EXHIBIT 99.3
SCHEDULE
TO THE
MASTER AGREEMENT
(this "AGREEMENT")
dated as of June 2, 2005
between
CAPITAL AUTO RECEIVABLES ASSET TRUST 2005-1
(the "TRUST")
and
HSBC BANK USA N.A.
(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) (i) there occurs an Indenture "Event of Default" under
Sections 5.1(a), (b), (c), or (d) of the Indenture and (ii) 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 or
(y) there occurs an Indenture Event of Default under Section 5.1(e) or (f)
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. The "CREDIT EVENT UPON MERGER" provisions of
Section 5(b)(iv) will not apply to the Counterparty or the Trust.
(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 Triparty Contingent Assignment Agreement among the Trust, the
Counterparty and GMAC dated as of the date hereof (the "Triparty
Agreement"), GMAC shall accede to rights and obligations
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equivalent to those set out herein in accordance with the terms of the
Fallback Swap Agreement (as defined in the Triparty Agreement). If such a
Designated Event has occurred, then upon (A) the effectiveness of the
Fallback Swap Agreement (as defined in the Triparty Agreement) and (B) the
payment by GMAC in a timely fashion of all Delinquent Payments (as defined
in the Triparty 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.
As of the Assignment Date (as defined in the Triparty 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) 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."
(iv) 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 Triparty Agreement.
(2) No transfer or substitution pursuant to this Section 6(b)(ii)
shall occur if (x) the then current ratings of the Notes by Xxxxx'x
Investors Service ("Moody's") or Standard & Poor's Rating Services
("S&P") would be reduced or adversely
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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)"
(v) 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)."
(vi) 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).
(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 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),
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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 statutory 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) Counterparty Representation. For the purpose of Section 3(f),
the Counterparty makes the following representations:
(1) It is a national banking association organized under the laws of
the United States of America.
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:
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
requested to allow the other party to (i) reasonable demand by the other
make payments under this Agreement party and (ii) learning that the
without any deduction or withholding form or document is required.
for or on account of any Tax or with
such deduction or withholding at a
reduced rate.
(b) Other documents to be delivered are:
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PARTY REQUIRED TO DELIVER FORM/DOCUMENT/ DATE BY WHICH TO BE COVERED BY SECTION 3(d)
DOCUMENT CERTIFICATE DELIVERED REPRESENTATION
Counterparty and Trust Certificate or other documents At or promptly following Yes
evidencing the authority of the execution of this
the party to enter into this Agreement, and, if a
Agreement and the persons Confirmation so requires
acting on behalf of such party. it, on or before the
date 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, but in no
event shall be later
than 10 days after the date
hereof.
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: c/o Deutsche Bank Trust Company Delaware, as
Owner Trustee
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
with a copy to:
Address: Deutsche Bank Trust Company Americas
00 Xxxx Xxxxxx, 00xx Xxxxx
Mail Stop: NYC60-2606
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000/8607
Telephone No.: (000) 000-0000
with a copy to:
Address: GMAC
000 Xxxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
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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:
With respect to a particular Transaction, all notices or
communications to the Counterparty shall be sent to the
address or facsimile number indicated in the Confirmation of
that Transaction.
(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.
(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.
The Trust: Not applicable.
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(g) Credit Support Document. Details of any Credit Support Document
The Counterparty: Not applicable.
The Trust: Not applicable.
(h) GOVERNING LAW; JURISDICTION. THIS AGREEMENT AND EACH CONFIRMATION
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF
OR OF ANY OTHER JURISDICTION OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES UNDER
THIS AGREEMENT SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
(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 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.
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(e) Transfer. Section 7 is hereby amended by adding the following
provision: "provided however, that, the Counterparty consents to the pledge and
assignment by the Trust of the Trust's rights and interests hereunder pursuant
to the Indenture; provided further 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) no such transfer shall occur if the then current ratings of the
Notes by Moody's or S&P would be reduced or adversely affected;
(ii) 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
(iii) 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.
(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 Moody's and S&P,
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 Notes.
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(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 June 2, 2005, among GMAC, as Servicer, Capital Auto
Receivables, Inc., as Seller, and Capital Auto Receivables Asset Trust 2005-1 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 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) No-Petition. The Counterparty hereby agrees that it will not, prior to
the date which is one year and one day after all Notes issued by the Trust
pursuant to the Indenture have been paid in full, acquiesce, petition or
otherwise invoke, or cause or encourage any Person,
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including the Trust, to invoke, the process of any court or governmental
authority for the purpose of commencing or sustaining a case against the Trust
under any federal or state bankruptcy, insolvency or similar law or for the
purpose of appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official for the Trust or any substantial part of
the property of the Trust, or for the purpose of ordering the winding up or
liquidation of the affairs of the Trust. Nothing herein shall prevent the
Counterparty from participating in any such proceeding once commenced.
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IN WITNESS WHEREOF, the parties have executed this Schedule by their duly
authorized officers as of the date hereof.
CAPITAL AUTO RECEIVABLES ASSET
TRUST 2005-1
By: DEUTSCHE BANK TRUST COMPANY
DELAWARE, not in its individual
capacity but solely as Owner
Trustee on behalf of the Trust,
By: /s/ Xxx Xxxxxxxx
-----------------------------
Name: Xxx Xxxxxxxx
Title: Attorney-In-Fact
HSBC BANK USA N.A.
By: /s/ Xxxxx Xxxxxx
-----------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice-President
