EXHIBIT 99.7
================================================================================
SWAP COUNTERPARTY RIGHTS AGREEMENT
AMONG
XXXXXXX XXXXX CAPITAL SERVICES, INC.,
AS SWAP COUNTERPARTY
CAPITAL AUTO RECEIVABLES ASSET TRUST 2002-2
AS ISSUER
GENERAL MOTORS ACCEPTANCE CORPORATION,
AS SERVICER, CUSTODIAN, AND ADMINISTRATOR
CAPITAL AUTO RECEIVABLES, INC.,
AS SELLER
BANK ONE, NATIONAL ASSOCIATION,
AS INDENTURE TRUSTEE
AND
DEUTSCHE BANK TRUST COMPANY DELAWARE,
AS OWNER TRUSTEE
DATED AS OF APRIL 25, 2002
================================================================================
Table of Contents
ARTICLE I Definitions.............................................................................................1
Section 1.01 Definition...............................................................................1
ARTICLE II LIMITATIONS ON ISSUER'S CONSOLIDATION, MERGER OR SALE OF ASSETS........................................1
Section 2.01 Consolidation or Merger; Sale or Disposition of Assets or Property.......................1
ARTICLE III AMENDMENTS TO TRANSACTION DOCUMENTS...................................................................2
Section 3.01 Amendments to the Trust Sale and Servicing Agreement.....................................2
Section 3.02 Amendments to Trust Agreement............................................................2
Section 3.03 Amendments to Administration Agreement...................................................2
Section 3.04 Amendments to Custodian Agreement........................................................2
Section 3.05 Supplemental Indentures Without Consent of Primary Swap Counterparty.....................3
ARTICLE IV DELIVERY OF NOTICES AND REPORTS........................................................................3
Section 4.01 Notices of Replacement of Indenture Trustee..............................................3
Section 4.02 Notices of Events of Default, Enforcement and Termination................................3
Section 4.03 Notices of Amendment of the Custodian Agreement..........................................4
Section 4.04 Notices of Amendment of the Administration Agreement.....................................4
Section 4.05 Notices of Supplemental Indentures.......................................................5
Section 4.06 Notices of Amendment of the Trust Agreement..............................................5
Section 4.07 Notices of Amendment of the Trust Sale and Servicing Agreement...........................5
Section 4.08 Notices of Release of Property...........................................................5
Section 4.09 Notices of Release of Collateral.........................................................5
Section 4.10 Notices of Removal of Administrator......................................................5
Section 4.11 Notices of Assignment of the Trust Sale and Servicing Agreement..........................6
Section 4.12 Notices Generally........................................................................6
Section 4.13 Delivery of Reports......................................................................6
ARTICLE V MISCELLANEOUS...........................................................................................7
Section 5.01 Notices..................................................................................7
Section 5.02 Governing Law............................................................................7
Section 5.03 Binding Effect...........................................................................7
i
Section 5.04 Replacement of the Swap Counterparty.....................................................7
Section 5.05 Severability of Provisions...............................................................7
Section 5.06 Assignment. This Agreement may not be assigned by the Primary Swap Counterparty without
the prior written consent of each of the Trust, the Indenture Trustee, the Owner Trustee,
GMAC, and XXXX, except as provided in Section 5.04 hereof................................8
Section 5.07 Amendments...............................................................................8
Section 5.08 Headings.................................................................................8
Section 5.09 Counterparts.............................................................................8
Section 5.10 Limitation of Liability..................................................................8
Section 5.11 Termination..............................................................................8
ii
THIS SWAP COUNTERPARTY RIGHTS AGREEMENT, dated as of April 25, 2002 (this
"Agreement"), is among XXXXXXX XXXXX CAPITAL SERVICES, INC., a Delaware
corporation, as Swap Counterparty (the "Primary Swap Counterparty"), CAPITAL
AUTO RECEIVABLES ASSET TRUST 2002-2, a Delaware business trust (the "Trust" or
the "Issuer"), GENERAL MOTORS ACCEPTANCE CORPORATION, a Delaware corporation, as
Servicer, Custodian, and Administrator ("GMAC"), CAPITAL AUTO RECEIVABLES, INC.,
a Delaware corporation, as Seller ("XXXX"), BANK ONE, NATIONAL ASSOCIATION, a
national banking association, not in its individual capacity but solely as
Indenture Trustee (the "Indenture Trustee"), and DEUTSCHE BANK TRUST COMPANY
DELAWARE, a Delaware banking corporation, not in its individual capacity but
solely as Owner Trustee (the "Owner Trustee").
