SCHEDULE
TO THE
2002
MASTER AGREEMENT
DATED AS OF DECEMBER 14, 2006
BETWEEN GENERAL ELECTRIC CAPITAL SERVICES, INC. ("PARTY A")
AND
CEF EQUIPMENT HOLDING, L.L.C. ("PARTY B")
PART 1
TERMINATION PROVISIONS
In this Agreement --
(a) "SPECIFIED ENTITY" means in relation to Party A and Party B for the
purpose of Sections 5(a)(v), (vi), (vii) and Section 5(b)(v): Not
applicable.
(b) "SPECIFIED TRANSACTION" will have the meaning specified in Section 14
of this Agreement.
(c) The "BREACH OF AGREEMENT" provision of Section 5(a)(ii) will not apply
to Party B.
(d) The "MISREPRESENTATION" provision of Section 5(a)(iv) will not apply to
Party B.
(e) The "CROSS DEFAULT" provisions of Section 5(a)(vi) will not apply to
Party A and will not apply to Party B.
(f) The "DEFAULT UNDER SPECIFIED TRANSACTIONS" provision of Section 5(a)(v)
will not apply to Party A and will not apply to Party B.
(g) The "BANKRUPTCY" provision of Section 5(a)(vii) is hereby amended by
replacing "15" with "30" in the 16th and 23rd lines thereof; provided
that with respect to Party B the provisions of Section 5(a)(vii)
clauses (2), (7) and (9) will not be applicable as an Event of Default
to the extent such event relates to nonpayment of indebtedness other
than that of the related class of Notes; clause (4) will not apply to
Party B to the extent that it refers to proceedings or petitions
instituted or presented by Party A or any of its Affiliates; clause(6)
will not apply to Party B to the extent that it refers to (i) any
appointment that is contemplated or effected by the Transaction
Documents or (ii) any appointment that Party B has not become subject
to); clause (8) will not apply to Party B to the extent that it applies
to Section 5(a)(vii)(2),(4),(6), and (7) (except to the extent that
such provisions are not disapplied with respect to Party B.
(h) The "FORCE MAJEURE EVENT" provision of Section 5(b)(ii) will not apply
to Party A and will not apply to Party B.
(i) The "CREDIT EVENT UPON MERGER" provisions of Section 5(b)(v) will not
apply to Party A and will not apply to Party B.
(j) "TAX EVENT UPON MERGER" does not apply to Party A but does apply to
Party B as Burdened Party. Section 6(b)(ii) will apply, provided that
the words "or if a Tax Event Upon Merger occurs and the Burdened Party
is the Affected Party" shall be deleted.
(k) The "AUTOMATIC EARLY TERMINATION" provisions of Section 6(a) will not
apply to Party A and will not apply to Party B.
(l) "TERMINATION CURRENCY" means United States Dollars.
(m) ADDITIONAL TERMINATION EVENT will apply. The following shall constitute
an Additional Termination Event:
(i) Credit Downgrade - Party A. If at any time (i) the unsecured
debt rating or shelf rating of Party A, or its Credit Support Provider,
is withdrawn by or reduced below "A" (long term) or "F1" (short term)
if Party A is rated by Fitch Ratings ("Fitch"); or (ii) the unsecured
debt ratings or shelf rating of Party A, or its Credit Support
Provider, are withdrawn or reduced below "A+" (long term) or, if a
short term rating or shelf rating is in effect for Party A, or its
Credit Support Provider, below "A-1" (short term) by Standard & Poor's
Rating Services ("S&P"); or (iii) (a) Party A, or its Credit Support
Provider, has both long and short term unsecured debt ratings or shelf
rating from Xxxxx'x Investors Service, Inc. ("Moody's"), and any such
rating is withdrawn or reduced below "P-1" (short term) or reduced
below "A2" (long term) or (b) Party A, or its Credit Support Provider,
has only a long-term unsecured debt rating or shelf rating from Moody's
and such rating is withdrawn or reduced below "A1" (any of the above
referenced withdrawals or reductions in credit status from the rating
agencies being herein referred to as a "Downgrade"); then Party A shall
promptly notify Party B by telephone (promptly confirmed in writing),
and Party B then shall notify the Rating Agencies. Party A shall then,
at its own expense, within 30 days of the date of the Downgrade, enter
into a "Qualifying Substitute Arrangement" (as defined below) to assure
performance by Party A of its obligations under the Transactions. If
Party A fails to enter into a Qualifying Substitute Arrangement
pursuant to this provision, it shall be an Additional Termination Event
in which Party A is the sole Affected Party.
