EXHIBIT 99.6
TRIPARTY CONTINGENT ASSIGNMENT AGREEMENT dated as of December 14, 2000 (the
"Agreement"), among Capital Auto Receivables Asset Trust 2000-2 (the "Trust"),
General Motors Acceptance Corporation ("GMAC") and Deutsche Bank AG, New York
Branch ("DBAG").
WHEREAS, the Trust and DBAG have entered into the Primary Swap Agreement;
WHEREAS, GMAC and DBAG have entered into the Secondary 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 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.
"Delinquent Payments" means any payments owed to the Trust as a result of
liabilities, obligations and duties of DBAG pursuant to the Primary Swap
Agreement accruing prior to the Assignment Date that have not been made by DBAG.
A "Designated Event" shall occur if (a) one or more Events of Default
occurs under the Primary Swap Agreement with DBAG as the Defaulting Party, (b)
the occurrence of any applicable Termination Event under the Primary Swap
Agreement in which DBAG is an Affected Party, if no transfer is effected under
Part 1(f)(iv) of the Schedule to the Primary Swap Agreement (or in the case of a
credit downgrade, no appropriate arrangements pursuant to the Primary Swap
Confirmation's credit downgrade provisions are made within 30 days) 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 DBAG or (c) the Trust receives a
notice from DBAG pursuant to the provisions of Section 2.03 herein.
"Fallback Swap Agreement" means the ISDA Master Agreement, together with a
Schedule and Confirmation, dated as of the date hereof, between the Trust and
GMAC.
"GMAC" means General Motors Acceptance Corporation.
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"Operative Swap Agreement" means (i) prior to the Assignment Date, the
Primary Swap Agreement and (ii) on and after the Assignment Date, the Fallback
Swap Agreement.
"Operative Swap Transaction" means (i) prior to the Assignment Date, the
Primary Swap Transaction and (ii) on and after the Assignment Date, the
transaction described in the confirmation contained in the Fallback Swap
Agreement.
"Primary Swap Agreement" means the ISDA Master Agreement (including the
Schedule) dated as of the date hereof between DBAG and the Trust, and the
Primary Swap Confirmation.
"Primary Swap Confirmation" means the confirmation related to the ISDA
Master Agreement, dated as of the date hereof, between DBAG and the Trust.
"Primary Swap Transaction" means the transaction described in the Primary
Swap Confirmation.
"Requisite Rating" means a long-term, unsecured and unsubordinated debt
rating from S&P which, when considered together with the long-term, unsecured
debt rating of GMAC, would result in a Joint Probability of at least AA-.
"Secondary Swap Agreement" means the ISDA Master Agreement (including the
Schedule thereto), dated as of August 1, 1995, between DBAG and GMAC and the
Secondary Swap Confirmation.
"Secondary Swap Confirmation" means the confirmation dated as of the date
hereof between GMAC and DBAG, Transaction Ref. No. ______.
"Secondary Swap Transaction" means the transaction described in the
Secondary Swap Confirmation.
"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
McGraw-Hill Companies and any successor.
SECTION 1.02 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 Secondary 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 December 14, 2000 between the Trust, the Seller
and the Servicer (the "Trust Sale and Servicing Agreement").
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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
DBAG under the Primary Swap Transaction 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, 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). In the event that DBAG has been paid an
amount corresponding to the Delinquent Payments under the Secondary Swap
Agreement, DBAG agrees to reimburse GMAC in an amount equal to the full
amount of any such payments. In the event that DBAG has made payments to
the Trust as a result of liabilities, obligations and duties of DBAG
accruing prior to the Assignment Date in circumstances where GMAC has not
made the corresponding payments to DBAG under the Secondary Swap Agreement,
GMAC agrees to reimburse DBAG in an amount equal to the full amount of any
such payments. Except as expressly provided in the third sentence of this
paragraph (a), on and at all times following the Assignment Date, DBAG
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).
(b) The Secondary Swap Transaction shall be terminated on and as of
the Assignment Date without further liability or obligation of either party
thereto, without prejudice to those rights, liabilities, obligations and
duties accruing prior to the Assignment Date.
(c) 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.
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There shall be no breakage fees or other termination costs or expenses
payable by the Trust to DBAG or by DBAG to GMAC in connection with an assignment
of the Primary Swap Agreement to GMAC in accordance with this Section 2.01 and
the termination of the Secondary Swap Transaction as a result of the occurrence
and continuance of a Designated Event.
SECTION 2.02 Additional Contingent Counterparty. If GMAC has acceded to the
rights and obligations of DBAG 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. DBAG 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. DBAG 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 DBAG to
undertake any affirmative action or inquiry to ascertain whether it will be able
to make any such payment or delivery. Any failure by DBAG to provide notice to
the Trust of such inability shall be without prejudice to DBAG'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 Secondary Swap Agreement constitute the entire
agreement and understanding of the 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.
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(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).
(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 Secondary 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 Secondary 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 Bankers
Trust (Delaware), not individually or personally but solely as Owner Trustee of
Capital Auto Receivables Asset Trust 2000-2 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 Bankers
Trust (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 Bankers Trust (Delaware), individually or personally, 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 Bankers Trust
(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 any other related documents.
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IN WITNESS WHEREOF, the parties have executed this agreement by their duly
authorized officers as of the date hereof.
CAPITAL AUTO RECEIVABLES ASSET TRUST
2000-2
By BANKERS TRUST (DELAWARE) not in
its individual capacity, but solely as trustee
By CHARLES C. GREITER
----------------------------------------
Name: Charles C. Greiter
Title: Attorney-in-Fact
GENERAL MOTORS ACCEPTANCE
CORPORATION
By ----------------------------------------
Name:
Title:
DEUTSCHE BANK AG, NEW YORK BRANCH
By ----------------------------------------
Name:
Title:
DEUTSCHE BANK AG, NEW YORK BRANCH
By ----------------------------------------
Name:
Title:
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