WHEREAS, as of the date hereof, the Trust has entered into the Interest
Rate Swap with the Primary Swap Counterparty;
WHEREAS, the parties intend in this Agreement to enumerate certain rights
of the Primary Swap Counterparty.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows:
ARTICLE I
Definitions
Section 1.01 Definition. Capitalized terms used and not otherwise defined
in this Agreement are defined in and shall have the respective meanings assigned
them in Part I of Appendix A to the Trust Sale and Servicing Agreement dated as
of the date hereof, among GMAC, as Servicer, XXXX, as Seller, and the Trust, as
Issuer, as it may be amended, supplemented or modified from time to time (the
"Trust Sale and Servicing Agreement"), and all references herein to Articles and
Sections are to Articles or Sections of other Basic Documents unless otherwise
specified. The rules of construction set forth in Part II of Appendix A to the
Trust Sale and Servicing Agreement shall be applicable to this Agreement.
ARTICLE II
LIMITATIONS ON ISSUER'S CONSOLIDATION, MERGER OR SALE OF ASSETS
Section 2.01 Consolidation or Merger; Sale or Disposition of Assets or
Property.
(a) The Issuer shall not consolidate or merge with or into any other
Person, unless the Issuer shall have delivered to the Indenture Trustee an
Officer's Certificate and an Opinion of Counsel addressed to the Issuer, each
stating that such consolidation or merger and related supplemental indenture
shall have no material adverse tax consequence to the Primary Swap Counterparty.
(b) Except as otherwise expressly permitted by the Indenture or the other
Basic Documents, the Issuer shall not sell, convey, exchange, transfer or
otherwise dispose of any of its properties or assets, including those included
in the Trust Estate, to any Person, unless the Issuer shall have delivered to
the Indenture Trustee an Officer's Certificate and an Opinion of Counsel
addressed to the Issuer, each stating that such sale, conveyance, exchange,
transfer or disposition and related supplemental indenture shall have no
material adverse tax consequence to the Primary Swap Counterparty.
ARTICLE III
AMENDMENTS TO TRANSACTION DOCUMENTS
Section 3.01 Amendments to the Trust Sale and Servicing Agreement. The
Trust Sale and Servicing Agreement may be amended from time to time by the
Seller, the Servicer and the Owner Trustee in the manner specified by Section
9.01(b) of the Trust Sale and Servicing Agreement; provided, however, that no
such amendment shall be made unless either (A) the Primary Swap Counterparty
consents in writing to such amendment or (B) the amendment will, as evidenced by
a Materiality Opinion, have no material adverse effect on the interests of the
Primary Swap Counterparty.
Section 3.02 Amendments to Trust Agreement. The Owner Trustee shall furnish
notice to the Primary Swap Counterparty and to each of the Rating Agencies prior
to obtaining consent to any proposed amendment under Section 8.2 of the Trust
Agreement; provided, however, that no amendment shall be made unless either (A)
the Primary Swap Counterparty consents in writing to such amendment or (B) the
amendment will, as evidenced by a Materiality Opinion, have no material adverse
effect on the interests of the Primary Swap Counterparty.