(ii) In addition, if at any time the unsecured debt rating or
shelf rating of Party A is withdrawn or reduced below "BBB-" (long
term) by S&P, then Party A shall promptly notify Party B by telephone
(promptly confirmed in writing), and Party B then shall notify the
Rating Agencies. Party A shall then, at its own expense, within 10
Business Days of the date of the Downgrade specified in this paragraph,
enter into a "Qualifying Substitute Arrangement" (as defined below) to
assure performance by Party A of its obligations under the Transactions
or otherwise satisfy the Rating Agency Condition. If Party A fails to
enter into a Qualifying Substitute Arrangement pursuant to this
provision, it shall be an Additional Termination Event in which Party A
is the sole Affected Party.
"Counterparty Ratings Requirement" means with respect to any
entity, that either such entity or the Credit Support Provider
providing Credit Support, has (i) (a) where such entity or its Credit
Support Provider has only a long-term unsecured debt or shelf rating
from Moody's, a
2
Moody's long-term unsecured debt or shelf rating or counterparty rating
of at least "A1" or (b) where such entity or its Credit Support
Provider has both long-term and short-term unsecured debt or shelf
ratings from Moody's, a Moody's unsecured debt or shelf rating or
counterparty rating of at least "A2" (long-term) and at least "P-1"
(short-term), and (ii) an S&P long-term unsecured debt rating or
counterparty rating of at least "AA", and if a short-term rating has
been provided, such rating shall be at least "A-1"; and,
notwithstanding the foregoing, if such entity or its Credit Support
Provider has a Fitch short-term unsecured debt rating, such rating
shall be at least "F1" and if such entity or its provider of Credit
Support has a Fitch long-term unsecured debt rating, such rating shall
be at least "A".
"Credit Support" shall mean an unconditional letter of credit,
guaranty, surety bond or insurance policy providing for prompt payment
of the obligations of Party A and its successors under this Agreement,
as amended from time to time, and all Transactions hereunder for their
duration from a Credit Support Provider meeting the Counterparty
Ratings Requirements, that is valid, binding and enforceable in
accordance with its terms and in accordance with then current industry
practice.
"Qualifying Substitute Arrangement" shall mean one of the
following arrangements satisfactory to Party B: (i) providing Credit
Support to Party B and procure a Ratings Reaffirmation, where
applicable or (ii) procuring a Replacement Transaction and a Ratings
Reaffirmation, where applicable or (iii) satisfying any other remedy
permitted by the applicable Rating Agency and procure a Ratings
Reaffirmation, where applicable.
"Ratings Reaffirmation" means a written acknowledgement from each
applicable Rating Agency (with the exception of Moody's who shall be
notified in writing at any time when a Ratings Reaffirmation is
required to be procured), (i) the then current rating of the Notes will
not be reduced notwithstanding the applicable Downgrade or applicable
assignments, amendment, modification or waiver in respect of this
Agreement, or (ii) the rating of the Notes in effect prior to a
Downgrade will be reinstated to the rating in effect prior to the
Downgrade.
"Replacement Transaction" means a transaction, with a replacement
counterparty meeting the Counterparty Ratings Requirement who, at no
cost to Party B, shall assume Party A's position under this Agreement
and all Transactions hereunder or replace all Transactions outstanding
under this Agreement with Transactions between said replacement
counterparty and Party B on identical terms.
