EXHIBIT 99.4
SCHEDULE
TO THE
MASTER AGREEMENT
(this "Agreement")
dated as of October 10, 2002
between
CAPITAL AUTO RECEIVABLES ASSET TRUST 2002-4
(the "Trust")
and
XXXXXX BROTHERS DERIVATIVE PRODUCTS INC.
(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.
(i) The "CREDIT EVENT UPON MERGER" provisions of Section
5(b)(iv) will not apply to the Counterparty or the Trust.
(ii) Pursuant to Section 5(b)(v), each party agrees that each
of the following events shall constitute an Additional Termination
Event (in which case all Transactions shall be Affected Transactions
and the Counterparty shall be the Affected Party):
(1) Downgrade. The Counterparty ceases to maintain a
Single A Quality financial program, counterparty or
similar rating from both of the Relevant Rating
Agencies;
(2) Failure To Deliver Collateral. The occurrence of an
Event of Default under the ISDA Master Agreement
dated July 16, 1998 between the Counterparty and LBSF
(the "Offsetting Transaction Master Agreement") as a
result of LBSF's failure to deliver, or procure
delivery of, collateral to the Counterparty in the
amounts
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and within the time required (subject to any
applicable cure period) thereunder and under the
terms of any applicable Credit Support Document, as
such may be amended from time to time without the
consent of, or notice to, the Trust, provided such
amendments are consistent with the requirements of
the Counterparty's financial program as represented
to the Relevant Rating Agencies and do not adversely
affect the ability of the Counterparty to perform its
obligations hereunder;
(3) Bankruptcy. Holdings or LBSF: (A) is dissolved (other
than pursuant to a consolidation, amalgamation or
merger in which the surviving entity has assumed its
obligations under the Offsetting Transaction Master
Agreement or any applicable Credit Support Document);
(B) becomes insolvent or is unable to pay its debts
or fails or admits in writing its inability generally
to pay its debts as they become due; (C) makes a
general assignment, arrangement or composition with
or for the benefit of its creditors; (D) institutes
or has instituted against it a proceeding seeking a
judgment of insolvency or bankruptcy or any other
relief under any bankruptcy or insolvency law or
other similar law affecting creditors' rights, or a
petition is presented for its winding-up or
liquidation, and, in the case of any such proceeding
or petition instituted or presented against it, such
proceeding or petition (x) results in a judgment of
insolvency or bankruptcy or the entry of an order for
relief or the making of an order for its winding-up
or liquidation or (y) is not dismissed, discharged,
stayed or restrained in each case within 30 days of
the institution or presentation thereof; (E) has a
resolution passed for its winding-up, official
management or liquidation (other than pursuant to a
consolidation, amalgamation or merger); (F) seeks or
becomes subject to the appointment of an
administrator, provisional liquidator, conservator,
receiver, trustee, custodian or other similar
official for it or for all or substantially all its
assets; (G) has a secured party take possession of
all or substantially all its assets or has a
distress, execution, attachment, sequestration or
other legal process levied, enforced or sued on or
against all or substantially all its assets and such
secured party maintains possession, or any such
process is not dismissed, discharged, stayed or
restrained, in each case within 30 days thereafter;
(H) causes or is subject to any event with respect to
it which, under the applicable laws of any
jurisdiction, has an analogous effect to any of the
events specified in clauses (A) through (G)
inclusive; or (I) takes any action in furtherance of,
or indicating its consent to, approval of, or
acquiescence in, any of the foregoing acts; and
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(4) Capital Requirement. The Counterparty shall fail to
maintain capital in the amount required by its
financial program as represented to the Relevant
Rating Agencies.
(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 Contingent Assignment Agreement among the Trust, the
Counterparty, LBSF and GMAC, dated as of October 10, 2002 (the
"CONTINGENT ASSIGNMENT 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 Contingent
Assignment Agreement). If such a Designated Event has occurred, then
upon (A) the effectiveness of the Fallback Swap Agreement (as defined
in the Contingent Assignment Agreement) and (B) the payment by GMAC in
a timely fashion of all Delinquent Payments (as defined in the
Contingent Assignment 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. Subject to Section 2.01(a) and Section 2.01(b) of the Contingent
Assignment Agreement, as of the Assignment Date (as defined in the
Contingent Assignment 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) Effect of Market Disruption Event.
