EXHIBIT 4 (h)
SCHEDULE
TO THE
2002
MASTER AGREEMENT
DATED AS OF NOVEMBER 16, 2004
BETWEEN GENERAL ELECTRIC CAPITAL SERVICES, INC. ("PARTY A")
AND
GE COMMERCIAL EQUIPMENT FINANCING LLC, SERIES 2004-1 ("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 "FAILURE TO PAY OR DELIVER" provision of Section 5(a)(i) is hereby
amended by replacing the word "first" with the word "third" in the third
line thereof.
(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 "CROSS DEFAULT" provisions of Section 5(a)(vi) 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.
(h) The "CREDIT SUPPORT DEFAULT" provision of Section 5(a)(iii) will apply to
Party A and will not apply to Party B; provided, however, that Party A
shall have a 30-days grace period following the occurrence of an event
under Section 5(a)(iii) to cure such event before it becomes an Event of
Default.
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(i) The "FORCE MAJEURE EVENT" provision of Section 5(b)(ii) will not apply to
Party A and will not apply to Party B.
(j) The "CREDIT EVENT UPON MERGER" provisions of Section 5(b)(v) will not
apply to Party A and will not apply to Party B.
(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
ratings of Party A are withdrawn or reduced below "A+" (long term) or, if
a short term rating is in effect for Party A, "A-1" (short term) by
Standard & Poor's Rating Services ("S&P"); or (ii) (a) Party A has both
long and short term unsecured debt ratings from Xxxxx'x Investors Service,
Inc. ("Moody's"), and any such rating is withdrawn, reduced below (or put
on watch for downgrade at) "A1" (long term) or "P-1" (short term) or (b)
Party A has only a long-term unsecured debt rating from Moody's and such
rating is withdrawn, reduced below (or put on watch for downgrade at)
"Aa3" (any of the above referenced withdrawals or reductions in credit
status 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, (in consultation with Party B), 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.
"Qualifying Substitute Arrangement" shall mean one of the following
arrangements: (i) providing an unconditional guaranty or letter of credit
to Party B covering all of the obligations under this Agreement and all
Transactions hereunder in which the guarantor or provider of the
applicable letter of credit satisfies the Counterparty Ratings Requirement
or (ii) procuring a Replacement Transaction which replaces all
Transactions outstanding under this Agreement with Transactions on
identical terms, in either (i) or (ii) in satisfaction of the Rating
Agency Conditions.
"Counterparty Ratings Requirement" means with respect to any entity,
that either such entity or its Credit Support Provider, has (i) (a) a
Moody's long-term unsecured debt rating or counterparty rating of at least
"Aa3" where the entity or its Credit Support Provider has only a long-term
unsecured debt rating (b) a Moody's long-term and short-term unsecured
debt rating of at least "Aa3" and "P-1", respectively, where the entity or
its Credit Support Provider has both a long-term and a short-term debt
rating, and (ii) (a) an S&P long-term unsecured debt rating or
counterparty rating of at least "AA" where the entity or its Credit
Support Provider has only a long-term unsecured debt rating or (b) an S&P
long-term and short-term unsecured debt rating of at least "AA" and "A-1"
where the entity or its Credit Support Provider has both a long-term and a
short-term debt rating," and (iii) 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"
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and if such entity or its Credit Support Provider has a Fitch long-term
unsecured debt rating, such rating shall be at least "A".
"Replacement Transaction" means a transaction, with terms
satisfactory to Party B, with a replacement counterparty meeting the
Counterparty Rating Requirement who shall assume, at no cost to Party B,
Party A's position under this Agreement and all Transactions hereunder.
(n) 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.
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.
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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: None.
(b) Other documents to be delivered are:
PARTY
REQUIRED DATE BY COVERED BY
TO DELIVER FORM/DOCUMENT/ WHICH TO BE Section (3)(d)
DOCUMENTS CERTIFICATE DELIVERED REPRESENTATION
------------ ------------------------------------------ ---------------------------- --------------
Party A A copy of the most recent annual report of Upon request of the other Yes
such party or its Credit Support Provider, party.
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.
Party A & B Evidence, reasonably satisfactory in form At or promptly following the Yes
and substance to the receiving party, execution and delivery of
concerning the due execution and delivery this Agreement and the
of this Agreement or any Confirmation, execution and delivery of
including, without limitation, signing any Confirmation (if such
authority and specimen signatures for each Confirmation so requires).
signatory.
Party B Legal opinion in a form satisfactory to Upon execution of the No
the other party. Agreement.
Party B The Indenture and other related documents. Upon execution of the Yes
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 A:
Address: General Electric Capital Services, Inc.
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX
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:
GE Commercial Equipment Financing LLC, Series 2004-1
Address: c/o General Electric Capital Corporation, as Servicer
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Senior Vice President - Corporate Treasury
and Global Funding Operation
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;
provided, however, that the first sentence of Section 10(a) is hereby
amended by deleting the words "except that a party will not have recourse
to the head or home office of the other party in respect of any payment or
delivery deferred pursuant to Section 5(d) for so long as the payment or
delivery is so deferred."
(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) 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.
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(h) 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).
(i) "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
(j) 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.
(k) NO AGENCY. The provisions of Section 3(g) will apply to this Agreement.
(l) 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.
(m) 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.
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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) 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,
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dated as of November 16, 2004, among Party B and JPMorgan Chase Bank,
N.A., 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.
(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) as amended above with respect to Party B
has occurred and is continuing.
(i) AMENDMENT. No assignments, amendment, modification or waiver in respect of
this Agreement will be effective unless (i) the Rating Agency Conditions
have been satisfied prior to such assignments, amendment, modification or
waiver and (ii) any such assignment, amendment, modification or waiver has
been entered into in accordance with the terms of Sections 7 and 9 of this
Agreement.
(j) TRANSFERS. Notwithstanding Section 6 and Section 7 of the Agreement, no
transfer (other than in connection with Section 7(b)) by Party A shall be
effective unless Party A obtains Party B's consent and the Rating Agency
Condition has been satisfied prior to such transfer.
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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 2004-1
By: CEF Equipment Holding, L.L.C.
its Managing Member
By: ______________________________
Name:
Title:
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