Section 3.03 Amendments to Administration Agreement. The Administration
Agreement may be amended from time to time pursuant to Section 13 of the
Administration Agreement; provided, however, that no amendment will be effected
pursuant to Section 13 of the Administration Agreement unless either (A) the
Primary Swap Counterparty consents in writing to such amendment or (B) such
amendment will, as evidenced by a Materiality Opinion, have no material adverse
effect on the interests of the Primary Swap Counterparty.
Section 3.04 Amendments to Custodian Agreement. The Custodian Agreement may
be amended pursuant to Section 8 thereof; provided, however, that no such
amendment shall be made unless either (A) the Primary Swap Counterparty consents
in writing to such amendment or (B) such amendment will, as evidenced by a
Materiality Opinion, have no material adverse effect on the interests of the
Primary Swap Counterparty.
Section 3.05 Supplemental Indentures Without Consent of Primary Swap
Counterparty. No supplemental indenture shall be entered into under Section
9.1(b) or 9.2 of the Indenture unless either (A) the Primary Swap Counterparty
consents in writing to such amendment or (B) such supplemental indenture will,
as evidenced by a Materiality Opinion, have no material adverse effect on the
interests of the Primary Swap Counterparty.
2
ARTICLE IV
DELIVERY OF NOTICES AND REPORTS
Section 4.01 Notices of Replacement of Indenture Trustee.
(a) The Indenture Trustee shall provide the Primary Swap Counterparty with
a copy of any notice of its intent to resign delivered pursuant to Section
6.8(a) of the Indenture.
(b) A successor Indenture Trustee shall deliver to the Primary Swap
Counterparty a copy of any acceptance under Section 6.8(c) of the Indenture.
Section 4.02 Notices of Events of Default, Enforcement and Termination.
(a) The Paying Agent shall give the Primary Swap Counterparty notice of any
default by the Issuer (or any other obligor upon the Notes) of which it has
actual knowledge in the making of any payment required to be made with respect
to the Notes.
(b) The Issuer shall deliver to the Primary Swap Counterparty a copy of any
notice it shall deliver pursuant to Section 3.7(d) of the Indenture in respect
of the occurrence of a Servicer Default under the Trust Sale and Servicing
Agreement.
(c) The Issuer shall give the Primary Swap Counterparty prompt written
notice of each Event of Default under the Indenture, each Servicer Default, each
default on the part of the Seller of its obligations under the Trust Sale and
Servicing Agreement and each default on the part of GMAC of its obligations
under the Pooling and Servicing Agreement.
(d) The Issuer shall deliver to the Primary Swap Counterparty, within five
Business Days after learning of the occurrence thereof, a copy of the written
notice in the form of an Officer's Certificate delivered to the Indenture
Trustee, of any event which with the giving of notice and the lapse of time
would become an Event of Default under Section 5.1(d) of the Indenture, its
status and what action the Issuer is taking or proposes to take with respect
thereto.
(e) If an Event of Default should occur and be continuing under the
Indenture, and the Indenture Trustee or the requisite percentage of the Holders
of the Notes declare all of the notes immediately due and payable pursuant to
Section 5.2(a) of the Indenture, then the Indenture Trustee shall give prompt
written notice thereof to the Primary Swap Counterparty.
(f) The Indenture Trustee shall promptly give to the Primary Swap
Counterparty written notice of any waiver pursuant to Section 5.12 of the
Indenture.
(g) The Indenture Trustee shall promptly provide to the Primary Swap
Counterparty written notice of each request for action that is made and
direction received pursuant to Section 5.16 of the Indenture, with respect to
the exercise of the Indenture Trustee's powers to compel performance or enforce
the obligations of the parties under the Basic Documents.
3
(h) The Indenture Trustee shall mail to the Primary Swap Counterparty any
notice of Default which the Indenture Trustee mails to Noteholders pursuant to
Section 6.5 of the Indenture.
(i) The Servicer shall deliver to the Primary Swap Counterparty promptly
after having obtained knowledge thereof, but in no event later than five
Business Days thereafter, written notice in an officer's certificate of any
event which with the giving of notice or lapse of time, or both, would become a
Servicer Default under Section 7.01 of the Trust Sale and Servicing Agreement.