(1) In the event that a Market Disruption Event exists on
any Early Termination Date, such date shall not be an
Early Termination Date for any outstanding
Transaction. In such event, the Non-defaulting Party
or the party which is not the Affected Party (the
"NON-AFFECTED PARTY") shall notify the Defaulting
Party or the Affected Party and the earlier to occur
of (i) the next succeeding Local Business Day on
which a Market Disruption Event does not exist and
(ii) the eighth Local Business Day following the day
on which notice of the occurrence of a Event of
Default or a Termination Event was given shall be
considered the Early Termination Date for all
outstanding Transactions and a Settlement Amount
shall be obtained for that Early Termination Date in
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accordance with the terms set forth in Section 6(e)
of this Agreement. As used herein, "Market Disruption
Event" means any of the following events, the
existence of which shall be determined by the
Non-defaulting or the Non-affected Party in good
faith: (i) any suspension or material limitation of
trading (excluding daily settlement limits in the
normal course of trading) on the New York Stock
Exchange, London Stock Exchange or other recognized
stock exchange the effect of which on financial
markets makes it impracticable or inadvisable to
proceed with the determination of the Settlement
Amount, (ii) the declaration of a banking moratorium
by the Bank of England, United States federal
authorities, New York State or other recognized
international, national or regional banking authority
authorities to the effect of which on financial
markets makes it impracticable or inadvisable to
proceed with the determination of the Settlement
Amount, (iii) the occurrence of any outbreak or
escalation of hostilities or a declaration by the
United States of a national emergency or war the
effect of which on financial markets makes it
impracticable or inadvisable to proceed with the
determination of the Settlement Amount, or (iv) the
occurrence of any other calamity or crisis or any
other event the effect of which makes it
impracticable or inadvisable to proceed with the
determination of such Settlement Amounts on such
Early Termination Date.
(2) If on an Early Termination Date as to which there is
no Market Disruption Event, there are conditions in a
local market that, in the reasonable judgment of the
Non-defaulting Party or the Non-affected party, would
materially impede its ability to determine the Market
Quotation for certain Transactions in that market (a
"Local Market Disruption Event"), the Non-defaulting
Party or the Non-affected Party shall notify the
other party of those conditions no later than one
hour prior to the scheduled time for determining the
Market Quotation for such affected Transactions on
that date. Upon receipt of such notice, the other
party shall have the right to delay the Early
Termination Date for the affected Transactions
(without affecting the Early Termination Date for any
other Transactions under this Agreement) by notifying
the Non-defaulting Party or the Non-affected Party in
writing within one hour of its election to exercise
that right. In such event, the Early Termination Date
for each such affected Transaction shall be the next
day on which the Counterparty and the Trust agree
that the Local Market Disruption Event ceases to
exist, but in any case not later than the due date
for Settlement Amount payments with respect to
unaffected Transactions as provided in Section 6(e)
of this Agreement. Market Quotations so obtained for
any affected Transaction shall be included in the
calculation of the Settlement Amount to paid as
provided in Section 6(e) of this Agreement. No
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delay in the Early Termination Date for any affected
Transaction as provided above shall affect the days
on which payments would otherwise be required to be
made pursuant to Section 6(e) of this Agreement had
no such delay occurred, it being understood, however,
that interest shall begin to accrue pursuant to such
paragraph with respect to any such affected
Transaction only from (and including) the delayed
Early Termination Date.
(iv) 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."
(v) 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 Contingent Assignment
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 Xxxxx'x 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 understood that it shall be the
responsibility of the Trust to verify such matters prior to
the occurrence of such transfer or substitution)"
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(vi) 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)."
