EXHIBIT 10.69
SCHEDULE TO THE MASTER AGREEMENT
dated as of August 19, 1998
between KEYBANK NATIONAL ASSOCIATION and CAI LEASE
SECURITIZATION - II CORP.
("Party A") ("Party B")
Part 1. Termination Provisions.
(a) "Specified Entity" means in relation to Party A for the purpose of:
Section 5(a)(v), NOT APPLICABLE
Section 5(a)(vi), NOT APPLICABLE
Section 5(a)(vii), NOT APPLICABLE
Section 5(b)(ii), NOT APPLICABLE
and in relation to Party B for the purpose of:
Section 5(a)(v), NOT APPLICABLE
Section 5(a)(vi), NOT APPLICABLE
Section 5(a)(vii), NOT APPLICABLE
Section 5(b)(ii), NOT APPLICABLE
(b) "Specified Transaction" will have the meaning specified in Section 12 of
this Agreement.
(c) The "Cross Default" provisions of Section 5(a)(vi) will apply to Party A
and will not apply to Party B.
If such provisions apply:--
(d) "Specified Indebtedness" will have the meaning specified in Section 12 of
this Agreement.
(e) "Threshold Amount" means 2% of the stockholders' equity of Party A.
(f) The "Credit Event Upon Merger" provisions of Section 5(b)(ii) will apply to
Party A and will not apply to Party B.
(g) The "Automatic Early Termination" provision of Section 6(a) will not apply
to Party A will not apply to Party B.
(h) Payments on Early Termination. For the purpose of Section 6(e) of this
Agreement:
(i) Market Quotation will apply.
(ii) The Second Method will apply.
(i) Additional Termination Event. None applicable.
(j) Additional Events of Default. The occurrence of either of the following
events shall be an additional Event of Default under this Agreement with
respect to Party B as the Defaulting Party: (i) the grant of the lien and
security interest in the Collateral, under and as defined in the Credit
Agreement, in favor of Party A as a counterparty to one or more Interest
Rate ▇▇▇▇▇▇, as defined in the Credit Agreement, shall fail to be
effective, or (ii) Party B shall amend the Credit Agreement in violation of
Part 4(m) of this Schedule.
Part 2. Agreement to Deliver Documents.
For the purpose of Section 4(a) of this Agreement, Party B agrees to
deliver the following documents:
(a) A certificate of an authorized officer of Party B evidencing the necessary
corporate authorizations, resolutions, and approvals with respect to the
execution, delivery and performance of this Agreement, and certifying the
names, true signatures, and authority of the officer(s) signing this
Agreement and executing Transactions hereunder.
(b) Quarterly and annual financial statements when requested by Party A.
Part 3. Miscellaneous.
(a) Addresses for Notices: For the purpose of Section 10(a) of this Agreement
Address for notices or communications to Party A:
Address: 127 PUBLIC SQUARE, ▇▇-▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: INTEREST RATE RISK MANAGEMENT
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No:(▇▇▇) ▇▇▇-▇▇▇▇
Address for notices or communications to Party B:
Address: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: PRESIDENT
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No: ▇▇▇-▇▇▇-▇▇▇▇
(b) Calculation Agent. The Calculation Agent is Party A.
(c) Credit Support Document: Party B shall deliver the Credit Agreement, dated
as of August 19, 1998, among Party B, as "Borrower", Capital Associates
International, Inc., as "Servicer", Concord Minutemen Capital Company,
LLC., as Senior Lender, Key Corporate Capital Inc., as "Junior Lender",
"Residual Lender", and "Agent" ("Credit Agreement"), which shall be a
Credit Support Document with respect to Party B hereunder.
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(d) Credit Support Provider. None applicable.
(e) Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York (including Section 5-1401
of the General Obligations Laws of the State of New York, but otherwise
without regard to conflicts of law principles).
(f) "Affiliate" will have the meaning specified in Section 12 of this
Agreement.
