Exhibit 4(r)
SCHEDULE
TO THE
MASTER AGREEMENT
DATED AS OF SEPTEMBER 25, 2003
BETWEEN
GE COMMERCIAL EQUIPMENT FINANCING LLC, SERIES 2003-1, ("Party A")
AND
GENERAL ELECTRIC CAPITAL SERVICES, INC.,
("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)(iv): Not
applicable.
(b) "Specified Transaction" will have the meaning specified in
Section 14 of this Agreement.
(c) The "Credit Support Default" provision of Section 5(a)(iii)
will not apply to Party A and will apply to Party B.
(d) The "Breach of Agreement" provision of Section 5(a)(ii) will
not apply to Party A and will not apply to Party B.
(e) The "Misrepresentation" provision of Section 5(a)(iv) will not
apply to Party A and will not apply to Party B.
(f) The "Default under Specified Transaction" provision of Section
5(a)(v) will not apply to Party A or Party B.
(g) The "Cross Default" provisions of Section 5(a)(vi) will not
apply to Party A and will not apply to Party B.
(h) The "Credit Event Upon Merger" provisions of Section 5(b)(iv)
will not apply to Party A and will not apply to Party B.
(i) The "Automatic Early Termination" provisions of Section 6(a)
will not apply to Party A and will not apply to Party B.
(j) Payments on Early Termination. For the purpose of Section 6(e)
of this Agreement:
(i) Market Quotation will apply unless Party A is the
Non-defaulting Party or the party which is not the Affected Party, as
the case may be, and Party B fails to replace itself pursuant to Part
1(l) or Part 5(d)(iii) of this Schedule, in which event Loss will
apply.
(ii) The Second Method will apply.
(k) "Termination Currency" means United States Dollars.
(l) Additional Termination Event will apply. The following shall
constitute Additional Termination Events in which Party B shall be the sole
Affected Party:
(i) Credit Downgrade - Party B. If at any time (i) the
short-term unsecured debt rating of Party B is withdrawn by or reduced
below "F-1" if rated by Fitch Ratings ("Fitch"); or (ii) the short-term
unsecured debt rating of Party B is withdrawn by or reduced below "A-1"
by Standard & Poor's Rating Services ("S&P") (or in the absence of a
short-term debt rating, the long-term unsecured debt rating of Party B
is withdrawn or reduced below "A+"); or (iii) if Party B's (a)
long-term unsecured debt rating by Xxxxx'x Investors Service, Inc.
("Xxxxx'x") is withdrawn, reduced or put on watch for downgrade below
"A1" or its short-term unsecured debt rating is withdrawn, reduced or
put on watch for downgrade below "P-1", where Party B has both a
long-term and a short-term unsecured debt ratings, (b) the long-term
unsecured debt rating is withdrawn, reduced or put on watch below "Aa3"
where Party B has only a long-term unsecured debt rating (any such
withdrawal or reduction, a "Downgrade"), then Party B shall promptly
notify Party A by telephone (promptly confirmed in writing), and Party
A then shall notify the Rating Agencies. Party B shall then, at its own
expense, (in consultation with Party A), (1) within 30 days of the date
of such Downgrade if Xxxxx'x is the downgrading Rating Agency or (2)
promptly after such Downgrade if S&P is the downgrading Rating Agency,
enter into a "Qualifying Substitute Arrangement" (as defined below) to
assure performance by Party B of its obligations under the
Transactions.