(vii) 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). For purposes of determining the Settlement
Amount pursuant of Section 6(e), the "Market Quotation" (which may be
positive or negative) for each Terminated Transactions shall be the
amount, determined by the Non-defaulting Party or the Non-affected
Party, as the case may be, on the basis of quotations from Reference
Market-makers, that is the mid-market value of a Transaction identical
to the Transaction evidenced by the relevant Primary Confirmation
except that the initial Notional Amount of such Transaction shall be
the aggregate principal amount of the Reference Notes then outstanding
and such Notional Amount shall be amortized at the same rate as the
amounts set forth in the column titled "Scheduled Principal Balance" in
Exhibit B to the related Back-to-Back Confirmation. If more than three
quotations are provided, the Market Quotation shall be the arithmetic
mean of the quotations, without regard to the quotations having the
highest and lowest values. If exactly three such quotations are
provided, the Market Quotation shall be the quotation remaining after
disregarding the highest and lowest quotations. For this purpose, if
more than one quotation has the same highest value or lowest value,
then one of such quotations shall be disregarded.
(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
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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 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:
8
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.
(b) Other documents to be delivered are:
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 date
behalf of such party. 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
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust & Agency Services -
Structured Finance Services
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
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with a copy to:
Address: Deutsche Bank Trust Company Americas
c/o DB Services New Jersey Inc.
000 Xxxxx Xxx, XXX XX00-0000
Xxxxxx Xxxx, XX 00000
Attention: Corporate Trust & Agency Services -
Structured Finance Services
with a copy to:
Address: GMAC
000 Xxxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Director -- Securitization and Cash
Management
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
(ii) Address for notices or communications to the
Counterparty:
Xxxxxx Brothers Derivative
Products Inc.
C/x Xxxxxx Brothers Inc.
Address: 000 Xxxxxxx Xxx, 00xx Xxxxx
Xxx Xxxx Xxxx, Xxx Xxxx 00000
Attention: Documentation Manager
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
(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.
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(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; provided, that from and
after the substitution of LBSF for the Counterparty hereunder
pursuant to Part 5(m) of this Schedule, the Credit Support
Provider in relation to the Counterparty shall be Holdings.
The Trust: Not applicable.
(g) Credit Support Document. Details of any Credit Support Document
The Counterparty: Not applicable; provided, that from and
after the substitution of LBSF for the Counterparty hereunder
pursuant to Part 5(m) of this Schedule, the Credit Support
Document applicable in the case of the Counterparty shall be a
guarantee of Holdings substantially in the form of Exhibit A
to this Schedule.
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
11
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 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.
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(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 Xxxxx'x,
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 October __, 2002, among GMAC, as Servicer, Capital Auto
Receivables, Inc., as Seller, and Capital Auto Receivables Asset Trust 2002-4 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.
(m) Credit Assignment Event.
(i) A "Credit Assignment Event" shall occur if at any time
during the term of this Agreement, the Trust ceases to maintain the
Minimum Rating Requirement (as defined below) from both Xxxxx'x and
S&P. Following the occurrence of a Credit Assignment Event,
notwithstanding anything to the contrary in Section 7, the rights and
obligations of the Counterparty under this Agreement and all
Transactions hereunder shall automatically, and without any further
action by any party, be deemed to have been assigned and delegated to
LBSF, effective on the third Business Day following notification by the
Counterparty to the Trust of such assignment and the Trust expressly
and irrevocably consents to such assignment and assumption. As of and
from the effective date of such assignment, LBSF shall succeed to all
rights and obligations of the Counterparty under this Agreement and all
Transactions hereunder.
(ii) "Minimum Rating Requirement" means (A) with respect to
Xxxxx'x, a long-term senior unsecured debt rating, counterparty rating,
or long-term deposit-paying rating of at least A2 or a financial
strength rating of at least A2 (or, in the event that Xxxxx'x does not
provide the long-term or other types of ratings referred to above with
respect to the Trust, a commercial paper or short-term rating of at
least P-2); and (B) with respect to S&P, a long-term senior unsecured
debt rating, counterparty rating, financial program rating or
certificate of deposit rating of at least A or a financial strength
rating of at least A (or, in the event that S&P does not provide the
long-term or other types of ratings referred to above with respect to
the Trust or the Trust's Credit Support Provider, a commercial paper
rating or short-term rating of A-2).
(iii) The Counterparty represents that it has provided
separate consideration to LBSF for the right to assign this Agreement
and the Transactions hereunder to LBSF pursuant to clause (i), and the
Trust shall not owe the Counterparty, nor shall the Counterparty owe
the Trust, any termination or other payment directly as a result of
such assignment.
