EXHBIT 1(b)
GENERAL ELECTRIC CAPITAL CORPORATION
Global Medium-Term Notes, Series A
Due From 9 Months to 60 Years from Date of Issue
SECOND AMENDED AND RESTATED U.S. DISTRIBUTION AGREEMENT
as of April 16, 2002
DEUTSCHE BANK SECURITIES INC.
31 West 52/nd/ Street
New York, New York 10019
GECC CAPITAL MARKETS GROUP, INC.
260 Long Ridge Road
Stamford, Connecticut 06927
GOLDMAN, SACHS & CO.
85 Broad Street
New York, New York 10004
J.P. MORGAN SECURITIES INC.
270 Park Avenue
New York, New York 10017
LEHMAN BROTHERS INC.
745 Seventh Avenue
New York, New York 10019
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
4 World Financial Center, Floor 15
New York, New York 10080
SALOMON SMITH BARNEY INC.
388 Greenwich Street
New York, New York 10013
UBS WARBURG LLC
677 Washington Blvd.
Stamford, Connecticut 06901
1
Ladies and Gentlemen:
General Electric Capital Corporation, a Delaware corporation (the
"Company"), and Deutsche Bank Securities Inc., GECC Capital Markets Group, Inc.,
Goldman, Sachs & Co., Lehman Brothers Inc., Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated , J.P. Morgan Securities Inc. and UBS
Warburg LLC are parties to an Amended and Restated U.S. Distribution Agreement
dated as of May 3, 1999, as amended (as amended, the "Original Agreement"), with
respect to the issue and sale by the Company of its Global Medium-Term Notes,
Series A (the "Notes"). The Company and Deutsche Bank Securities Inc., GECC
Capital Markets Group Inc., Goldman, Sachs & Co., J.P. Morgan Securities Inc.,
Lehman Brothers Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Salomon Smith Barney Inc. and UBS Warburg LLC (the "Agents") hereby amend and
restate the Original Agreement as set forth below.
The Notes are to be issued pursuant to Third Amended and Restated Indenture
dated as of February 27, 1997, between the Company and JPMorgan Chase Bank
(formerly known as The Chase Manhattan Bank, as successor trustee (the
"Trustee") as supplemented by the First Supplemental Indenture dated as of May
3, 1999 and the Second Supplemental Indenture dated as of July 2, 2001 (as
supplemented, the "Indenture"). The Company has initially appointed the Trustee,
at its corporate trust office in The City of New York, as the registrar (the
"Registrar") for the Notes. The Company has authorized the issuance of Notes to
and through the Agents pursuant to the terms of this Agreement. The Notes will
be issued in registered form. Each Note will be represented by either a single
global security in registered form without coupons delivered to the Trustee as
agent for The Depository Trust Company ("DTC") and recorded in the book-entry
system maintained by DTC or by a certificate delivered to the holder thereof or
a person designated by such holder.
Subject to the terms and conditions stated herein and further subject to
the understanding that nothing in this Agreement shall impair the Company's
right to sell securities with terms similar or identical to any Note
independently of the continuous offering of Notes contemplated by this
Agreement, the Company hereby (i) appoints the Agents as agents of the Company
for the purpose of soliciting purchases of the Notes from the Company by others
from time to time, (ii) agrees that whenever the Company determines from time to
time to sell Notes directly to one or more of the Agents as principal for resale
to others (such resale to be at fixed offering prices or at varying prices
related to prevailing market prices at the time of resale or otherwise as
determined by such Agent), it will enter into a Terms Agreement (as defined
below) relating to such sale in accordance with the provisions of Section 2(b)
hereof, (iii) reserves the right from time to time to sell Notes on its own
behalf directly to investors (other than broker-dealers) or through affiliates
that are not Agents, and (iv) reserves the right
2
from time to time to appoint one or more additional firms registered as
broker/dealers under the Securities Exchange Act of 1934 (the "1934 Act") either
(A) to solicit purchases of Notes from the Company by others or (B) to purchase
Notes directly from the Company as principal for resale to others; provided,
however, that such sales will be made on terms substantially the same as those
contained in this Agreement (and, with respect to Notes offered and sold by the
Company pursuant to clause (A) of this subsection (iv), any such additional firm
will receive the applicable commission thereon determined in accordance with
Exhibit A hereto). Any such additional firm designated by the Company pursuant
to clause (iv) above shall be considered an Agent hereunder for all purposes
with respect to each transaction with respect to which such appointment is made.
In the case of each purchaser whose offer to purchase Notes from the Company has
been solicited by an Agent as agent and accepted by the Company, such Agent will
make reasonable efforts to assist the Company in obtaining performance by such
purchaser, but no Agent shall have any liability to the Company in the event any
such purchase is not consummated for any reason.
The Company has filed with the Securities and Exchange Commission (the
"Commission") registration statements on Form S-3 relating to the Notes and the
offering thereof from time to time in accordance with Rule 415 under the
Securities Act of 1933 (the "1933 Act"). Each such registration statement filed
prior to the date of this Agreement has been, and any registration statement
relating to the Notes filed subsequent to such date will be, prior to its use by
the Company with respect to the Notes, declared effective by the Commission, and
the Indenture has been qualified under the Trust Indenture Act of 1939 (the
"1939 Act"). The then-current registration statement relating to the Notes
provided to the Agents by the Company for use in connection with the offering of
the Notes and the then-current prospectus, prospectus supplement and pricing
supplement relating to each offering of Notes filed pursuant to Rule 424 under
the 1933 Act and provided to the Agents by the Company for use in connection
with the offering of such Notes, including all documents incorporated therein by
reference, as from time to time amended or supplemented by the filing of
documents (other than as amended by prospectus supplements or post-effective
amendments relating solely to securities other than the Notes) pursuant to the
1934 Act, the 1933 Act or otherwise, are referred to herein as the "Registration
Statement" and the "Prospectus," respectively.
SECTION 1. Representations and Warranties. (a) The Company represents and
warrants to each Agent as of the date of this Agreement (the "Commencement
Date"), as of the date of each acceptance by the Company of an offer for the
purchase of Notes whether through an Agent as agent or to an Agent as principal
(the "Acceptance Date"), as of the date of each sale of Notes whether through an
Agent as agent or to an Agent as principal (the date of each such sale to an
Agent as principal being referred to herein as a "Settlement Date"), and as of
the times referred to in Sections 6(a) and 6(b) hereof (each of the times
3
referenced above being referred to herein as a "Representation Date"), as
follows:
(i) each document filed by the Company pursuant to the 1934
Act which is incorporated by reference in the Prospectus complied when
so filed in all material respects with the 1934 Act and the rules and
regulations thereunder, and each document, if any, hereafter filed and
so incorporated by reference in the Prospectus will comply when so
filed in all material respects with the 1934 Act rules and regulations;
(ii) the Registration Statement and the Prospectus comply, and
the Registration Statement and the Prospectus (and any amendments and
supplements thereto, other than amendments or supplements relating
solely to securities other than the Notes) will on the applicable
Representation Date comply, in all material respects, with the 1933 Act
and the applicable rules and regulations of the Commission thereunder;
(iii) each part of the Registration Statement at the time such
part became effective and at the Commencement Date did not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and the Prospectus on the Commencement Date
(unless the term "Prospectus" refers to a prospectus which has been
provided to the Agents by the Company for use in connection with the
offering of the Notes which differs from the Prospectus on file at the
Commission on the Commencement Date, in which case at the time it is
first provided to the Agents for such use) did not, and on the
applicable Representation Date will not, contain any untrue statement
of a material fact or omit to state any material fact necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading;
(iv) there has been no material adverse change in the condition
of the Company and its consolidated affiliates, taken as a whole, from
that set forth in the Registration Statement and the Prospectus
(excluding any amendments or supplements to the Prospectus since the
relevant Acceptance Date, if any);
(v) the aggregate principal amount of the Company's Global
Medium-Term Notes, Series A outstanding at any one time will not exceed
any limitation thereon which may then be in effect by action of the
Board of Directors of the Company; and
(vi) no event exists which would constitute an event of default
under the Indenture;
4
except that the representations and warranties set forth in paragraphs (i), (ii)
and (iii) of this Section 1(a) do not apply to statements or omissions in the
Registration Statement or the Prospectus based upon information furnished to the
Company in writing by any Agent expressly for use therein.
