Exhibit 4(p)
REIMBURSEMENT AGREEMENT
REIMBURSEMENT AGREEMENT (this "Reimbursement Agreement"), dated as of
September 25, 2003, among GENERAL ELECTRIC CAPITAL SERVICES, INC. ("GECS"), and
DEUTSCHE BANK AG, NEW YORK BRANCH (the "Counterparty").
RECITALS
WHEREAS, the Counterparty has entered into a ISDA Master Agreement,
dated as of September 25, 2003 (such agreement, as amended, supplemented or
modified from time to time, the "Agreement"), with GE Commercial Equipment
Financing, L.L.C., Series 2003-1 (the "Issuer") providing, among other things,
for Issuer to make certain payments to Counterparty in connection with an
interest rate swap transaction (the "Transaction") evidenced by the Agreement
and by a Confirmation dated as of September 25, 2003, with Transaction Reference
Number N258123N (the "Confirmation") made under the Agreement; capitalized terms
used and not otherwise defined herein are used as defined (directly or by
reference) in the Confirmation;
WHEREAS, GECS is willing to enter into this Reimbursement Agreement to
induce the Counterparty to enter into the Confirmation with Issuer;
NOW, THEREFORE, GECS and the Counterparty hereby agree:
SECTION 1.FAST-PAY AND SLOW-PAY ADJUSTMENTS. GECS and the Counterparty
agree as follows:
(a) Not less than two Business Days prior to each Payment
Date or Early Termination Date under the Confirmation, GECS shall
determine and notify the Calculation Agent of (i) the Notional Amount
for purposes of determining the amounts payable under the Confirmation
on such Payment Date or Early Termination Date and whether such
Notional Amount is (A) less than the amount (the "Scheduled Notional
Amount") shown in the "Average Balance" column on Exhibit A for the
month immediately prior to the month in which such date occurs (in
which case the absolute value of the difference is referred to as a
"Fast-Pay Amount"), (B) equal to the Scheduled Notional Amount for such
immediately prior Settlement Period (in which case there shall be no
Fast-Pay Amount or Slow-Pay Amount for such Payment Date) or (C)
greater than the Scheduled Notional Amount for such immediately prior
Settlement Period (in which case the absolute value of the difference
is referred to as a "Slow-Pay Amount"). GECS will provide to the
Calculation Agent upon request any calculation requested by the
Calculation Agent.
(b) On any Payment Date or Early Termination Date with
respect to which there exists any Fast-Pay Amount or Slow-Pay Amount,
the Calculation Agent shall notify GECS of the amount (the "Fast-Pay
Adjustment Amount" or "Slow-Pay Adjustment Amount", respectively) which
would be payable (and by which party) under the Confirmation on such
Payment Date or Early Termination
Date if the Notional Amount used to determine payments due on such
Payment Date or Early Termination Date were equal to the Fast-Pay
Amount or Slow-Pay Amount, as applicable, and all other terms of the
Confirmation remained unchanged.
(c) On each Payment Date or Early Termination Date as to
which there was a Fast-Pay Amount or Slow-Pay Amount, the parties
hereto shall make the following payments, as applicable:
(i) if there was a Fast-Pay Amount with respect
to such Payment Date or Early Termination Date, and the actual
net payment due under the Confirmation on such Payment Date or
Early Termination Date was owed by Issuer, then GECS shall pay
to the Counterparty an amount equal to the applicable Fast-Pay
Adjustment Amount;
(ii) if there was a Fast-Pay Amount with respect
to such Payment Date or Early Termination Date, and the actual
net payment due under the Confirmation on such Payment Date or
Early Termination Date was owed by the Counterparty, then the
Counterparty shall pay to GECS an amount equal to the
applicable Fast-Pay Adjustment Amount;
(iii) if there was a Slow-Pay Amount with respect
to such Payment Date or Early Termination Date, and the actual
net payment due under the Confirmation on such Payment Date or
Early Termination Date was owed by the Counterparty, then GECS
shall pay to the Counterparty an amount equal to the
applicable Slow-Pay Adjustment Amount; and
(iv) if there was a Slow-Pay Amount with respect
to such Payment Date or Early Termination Date, and the actual
net payment due under the Confirmation on such Payment Date or
Early Termination Date was owed by Issuer, then the
Counterparty shall pay to GECS an amount equal to the
applicable Slow-Pay Adjustment Amount.
