EXHIBIT 99.7
CONTINGENT ASSIGNMENT AGREEMENT dated as of October 10, 2002 (the
"Agreement"), among Capital Auto Receivables Asset Trust 2002-4 (the "Trust"),
General Motors Acceptance Corporation ("GMAC"), Xxxxxx Brothers Derivative
Products Inc. ("LBDP") and Xxxxxx Brothers Special Financing Inc. ("LBSF").
WHEREAS, the Trust and LBDP have entered into the Primary Swap
Agreement (hereinafter defined);
WHEREAS, GMAC and LBSF have entered into the Back-to-Back Swap
Agreement (hereinafter defined);
WHEREAS, pursuant to Part 5(m) of the Schedule to the Primary Swap
Agreement, LBSF shall succeed to all rights and obligations of LBDP under the
Primary Swap Agreement and all Transactions thereunder upon occurrence of a
Credit Assignment Event (as defined in the Schedule to the Primary Swap
Agreement);
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 Swap Agreement" means the ISDA Master Agreement
(including the Schedule thereto), dated as of September 22, 1999, between LBSF
and GMAC, and the Back-to-Back Swap Confirmations.
"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.
"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 Swap Agreement" means the ISDA Master Agreement (including
the Schedule thereto), dated as of October 10, 2002, between GMAC and the Trust,
and the Fallback Confirmations.
"Fallback Confirmation" means the (i) Confirmation of Fallback Swap
Transaction relating to the Class A-2a Notes and (ii) Confirmation of Fallback
Swap Transaction relating to the Class A-3 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 October 10, 2002, between GMAC and
the Trust.
"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.
2
"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.
"Primary Swap Agreement" means the ISDA Master Agreement (including the
Schedule thereto), dated as of October 10, 2002, between the Primary Swap
Counterparty and the Trust, and the Primary Confirmations.
"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 Primary Swap Counterparty and the Trust.
"Primary Swap Transactions" means the transactions described in the
Primary Confirmations.
"Primary Swap Counterparty" means LBDP until it assigns the Primary
Swap Agreement to LBSF upon the occurrence of a Credit Assignment Event and
thereafter, LBSF shall be the Primary Swap Counterparty.
"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.
3
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) 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 LBSF
shall be deemed to be the Affected Party. If, on or after the
4
Assignment Date, GMAC has made payments to LBSF under the Back-to-Back
Swap Agreement, LBSF 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 LBSF as of the
Assignment Date, LBSF 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 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
5
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 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 2002-4 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
6
of any obligation, representation, warranty or covenant made or
undertaken by the Trust under this Agreement or any other related
documents.
* * * *
7
IN WITNESS WHEREOF, the parties have executed this agreement 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
GENERAL MOTORS ACCEPTANCE
CORPORATION
By: ________________________________________
Name: Xxxxx X. Xxxxxxxxxx
Title: Director - Securitization and Cash
Management
XXXXXX BROTHERS DERIVATIVE PRODUCTS INC.
By: ________________________________________
Name: ________________________________________
Title: ________________________________________
XXXXXX BROTHERS SPECIAL FINANCING
INC.
By: ________________________________________
Name: __________________________________________
Title: _________________________________________