(iv) Notwithstanding the foregoing, the assignment provisions
of this paragraph shall not take effect if, at the time such assignment
would be required, the Trust shall have satisfied in full all of its
payment obligations under Section 2(a) of this Agreement and shall at
such time have no future payment obligations, whether absolute or
contingent, under such Section.
(v) Upon an assignment pursuant to this Part 5(m)(i), Part
1(e)(ii) of this Schedule shall be given no further effect.
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(n) Commencement of Voluntary Bankruptcy. So long as the Counterparty
is solvent, the Counterparty shall not (i) admit in writing its inability
generally to pay its debts as they become due; (ii) make a general assignment,
arrangement or composition with or for the benefit of its creditors; (iii)
institute a proceeding seeking a judgment of insolvency or bankruptcy or any
other relief in respect of the Counterparty under any bankruptcy or insolvency
law or other similar law affecting creditors' rights; (iv) pass a resolution for
its winding-up, official management or liquidation (other than pursuant to a
consolidation, amalgamation or merger); or (v) seek the appointment of an
administrator, provisional liquidator, conservator, receiver, trustee, custodian
or other similar official for it or for all or substantially all its assets.
(o) No Capital Contribution to the Counterparty. The Counterparty,
Holdings and LBSF have each acknowledged to and agreed with each other, and have
informed the Trust, that none of Holdings, LBSF and other Affiliates of the
Counterparty will contribute capital to the Counterparty. The Trust represents
and warrants to the Counterparty that in executing and delivering this
Agreement, and performing its obligations hereunder, the Trust is relying on the
credit of the Counterparty alone, and not on the credit of any other entity that
may be affiliated with the Counterparty, except for those of LBSF and Holdings
in the event a Credit Assignment Event occurs and the Counterparty assigns its
rights and obligations under this Agreement and all transactions hereunder to
LBSF.
(p) Pledge of Swap Payment Rights and Other Property by the
Counterparty. The Counterparty has pledged its rights to receive payments under
this Agreement and under certain other swap agreements entered into or to be
entered into by the Counterparty ("Other Swap Agreements"), and has pledged or
will pledge certain other property for the benefit of the Trust and the
counterparties under such Other Swap Agreements, ratably to secure the
Counterparty's obligations to make certain payments to the Trust and such
counterparties under this Agreement and the Other Swap Agreements.
(q) Additional Definitions. As used in this Schedule, the following
terms shall have the following meanings:
(i) "Back-to-Back Confirmations" means the (i) Confirmation of
Back-to-Back Swap Transaction relating to the Class A-2a Notes and (ii)
Confirmation of Back-to-Back Swap relating to the Class A-3 Notes, in
each case, between GMAC and LBSF, which have been entered into pursuant
to the ISDA Master Agreement (including the Schedule thereto), dated as
of September 22, 1999, between GMAC and LBSF.
(ii) "Holdings" means Xxxxxx Brothers Holdings Inc.
(iii) "LBSF" means Xxxxxx Brothers Special Financing Inc.
(iv) "Primary Confirmations" means the (i) Confirmation of
Primary Swap Transaction relating to the Class A-2a Notes and (ii)
Confirmation of Primary Swap Transaction relating to the Class A-3
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 October 10,
2002, between the Counterparty and the Trust.
15
(v) "Reference Notes" has the same meaning assigned to such
term in the relevant Back-to-Back Confirmation.
(vi) "Relevant Rating Agencies" means, S&P and Xxxxx'x, or
such of them as then assigns a financial program, counterparty or
similar rating to the Counterparty at the Counterparty's request, or
any other nationally recognized rating agency then rating the
Counterparty at the Counterparty's request (each, individually, a
Relevant Rating Agency).
(vii) "Single A Quality" means, in the case of S&P, A, in the
case of Xxxxx'x, A, in the case of Fitch IBCA, Inc., A, and, in the
case of any other Relevant Rating Agency, a designation of similar
quality.
* * * *
16
IN WITNESS WHEREOF, the parties have executed this Schedule by their
duly authorized officers as of the date hereof.
CAPITAL AUTO RECEIVABLES ASSET TRUST 2002-4
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
XXXXXX BROTHERS DERIVATIVE PRODUCTS INC.
By: _________________________________________________
Name: _________________________________________________
Title: _________________________________________________