(j) Notice of any termination of the Trust shall be given by the Servicer
to the Primary Swap Counterparty as soon as practicable after the Servicer has
received notice thereof.
Section 4.03 Notices of Amendment of the Custodian Agreement. The Custodian
shall furnish prior notice to the Primary Swap Counterparty of any amendment to
the Custodian Agreement pursuant to Section 8 thereof.
Section 4.04 Notices of Amendment of the Administration Agreement. The
Administrator shall furnish prior notice to the Primary Swap Counterparty of any
proposed amendment to the Administration Agreement pursuant to Section 13(b)
thereof.
Section 4.05 Notices of Supplemental Indentures. The Indenture Trustee
shall furnish prior notice to the Primary Swap Counterparty of any proposed
indentures supplemental to the Indenture under Sections 9.1 and 9.2 thereof.
Section 4.06 Notices of Amendment of the Trust Agreement. Promptly after
the execution of an amendment to, or consent under, the Trust Agreement, the
Owner Trustee shall furnish written notification of the substance of such
amendment or consent to the Primary Swap Counterparty.
Section 4.07 Notices of Amendment of the Trust Sale and Servicing
Agreement. Promptly after the execution of an amendment to, or consent under,
the Trust Sale and Servicing Agreement, the Owner Trustee shall furnish written
notification of the substance of such amendment or consent to the Primary Swap
Counterparty.
4
Section 4.08 Notices of Release of Property. The Indenture Trustee shall
provide copies to the Primary Swap Counterparty of all of the documents received
by it pursuant to Section 8.4(b) of the Indenture.
Section 4.09 Notices of Release of Collateral. The Indenture Trustee shall
provide copies to the Primary Swap Counterparty of any document received by it
pursuant to Section 2.9 of the Indenture with respect to the release of
Collateral.
Section 4.10 Notices of Removal of Administrator.
(a) Subject to Section 10(e) of the Administration Agreement, the Issuer
may remove the Administrator without cause pursuant to Section 10(c) of the
Administration Agreement by providing the Administrator and the Primary Swap
Counterparty with at least 60 days' prior written notice.
(b) The Issuer shall provide to the Primary Swap Counterparty a copy of any
written notice from the Issuer to the Administrator effecting the immediate
removal of the Administrator pursuant to Section 10(d) of the Administration
Agreement.
Section 4.11 Notices of Assignment of the Trust Sale and Servicing
Agreement. The Seller shall provide to the Primary Swap Counterparty notice of
any assignment of the Trust Sale and Servicing Agreement made pursuant to
Section 9.06 thereof.
Section 4.12 Notices Generally. The Issuer shall promptly transmit any
notice received by it from the Noteholders to the Primary Swap Counterparty. The
Indenture Trustee shall likewise promptly transmit any notice received by it
from the Noteholders to the Primary Swap Counterparty.
Section 4.13 Delivery of Reports.
(a) A copy of any report delivered by the Indenture Trustee pursuant to
Section 7.4(a) of the Indenture shall, at the time of its mailing to
Noteholders, be sent by the Indenture Trustee to the Primary Swap Counterparty.
(b) The Servicer shall cause the firm delivering the Accountants' Report
pursuant to Section 4.02(a) of the Trust Sale and Servicing Agreement, to
deliver a copy thereof to the Primary Swap Counterparty.
(c) The Issuer shall deliver to the Primary Swap Counterparty a copy of the
Annual Statement of Compliance required by Section 3.9 of the Indenture.
5
(d) On each Determination Date, the Servicer shall deliver to the Primary
Swap Counterparty a copy of the Servicer's Accounting required by Section 3.10
of the Pooling and Servicing Agreement.
(e) The Servicer shall deliver to the Primary Swap Counterparty, promptly
after the execution and delivery of the Trust Sale and Servicing Agreement and
of each amendment thereto, an Opinion of Counsel as required in Section 9.02 (i)
thereof.