SECTION 2. Floating Rate Basis Adjustments. GECS and the Counterparty
agree as follows:
(a) Not less than two Business Days prior to each Payment
Date or Early Termination Date, GECS shall notify the Calculation Agent
of the Party A Floating Rate applicable under the Confirmation (the
"CMT Rate") for purposes of determining the amount payable on such
Payment Date or Early Termination Date. GECS will provide to the
Calculation Agent upon request any calculation so requested by the
Calculation Agent.
(b) On each Payment Date or Early Termination Date, the
Calculation Agent shall notify GECS of the amount which would have been
payable (and by which party) on such Payment Date or Early Termination
Date pursuant to a hypothetical basis swap transaction executed under
the Agreement (the "Hypothetical Basis Swap") on the same terms as the
Confirmation, except that (i) the notional amount of such swap
amortizes as set out in the "Average Balance" column on Exhibit A
attached hereto, (ii) instead of the CMT Rate plus a Spread, (as set
forth in the Confirmation), the Issuer was required to
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make payments based upon USD-LIBOR-BBA with a Designated Maturity of
twelve months (as defined in the 2000 ISDA Definitions published by the
International Swaps and Derivatives Association, Inc.), minus a spread
of 18.5 basis points (.185%), and a Reset Date (as defined in the
Confirmation but only applicable semi-annually on the February and
August Reset Dates, instead of monthly) and (iii) instead of
USD-LIBOR-BBA with a Designated Maturity of one month, the Counterparty
was required to make payments based upon the CMT Rate plus a Spread (as
set forth in the Confirmation).
(c) On each Payment Date or Early Termination Date, (i)
GECS shall pay to the Counterparty an amount equal to any net amount
that would have been payable by the Issuer to the Counterparty under
the Hypothetical Basis Swap on such Payment Date or Early Termination
Date, and (ii) the Counterparty shall pay to GECS an amount equal to
any net amount that would have been payable by the Counterparty to the
Issuer under the Hypothetical Basis Swap on such Payment Date or Early
Termination Date.
SECTION 3. Payment Upon Early Termination. GECS and the Counterparty
agree as follows:
(a) In the event of a designation of an Early Termination
Date as provided for in the Agreement, simultaneously with the
calculations of amounts owed thereto, GECS shall notify the Calculation
Agent of (i) any Fast Pay Amount or Slow Pay Amount (calculated in
accordance with the methodology set forth in Section 1), (ii) the
amount which would be payable under the Hypothetical Basis Swap
(calculated in accordance with the methodology set forth in Section 2)
and (iii) the net amount owed (and by which party) pursuant to
subsection (i) above.
(b) On the date determined in accordance with the
Agreement in the event of an Early Termination Date, GECS and the
Counterparty shall make the following payments:
(i) In the event that the net amount calculated
pursuant to clause (a) above is owed by the Counterparty to
GECS, then the Counterparty shall promptly pay such amount to
GECS in accordance with this Reimbursement Agreement.
(ii) In the event that the net amount calculated
pursuant to clause (a) above is owed by GECS to the
Counterparty, then the GECS, shall promptly pay such amount to
the Counterparty in accordance with this Reimbursement
Agreement.
SECTION 4. MISCELLANEOUS.
4.1 NOTICES. All notices to GECS under this Reimbursement Agreement and copies
of all notices of payment failure or other breaches by Issuer of the
Confirmation sent to Issuer under the Agreement shall, until GECS furnishes
written notice to the contrary, be mailed or delivered to GECS at 0000 Xxxxxx
Xxxxxx, 0xx Xxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, and directed to the attention of
the Portfolio Manager.
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4.2 GOVERNING LAW. This Reimbursement Agreement shall be construed and enforced
in accordance with, and governed by, the laws of the State of New York, United
States of America.
4.3 CONSENT TO JURISDICTION. EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT
THE STATE OR FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY
SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES
BETWEEN THEM PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY RELATED DOCUMENT; PROVIDED, THAT EACH PARTY
HERETO ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A
COURT LOCATED OUTSIDE OF THE BOROUGH OF MANHATTAN IN NEW YORK CITY. EACH PARTY
HERETO SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR
SUIT COMMENCED IN ANY SUCH COURT, AND EACH PARTY HERETO HEREBY WAIVES ANY
OBJECTION THAT SUCH PARTY MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION,
IMPROPER VENUE OR FORUM NON CONVENIENS.
4.4 WAIVER OF JURY TRIAL. BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX
FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN
EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL
LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR
DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO
ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF
ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN
CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO, OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS
AGREEMENT OR ANY RELATED DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY.
4.5 INTERPRETATION. The headings of the sections and other subdivisions of this
Reimbursement Agreement are inserted for convenience only and shall not be
deemed to constitute a part hereof.
4.6 ATTORNEY'S COST. Each party agrees to pay all reasonable attorney's fees and
disbursements and all other reasonable and actual costs and expenses which may
be incurred by the other party in the enforcement of this Reimbursement
Agreement.
4.7 NO SET-OFF. The Counterparty hereby waives any right to set-off, combine,
consolidate, or otherwise appropriate and apply, any indebtedness at any time
held or owing by the Counterparty under any agreements other than this
Reimbursement Agreement against, or on account of, any obligations or
liabilities of GECS under this Reimbursement Agreement; provided, however, that
nothing contained in this Section 4.7 shall constitute the waiver by any party
of any right to set-off, combine, consolidate or otherwise appropriate and apply
any indebtedness at any time held
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or owing by such party against, or on account of, any obligations or liabilities
of the other party that such party may have by operation of law.
4.8 CURRENCY OF PAYMENT. Any payment to be made by GECS or Counterparty pursuant
to this Reimbursement Agreement shall be made in the same currency as designated
for payment in the Confirmation and such designation of the currency of payment
is of the essence.
4.9 TRANSFER. Neither this Reimbursement Agreement nor any interest or
obligation in or under this Reimbursement Agreement may be transferred (whether
by way of security or otherwise) by any party hereto without the prior written
consent of the other parties hereto, except that the Counterparty or Issuer may,
without the consent of the other parties hereto, transfer its interest in this
Reimbursement Agreement to any person or entity to which any interest or
obligation in or under the Confirmation is transferred in a manner that is not
inconsistent with the Agreement. GECS's obligations under this Reimbursement
Agreement shall continue notwithstanding any transfer by Issuer in accordance
with the Agreement of its rights and/or obligations under the Confirmation or
the Agreement as it relates to the Transaction, and the term "Issuer" as used
herein shall be deemed to refer to any transferee of Issuer's rights and/or
obligations under the Confirmation or the Agreement as it relates to the
Transaction.
4.10 NETTING. Notwithstanding any provision herein to the contrary, all amounts
payable on the same date by (or to) GECS to (or from) the Counterparty hereunder
or under Other Reimbursement Agreements (as defined below) shall be netted such
that each such party's obligation to make payment on any such date will be
automatically satisfied and discharged and (if the aggregate amount that would
otherwise have been payable by GECS or the Counterparty exceeds the aggregate
amount that otherwise have been payable by the Counterparty or GECS,
respectively) replaced by an obligation upon the party by whom the larger
aggregate amount would have been payable to pay to such other party the excess
of the larger aggregate amount over the smaller aggregate amount. "Other
Reimbursement Agreements" means the two other Reimbursement Agreements, dated as
of the date here of, between GECS and the Counterparty which relate to
Transactions with Transaction Reference Numbers N258043N and N258197N.
4.11 AUTHORITY. Both parties represent that:
(a) The execution, delivery and performance of this
Reimbursement Agreement have been and remain duly authorized by all
necessary corporate action and do not contravene any provision of it's
certificate of incorporation or by-laws, as amended to date, or any
law, regulations, rule, decree, order, judgement or contractual
restriction binding on it or its assets; and
(b) This Reimbursement Agreement constitutes a legal, valid
and binding obligation of such party enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general applicability
relating to or affecting creditors rights and to general equity
principals.
4.12 AMENDMENT. No amendment, modification or waiver in respect of this
Reimbursement Agreement will be effective unless in writing (including a writing
evidenced by a facsimile
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transmission) and executed by each of the parties or confirmed by an exchange of
telexes or electronic messages on an electronic messaging system.
4.13 COUNTERPARTS. This Reimbursement Agreement (and each amendment,
modification and waiver in respect of it) may be executed and delivered in
counterparts (including by facsimile transmission), each of which will be deemed
an original.
4.14 NON-PETITION. Counterparty and GECS each hereby covenant and agree that,
prior to the date which is one year and one day after the payment in full by
Issuer of the Class A Notes and the Class B Notes, it will not institute against
Issuer 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, provided that nothing shall limit Counterparty's
rights against GECS, or GECS rights against Counterparty, for claims arising
under this Reimbursement Agreement.
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IN WITNESS of the foregoing, GECS and the Counterparty have caused
their respective duly authorized officers to execute this Reimbursement
Agreement as of the date first above written.
GENERAL ELECTRIC CAPITAL
SERVICES, INC.
By:______________________________________
Name:
Title:
Deutsche Bank CMT Rate Reimbursement
S-1
DEUTSCHE BANK AG, NEW YORK
BRANCH
By:______________________________________
Name:
Title:
By:______________________________________
Name:
Title:
Deutsche Bank CMT Rate Reimbursement
S-2
EXHIBIT A
AMORTIZATION SCHEDULE
AVERAGE BALANCE
---------------------------------------------------------
FROM TO
(Including) (Including)
---------------------------------------------------------
09/25/2003 10/20/2003 30,771,522
---------------------------------------------------------
10/20/2003 11/20/2003 28,985,199
---------------------------------------------------------
11/20/2003 12/20/2003 27,673,053
---------------------------------------------------------
12/20/2003 01/20/2004 26,401,751
---------------------------------------------------------
01/20/2004 02/20/2004 25,160,469
---------------------------------------------------------
02/20/2004 03/20/2004 23,941,147
---------------------------------------------------------
03/20/2004 04/20/2004 22,866,947
---------------------------------------------------------
04/20/2004 05/20/2004 21,826,559
---------------------------------------------------------
05/20/2004 06/20/2004 20,792,213
---------------------------------------------------------
06/20/2004 07/20/2004 19,754,830
---------------------------------------------------------
07/20/2004 08/20/2004 18,769,683
---------------------------------------------------------
08/20/2004 09/20/2004 17,795,383
---------------------------------------------------------
09/20/2004 10/20/2004 16,858,018
---------------------------------------------------------
10/20/2004 11/20/2004 15,933,528
---------------------------------------------------------
11/20/2004 12/20/2004 14,622,015
---------------------------------------------------------
12/20/2004 01/20/2005 13,658,688
---------------------------------------------------------
01/20/2005 02/20/2005 12,840,188
---------------------------------------------------------
02/20/2005 03/20/2005 12,050,754
---------------------------------------------------------
03/20/2005 04/20/2005 11,186,845
---------------------------------------------------------
04/20/2005 05/20/2005 10,362,576
---------------------------------------------------------
05/20/2005 06/20/2005 9,641,380
---------------------------------------------------------
06/20/2005 07/20/2005 8,936,622
---------------------------------------------------------
07/20/2005 08/20/2005 8,262,120
---------------------------------------------------------
08/20/2005 09/20/2005 7,625,012
---------------------------------------------------------
09/20/2005 10/20/2005 7,035,258
---------------------------------------------------------
10/20/2005 11/20/2005 6,488,998
---------------------------------------------------------
11/20/2005 12/20/2005 5,951,872
---------------------------------------------------------
12/20/2005 01/20/2006 5,430,784
---------------------------------------------------------
01/20/2006 02/20/2006 4,881,598
---------------------------------------------------------
02/20/2006 03/20/2006 4,492,307
---------------------------------------------------------
03/20/2006 04/20/2006 4,186,105
---------------------------------------------------------
04/20/2006 05/20/2006 3,888,025
---------------------------------------------------------
05/20/2006 06/20/2006 3,596,897
---------------------------------------------------------
06/20/2006 07/20/2006 3,315,731
---------------------------------------------------------
07/20/2006 08/20/2006 3,050,501
---------------------------------------------------------
08/20/2006 09/20/2006 2,797,703
---------------------------------------------------------
09/20/2006 10/20/2006 2,561,338
---------------------------------------------------------
10/20/2006 11/20/2006 2,343,064
---------------------------------------------------------
11/20/2006 12/20/2006 2,129,742
---------------------------------------------------------
12/20/2006 01/20/2007 1,922,013
---------------------------------------------------------
01/20/2007 02/20/2007 1,700,057
---------------------------------------------------------
02/20/2007 03/20/2007 1,509,641
---------------------------------------------------------
03/20/2007 04/20/2007 1,331,004
---------------------------------------------------------
04/20/2007 05/20/2007 1,167,155
---------------------------------------------------------
A-1
05/20/2007 06/20/2007 1,023,223
---------------------------------------------------------
06/20/2007 07/20/2007 891,396
---------------------------------------------------------
07/20/2007 08/20/2007 765,483
---------------------------------------------------------
08/20/2007 09/20/2007 646,626
---------------------------------------------------------
09/20/2007 10/20/2007 533,056
---------------------------------------------------------
10/20/2007 11/20/2007 431,750
---------------------------------------------------------
11/20/2007 12/20/2007 335,779
---------------------------------------------------------
12/20/2007 01/20/2008 244,507
---------------------------------------------------------
01/20/2008 02/20/2008 158,794
---------------------------------------------------------
02/20/2008 03/20/2008 96,499
---------------------------------------------------------
03/20/2008 04/20/2008 46,412
---------------------------------------------------------
04/20/2008 05/20/2008 2,753
---------------------------------------------------------
A-2