"Qualifying Substitute Arrangement" shall mean any arrangement
satisfactory to the Rating Agencies, including (i) procuring a Letter
of Credit Transaction with terms reasonably satisfactory to Party A and
procuring a Ratings Reaffirmation; (ii) electing in writing to the
Servicer to pledge collateral subject to the terms of an ISDA Credit
Support Annex to be negotiated between the parties at such time and, if
Xxxxx'x is the downgrading Rating Agency, such collateral posted shall
be equal to the daily xxxx-to-market value of the Transactions, if S&P
is the downgrading Ratings Agency, (1) such collateral posted shall be
an amount equal to the greater of (a) the xxxx-to-market value of the
Transactions, (b) the amount owed by Party B on the next succeeding
Payment
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Date and (c) one percent (1%) of the outstanding Notional Amount of
each Transaction, (2) Party B must post collateral pursuant to this
sub-paragraph (ii) if it has failed to satisfy the requirements under
(i), (iii) or (iv) of this paragraph within 30 days of such Downgrade
and (3) Party B shall remain obligated to take such action to satisfy
the requirements set forth in (i), (iii) or (iv) of this paragraph;
(iii) procuring a Replacement Transaction with terms reasonably
satisfactory to Party A which replaces all Transactions outstanding
under this Agreement with Transactions on identical terms and procuring
a Ratings Reaffirmation; or (iv) taking such other action (if any) as
the downgrading Rating Agency shall require to nullify the effect of
such Downgrade on the ratings on the Notes and procuring a Ratings
Reaffirmation. Notwithstanding the previous sentence, if Party B's (a)
long-term unsecured debt rating by Xxxxx'x is reduced to "A2" or below
where Party B has only a long-term unsecured debt rating or (b)
long-term and short-term unsecured debt rating by Xxxxx'x is reduced to
"A3" or below or "P-2" or below, respectively, where Party B has both a
long-term and a short-term debt rating, Party B must find a Replacement
Transaction pursuant to sub-paragraph (iii) above.
"Counterparty Ratings Requirement" means with respect to any
entity, either such entity or the guarantor of such entity,
respectively, has (i) (a) a Moody's long-term unsecured debt rating of
at least "Aa3" where the entity or guarantor has only a long-term
unsecured debt rating (b) a Moody's long-term and short-term unsecured
debt rating of at least "A1" and "P-1", respectively, where the entity
or guarantor has both a long-term and a short-term debt rating (ii) if
such entity or guarantor, respectively, has an S&P short term unsecured
debt rating, an S&P short-term unsecured debt rating of at least "A-1"
(or in the absence of a short-term debt rating, the long-term unsecured
debt rating of such entity or guarantor, respectively, is at least
"A+") and (iii) if such entity or guarantor, respectively, has a Fitch
short-term unsecured debt rating, a Fitch short-term unsecured debt
rating of at least "F-1".
"Ratings Reaffirmation" means a acknowledgement from a Rating
Agency whose rating on the Class A Notes or the Class B Notes was
reduced or withdrawn, that the then-current rating of the Class A Notes
or the Class B Notes (without giving effect to the relevant Downgrade)
will not be reduced notwithstanding the applicable Downgrade.
"Replacement Transaction" means a transaction with a
replacement counterparty meeting the Counterparty Rating Requirements
who shall assume, at no cost to Party A, Party B's position under this
Agreement and all Transactions hereunder.
(m) 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 a
Discontinued Agency and the applicable rating
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thereof, the Credit Downgrade provision of Part 1(l) of this Agreement shall
cease to apply to the parties. For the avoidance of doubt, failure by either
party to comply with this paragraph shall not constitute an Event of Default or
Termination Event with respect to such party.
PART 2
TAX REPRESENTATIONS
(a) Payer Tax Representations. For the purposes of Section 3(e) of
this Agreement, Party A and Party B will make the following representation:
It is not required by any applicable law, as modified by the
practice of any relevant governmental revenue authority, 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) of this
Agreement) to be made by it to Party A under this Agreement.
In making this representation, each party may rely on (i) the
accuracy of any representations made by the other party
pursuant to Section 3(f) of this Agreement, (ii) the
satisfaction of the agreement contained in Section 4(a)(i) or
4(a)(iii) of this Agreement and the accuracy and effectiveness
of any document provided by the other party pursuant to
Section 4(a)(i) or 4(a)(iii) of this Agreement and (iii) the
satisfaction of the agreement of the other party contained in
Section 4(d) of this Agreement, provided that it shall not be
a breach of this representation where reliance is placed on
sub-clause (ii) above 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) For the purposes of Section
3(f) of this Agreement, Party A makes only the following representation: Party A
is a limited liability company formed under the laws of the State of Delaware.
(ii) For the purposes of Section 3(f) of this Agreement,
Party B makes only the following representation: None
(c) Modified Tax Provisions. Party A's obligations under Section
2(d)(i) of this Agreement shall be limited to complying with clauses
(1), (2) and (3) thereof and Party A shall not be obligated to pay any
amount owing by it under clause (4).
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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: Each
party agrees to complete (accurately and in a manner reasonably satisfactory to
the other party), execute, arrange for any required certification of, and
deliver to the other party or such government or taxing authority as the other
party directs, any form or document that may be required or reasonably requested
in order to allow the other party to make a payment under this Agreement without
any deduction or withholding for or on account of any Tax or with such
deductions or withholding at a reduced rate.
