Exhibit 99.8
TRIPARTY CONTINGENT ASSIGNMENT AGREEMENT dated as of January 15, 2003
(the "Agreement"), among Capital Auto Receivables Asset Trust 2003-1, a Delaware
statutory trust (the "Trust"), General Motors Acceptance Corporation , a
Delaware corporation ("GMAC"), and Xxxxxx Xxxxxxx Capital Services Inc., a
Delaware corporation (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 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,
except that any reference to the term "Termination" or "Early Termination Date"
therein is deemed to be "Assignment" or "Assignment Date," respectively.
"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 Confirmations" means the (i) Confirmation of Back-to-Back
Swap Transaction relating to the Class A-1b Notes, (ii) Confirmation of
Back-to-Back Swap Transaction relating to the Class A-2b Notes, (iii)
Confirmation of Back-to-Back Swap Transaction relating to the Class A-3b Notes
and (iv) Confirmation of Back-to-Back Swap Transaction relating to Class A-4b
Notes, in each case, dated as of January 15, 2003, between GMAC and the Primary
Swap Counterparty, which have been entered into pursuant to the ISDA Master
Agreement (including the Schedule thereto), dated as of January 15, 1998,
between GMAC and the Primary Swap Counterparty.
"Back-to-Back Swap Agreement" means the ISDA Master Agreement
(including the Schedule thereto), dated as of January 15, 1998, between the
Primary Swap Counterparty and GMAC, and the Back-to-Back Swap Confirmations.
"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 Confirmation" means the (i) Confirmation of Fallback Swap
Transaction relating to the Class A-1b Notes, (ii) Confirmation of Fallback Swap
Transaction relating to the Class A-2b Notes, (iii) Confirmation of Fallback
Swap Transaction relating to the Class A-3b Notes and (iv) Confirmation of
Fallback Swap Transaction relating to Class A-4b 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 of January 15, 2003 between
GMAC and the Trust.
"Fallback Swap Agreement" means the ISDA Master Agreement (including
the Schedule thereto), dated as of January 15, 2003 between GMAC and the Trust,
and the Fallback Confirmations.
"Fallback Swap Transactions" means the transactions described in the
Fallback Confirmations.
"Joint Probability" has the meaning given in the Primary Confirmations.
"Moody's" means Xxxxx'x 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.
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"Primary Confirmations" means the (i) Confirmation of Primary Swap
Transaction relating to the Class A-1b Notes, (ii) Confirmation of Primary Swap
Transaction relating to the Class A-2b Notes, (iii) Confirmation of Primary Swap
Transaction relating to the Class A-3b Notes and (iv) Confirmation of Primary
Swap Transaction relating to Class A-4b Notes, in each case, between the Primary
Swap Counterparty and the Trust, which have been entered into pursuant to the
ISDA Master Agreement (including the Schedule thereto), dated as of January 15,
2003 between the Primary Swap Counterparty and the Trust.
"Primary Swap Agreement" means the ISDA Master Agreement (including the
Schedule thereto), dated as of January 15, 2003, between the Primary Swap
Counterparty and the Trust, and the Primary Confirmations.
"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.
"Settlement Amount" has the same meaning as such term defined in the
Primary Swap Agreement, except that any reference to the term "Termination" or
"Terminated" therein is deemed to be "Assignment" or "Assigned," respectively.
"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
XxXxxx-Xxxx Companies and any successor.
"Unpaid Amounts" has the same meaning as such term defined in the
Primary Swap Agreement, except that any reference to the term "Early Termination
Date," "Termination," or "Terminated" therein is deemed to be "Assignment Date,"
"Assignment," or "Assigned," respectively.
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
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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).
(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 all of the Primary Swap Transactions and the
Assignment Currency Equivalent of the Unpaid Amounts owing to Trust by the
Primary Swap Counterparty (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. If that amount
is a positive number, the Primary Swap Counterparty will pay it to GMAC; if
it is a negative number, GMAC will 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) Except as expressly provided in paragraphs (a) and (b) above, 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).
(d) Subject to paragraphs (a) and (b) above, 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. 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. If, prior to the Assignment Date, GMAC has not made
all or any part of payments required under the Back-to-Back Swap Agreement,
GMAC agrees to pay, without duplication of any termination payment that may
become due to `the Primary
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Swap Counterparty as of the Assignment Date, `the Primary Swap Counterparty
in an amount equal to the full amount of any such payments.
(e) 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.
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 reasonable out-of-pocket 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 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.
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(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 BUT WITHOUT PREJUDICE TO THE PROVISIONS OF SECTION
5-1401 OF ITS GENERAL OBLIGATIONS LAW.
(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.
(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 2003-1 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
2003-1
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:
XXXXXX XXXXXXX CAPITAL SERVICES INC.
By: _______________________________
Name:
Title:
