" means GMAC or its successor as servicer pursuant to the
Trust Sale and Servicing Agreement.
"S&P" means Standard and Poor's Ratings Service and any successor.
"Trust Sale and Servicing Agreement" means Trust Sale and Servicing
Agreement: The Trust Sale and Servicing Agreement, dated as of June 11, 2003,
between the Seller, the Servicer and the Trust, as amended and supplemented from
time to time.
"Unpaid Amounts" shall mean the amount determined as such under the
Primary Swap Agreement.
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.
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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) Each Primary Swap Transaction shall be assigned by the
Primary Swap Counterparty to GMAC and GMAC shall accede to all of the
rights and obligations of the Primary Swap Counterparty under each such
Primary Swap Transaction; provided, however, that upon such assignment,
each such transaction shall be evidenced by a Fallback Confirmation and
shall be governed by the terms of the Fallback Swap Agreement
(including rights, title and interests and liabilities, obligations and
duties accruing prior to the Assignment Date) and, except as expressly
provided in this paragraph (a) and paragraph (b) below, on and at all
times following the Assignment Date, the Primary Swap Agreement and
each Primary Swap Transaction thereunder shall terminate and neither
the Trust nor the Primary Swap Counterparty shall have any rights,
liabilities, obligations or duties thereunder, including, without
limitation payment obligations of any kind. 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).
(b) In connection with the assignment of the Primary Swap
Agreement to GMAC pursuant to Section 2.01(a) above, a payment (the
"Assignment Payment") shall be due, either to the Primary Swap
Counterparty by GMAC or to GMAC by the Primary Swap Counterparty, which
payment shall equal (A) the sum of the Settlement Amount (as determined
by GMAC (on behalf of the Trust)) in respect of the Primary Swap
Agreement and the Assignment Currency Equivalent of the Unpaid Amounts
owing to the Trust by the Primary Swap Counterparty under the Primary
Swap Agreement (without giving effect to any Delinquent Payments made
by GMAC) less (B) the Assignment Currency Equivalent of the Unpaid
Amounts owing by the Trust to the Primary Swap Counterparty under the
Primary Swap Agreement. If that amount is a positive number, the
Primary Swap Counterparty shall pay it to GMAC; if it is a negative
number, GMAC shall pay the absolute value of that amount to the Primary
Swap Counterparty. The amount of the Assignment Payment determined as
being due as a result of the assignment shall be payable within five
Business Days following the Assignment Date.
(c) The Back-to-Back Swap Transaction shall be terminated on
and as of the Assignment Date . For the purposes thereof, the
Assignment Date shall be deemed to be an Early Termination Date for the
Back-to-Back Swap Transaction and the Primary Swap Counterparty shall
be deemed to be the Affected Party and the payment in respect of the
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termination of the Back-to-Back Swap shall be determined in accordance
with the provisions of Section 6(e)(ii)(1) (the "Back-to-Back Early
Termination Payment"). If, either GMAC or the Primary Swap Counterparty
(such party in such capacity, the "Post Assignment Payor") has made
payments to the other party (such party in such capacity, the "Post
Assignment Payee") under the Back-to-Back Swap Agreement in respect of
amounts accruing on or after the Assignment Date, other than the
Back-to-Back Early Termination Payment, the Post Assignment Payee
agrees to reimburse the Post Assignment Payor in an amount equal to the
full amount of any such payments. If, prior to the Assignment Date,
GMAC or the Primary Swap Counterparty (such party in such capacity, the
"Pre Assignment Payor") has not made all or any part of the payments
required to be made by it to the other party (such party in such
capacity, the "Pre Assignment Payee") under the Back-to-Back Swap
Agreement, the Pre Assignment Payor agrees to pay, without duplication
of any termination payment (including any Unpaid Amount as defined in
the Back-to-Back Swap Agreement) that may become due to the Pre
Assignment Payee as of the Assignment Date, an amount equal to the full
amount of any such payments.
(d) 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 for purposes of establishing the rights and obligations of the
parties under the Fallback Swap Agreement, and (y) no Early Termination
Date (as defined in the Primary Swap Agreement) may be designated as a
result of such 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 swap transaction(s) substantially similar to the
Primary Swap Transaction(s) (the "Replacement Primary Swaps") and a contingent
assignment agreement under which such Person would accede to the rights and
obligations of GMAC under the Fallback Swap Agreement, in which case GMAC will
become the Additional Contingent Counterparty. The Primary Swap Counterparty
shall reimburse GMAC for any reasonable costs associated with finding a party to
serve as the counterparty under the Replacement Primary Swaps or as the
Additional Contingent Counterparty, as the case may be. Any delay or inability
in finding a party to serve as the counterparty under the Replacement Primary
Swaps or 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 Fallback 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
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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.
(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 2003-2 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 2003-2
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:
DEUTSCHE BANK AG, NEW YORK BRANCH
By: _____________________________________
Name: _____________________________________
Title: _____________________________________
By: _____________________________________
Name: _____________________________________
Title: _____________________________________