(b) Other documents to be delivered are:
COVERED BY
PARTY REQUIRED TO DATE BY WHICH TO BE SECTION 3(d)
DELIVER DOCUMENT FORM/DOCUMENT/ CERTIFICATE DELIVERED REPRESENTATION
----------------------------------------------------------------------------------------------------------
Party A and Such proof of the names, true Upon execution of Yes
Party B signature and authority of this Agreement.
persons signing this
agreement and any
Confirmations as the other
party may reasonably request
----------------------------------------------------------------------------------------------------------
Party A and Party Legal opinion in a form Promptly following No
B satisfactory to the other party. execution of this
Agreement.
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PART 4
MISCELLANEOUS
(a) Addresses for Notices. For the purpose of Section 12(a) of
this Agreement:
Address for notices or communications to Party B:
Address: General Electric Capital Services, Inc.
00 Xxx Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: General Counsel
Telephone: 000-000-0000
Facsimile: 000-000-0000
Address for notices or communications to Party A:
Address: GE Commercial Equipment Financing LLC, 2003-1
c/o General Electric Capital Services, Inc.
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 and shall be interpreted as an express agreement of the head or home
office to be bound unconditionally and irrevocably by the terms of this
Agreement and to perform the obligations of the Office party to this Agreement
if such Office cannot perform any of its obligations hereunder.
(d) Multibranch Party. For the purpose of Section 10, Party A is
not a Multibranch Party, and Party B is not a Multibranch Party.
(e) Calculation Agent. The Calculation Agent shall be Party B.
(f) Credit Support Document. With respect to Party A: None. With
respect to Party B: None (except with respect to Part 1(l) hereof).
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(g) Credit Support Provider. With respect to Party A: None. With
respect to 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, INCLUDING
SECTION 1504(1) OF THE GENERAL OBLIGATIONS LAW, BUT WITHOUT REFERENCE TO ANY
OTHER CONFLICT OF LAW PROVISION THEREOF.
(i) Netting of Payments. Section 2(c)(ii) of this Agreement will
not apply to any Transactions from the date of this Agreement.
(j) "Affiliate" will have the meaning specified in Section 14;
provided, however, that Section 3(c) of this Agreement is hereby amended by
deleting the words "or any of its Affiliates" in the first and second lines
thereof.
PART 5
OTHER PROVISIONS
(a) Recourse and Ranking. The obligations of Party A under this
Agreement, and under any Transaction executed hereunder, are solely the
obligations of Party A. 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 A. Any accrued obligations owing by Party A under this
Agreement and any Transaction shall be payable by Party A 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 A shall not be obligated to pay any amount
pursuant to this Agreement unless Party A has received funds which may be used
to make such payment and such payment is made in advance in accordance with the
Indenture. Any amount which Party A does not pay pursuant to the operation of
the preceding sentence shall not constitute a claim (as defined in Section 101
of the Bankruptcy Code) against or corporate obligation of Party A for any such
insufficiency unless and until such payment is permitted under such preceding
sentence.
(b) Limitation of Defaults and Termination. Notwithstanding the
terms of Sections 5 and 6 of this Agreement, Party B 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) with respect to Party A as the Defaulting Party or a
Termination Event set forth in Sections 5(b)(i) or 5(b)(ii) of this Agreement
with respect to Party B as the Affected Party.
(c) No Bankruptcy Petition Against the Company. Party B 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 A have been paid in full
it will not institute against, or join any other Person in instituting against,
Party A any bankruptcy, reorganization, arrangement, insolvency or
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liquidation proceedings or other similar proceeding under the laws of the United
States or any state of the United States.
(d) Transfers. (i) Section 6(b)(ii) of this Agreement is amended
by inserting the following phrase at the end of such Section immediately before
the final period: "provided that any such transfer by Party A under this Section
6(b)(ii) shall not be subject to or conditional upon the prior written consent
of Party B if (w) Party B will not, as a result of such transfer be required on
the next succeeding Scheduled Payment Date to pay to transferee an amount in
respect of an Indemnifiable Tax under Section 2(d)(i)(4) (except in respect of
default interest) greater than the amount in respect of which Party B would have
been required to pay to Party A in the absence of such transfer, (x) the
transferee will not, as a result of such transfer, be required on the next
succeeding Scheduled Payment Date to withhold or deduct on account of
Indemnifiable Tax under Section 2(d)(i) (except in respect of default interest)
amounts in excess of that which it would, on the next succeeding Scheduled
Payment Date, have been required to so withhold or deduct in the absence of such
transfer unless it would be required to make additional payments pursuant to
Section 2(d)(i)(4) corresponding to such excess (y) a Termination Event or Event
of Default does not occur as a result of such transfer and (z) Party A obtains a
Ratings Reaffirmation prior to such transfer. With respect to the result
described in subclauses (w) and (x), Party A agrees to cause such transferee to
make, and Party B agrees to make, such Payee Tax Representations and Payer Tax
Representations as may be reasonably requested by the other party in order to
permit such other party to determine that such result will not occur after such
transfer".
