EXHIBIT 99.5
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SWAP COUNTERPARTY RIGHTS AGREEMENT
AMONG
HSBC BANK USA N.A.
AS SWAP COUNTERPARTY
CAPITAL AUTO RECEIVABLES ASSET TRUST 2005-1
AS ISSUER
GENERAL MOTORS ACCEPTANCE CORPORATION,
AS SERVICER, CUSTODIAN, AND ADMINISTRATOR
CAPITAL AUTO RECEIVABLES, INC.,
AS SELLER
JPMORGAN CHASE BANK, N.A.
AS INDENTURE TRUSTEE
AND
DEUTSCHE BANK TRUST COMPANY DELAWARE,
AS OWNER TRUSTEE
DATED AS OF JUNE 2, 2005
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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.... 2
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...................................... 4
Section 4.06 Notices of Amendment of the Trust Agreement............................. 4
Section 4.07 Notices of Amendment of the Trust Sale and Servicing Agreement.......... 4
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......... 5
Section 4.12 Notices Generally....................................................... 5
Section 4.13 Delivery of Reports..................................................... 5
ARTICLE V MISCELLANEOUS................................................................. 6
Section 5.01 Notices................................................................. 6
Section 5.02 GOVERNING LAW........................................................... 7
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.............................................................. 7
Section 5.07 Amendments.............................................................. 7
Section 5.08 Headings................................................................ 7
Section 5.09 Counterparts............................................................ 7
Section 5.10 Limitation of Liability................................................. 7
Section 5.11 Termination............................................................. 7
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THIS SWAP COUNTERPARTY RIGHTS AGREEMENT, dated as of June 2, 2005 (this
"Agreement"), is among HSBC BANK USA N.A., as Swap Counterparty (the "Primary
Swap Counterparty"), CAPITAL AUTO RECEIVABLES ASSET TRUST 2005-1, a Delaware
statutory 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
("▇▇▇▇"), JPMORGAN CHASE BANK, N.A., 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 Swaps 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 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 the date hereof, among GMAC, as Servicer, ▇▇▇▇, 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, modified or supplemented 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, modification or supplement shall be
made unless either (A) the Primary Swap Counterparty consents in writing to such
amendment, modification or supplement or (B) the amendment, modification or
supplement 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, modification or
supplement under Section 8.2 of the Trust Agreement; provided, however, that no
amendment, modification or supplement shall be made unless either (A) the
Primary Swap Counterparty consents in writing to such amendment, modification or
supplement or (B) the amendment, modification or supplement 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, modified or supplemented from time to time pursuant to
Section 13 of the Administration Agreement; provided, however, that no
amendment, modification or supplement will be effected pursuant to Section 13 of
the Administration Agreement unless either (A) the Primary Swap Counterparty
consents in writing to such amendment, modification or supplement or (B) such
amendment, modification or supplement 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, modified or supplemented pursuant to Section 8 thereof;
provided, however, that no such amendment, modification or supplement shall be
made unless either (A) the Primary Swap Counterparty consents in writing to such
amendment, modification or supplement or (B) such amendment, modification or
supplement 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 supplemental
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indenture 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.
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.
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(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.
(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.
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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.
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(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 (j) 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 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.
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 BUT WITHOUT PREJUDICE TO THE
PROVISIONS OF SECTION 5-1401 OF ITS GENERAL OBLIGATIONS LAW, 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 Swaps, the Triparty
Contingent Assignment Agreement or the Contingent Interest Rate Swaps, 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.
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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 ▇▇▇▇, 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 Deutsche Bank Trust Company Delaware, 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 or the Owner Trustee 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 Issuer and
(c) under no circumstances shall Deutsche Bank Trust Company Delaware be
personally liable for the payment of any indebtedness or expenses of the Issuer
or the Owner Trustee or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Issuer or the
Owner Trustee 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, Deutsche Bank Trust Company Delaware
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 Swaps upon termination of the last Interest Rate Swap.
* * * *
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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 2005-1
By: DEUTSCHE BANK TRUST COMPANY
DELAWARE, not in its individual capacity but
solely as Owner Trustee
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇
Title: Attorney-In-Fact
DEUTSCHE BANK TRUST COMPANY
DELAWARE, not in its individual capacity but
solely as Owner Trustee
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇
Title: Attorney-In-Fact
HSBC BANK USA N.A.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice-President
JPMORGAN CHASE BANK, N.A., not in
its individually capacity, but solely as Indenture
Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Vice President
GENERAL MOTORS ACCEPTANCE CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Director - Global Securitization
CAPITAL AUTO RECEIVABLES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
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