(o) DISCONTINUED AGENCY. If one of the foregoing credit rating agencies
ceases to be in the business of rating Debt Securities and such
business is not continued by a successor or assign of such agency (the
"Discontinued Agency"), Party A and Party B shall jointly (i) select a
nationally-recognized credit rating agency in substitution thereof and
(ii) agree on the rating level issued by such substitute agency that is
equivalent to the ratings specified herein of the Discontinued Agency,
whereupon such substitute agency and equivalent rating shall replace
the Discontinued Agency and the rating level thereof for the purposes
of this Agreement. If at any time all of the agencies specified herein
with respect to a party have become Discontinued Agencies and Party A
and Party B have not previously agreed in good faith on at least one
agency and equivalent rating in substitution for each Discontinued
Agency and the applicable rating thereof, the Downgrade provisions of
Part 1(m)(i) shall cease to apply to the parties.
3
PART 2
TAX REPRESENTATIONS
(a) PAYER TAX REPRESENTATION. For the purpose of Section 3(e) of this
Agreement, Party A and Party B make the following representation:
Not applicable.
(b) PAYEE TAX REPRESENTATIONS. For the purpose of Section 3(f) of this
Agreement, Party A and Party B make the representations specified
below, if any:
Not applicable.
4
PART 3
AGREEMENT TO DELIVER DOCUMENTS
For the purpose of Sections 4(a)(i) and (ii) of this Agreement, each Party
agrees to deliver the following documents, as applicable:
(a) Tax forms, documents or certificates to be delivered are: None.
(b) Other documents to be delivered are:
PARTY REQUIRED DATE BY COVERED BY
TO DELIVER FORM/DOCUMENT/ WHICH TO BE SS.(3)(D)
DOCUMENTS CERTIFICATE DELIVERED REPRESENTATION
--------- ----------- --------- --------------
Party A A copy of the most recent annual Upon request of the Yes
report of such party or its Credit other party.
Support Provider, as applicable,
containing audited consolidated
financial statements for such fiscal
year certified by independent
certified public accountants and
prepared in accordance with
generally accepted accounting
principles ("GAAP") in the party's
country of organization, or, in lieu
thereof, a copy of such party's most
recent Form 10-K as filed with the
Securities and Exchange Commission
(if any such statement is produced).
Party A & B Evidence, reasonably satisfactory in At or promptly Yes
form and substance to the receiving following the execution
party, concerning the due execution and delivery of this
and delivery of this Agreement or Agreement and the
any Confirmation, including, execution and delivery
without limitation, signing of any Confirmation (if
authority and specimen signatures such Confirmation so
for each individual executing the requires).
Agreement and any Confirmation).
Party B Legal opinion in a form satisfactory Upon execution of the No
to Party A. Agreement.
5
PART 4
MISCELLANEOUS
(a) ADDRESSES FOR NOTICES. For the purpose of Section 12(a) of this
Agreement: Address for notices or communications to Party A:
Address: General Electric Capital Services, Inc.
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Senior Vice President - Corporate Treasury and
Global Funding Operations
Telephone: 000-000-0000
Facsimile: 000-000-0000
Address for notices or communications to Party B:
CEF EQUIPEMENT HOLDING, L.L.C.
Address: 00 Xxx Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: Capital Markets Operations
Telephone: 000-000-0000
Facsimile: 000-000-0000
(b) PROCESS AGENT. For the purpose of Section 13(c) of this Agreement:
Party A appoints as its Process Agent: Not applicable
Party B appoints as its Process Agent: Not applicable
(c) OFFICES. The provisions of Section 10(a) shall apply to this Agreement.
(d) MULTIBRANCH PARTY. For the purpose of Section 10(b), Party A is not a
Multibranch Party and Party B is not a Multibranch Party.
(e) CALCULATION AGENT. The Calculation Agent shall be Party A.
(f) CREDIT SUPPORT DOCUMENT. Details of any Credit Support Document: Not
applicable.
(g) CREDIT SUPPORT PROVIDER. With respect to Party A and Party B: none.
(h) 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.
6
(i) NETTING OF PAYMENTS. "Multiple Transaction Payment Netting" will not
apply for the purpose of Section 2(c) of this Agreement to all
Transactions (in each case starting from the date of this Agreement).
(j) "AFFILIATE" will have the meaning specified in Section 14 provided that
Party A and Party B shall not have, or be deemed to have, any
Affiliates for purposes of this Agreement
(k) ABSENCE OF LITIGATION. For the purpose of Section 3(c):
"Specified Entity" means in relation to Party A: Not applicable.
"Specified Entity" means in relation to Party B: Not applicable.
(l) NO AGENCY. The provisions of Section 3(g) will apply to this Agreement.
(m) ADDITIONAL REPRESENTATION will apply. For the purpose of Section 3 of
this Agreement, the following will constitute an Additional
Representation:
(i) Non-Reliance. It is acting for its own account, and it has made its
own independent decisions to enter into that Transaction and as to
whether that Transaction is appropriate or proper for it based upon its
own judgment and upon advice from such advisers as it has deemed
necessary. It is not relying on any communication (written or oral) or
the other party as investment advice or as a recommendation to enter
into that Transaction, it being understood that information and
explanations related to the terms and conditions of a Transaction will
not be considered investment advice or a recommendation to enter into
that Transaction. No communication (written or oral) received from the
other party will be deemed to be an assurance or guarantee as to the
expected results of that Transaction.
(ii) Assessment and Understanding. It is capable of assessing the
merits of and understanding (on its own behalf or through independent
professional advice), and understands and accepts, the terms,
conditions and risks of that Transaction. It is also capable of
assuming, and assumes, the risks of that Transaction.
(iii) Status of Parties. The other party is not acting as a fiduciary
for or an adviser to it in respect of that Transaction.
(iv) Eligible Contract Participant. It is an "eligible contract
participant" as defined in Section la(12) of the Commodity Exchange
Act, as amended.
(n) CONSENT TO RECORDING. Each party (i) consents to the recording of the
telephone conversations of trading and marketing personnel of the
parties in connection with this Agreement or any potential Transaction,
(ii) agrees to obtain any necessary consent of, and give notice of such
recording to, such personnel and (iii) agrees, to the extent permitted
by applicable law, that recordings may be submitted in evidence in any
Proceedings.
7
PART 5
OTHER PROVISIONS
(a) RECOURSE AND RANKING. The obligations of Party B under this Agreement,
and under any Transaction executed hereunder, are solely the
obligations of Party B. No recourse shall be had for the payment of any
amount owing in respect of any Transaction or any other obligation or
claim arising out of or based upon this Agreement against any member,
employee, officer, director or agent of Party B. Any accrued
obligations owing by Party B under this Agreement and any Transaction
shall be payable by Party B solely to the extent that funds are
available therefor from time to time in accordance with the provisions
of the Indenture; provided that such accrued obligations shall not be
extinguished until paid in full. Notwithstanding any provisions
contained in this Agreement to the contrary, Party B shall not be
obligated to pay any amount pursuant to this Agreement unless Party B
has received funds which may be used to make such payment in accordance
with the Indenture.
(b) LIMITATION OF DEFAULTS AND TERMINATION. Notwithstanding the terms of
Sections 5 and 6 of this Agreement, Party A shall be entitled to
designate an Early Termination Date pursuant to Section 6 of this
Agreement only as a result of the occurrence of an Event of Default set
forth in Section 5(a)(i) or 5(a)(vii)(4) as amended above with respect
to Party B as the Defaulting Party or a Termination Event set forth in
Sections 5(b)(i) or 5(b)(iii) of this Agreement with respect to Party A
as the Affected Party.
(c) NO BANKRUPTCY PETITION AGAINST THE COMPANY. Party A hereby covenants
and agrees that, prior to the date which is one year and one day after
all the Notes (or any rated securities) issued by Party B have been
paid in full it will not institute against, or join any other Person in
instituting against, Party B any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other similar
proceeding under the laws of the United States or any state of the
United States.
(d) ADDITIONAL TAX PROVISIONS. The definition of "Indemnifiable Tax" in
Section 14 of this Agreement is modified by adding the following at the
end thereof:
Notwithstanding the foregoing, "Indemnifiable Tax" also means any
Tax imposed in respect of a payment under this Agreement by
reason of a Change in Tax Law by a government or taxing authority
of a Relevant Jurisdiction of the party making such payment,
unless the other party is incorporated, organized, managed and
controlled or considered to have its seat in such jurisdiction,
or is acting for purposes of this Agreement through a branch or
office located in such jurisdiction.
(e) DEFINITIONS. Reference is hereby made to the 2000 ISDA Definitions (the
"2000 Definitions"), as published by the International Swaps and
Derivatives Association, Inc. ("ISDA"), which are hereby incorporated
by reference herein and shall be deemed to be incorporated in each
Confirmation hereunder, unless otherwise specified in a Confirmation.
Any terms used and not otherwise defined herein which are contained in
the 2000 Definitions shall have the meaning set forth therein.
Capitalized terms used and not otherwise defined herein or in the
Agreement or the 2000 Definitions (hereinafter defined) shall have the
meanings assigned to them in the Indenture, dated as of December 14,
2006, among GE Equipment Midticket LLC, Series 2006-1 and The
8
Bank of New York, as Indenture Trustee, as amended or supplemented from
time to time (the "Indenture").
(f) WAIVER OF CONTRACTUAL RIGHT OF SETOFF. Notwithstanding any provision of
this Agreement or any other existing or future agreement, each party
irrevocably waives any and all contractual rights it may have to set
off, recoup or otherwise withhold or suspend or condition payment or
performance of any obligation between the two parties hereunder against
any obligations between the two parties under any other agreements or
otherwise. The words "and will be subject to Section 6(f)" in the third
line of the first paragraph of Section 6(e) of this Agreement are
deleted.
(g) WAIVER OF RIGHT TO TRIAL BY JURY. Each party irrevocably waives, to the
fullest extent permitted by applicable law, any right it may have to
trial by jury of any claim, demand or cause of action relating in any
way to this Agreement or any Credit Support Document, whether sounding
in contract or tort or otherwise, and agrees that either party may file
a copy of this section with any court as evidence of the waiver of its
jury trial rights.
(h) CONDITIONS PRECEDENT. Section 2(a)(iii)(1) of the Agreement shall not
apply to the obligations of Party A unless an Event of Default set
forth in Sections 5(a)(i) or 5(a)(vii)(4) with respect to Party B has
occurred and is continuing.
(i) RATING AGENCY CONDITION. No assignments, amendment, modification or
waiver in respect of this Agreement will be effective unless, in
addition to meeting the requirements otherwise set forth herein, a
written confirmation has been obtained from each applicable Rating
Agency (with the exception of Moody's who shall be notified in writing
prior to such assignment, amendment, modification or waiver in respect
of this Agreement), confirming that the then current rating of the
Notes will not be reduced as a result of such assignments, amendment,
modification or waiver.
(j) AMENDMENT TO INDENTURE. Party B agrees that it shall not amend, modify
or waive any provisions in the Indenture without the consent of Party A
if such amendment, modification or waiver would have a material adverse
effect on Party A's rights under this Agreement.
(k) PART 1(M)(I). Party A acknowledges the various provisions set forth in
Part 1(m) hereof in connection with a Downgrade (as set forth therein).
Party A agrees to act in good faith and in a commercially reasonable
manner in this regard.
9
Please confirm your agreement to the terms of the foregoing Schedule by
signing below.
GENERAL ELECTRIC CAPITAL SERVICES, INC.
By:
------------------------------------
Name:
Title:
CEF EQUIPMENT HOLDING, L.L.C.
By:
------------------------------------
Name:
Title:
10