(ii) Notwithstanding Section 7 of this Agreement, Party A
shall be entitled (but not required) to assign its rights and
obligations with respect to any forward currency exchange agreement,
any spot foreign currency exchange agreement or any other Transaction
permitted hereunder to any of its Affiliate with respect to the
Collateral.
(iii) Subject to Section 6(b), and except as expressly
provided herein, neither this Agreement nor any interest or obligation
in or under this Agreement or the Transaction(s) may be transferred by
Party B without the prior written consent of Party A and without
obtaining a Ratings Reaffirmation prior to such transfer (other than
pursuant to a consolidation or amalgamation with, or merger in to, or
transfer of all or substantially all of Party A's assets to, another
entity) and any purported transfer without such consent will be void.
Notwithstanding anything to the contrary in this Schedule or this
Agreement, Party B may transfer without the prior written consent of
Party A, this Agreement, any of its interests and obligation in and
under this Agreement or the Transaction(s) to another of Party B's
offices, branches or Affiliates on two Business Days' prior written
notice; provided, however, that (v) if such transfer is to an entity
other than Party B such notice shall be accompanied by a Guarantee of
such transferee's obligations in form and substance satisfactory to
Party A, (w) Party A will not, as a result of such transfer be required
on the next succeeding Scheduled Payment Date to pay to transferee an
amount in respect of an Indemnifiable Tax under Section 2(d)(i)(4)
(except in respect of default interest) greater than the amount in
respect of which Party A would have been required to pay to Party B in
the absence of such transfer, (x) the transferee will not, as a result
of such transfer, be required on the next succeeding Scheduled Payment
Date to withhold or deduct on account of Indemnifiable Tax under
Section
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2(d)(i) (except in respect of default interest) amounts in excess of
that which it would, on the next succeeding Scheduled Payment Date,
have been required to so withhold or deduct in the absence of such
transfer unless it would be required to make additional payments
pursuant to Section 2(d)(i)(4) corresponding to such excess, (y) a
Termination Event or Event of Default does not occur as a result of
such transfer and (z) Party B has obtained Ratings Reaffirmation prior
to such transfer. With respect to the result described in subclauses
(w) and (x), Party B agrees to cause such transferee to make, and Party
A agrees to make, such Payee Tax Representations and Payer Tax
Representations as may be reasonably requested by the other party in
order to permit such other party to determine that such result will not
occur after such transfer.
(e) Amendment. No assignments, amendment, modification or waiver
in respect of this Agreement will be effective unless (i) it is in writing and
executed by each of the parties or confirmed by an exchange of telexes or
facsimiles and (ii) except as waived by the Rating Agencies, the Rating Agencies
shall have advised that such assignment or amendment will not result in a
downgrade or withdrawal of the then-current rating on the Class A Notes and the
Class B Notes.
(f) Capitalized Terms. Capitalized terms used and not otherwise
defined herein shall have the meanings assigned to them in the Indenture, dated
as of September 25, 2003, among Party A, as Issuer and JPMorgan Chase Bank, as
Indenture Trustee, as amended or supplemented from time to time (the
"Indenture") and the Servicing Agreement, dated as of September 25, 2003, as
amended or supplemented from time to time, among Party A, as Issuer and General
Electric Capital Corporation, as Servicer, as amended or supplemented from time
to time (the "Servicing Agreement").
(g) Waiver of Jury Trial. Each party hereto hereby irrevocably
waives any and all right to trial by jury in any Proceedings.
(h) Additional Representations. Section 3 of this Agreement is
hereby amended by adding the following additional subsections:
(g) Eligible Contract Participant. It is an "eligible
contract participant" as defined in Section 1a(12) of the
Commodity Exchange Act, 7 U.S.C. Section 1a(12), and is
entering into this Agreement in conjunction with its line of
business (including financial intermediation services).
