EXHIBIT 99.7
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SWAP COUNTERPARTY RIGHTS AGREEMENT
AMONG
CITIBANK, N.A.
SWAP COUNTERPARTY
CAPITAL AUTO RECEIVABLES ASSET TRUST 2001-2
ISSUER
GENERAL MOTORS ACCEPTANCE CORPORATION
SERVICER, CUSTODIAN, AND ADMINISTRATOR
CAPITAL AUTO RECEIVABLES, INC.
SELLER
BANK ONE, NATIONAL ASSOCIATION
INDENTURE TRUSTEE
AND
BANKERS TRUST (DELAWARE)
OWNER TRUSTEE
DATED AS OF JUNE 26, 2001
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TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions........................................................1
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.1
ARTICLE III
AMENDMENTS TO TRANSACTION DOCUMENTS
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 Swap Counterparty.......2
ARTICLE IV
DELIVERY OF NOTICES AND REPORTS
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.................................4
SECTION 4.06 Notices of Release of Property.....................................4
SECTION 4.07 Notices of Release of Collateral...................................4
SECTION 4.08 Notices of Removal of Administrator................................4
SECTION 4.09 Notices of Assignment of the Trust Sale and Servicing Agreement....5
SECTION 4.10 Notices Generally..................................................5
SECTION 4.11 Delivery of Reports................................................5
ARTICLE V
MISCELLANEOUS
SECTION 5.01 Notices............................................................5
SECTION 5.02 Governing Law......................................................6
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SECTION 5.03 Binding Effect.....................................................6
SECTION 5.04 Replacement of the Swap Counterparty...............................6
SECTION 5.05 Severability of Provisions.........................................6
SECTION 5.06 Assignment.........................................................6
SECTION 5.07 Amendments.........................................................6
SECTION 5.08 Headings...........................................................6
SECTION 5.09 Counterparts.......................................................6
SECTION 5.10 Limitation of Liability............................................6
SECTION 5.11 Termination........................................................7
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THIS SWAP COUNTERPARTY RIGHTS AGREEMENT, dated as of June 26, 2001 (this
"Agreement"), is among CITIBANK, N.A., a Delaware corporation, as Swap
Counterparty (the "Swap Counterparty"), CAPITAL AUTO RECEIVABLES ASSET TRUST
2001-2, 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, not in its individual
capacity but solely as Indenture Trustee (the "Indenture Trustee"), and BANKERS
TRUST (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 four Interest
Rate Swaps with the Swap Counterparty;
WHEREAS, the parties intend in this Agreement to enumerate certain rights
of the 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 Definitions. 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 June 26, 2001, 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 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 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 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
Swap Counterparty.
SECTION 3.02 Amendments to Trust Agreement. The Owner Trustee shall furnish
notice to the 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 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 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
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 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 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
Swap Counterparty.
SECTION 3.05 Supplemental Indentures Without Consent of Swap Counterparty.
No supplemental indenture shall be entered into under Section 9.1(b) or 9.2 of
the Indenture unless either (A) the 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
Swap Counterparty.
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ARTICLE IV
DELIVERY OF NOTICES AND REPORTS
SECTION 4.01 Notices of Replacement of Indenture Trustee.
(a) The Indenture Trustee shall provide the 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 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 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 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 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 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 Swap Counterparty.
(f) The Indenture Trustee shall promptly give to the Swap Counterparty
written notice of any waiver pursuant to Section 5.12 of the Indenture.
(g) The Indenture Trustee shall promptly provide to the Swap Counterparty
written notice of each request for action that is made and direction received
pursuant to Section 5.16 of the
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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.
(h) The Indenture Trustee shall mail to the 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 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 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 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 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 Swap Counterparty of any proposed indentures
supplemental to the Indenture under Sections 9.1 and 9.2 thereof.
SECTION 4.06 Notices of Release of Property. The Indenture Trustee shall
provide copies to the Swap Counterparty of all of the documents received by it
pursuant to Section 8.4(b) of the Indenture.
SECTION 4.07 Notices of Release of Collateral. The Indenture Trustee shall
provide copies to the Swap Counterparty of any document received by it pursuant
to Section 2.9 of the Indenture with respect to the release of Collateral.
SECTION 4.08 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 Swap
Counterparty with at least 60 days' prior written notice.
(b) The Issuer shall provide to the 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.
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SECTION 4.09 Notices of Assignment of the Trust Sale and Servicing
Agreement. The Seller shall provide to the Swap Counterparty notice of any
assignment of the Trust Sale and Servicing Agreement made pursuant to Section
9.06 thereof.
SECTION 4.10 Notices Generally. The Issuer shall promptly transmit any
notice received by it from the Noteholders to the Swap Counterparty. The
Indenture Trustee shall likewise promptly transmit any notice received by it
from the Noteholders to the Swap Counterparty.
SECTION 4.11 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 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 Swap Counterparty.
(c) The Issuer shall deliver to the Swap Counterparty a copy of the Annual
Statement of Compliance required by Section 3.9 of the Indenture.
(d) On each Determination Date, the Servicer shall deliver to the 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 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.
(f) The Issuer shall provide the Swap Counterparty with any information,
documents or reports required to be filed by the Issuer pursuant to Sections
7.3(a)(i) and 7.3(a)(ii) of the Indenture.
ARTICLE V
MISCELLANEOUS
SECTION 5.01 Notices. All demands upon, notices to and communications with
the Swap Counterparty required hereunder shall be delivered in the manner
specified for notices in the Interest Rate Swaps, 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.
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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
Swap Counterparty resigns, is removed or otherwise replaced as Swap Counterparty
pursuant to the terms of the Interest Rate Swaps, the Triparty Agreement or the
Contingent Interest Rate Swaps, its assignee or successor in interest thereunder
shall automatically succeed to the interests of the 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 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.
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
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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
each Interest Rate Swap upon termination of such Interest Rate Swap.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this 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
2001-2
By: BANKERS TRUST (DELAWARE), not in
its individual capacity but solely as Owner
Trustee
By: XXXXXXX X. XXXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Attorney in Fact
BANKERS TRUST (DELAWARE), not in its
individual capacity but solely as Owner Trustee
By:
----------------------------------------
Name:
Title:
CITIBANK, N.A.
By:
---------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
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BANK ONE, NATIONAL
ASSOCIATION, not in
its individually capacity, but solely as
Indenture Trustee
By: XXXXXX X. XXXXXX
___________________________
Name: Xxxxxx X. Xxxxxx
Title: First Vice President
GENERAL MOTORS
ACCEPTANCE CORPORATION
By: XXXXX X. XXXXXXXXXX
___________________________
Name: Xxxxx X. Xxxxxxxxxx
Title: Director -
Securitization and
Cash
Management
CAPITAL AUTO RECEIVABLES,
INC.
By: X. X. XXXXXX
___________________________
Name: X. X. Xxxxxx
Title: Manager -
Securitization