ARTICLE V
MISCELLANEOUS
Section 5.01 Notices. All demands upon, notices to and communications with
the Primary Swap Counterparty required hereunder shall be delivered in the
manner specified for notices in the Interest Rate Swap, and all other demands
upon, notices to and communications upon or to the other parties hereto shall be
delivered as specified in Appendix B of the Trust Sale and Servicing Agreement.
Section 5.02 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, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
Section 5.03 Binding Effect. This Agreement shall be binding upon and shall
inure to the benefit of all of the parties hereto and their respective
successors and assigns, including the Issuer.
Section 5.04 Replacement of the Swap Counterparty. In the event that the
Primary Swap Counterparty resigns, is removed or otherwise replaced as Primary
Swap Counterparty pursuant to the terms of the Interest Rate Swap, the Triparty
Agreement or the Contingent Interest Rate Swap, its assignee or successor in
interest thereunder shall automatically succeed to the interests of the Primary
Swap Counterparty under this Agreement.
Section 5.05 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
Section 5.06 Assignment. This Agreement may not be assigned by the Primary
Swap Counterparty without the prior written consent of each of the Trust, the
Indenture Trustee, the Owner Trustee, GMAC, and XXXX, except as provided in
Section 5.04 hereof.
6
Section 5.07 Amendments. No change or amendment to this Agreement will be
effective unless in writing and signed by all of the parties to this Agreement.
Section 5.08 Headings. The headings of the various Sections herein are for
convenience of reference only and shall not define or limit any of the terms or
provisions hereof.
Section 5.09 Counterparts. This Agreement may be executed by the parties in
separate counterparts, each of which when so executed and delivered shall be an
original but all such counterparts shall together constitute but one and the
same instrument.
Section 5.10 Limitation of Liability. It is expressly understood and agreed
by the parties hereto that (a) this Agreement is executed and delivered by the
Owner Trustee, not in its individual, capacity but solely as owner trustee of
the Issuer, 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 Issuer is made and intended not as
personal representations, undertakings and agreements by the Owner Trustee but
is made and intended for the purpose of binding only the Issuer and (c) under no
circumstances shall the Owner Trustee be personally liable for the payment of
any indebtedness or expenses of the Issuer or be liable for the breach or
failure of any obligation, representation, warranty or covenant made or
undertaken by the Issuer under this Agreement or the other Basic Documents. For
all purposes of this Agreement, in the performance of any duties or obligations
of the Issuer or the Owner Trustee hereunder, the Owner Trustee shall be
entitled to the benefits of the terms and provisions of the Trust Agreement.
Section 5.11 Termination. This Agreement shall terminate with respect to
the Interest Rate Swap upon termination of such Interest Rate Swap.
* * * *
7
IN WITNESS WHEREOF, the parties hereto have caused this Primary Swap
Counterparty Rights Agreement to be duly executed by their respective officers,
thereunto duly authorized, all as of the day and year first above written.
CAPITAL AUTO RECEIVABLES ASSET TRUST 2002-2
By: DEUTSCHE BANK TRUST COMPANY DELAWARE, not in its
individual capacity but solely as Owner Trustee
By:
---------------------------------------------------
Name:
Title:
DEUTSCHE BANK TRUST COMPANY DELAWARE, not in its individual
capacity but solely as Owner Trustee
By:
---------------------------------------------------
Name:
Title:
XXXXXXX XXXXX CAPITAL SERVICES, INC.
By:
---------------------------------------------------
Name:
Title:
BANK ONE, NATIONAL ASSOCIATION, not in
its individually capacity, but solely as Indenture Trustee
By:
---------------------------------------------------
Name:
Title:
8
GENERAL MOTORS ACCEPTANCE CORPORATION
By:
---------------------------------------------------
Name:
Title:
CAPITAL AUTO RECEIVABLES, INC.
By:
---------------------------------------------------
Name:
Title:
9