(g) Definitions. Section 12 is modified as follows:
(i) "Default Rate" means Prime +2%.
(h) Payments. Party A will make payments to Party B by transfer to the account
of Party B at Bankers Trust Company, New York, New York (Account Number:
26209).
Party B will make payments to Party A by transfer to KeyBank National
Association in Cleveland, ABA #▇▇▇▇▇▇▇▇▇ (Account Number: 1553), Attention:
Derivatives Operations.
Part 4. Other Provisions.
(a) Confirmations. Notwithstanding anything to the contrary in the Agreement:
(i) The parties hereto agree that with respect to each Transaction
hereunder a legally binding agreement shall exist from the moment that
the parties hereto agree on the essential terms of such Transaction,
which the parties anticipate will occur by telephone.
(ii) For each Transaction Party A and Party B agree to enter into
hereunder, Party A shall promptly send to Party B a Confirmation,
setting forth the terms of such Transaction. Party B shall execute and
return the Confirmation to Party A or request correction of any error
within three Business Days of receipt. Failure of Party B to respond
within such period shall not affect the validity or enforceability of
such Transaction and shall be deemed to be an affirmation of such
terms.
(b) Additional Agreement. Each party agrees, upon learning of the occurrence of
any event or commencement of any condition that constitutes (or that with
the giving of notice or passage of time or both would constitute) an Event
of Default or Termination Event with respect to the party, promptly to give
the other party notice of such event or condition that with the giving of
notice or passage of time or both would constitute an Event of Default or
Termination Event with respect to such party.
(c) Additional Representations.
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(i) Party B represents to Party A (which representation will be
deemed to be repeated by Party B on each date on which a Transaction
is entered into) that it, or any Credit Support Provider, has total
assets exceeding $10,000,000, and is entering into the Transaction in
connection with the conduct of its business or to manage the risk of
an asset or liability owned or incurred, or reasonably likely to be
owned or incurred in the conduct of its business.
(ii) Master Agreement. The parties hereto intend that this Agreement
shall be a master agreement, as defined in 11 U.S.C. ss. 101 (53B) and
12 U.S.C. ss. 18.
(iii) Eligible Swap Participant. It is an "eligible swap participant"
as that term is defined by the Commodity Futures Trading Commission at
17 C.F.R. ss. 35.1(b)(2).
(iv) Relationship Between Parties.
(A) It is not relying on any advice, statements or recommendations
(whether written or oral) of the other party regarding any Transaction,
other than the written representations expressly made by that other party
in this Agreement and in the Confirmation in respect of that Transaction;
(B) In respect of each Transaction under this Agreement,
(1) it has the capacity to evaluate (internally or through independent
professional advice) that Transaction (including decisions regarding
the appropriateness or suitability of that Transaction) and has made
its own decision to enter into that Transaction;
(2) it understands the terms, conditions and risks of that Transaction
and is willing to accept those terms and conditions and to assume
(financially and otherwise) those risks;
(3) it is entering into that Transaction as principal and not as agent
for any other party;
(4) it acknowledges and agrees that the other party is not acting as a
fiduciary or advisor to it in connection with that Transaction; and
(5) it is entering into that Transaction for the purposes of managing
its borrowings or investments, hedging its underlying assets or
liabilities or in connection with a line of business, and not for
purposes of speculation.
(d) Consent to Assignment. Party A hereby consents to the assignment by Party B
of its rights under this Agreement and all Transactions to the "Agent" under the
Credit Agreement
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(e) Limited Recourse. Party A hereby agrees that, notwithstanding any provision
of this Agreement, at any time that (a) Party B is required to make payments to
Party A pursuant to the terms of this Agreement and (b) no Event of Default of
the type described in Section 5(a)(vii) of the Master Agreement has occurred and
is continuing with respect to Party B: (i) Party B shall make any such payment
to Party A; (ii) Party B shall have a duty, liability and obligation to make
each such payment to Party A; (iii) each such payment shall be due from Party B;
and (iv) Party A shall have the right to enforce any such claim against Party B
in respect of any such payment, in each case only to the extent that Party B has
funds available to make such payment under the terms of the Credit Agreement or,
where the payment is a termination payment under this Agreement, where Party B
will have funds available to make such payment upon entering into one or more
Interest Rate ▇▇▇▇▇▇, under and as defined in the Credit Agreement, with a
successor counterparty to Party A; provided that Party B's obligations and Party
A's rights shall only be suspended during such period of funds unavailability,
and not be permanently extinguished, until such time, if any, that additional
funds become available pursuant to the terms of the Credit Agreement, whether as
a result of the collection, foreclosure, or other realization upon the
Collateral provided thereunder or otherwise; and provided further that nothing
hereunder shall be interpreted as in any way reducing Party A's priority to
payment under Section 4.01 and other applicable provisions of the Credit
Agreement or limiting Party A's remedies hereunder if such priority is not
recognized.
(f) No Petition for Bankruptcy. Party A, by entering into this Agreement, hereby
covenants and agrees that in connection with any obligations of Party B under
this Agreement, Party A will not institute against Party B, or join in any
institution against Party B of, any proceeding under any bankruptcy, insolvency
or similar law for one year and one day after the date on which all obligations
of Party B under the Credit Agreement have been paid in full.
(g) Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions of the Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction. The parties hereto
shall endeavor in good faith negotiations to replace the prohibited or
unenforceable provision with a valid provision, the economic effect of which
come as close as possible to that of the prohibited or unenforceable provision.
(h) WAIVER OF JURY TRIAL. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT
TO TRIAL BY JURY IN ANY PROCEEDINGS.
(i) Rating Agency Consent. No amendment, modification or waiver of this
Agreement can be effected without the prior written consent of each "Rating
Agency" (as defined in the Credit Agreement).
(j) Illegality. The "Illegality" provisions Section 5(b)(i) shall be expanded to
include the obligation of a party to comply with any directive, direction or
similar order issued or given by any government agency or authority with
competent jurisdiction (whether or not having the force of law) which prohibits
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its performance under this Agreement, and in that event such party will be the
Affected Party for the purpose of that Section.
(k) Telephonic Recording. The parties agree that each may electronically record
all telephonic conversations between them and that any such tape recordings may
be submitted as the preferred evidence in any Proceedings. In the event of any
dispute between the parties relating to a Transaction, the parties may use
electronic recordings between the persons who entered into such Transaction as
evidence of the terms and conditions of such Transaction, despite any writing to
the contrary.
(l) Disclaimer. In entering into this Agreement, Party B understands that there
is no assurance as to the direction in which interests rates in financial
markets may move in the future and that Party A makes no covenant,
representation, or warranty in this regard or in regard to the suitability of
the terms of the Agreement or any Transaction to the particular needs and
financial situation of Party B. Party B represents, which representation shall
be deemed repeated with respect to and at the time of each Transaction, that it
has had the opportunity, independently of Party A and Party A's affiliates,
officers, employees, and agents, to consult its own financial advisors and has
determined that it is in Party B's interest to enter into the Agreement and any
Transaction.
(m) Agent. If Key Corporate Capital Inc. shall for any reason cease to be the
Agent under the Credit Agreement, Party B shall not agree to any amendment or
waiver of any provision of the Credit Agreement without the consent in writing
of Party A, which consent shall not be unreasonably withheld.
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IN WITNESS WHEREOF the parties have executed this document on
the respective dates specified below with effect from the date specified on the
first page of this document.
KEYBANK NATIONAL ASSOCIATION CAI LEASE SECURITIZATION - II
CORP.
------------------------------------- ------------------------------------
By: /s/▇▇▇▇▇ ▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------- ------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Vice President Title: Chief Financial Officer
and Treasurer
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