(i) No Reliance. This Agreement and each Transaction
have been entered into by each party in reliance only upon its
judgment, in order to accomplish legitimate business needs.
Neither party holds itself out as advising, or any of its
employees or agents as having any authority to advise, the
other party as to whether or not it should enter into this
Agreement or any Transaction. Neither party is receiving any
compensation from the other party for providing advice in
respect of this Agreement or any Transaction, and any such
advice provided to such other party will not form the primary
basis for an investment decision by such other party.
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(i) Consent to Recording. The parties agree that each may
electronically record all telephonic conversations between marketing and trading
personnel in connection with this Agreement and that any such recordings may be
submitted in evidence to any court or in any Proceedings for the purpose of
establishing any matters pertinent to any Transaction.
(j) 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,
net, 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.
(k) Provision of Evidence of Execution and Delivery. The parties
agree that, at or promptly following the execution and delivery of this
Agreement, and, if a Confirmation so requires, on or before the date set forth
therein, each party shall deliver to the other evidence, reasonably satisfactory
in form and substance to the receiving party, concerning the due execution and
delivery of this Agreement or such Confirmation.
(l) Confirmations. Notwithstanding anything to the contrary in
this Agreement:
(i) The parties hereto agree that with, respect to the
Transaction hereunder, a legally binding agreement shall exist from the
moment that the parties hereto agree on the terms of such Transaction,
which the parties anticipate will occur orally by telephone or by
exchange of electronic messages.
(ii) This Agreement governs the Confirmation dated as of
the date hereof.
(m) Additional Tax Provisions. (i) 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.
(ii) Section 4(a)(iii) of this Agreement is modified by
deleting the word "materially" in the sixth line thereof.
(n) Set-off. The last sentence of the first paragraph of Section
6(e) and the definition of "Set-off" in Section 14 of this Agreement are
deleted.
(o) Settlement Amount. The definition of "Settlement Amount" in
Section 14 of this Agreement is hereby amended by deleting in the third and
fourth lines of subparagraph (b) thereof the words "or would not (in the
reasonable belief of the party making the determination) produce a commercially
reasonable result".
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(p) Jurisdiction. Section 13(b) of this Agreement is hereby
amended by: (i) deleting the word "non-" in the second line of subparagraph (i)
thereof; and (ii) deleting the final paragraph thereof.
(q) Definitions. Reference is hereby made to the 2000 ISDA
Definitions (the "2000 Definitions"), as published by the International Swaps
and Derivatives Association, Inc. ("ISDA"), and the 1998 ISDA FX and Currency
Option Definitions (the "FX Definitions"), as published by ISDA, The Emerging
Markets Traders Association and The Foreign Exchange Committee which are hereby
incorporated by reference herein. Any terms used and not otherwise defined
herein which are contained in the 2000 Definitions or the FX Definitions shall
have the meaning set forth therein, except that references in the 2000
Definitions to a "Swap Transaction" shall be deemed to be references to a
"Transaction".
(r) Conditions Precedent. Section 2(a)(iii)(1) of the Agreement
shall not apply to the obligations of Party B unless and Event of Default set
forth in Sections 5(a)(i) or 5(a)(vii) with respect to Party A has occurred and
is continuing.
(s) Change of Account. Section 2(b) of this Agreement is hereby
amended by the insertion of the following at the end thereof after the word
"change": "provided that if such new account shall not be in the same
jurisdiction having the same power to tax as the original account, the party not
changing its account shall not be obliged to pay any greater amounts and shall
not receive less as a result of such change than would have been the case if
such change had not taken place."
(t) Amendments to Indenture. Party A agrees that it shall not
amend, modify or waive any provisions in the Indenture, Servicing Agreement or
related documents without the consent of Party B if such amendment, modification
or waiver would have a material adverse effect on Party B's rights under this
Agreement.
[Signature pages follow]
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Exhibit 4(r)
Please confirm your agreement to the terms of the foregoing Schedule by
signing below.
GENERAL ELECTRIC CAPITAL SERVICES,
INC.
By:____________________________________________
Name:
Title:
GE COMMERCIAL EQUIPMENT
FINANCING LLC, SERIES 2003-1
By: CEF Equipment Holding, L.L.C., its Managing
Member
By:____________________________________________
Name:
Title:
