EXECUTION VERSION
SCHEDULE
TO THE
2002
MASTER AGREEMENT
DATED AS OF NOVEMBER 20, 2007
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:
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 (within 10 Business Days with respect to an
S&P) 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.
"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 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".
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"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) 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 (if any
such statement is produced).
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).
individual executing the Agreement and any
Confirmation).
Party B Legal opinion in a form satisfactory to Upon execution of the No
Party A. 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 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.
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(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.
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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)(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 November 20, 2007, among GE Equipment
Midticket LLC, Series 2007-1 and The
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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). 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.
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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:
CEF EQUIPMENT HOLDING, L.L.C.
By:
------------------------------------
Name:
Title:
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