(b) Additional Certifications. Any certificate signed by any officer
of the Company and delivered to the Agents or to counsel for the Agents in
connection with an offering of Notes shall be deemed a representation and
warranty by the Company to each Agent as to the matters covered thereby.
SECTION 2. Solicitations as Agent; Purchases as Principal. (a)
Solicitations as Agent. On the basis of the representations and warranties
herein contained, but subject to the terms and conditions herein set forth, each
Agent individually agrees, as agent of the Company, to use its best efforts to
solicit offers to purchase the Notes upon the terms and conditions set forth in
the Prospectus.
The Company reserves the right, in its sole discretion, to suspend
solicitation by any one or more of the Agents of purchases of the Notes
commencing at any time for any period of time or permanently. Upon receipt of
instructions from the Company, each Agent will forthwith suspend solicitation of
purchases from the Company until such time as the Company has advised such Agent
or Agents that such solicitation may be resumed.
Each Agent shall have the right to suspend solicitations, commencing at any
time such Agent reasonably believes that there has occurred a material adverse
change in the condition of the Company and its consolidated affiliates, taken as
a whole, from that then set forth in the Registration Statement and the
Prospectus, and ending at the time such Agent has been reasonably satisfied that
adequate and full disclosure of such adverse change has been made (including
without limitation any necessary amendments or supplements to the Registration
Statement and the Prospectus); provided, however, that any such Agent shall
notify the Company of its belief prior to or concurrently with any such
suspension of solicitations.
The Company agrees to pay each Agent a commission, by means of a deduction
from the proceeds of a sale of Notes, equal to a percentage of the public
offering price of each Note sold by the Company as a result of a solicitation
made by such Agent as the Company and such Agent may agree. Unless otherwise
agreed upon by the Company and each Agent, such commission percentage shall
range from 0.05% to 0.60% of the public offering price of each Note. It is
understood that no commission will be payable with respect to any offer to
purchase Notes accepted by the Company in the event that the Company tenders
such Note and delivery of such Note is not accepted by the purchaser.
5
As agent, each Agent is authorized to solicit orders for the Notes at a
purchase price which shall be agreed upon by the Company and such Agent and set
forth in a supplement to the Prospectus and (except as may be otherwise provided
in an applicable Pricing Supplement) only in denominations of 100,000 units of
the currency in which the Notes are denominated (the "Specified Currency") or
any integral multiple of l,000 units of such Specified Currency in excess
thereof (in the case of Certificated Notes) or in denominations of 1,000 units
of the Specified Currency (in the case of Book-Entry Notes). Each Agent shall
communicate to the Company, orally or in writing, each reasonable offer to
purchase Notes received by such Agent as agent. The Company shall have the sole
right to accept offers to purchase the Notes and may reject any such offer in
whole or in part. Each Agent shall have the right to reject any offer that is
not a reasonable offer to purchase the Notes received by it in whole or in part,
and any such rejection shall not be deemed a breach of such Agent's agreement
contained herein. "Reasonable" with respect to an offer shall be determined by
such Agent by reference to then-prevailing interest rates and the interest rates
then posted by the Company with respect to offers to sell the Notes.
(b) Purchases as Principal. Each sale of Notes to one or more Agents
as principal shall be made in accordance with the terms of this Agreement and a
separate agreement which will provide for the sale of such Notes to, and the
purchase and reoffering thereof by, such Agent or Agents. Each such separate
agreement (which shall be substantially in the form of Exhibit A hereto and
which may take the form of an exchange of any standard form of written
telecommunication between such Agent or Agents and the Company or may be an oral
agreement confirmed by the relevant Agent in writing (including facsimile
transmission) and shall contain the information specified in Exhibit A hereto)
is herein referred to as a "Terms Agreement." Any Agent's commitment to purchase
Notes pursuant to any Terms Agreement shall be deemed to have been made on the
basis of the representations and warranties of the Company herein contained and
shall be subject to the terms and conditions herein set forth. Each Agent shall
notify the Company promptly after its last sale of Notes purchased under a Terms
Agreement of its completion of the distribution thereof.
(c) Administrative Procedures. Administrative procedures respecting
the sale of Notes (the "Administrative Procedures") shall be agreed upon from
time to time by the Agents and the Company. The Agents and the Company agree to
perform the respective duties and obligations specifically provided to be
performed by them herein and in the Administrative Procedures. The
Administrative Procedures as in effect on the Commencement Date are attached as
Exhibit B hereto. The Administrative Procedures may be amended from time to time
only by written agreement of the Company and the Agents and, in the case of
amendments which affect the rights, duties or obligations of the Trustee and the
Registrar, with the written agreement of the Trustee and the Registrar. To the
6
extent the Administrative Procedures in effect from time to time conflict with
any provision of this Agreement, the provisions of this Agreement shall govern.
The Company will furnish a copy of the Administrative Procedures from time to
time in effect to the Trustee and the Registrar.
(d) Information. The Company authorizes the Agents, in connection with
their solicitation of purchases of the Notes, to use only information taken from
the Registration Statement and the Prospectus, and the documents incorporated
therein by reference, and each of the Agents agrees that it has and will have
sole responsibility for the completeness and accuracy of all other information,
written or oral, furnished by such Agent and its agents and employees to
purchasers and prospective purchasers of the Notes.
(e) Delivery of Documents. The documents required to be delivered by
Section 5 hereof shall be delivered at the offices of the Agent (or, if more
than one Agent is participating in any such sale, the lead Agent), or at such
other location as shall be specified in the relevant Terms Agreement, on the
date required for such delivery set forth in Section 5 hereof.
(f) Registered Broker-Dealers. Each Agent represents that it is a
broker-dealer registered under the 1934 Act.
(g) Obligations Several. The Company acknowledges that the obligations
of the Agents are several and, subject to the provisions of this Section 2, each
Agent shall have complete discretion as to the manner in which it solicits
purchasers for the Notes and as to the identity thereof.
Section 3. Covenants of the Company. The Company covenants with each
Agent as follows:
(a) Notice of Certain Events. The Company will notify each Agent
promptly (i) of the effectiveness of any amendment (other than any amendment
relating solely to securities other than the Notes) to the Registration
Statement (including any post-effective amendment), (ii) of the mailing or the
delivery to the Commission for filing of any supplement to the Prospectus or any
document to be filed pursuant to the 1934 Act which will be incorporated by
reference in the Prospectus, in each case other than filings relating solely to
securities other than the Notes, (iii) of the receipt of any comments from the
Commission with respect to the Registration Statement or the Prospectus, (iv) of
any request by the Commission for any amendment to the Registration Statement or
any amendment or supplement to the Prospectus or for additional information
(other than in each case amendments or supplements or information relating
solely to securities other than the Notes), and (v) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose. The Company
will make every reasonable effort to
7
prevent the issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible moment.
(b) Copies of Registration Statement, Prospectus. Upon request the
Company will deliver to each Agent a conformed copy of the Registration
Statement (as originally filed) and of each amendment thereto relating to the
Notes (including exhibits filed therewith or incorporated by reference therein
and documents incorporated by reference in the Prospectus). The Company will
furnish to each Agent as many copies of the Prospectus (as amended or
supplemented) as such Agent shall reasonably request so long as such Agent is
required to deliver a Prospectus in connection with sales or solicitations of
offers to purchase the Notes.
(c) Revisions of Prospectus -- Material Changes. If, during such
period after the first date of the public offering of the Notes as in the
opinion of counsel to the Company a prospectus is required by law to be
delivered in connection with sales of the Notes by an Agent as agent or sales of
Notes by an Agent as principal, any event shall occur as a result of which it is
necessary to amend or supplement the Prospectus in order that the Prospectus
will not include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein not misleading
in the light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary at any such time to amend or supplement
the Registration Statement or the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, prompt notice shall be
given, and confirmed in writing, to each Agent to cease the solicitation of
offers to purchase the Notes in such Agent's capacity as agent and to cease
sales of any Notes such Agent may then own as principal. If the Company shall
determine that solicitation of purchases of the Notes shall be resumed, or if on
the date of the occurrence of the event necessitating an amendment of or
supplement to the Prospectus an Agent holds Notes that were issued by the
Company less than 90 days prior to such date, then, prior to the Company's
authorizing the Agents to resume solicitations of purchases of the Notes or
prior to sales of any such Notes, the Company will promptly prepare and file
with the Commission such amendment or supplement, whether by filing documents
pursuant to the 1934 Act, the 1933 Act or otherwise, as may be necessary to
correct such untrue statement or omission or to make the Registration Statement
comply with such requirements.
(d) Prospectus Revisions -- Periodic Financial Information. Promptly
after the filing with the Commission of the Company's quarterly reports on Form
10-Q with respect to each of the first three quarters of any fiscal year, the
Company shall furnish copies of such reports to each Agent; provided, however,
that if on the date of such filing the Agents shall have suspended solicitation
of purchases of the Notes in their capacity as agents pursuant to a request from
the
8
Company, and if no Agent shall then hold any Notes as principal purchased
pursuant to a Terms Agreement, the Company shall not be obligated to furnish
copies of such reports until such time as the Company shall determine that
solicitation of purchases of the Notes should be resumed or shall subsequently
enter into a new Terms Agreement with one or more of the Agents.
(e) Prospectus Revisions -- Audited Financial Information. Promptly
after the filing with the Commission of the Company's annual report on Form 10-K
including the audited financial statements of the Company for the preceding
fiscal year, the Company shall furnish copies of such report to each Agent;
provided, however, that if on the date of such filing the Agents shall have
suspended solicitation of purchases of Notes in their capacity as agents
pursuant to a request from the Company, and if no Agent shall then hold any
Notes as principal purchased pursuant to a Terms Agreement, the Company shall
not be obligated to furnish copies of such reports until such time as the
Company shall determine that solicitation of purchases of Notes should be
resumed or shall subsequently enter into a new Terms Agreement with one or more
of the Agents.
(f) Section 11(a) Earnings Statements. The Company will make generally
available to its security holders, as soon as practicable, earnings statements,
which need not be audited, covering twelve month periods beginning after the
"effective date" (as defined in the rules and regulations promulgated under
Section 11(a) of the 1933 Act) of the Registration Statement with respect to
each sale of Notes that will satisfy Section 11(a) of the 1933 Act and comply
with the rules and regulations thereunder.
(g) Copies of Current Reports. The Company will furnish to each Agent,
promptly after the filing thereof with the Commission, copies of its reports on
Form 8-K (other than reports relating solely to securities other than the
Notes).
(h) Blue Sky Qualifications. If required, the Company will endeavor,
in cooperation with the Agents, to qualify the Notes for offering and sale under
the applicable securities laws of such states and other jurisdictions of the
United States as the Agents may reasonably designate, and will maintain such
qualifications in effect for as long as may be required for the distribution of
the Notes; provided, however, that the Company shall not be obligated to file
any general or unlimited consent to service of process, to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified or to qualify
any Notes for offer and sale in any jurisdiction in which the Company shall have
notified the Agents prior to the distribution of such Notes that it is unable or
unwilling to comply with the disclosure or reporting requirements imposed by
such jurisdiction. The Company will file such statements and reports as may be
required by the laws of each jurisdiction in which the Notes have been qualified
as above provided.
9
(i) 1934 Act Filings. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act, will file
timely all documents required to be filed with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act.
Section 4. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement,
including:
(i) The preparation and filing of the Registration
Statement and all amendments thereto and the Prospectus and any
amendments or supplements thereto;
(ii) The preparation, issuance and delivery of the Notes;
(iii) The fees and disbursements of the Company's
accountants and of the Trustee and its counsel;
(iv) The reasonable fees and disbursements of Davis Polk
& Wardwell, counsel for the Agents; provided, however, that in any
sale of Notes to one or more Agents acting as principal, the
Company's obligations, if any, to pay the reasonable fees and
disbursements of Davis Polk & Wardwell shall be as agreed upon by
the Company and the Agent(s) participating in such transaction and
reflected in the applicable Terms Agreement;
(v) The qualification of the Notes under securities laws
in accordance with the provisions of Section 3(h), including
filing fees and the reasonable fees and disbursements of counsel
in connection therewith and in connection with the preparation of
any Blue Sky Survey;
(vi) The printing and delivery to the Agents in
quantities as hereinabove stated of copies of the Registration
Statement and any amendments thereto, and of the Prospectus and
any amendments or supplements thereto, and the delivery by the
Agents of the Prospectus and any amendments or supplements thereto
in connection with solicitations or confirmations of sales of the
Notes;
(vii) The printing and delivery to the Agents of copies of
the Indenture and any Blue Sky Survey;
(viii) Any fees charged by rating agencies for the rating
of the Notes;
10
(ix) The fees and expenses, if any, incurred with respect to
any filing with the National Association of Securities Dealers, Inc.;
and
(x) Any advertising and other out-of-pocket expenses
incurred with the approval of the Company.
Section 5. Conditions of Obligations. Each Agent's obligations to solicit
offers to purchase the Notes as agent of the Company, the obligation of any
purchaser to purchase Notes sold through an Agent as agent, and any Agent's
obligations to purchase Notes pursuant to any Terms Agreement will be subject at
all times to the accuracy of the representations and warranties on the part of
the Company herein and to the accuracy of the statements of the Company's
officers made in any certificate furnished pursuant to the provisions hereof, to
the performance and observance by the Company of all covenants and agreements
herein contained on its part to be performed and observed and to the following
additional conditions precedent:
(a) Legal Opinions. At the Commencement Date and at each Settlement
Date with respect to any applicable Terms Agreement, if called for by such Terms
Agreement, the Agents shall have received the following documents:
(i) Opinion of Company Counsel. The opinion of the Associate
General Counsel, Treasury Operations and Assistant Secretary of the
Company, or other counsel satisfactory to such Agent(s), dated as of
such Commencement Date or Settlement Date, in form and substance
satisfactory to the Agents and counsel for the Agents, to the effect
that:
(A) The Company has been duly incorporated and is
validly existing under the laws of the State of Delaware.
(B) The Company is duly qualified to transact
business and is in good standing in the jurisdictions in which
the conduct of its business or the ownership of its property
requires such qualification.
(C) The Indenture has been duly authorized, executed
and delivered by the Company, is a valid and binding agreement
of the Company and has been qualified under the 1939 Act.
(D) The Notes have been duly authorized and, when
executed and authenticated in accordance with the provisions
of the Indenture and delivered to and paid for by any
purchaser of Notes sold through an Agent as agent or any Agent
as principal pursuant to any Terms Agreement, would be valid
and binding obligations of the Company enforceable against the
Company in
11
accordance with their respective terms and would entitle the
holders thereof to the benefits of the Indenture.
(E) This Agreement (and, if the opinion is being
given pursuant to Section 6(c) hereof as a result of the
Company's having entered into a Terms Agreement requiring such
opinion, the applicable Terms Agreement) has been duly
authorized, executed and delivered by the Company and is a
valid and binding agreement of the Company enforceable against
the Company in accordance with its terms, except as rights to
contribution and indemnity hereunder (or thereunder) may be
limited under applicable law.
(F) Neither the execution and delivery of this
Agreement nor the issuance and sale of the Notes by the
Company as provided herein will contravene the certificate of
incorporation or by-laws of the Company or result in any
violation of any of the terms or provisions of any law, rule
or regulation (other than with respect to applicable
securities or Blue Sky laws, as to which such counsel need not
express any opinion) or of any indenture, mortgage or other
agreement or instrument known to such counsel by which the
Company or any of its subsidiaries is bound.
(G) The statements contained in the Prospectus under
the captions "Description of Notes" and "Plan of Distribution"
fairly present the matters referred to therein.
(H) Each document incorporated by reference in the
Prospectus which was filed pursuant to the 1934 Act (except
for the financial statements and schedules and other financial
and statistical material included therein or omitted
therefrom, as to which such counsel need not express any
opinion) complied when so filed as to form in all material
respects with the 1934 Act and the applicable rules and
regulations of the Commission thereunder.
(I) The Registration Statement is effective under the
1933 Act and, to the best of such counsel's knowledge, no stop
order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission.
(J) The Registration Statement and the Prospectus and
any supplements and amendments thereto (except for the
financial statements and schedules and other financial and
statistical
12
material included therein or omitted therefrom and except for
supplements and amendments relating only to securities other
than the Notes, as to which such counsel need express no
opinion) comply as to form in all material respects with the
1933 Act and the applicable rules and regulations of the
Commission thereunder.
(K) Such counsel believes that (except for the
financial statements and schedules and other financial and
statistical material included therein or omitted therefrom, as
to which counsel need not express any belief) each part of the
Registration Statement at the time it became effective, and if
an amendment to the Registration Statement or an Annual Report
on Form 10-K has been filed by the Company with the Commission
subsequent to such date, at the time of the most recent such
filing, did not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading,
and the Prospectus, as of the Commencement Date or the
Settlement Date, as the case may be, does not contain any
untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading.
(ii) Opinion of Tax Counsel to the Company. The opinion of
James Kalashian, Senior Tax Counsel of the Company, Cleary, Gottlieb,
Steen & Hamilton or other tax counsel satisfactory to such Agent(s)
dated as of such Commencement Date or Settlement Date, confirming the
accuracy of the opinion of such counsel set forth under the caption
"United States Taxation" in the Prospectus.
(iii) Opinion of Counsel to the Agents. The opinion of Davis
Polk & Wardwell, counsel to the Agents, dated as of such Commencement
Date or Settlement Date, covering the matters referred to in
subparagraph (i) under the subheadings (A), (C), (D), (E), (G), (I),
(J) and (K) above.
(iv) In rendering the opinion referred to in subparagraph (i)
above, such counsel may state that with respect to (J) and (K) of
subparagraph (i), such counsel's opinion and belief are based upon his
participation in the preparation of the Registration Statement and the
Prospectus and any amendments and supplements thereto (including
documents incorporated by reference) and review and discussion of the
contents thereof, but are without independent check or verification
except as stated therein. In rendering the opinion referred to in
subparagraph (iii) above, such counsel may state that with respect to
(J) and (K) of
13
subparagraph (i) above, such counsel's opinion and belief are
based upon their participation in the preparation of the
Registration Statement and the Prospectus and any amendments
and supplements thereto (other than documents incorporated by
reference) and upon their review and discussion of the
contents thereof (including documents incorporated by
reference), but are without independent check or verification
except as stated therein. In rendering the opinions referred
to in subparagraphs (i) and (iii) above, such counsel may
state that with respect to (D) and (E) of subparagraph (i)
above, such counsels' opinions, insofar as such opinions
relate to enforceability, are subject to the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting creditors' rights generally and to
the effect of general equitable principles (regardless of
whether the issue of enforceability is considered in a
proceeding in equity or at law).
(b) Officer's Certificate. At the Commencement Date and at
each Settlement Date with respect to any Terms Agreement, no stop order
suspending the effectiveness of the Registration Statement shall be in
effect, and no proceedings for such purpose shall be pending before or
threatened by the Commission, and there shall have been no material
adverse change in the condition of the Company and its consolidated
affiliates, taken as a whole, from that set forth in the Registration
Statement and the Prospectus (excluding any amendments or supplements
to the Prospectus since the relevant Acceptance Date, if any); and the
Agents shall have received on the Commencement Date and, if called for
by the applicable Terms Agreement, at each Settlement Date a
certificate in the form of Exhibit DE hereto, dated the Commencement
Date or such Settlement Date and signed by an executive officer of the
Company, to the foregoing effect. The officer making such certificate
may rely upon the best of his knowledge as to proceedings pending or
threatened.
(c) Comfort Letter. The Agents shall have received at the
Commencement Date and at each Settlement Date with respect to any Terms
Agreement, if called for by such Terms Agreement, a letter from KPMG
LLP, independent public accountants, dated as of the Commencement Date
or such Settlement Date, in form and substance satisfactory to the
Agents, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect
to the financial statements and certain financial information contained
in or incorporated by reference into the Registration Statement and the
Prospectus.
(d) Other Documents. On the Commencement Date and at each
Settlement Date with respect to any applicable Terms Agreement, counsel
to the Agents shall have been furnished with such documents and
opinions as such counsel may reasonably require for the purpose of
enabling such counsel to pass
14
upon the issuance and sale of Notes as herein contemplated and related
proceedings, or in order to evidence the accuracy and completeness of
any of the representations and warranties, or the fulfillment of any of
the conditions, herein contained; and all proceedings taken by the
Company in connection with the issuance and sale of Notes as herein
contemplated shall be satisfactory in form and substance to the Agents
and to counsel to the Agents.
If any condition specified in this Section shall not have been
fulfilled as of the relevant date required, this Agreement and any
Terms Agreement may be terminated as to any Agent by notice by such
Agent to the Company at any time at or prior to the Commencement Date
or the applicable Settlement Date, and such termination shall be
without liability of any party to any other party, except that the
covenants set forth in Section 3(f) hereof, the provisions of Section 4
hereof, the indemnity and contribution agreements set forth in Sections
8 and 9 hereof, and the provisions of Sections 10 and 14 hereof shall
remain in effect.
Section 6. Additional Covenants of the Company. The Company
covenants and agrees that:
(a) Reaffirmation of Representations and Warranties. Each
acceptance by it of an offer for the purchase of Notes, and each sale
of Notes to any Agent pursuant to a Terms Agreement, shall be deemed to
be an affirmation that the representations and warranties of the
Company contained in this Agreement and in any certificate theretofore
delivered to the Agents pursuant hereto are true and correct at the
time of such acceptance or sale, as the case may be, and an undertaking
that such representations and warranties will be true and correct at
the time of delivery to the purchaser or his agent, or to the Agents,
of the Note or Notes relating to such acceptance or sale, as the case
may be, as though made at and as of each such time (and it is
understood that such representations and warranties shall relate to the
Registration Statement and the Prospectus as amended and supplemented
to each such time);
(b) Subsequent Delivery of Certificates. Each time that (i)
the Registration Statement or the Prospectus shall be amended or
supplemented or a new Registration Statement is used by the Company
with respect to the Notes or there is filed with the Commission any
annual report on Form 10-K incorporated by reference into the
Prospectus (other than an amendment or supplement providing solely for
a change in the interest rates of Notes or a change in the aggregate
principal amount of Notes remaining to be sold or similar changes or
other than an amendment, supplement or document relating solely to
securities other than the Notes or a post-effective amendment solely
containing exhibits to the Registration Statement); (ii) the Company
sells Notes to any Agent pursuant to a Terms Agreement, and the Agent
so requests; and (iii) there is filed with the Commission any quarterly
report on Form 10-Q or periodic report on Form 8-K incorporated by
reference into the Prospectus and any Agent reasonably requests,
15
the Company shall furnish or cause to be furnished to the Agents (in the case of
clause (i)), the Agent(s) party to the Terms Agreement (in the case of clause
(ii)) or the requesting Agent(s) (in the case of clause (iii)) promptly a
certificate in form satisfactory to such Agent(s) to the effect that the
statements contained in the certificates referred to in Section 5(b) hereof
which were last furnished to the Agents are true and correct at the time of such
amendment or supplement or filing or sale, as the case may be, as though made at
and as of such time (except that such statements shall be deemed to relate to
the Registration Statement and the Prospectus as amended and supplemented to
such time or the new Registration Statement, as the case may be) or, in lieu of
such certificate, certificates of the same tenor as the certificates referred to
in said Section 5(b), modified as necessary to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of delivery
of such certificates or the new Registration Statement, as the case may be;
provided, however, that the Company shall not be required to furnish any
certificates to any Agents pursuant to this paragraph at a time when the Agents
shall have suspended solicitation of purchases of Notes in their capacity as
agents pursuant to instructions of the Company, if no Agent shall then hold any
Notes as principal purchased under a Terms Agreement;
(c) Subsequent Delivery of Legal Opinions. Each time that the
Registration Statement or the Prospectus shall be amended or supplemented or a
new Registration Statement is used by the Company with respect to the Notes or
there is filed with the Commission any annual report on Form 10-K incorporated
by reference into the Prospectus (other than an amendment or supplement
providing solely for a change in the interest rates of the Notes or a change in
the aggregate principal amount of Notes remaining to be sold or similar changes
or other than an amendment, supplement or document relating solely to securities
other than the Notes or a post-effective amendment solely containing exhibits to
the Registration Statement) or, if so indicated in the applicable Terms
Agreement, the Company sells Notes to an Agent pursuant to a Terms Agreement,
the Company shall furnish or cause to be furnished promptly to the Agents a
written opinion of the Associate General Counsel, Treasury Operations and
Assistant Secretary of the Company or other counsel satisfactory to the Agents,
dated the date of delivery of such opinion, in form satisfactory to the Agents,
of the same tenor as the opinion referred to in Section 5(a) hereof but
modified, as necessary, to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such opinion
or the new Registration Statement, as the case may be, or, in lieu of such
opinion, counsel last furnishing such opinion to the Agents shall furnish the
Agents with a letter to the effect that the Agents may rely on such last opinion
to the same extent as though it were dated the date of such letter authorizing
reliance (except that statements in such last opinion shall be deemed to relate
to the Registration Statement and the
16
Prospectus as amended and supplemented to the time of delivery of such letter
authorizing reliance or the new Registration Statement, as the case may be); and
(d) Subsequent Delivery of Comfort Letters. Each time that the
Registration Statement or the Prospectus shall be amended or supplemented to
include additional financial information or a new Registration Statement is used
by the Company with respect to the Notes or there is filed with the Commission
any document incorporated by reference into the Prospectus which contains
additional financial information or, if so indicated in the applicable Terms
Agreement, the Company sells Notes to an Agent pursuant to a Terms Agreement,
the Company shall cause KPMG LLP promptly to furnish the Agents a letter, dated
the date of filing of such amendment, supplement or document with the Commission
or the date of effectiveness of such new Registration Statement, or the date of
such sale, as the case may be, in form satisfactory to the Agents, of the same
tenor as the letter referred to in Section 5(c) hereof; provided, however, that
if the Registration Statement or the Prospectus is amended or supplemented
solely to include financial information as of and for a fiscal quarter, KPMG LLP
may limit the scope of such letter to the unaudited financial statements
included in such amendment or supplement unless any other information included
therein of an accounting, financial or statistical nature is of such a nature
that, in the Agents' reasonable judgment, such letter should cover such other
information.
Section 7. Additional Covenants of the Agents. Each Agent agrees that:
(a) Advertising. It will not place advertisements or publish notices
of any kind in any jurisdiction relating to any Notes, the offering of any Notes
or any other matter relating to this Agreement without the prior written consent
of the Company.
(b) Calculation Agent. If requested by the Company and agreed by such
Agent with respect to any Notes offered through such Agent as agent or to such
Agent as principal, such Agent will act as Calculation Agent with respect to
such Notes for all purposes. Unless otherwise agreed by the Company and the
relevant Agent, the rights and obligations of the Company and such Agent shall,
with respect to each instance in which such Agent is requested to so act, be
governed by the Master Calculation Agent Agreement dated as of April 16, 2002
set forth as Exhibit C hereto.
(c) Discretionary Accounts. It will not confirm sales of any Notes to
accounts over which it exercises discretionary authority.
Section 8. Indemnification. (a) Indemnification of the Agents. The Company
agrees to indemnify and hold harmless each Agent and each person, if any, who
controls any Agent within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act from and against any and all losses, claims, damages
17
and liabilities caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, any preliminary
prospectus or prospectus supplement or the Prospectus (if used within the period
set forth in Section 3(c) and as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information furnished in writing to the Company by any Agent expressly for use
therein; provided, however, that the foregoing indemnity agreement with respect
to any preliminary prospectus (including, without limitation, any preliminary
prospectus supplement or preliminary pricing supplement) shall not inure to the
benefit of any Agent from whom the person asserting any such losses, claims,
damages or liabilities purchased Notes, or any person controlling such Agent, if
a copy of the Prospectus (as then amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) was not sent or given by
or on behalf of such Agent to such person, if required by law so to have been
delivered, at or prior to the written confirmation of the sale of the Notes to
such person, and if the Prospectus (as so amended or supplemented) would have
cured the defect giving rise to such loss, claim, damage or liability.
(b) Indemnification of Company. Each Agent agrees, severally and not
jointly, to indemnify and hold harmless the Company, its directors, its officers
who sign the Registration Statement and any person controlling the Company to
the same extent as the foregoing indemnity from the Company to each Agent, but
only with reference to information relating to such Agent furnished in writing
by such Agent expressly for use in the Registration Statement or the Prospectus.
(c) General. In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to Section 8(a) or 8(b) hereof, such person
(the "indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the reasonable fees and expenses of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by
18
the same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the indemnifying party shall not,
in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate firm (in addition to local counsel) for all such indemnified parties
and that all such fees and expenses shall be reimbursed as they are incurred.
Such firm shall be designated in writing by the Agents in the case of parties
indemnified pursuant to Section 8(a) and by the Company in the case of parties
indemnified pursuant to Section 8(b). The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnity the indemnified party from and against
any loss or liability by reason of such settlement or judgment.
Section 9. Contribution. If the indemnification provided for in Section 8
is unavailable to an indemnified party in respect of any losses, claims, damages
or liabilities referred to therein, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (i) if the indemnifying party is the Company, in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Agents on the other from the issue and sale of the Notes, (ii)
if the indemnifying party is an Agent, in such proportion as is appropriate to
reflect the relative fault of such Agent on the one hand and the Company on the
other hand in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, or (iii) if the allocation provided by
clause (i) or clause (ii) above, as the case may be, is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above or the relative fault referred
to in clause (ii) above, as the case may be, but also such relative fault (in
cases covered by clause (i)) or such relative benefits (in cases covered by
clause (ii)) as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Agents on the
other hand shall be deemed to be in the same proportion as the total sales price
received by the Company from the sale of Notes that are the subject of the claim
for indemnification (before deducting expenses) bears to the total underwriting
discounts and commissions received by the Agents from sales of Notes that are
the subject of the claim for indemnification. The relative fault of the Company
on the one hand and of the Agents on the other shall be determined by reference
to, among other things, whether the untrue statement of a fact or the omission
to state a fact relates to information supplied by the Company or statements
made or furnished by the Agents and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
19
The Company and the Agents agree that it would not be just and equitable if
contribution pursuant to this Section 9 were determined by pro rata allocation
(even if the Agents were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
provided for, in the respective cases, in clauses (i), (ii) and (iii) of the
immediately preceding paragraph. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages and liabilities referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 9, no Agent
shall be required to contribute any amount in excess of the amount by which the
sum of (i) the total price at which any Notes, the purchase of which is the
subject of the claim for indemnification and which was solicited by such Agent,
were sold by the Company and (ii) the total price at which any Notes, the
purchase of which is the subject of the claim for indemnification and which such
Agent purchased as principal and distributed to the public, were offered to the
public, exceeds the amount of any damages which such Agent has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. The
Agents' obligations to contribute pursuant to this Section 9 are several, in
proportion to the respective amounts of Notes solicited or purchased by each of
such Agents, and not joint.
Section 10. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or
any Terms Agreement, or contained in certificates of officers of the Company
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Agents or any
controlling person of any Agent, or by or on behalf of the Company or any
controlling person of the Company, and shall survive each delivery of and
payment for any of the Notes.
Section 11. Termination. (a) Termination of this Agreement. This Agreement
may be terminated as to a party for any reason, at any time by any party hereto
upon the giving of 30 days' written notice of such termination to each other
party hereto; provided, however, that an Agent's termination of this Agreement
shall terminate the Agreement only between itself and the Company.
(b) Termination of a Terms Agreement. The Agent or, if applicable, the
Agents if so agreed by a majority in interest of the Agents, may terminate any
Terms Agreement, immediately upon notice to the Company, at any time prior to
the Settlement Date relating thereto if (i) trading in securities generally on
the New York Stock Exchange shall have been suspended or materially limited;
(ii) a
20
general moratorium on commercial banking activities in the State of New
York or the United States shall have been declared by Federal authorities; or
(iii) there shall have occurred any material outbreak, or material escalation,
of hostilities or other national or international calamity or crisis, of such
magnitude and severity in its effect on the financial markets of the United
States, in the reasonable judgment of such Agent or a majority in interest of
the Agents, as to prevent or materially impair the marketing, or enforcement of
contracts for sale, of the Notes
(c) General. In the event of any such termination, no party will have
any liability to the other parties hereto or to the other parties to any Terms
Agreement so terminated, except that (i) the Agents shall be entitled to any
commissions earned in accordance with the fourth paragraph of Section 2(a)
hereof, (ii) if at the time of termination (a) any Agent shall own any Notes
purchased pursuant to a Terms Agreement with the intention of reselling them or
(b) an offer to purchase any of the Notes has been accepted by the Company but
the time of delivery to the purchaser or his agent of the Note or Notes relating
thereto has not occurred, the covenants set forth in Sections 3 and 6 hereof
shall remain in effect until such Notes are so resold or delivered, as the case
may be, and (iii) the covenant set forth in Section 3(f) hereof (except that the
Company shall no longer be required to comply with the provisions of Section
3(f) after it has made generally available to its security holders an earnings
statement (which need not be audited) covering a twelve-month period beginning
after the date of the last sale of Notes hereunder (including sales to an Agent
under a Terms Agreement) which shall satisfy the provisions of Section 11(a) of
the 1933 Act and the rules and regulations thereunder), the provisions of
Section 4 hereof, the agreements of the Agents pursuant to Section 7 hereof, the
indemnity and contribution agreements set forth in Sections 8 and 9 hereof, and
the provisions of Sections 10 and 14 hereof shall remain in effect.
Section 12. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted to the address or telefax number set forth below:
Deutsche Bank Securities Inc.
31 West 52/nd/ Street
New York, NY 10019
Phone: (212) 469-6767
Fax: (212) 469-7875
Attention: Mr. Erich Mauff
General Electric Capital Corporation
GECC Capital Markets Group, Inc.
260 Long Ridge Road
Stamford, CT 06927
Phone: (203) 357-4000
21
Fax: (203) 357-4975
Attention: Senior Vice President-Corporate Treasury
and Global Funding Operation
Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Phone:
Fax:
Attention: Credit Control-Medium Term Notes
J.P. Morgan Securities Inc.
270 Park Avenue, 7/th/ Floor
New York, NY 10017
Telephone: 212-834-5710
Telecopier: 212-834-6702
Attention: Transaction Execution Group
Lehman Brothers Inc.
745 Seventh Avenue
New York, NY 10019
Phone: (212) 526-9664
Fax: (212) 527-0943
Attention: Fixed Income Syndicate/MTN Desk
Merrill Lynch, Pierce, Fenner
& Smith Incorporated
4 World Financial Center, Floor 15
New York, NY 10080
Phone: (212) 449-7476
Fax: (212) 449-2234
Attention: Global Transaction Management Group
Salomon Smith Barney Inc.
388 Greenwich Street
New York, NY 10013
UBS Warburg LLC
677 Washington Blvd.
Stamford, CT 06901
Phone: 203-719-1342
Fax: 203-719-7139
Attention: Debt Capital Markets
22
Section 13. Parties. This Agreement and any Terms Agreement shall inure to
the benefit of and be binding upon the Agents and the Company and their
respective successors. Nothing expressed or mentioned in this Agreement or any
Terms Agreement is intended or shall be construed to give any person, firm or
corporation, other than the parties hereto and their respective successors and
the controlling persons and officers and directors referred to in Sections 8 and
9 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any Terms Agreement or
any provision herein or therein contained. This Agreement and any Terms
Agreement and all conditions and provisions hereof and thereof are intended to
be for the sole and exclusive benefit of the parties hereto and their respective
successors and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation, except that purchasers of Notes sold by any Agent as agent shall be
entitled to the benefits of Section 5 hereof. No purchaser of Notes shall be
deemed to be a successor by reason merely of such purchase.
Section 14. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
If the foregoing is in accordance with your understanding of our amended
and restated agreement, please sign and return to the Company a counterpart
hereof, whereupon this instrument along with all counterparts will become a
binding agreement between the Agents and the Company in accordance with its
terms.
Very truly yours,
GENERAL ELECTRIC CAPITAL
CORPORATION
By____________________________________
Name: Kathryn A. Cassidy
Title: Senior Vice President Corporate
Treasury & Global Funding Operation
CONFIRMED AND ACCEPTED,
as of the date first above written:
23
DEUTSCHE BANK SECURITIES INC.
By_____________________________
Name:
Title:
GECC CAPITAL MARKETS GROUP, INC.
By_____________________________
Name:
Title:
GOLDMAN, SACHS & CO.
By_____________________________
Name:
Title:
J.P. MORGAN SECURITIES INC.
By______________________________
Name:
Title:
LEHMAN BROTHERS INC.
By______________________________
Name:
Title:
24
MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED
By ______________________
Name:
Title:
SALOMON SMITH BARNEY INC.
By ______________________
Name:
Title:
UBS WARBURG LLC
By ______________________
Name:
Title:
EXHIBIT A
[Aggregate Principal Amount of Notes]
GENERAL ELECTRIC CAPITAL CORPORATION
Global Medium-Term Notes, Series A
TERMS AGREEMENT
[Date]
GENERAL ELECTRIC CAPITAL CORPORATION
201 High Ridge Road
Stamford, CT 06927
Attention: Senior Vice President - Corporate Treasury and
Global Funding Operation
Re: Second Amended and Restated U.S. Distribution Agreement
("U.S. Distribution Agreement") dated as of April 16, 2002
The undersigned agrees to purchase Global Medium-Term Notes, Series A (Trade No.
____) having the following terms:
Maturity Date:
Principal Amount:
Issue Price:
Settlement Date:
Place of Delivery: The City of New York, New York
Issue Date:
Specified Currency:
Interest Rate:
Interest Payments:
Redemption at the option of the Company: None
Repayment at the option of the holder: None
Discount/Commissions:
A-1
[Terms used but not defined herein shall have the meaning assigned to them in
the U.S. Distribution Agreement.
Solely with respect to the distribution of the Notes, the Underwriter is hereby
appointed as an Agent under the U.S. Distribution Agreement and shall be
entitled to the benefits, and subject to the obligations, of an Agent purchasing
Notes as principal pursuant to Section 2(b) thereunder.1]
To the extent that any of the Underwriters listed on Schedule I are not named as
Agents in the Second Amended and Restated U.S. Distribution Agreement, such
entities are hereby appointed Agents thereunder with respect to this
transaction.
The certificate referred to in Section 5(b) of the U.S. Distribution Agreement,
the opinion referred to in Section 5(a)(i) of the U.S. Distribution Agreement
[and the accountants' letter referred to in Section 5(c) of the U.S.
Distribution Agreement] will be required.
[[Lead Manager] will act as Calculation Agent as referred to in Section 7(b) of
the U.S. Distribution Agreement.]2
[LEAD MANAGER]
By:
Title:
Accepted:
GENERAL ELECTRIC CAPITAL CORPORATION
By:
Senior Vice President - Corporate Treasury
and Global Funding Operation
____________________
1 To be included if the Underwriter is not a party to the U.S. Distribution
Agreement.
2 To be included if it is a floating rate transaction unless a party other than
the dealer acts as Calculation Agent.
A-2
EXHIBIT B
GENERAL ELECTRIC CAPITAL CORPORATION
GLOBAL MEDIUM-TERM NOTES, SERIES A
ADMINISTRATIVE PROCEDURES
__________________________________
The Global Medium-Term Notes, Series A (the "Notes"), are to be offered
on a continuous basis by General Electric Capital Corporation (the "Company").
Each of Deutsche Bank Securities Inc., GECC Capital Markets, Goldman, Sachs &
Co., Lehman Brothers Inc., J.P. Morgan Securities Inc., Merrill Lynch, Pierce,
Fenner & Smith Incorporated, Salomon Smith Barney Inc. and UBS Warburg LLC (each
an "Agent") has agreed to solicit offers to purchase the Notes in registered
form. The Notes are being sold pursuant to a Second Amended and Restated U.S.
Distribution Agreement dated as of April 16, 2002 (the "Agreement") between the
Company and the Agents. In the Agreement, each Agent has agreed to use its best
efforts to solicit purchases of the Notes. Each Agent, as principal, may
purchase Notes for its own account and if it does so, the Company and such Agent
will enter into a terms agreement, as contemplated by the Agreement.
The Notes are to be issued pursuant to Third Amended and Restated
Indenture dated as of February 27, 1997, between the Company and JPMorgan Chase
Bank (formerly known as The Chase Manhattan Bank), as successor trustee (the
"Trustee") as supplemented by the First Supplemental Indenture dated as of May
3, 1999 and the Second Supplemental Indenture dated as of July 2, 2001, (as
supplemented the "Indenture"). Subject to the terms and conditions of the
Indenture, and unless otherwise provided, all Securities of the same series
having identical terms
A-3
but for authentication date and public offering price (a "Tranche") need not be
issued at the same time. Unless otherwise provided, and subject to the terms and
conditions of the Indenture, a Tranche may be reopened for issuance of
additional Securities in such Tranche. The Company has initially appointed the
Trustee, at its corporate trust office in The City of New York, as the registrar
(the "Registrar") for the Notes. The Company has authorized the issuance of
Notes to and through the Agents pursuant to the terms of this Agreement. The
Notes will be issued in registered form. Each Note will be represented by either
a single global security in registered form without coupons delivered to the
Trustee as agent for The Depository Trust Company ("DTC") and recorded in the
book-entry system maintained by DTC or by a certificate delivered to the holder
thereof or a person designated by such holder. Notes will bear interest at a
fixed rate (the "Fixed Rate Notes"), which may be zero in the case of certain
original issue discount notes (the "OID Notes"), or at floating rates (the
"Floating Rate Notes"). Fixed Rate Notes may (i) pay a level amount in respect
of both interest and principal amortized over the life of the Notes (the
"Amortizing Notes"), (ii) pay an amount in respect of principal determined by
the relationship between (x) the currency base rate of a unit of the face amount
currency per unit of the Indexed Currency specified on the face of such Note and
(y) the spot rate (as derived in accordance with such Note) expressed in terms
of a unit of the face amount currency per unit of such Indexed Currency for an
amount of such Indexed Currency equal to the face amount of such Note on the
Index Determination Date specified on the face of such Note ("Indexed Notes")
and (iii) provide for payment of both principal and interest to be made, at the
election of the Company, in the Optional Payment Currency specified on the face
of such Note at the Designated Exchange rate specified on the face thereof with
certain adjustments to the payment of principal if such Note is redeemed prior
to the Maturity Date or if payment thereon is accelerated ("Dual Currency
Notes"). The Notes will be issued in U.S. dollars or other currencies (the
"Specified Currency"). Each Note will be represented by either a Global Security
(as defined below) delivered to the Trustee, as agent for The Depository Trust
Company ("DTC"), and recorded in the book-entry system maintained by DTC (a
"Book-Entry Note") or a certificate delivered to the holder thereof or a person
designated by such holder (a "Certificated Note"). Except in limited
circumstances, an owner of a Book-Entry Note will not be entitled to receive a
Certificated Note.
Book-Entry Notes, which may only be denominated and payable in U.S.
dollars, will be issued in accordance with the administrative procedures set
forth in Part I hereof as they may subsequently be amended as the result of
changes in DTC'S operating procedures, and Certificated Notes will be issued in
accordance
A-4
with the administrative procedures set forth in Part II hereof. Indexed Notes
and Dual Currency Notes will only be issued as Certificated Notes. Unless
otherwise defined herein, terms defined in the Indenture or the Notes shall be
used herein as therein defined.
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, the Trustee will perform
the custodial, document control and administrative functions described below, in
accordance with its respective obligations under a Letter of Representation from
the Company and the Trustee to DTC, dated as of May 3, 1999 (the "Letter of
Representation"), and its obligations as a participant in DTC, including DTC's
Same-Day Funds Settlement System ("SDS").
Issuance: On any date of settlement (as defined under "Settlement"
below) for one or more Book-Entry Notes, the Company
will issue a single global security in fully registered
form without coupons (a "Global Security") representing
up to U.S. $500,000,000 principal amount of all such
Notes that have the same Purchase Price, Settlement
Date, Maturity Date, redemption or repayment provisions,
Interest Payment Dates, Original Issue Date, original
issue discount provisions (if any), and, in the case of
Fixed Rate Notes, Interest Rate, modified payment upon
acceleration (if any), amortization schedule (if any)
or, in the case of Floating Rate Notes, Initial Interest
Rate, Interest Payment Dates, Interest Payment Period,
Calculation Agent, Base Rate, Index Maturity, Interest
Reset Period, Interest Reset Dates, Spread or Spread
Multiplier (if any), Alternative Rate Event Spread (if
any), Minimum Interest Rate (if any)and Maximum Interest
Rate (if any) and, in each case, any other relevant terms
(collectively "Terms"). Each Global Security will be
dated and issued as of the date of its authentication by
the Trustee. Each Global Security will bear an "Interest
Accrual Date," which will be (i) with respect to an
original Global Security (or any portion thereof), its
original issuance date and (ii) with respect to any
Global Security (or any portion thereof) issued
A-5
subsequently upon exchange of a Global Security, or in
lieu of a destroyed, lost or stolen Global Security, the
most recent Interest Payment Date to which interest has
been paid or duly provided for on the predecessor Global
Security or Securities (or if no such payment or
provision has been made, the original issuance date of
the predecessor Global Security), regardless of the date
of authentication of such subsequently issued Global
Security. Book-Entry Notes may only be denominated and
payable in U.S. dollars. No Global Security will
represent any Certificated Note.
Identification
Numbers: The Company has arranged with the CUSIP Service Bureau
of Standard & Poor's Corporation (the "CUSIP Service
Bureau") for the reservation of a series of
approximately 900 CUSIP numbers (including tranche
numbers) for assignment to the Global Securities
representing the Book-Entry Notes. The Company has
obtained from the CUSIP Service Bureau a written list of
each series of reserved CUSIP numbers and has delivered
to the Trustee and DTC the written list of 900 CUSIP
numbers of such series. The Trustee will assign CUSIP
numbers to Global Securities as described below under
Settlement Procedure "B". DTC will notify the CUSIP
Service Bureau periodically of the CUSIP numbers that
the Trustee has assigned to Global Securities. At
anytime when fewer than 100 of the reserved CUSIP
numbers of either series remain unassigned to Global
Securities, the Trustee shall so advise the Company and,
if it deems necessary, the Company will reserve
additional CUSIP numbers for assignment to Global
Securities representing Book-Entry Notes. Upon obtaining
such additional CUSIP numbers, the Company shall deliver
a list of such additional CUSIP numbers to the Trustee
and DTC.
Registration: Each Global Security will be registered in the name of
Cede & Co., as nominee for DTC, on the Security register
maintained under the Indenture. The beneficial owner of
a Book-Entry Note (or one or more indirect participants
in DTC designated by such owner) will designate one or
more participants in DTC with respect
A-6
to such Note (the "Participants") to act as agent or
agents for such owner in connection with the book-entry
system maintained by DTC, and DTC will record in
book-entry form, in accordance with instructions
provided by such Participants, a credit balance with
respect to such beneficial owner in such Note in the
account of such Participants. The ownership interest of
such beneficial owner in such Note will be recorded
through the records of such Participants or through the
separate records of such Participants and one or more
indirect participants in DTC.
Transfers: Transfers of a Book-Entry Note will be accompanied by
book entries made by DTC and, in turn, by Participants
(and in certain cases, one or more indirect participants
in DTC) acting on behalf of beneficial transferors and
transferees of such Note.
Exchanges: The Trustee may deliver to DTC and the CUSIP Service
Bureau at any time a written notice of consolidation
specifying (i) the CUSIP numbers of two or more
Outstanding Global Securities that represent Book-Entry
Notes having the same Terms and for which interest has
been paid to the same date, (ii) a date, occurring at
least thirty days after such written notice is delivered
and at least thirty days before the next Interest
Payment Date for such Book-Entry Notes, on which such
Global Securities shall be exchanged for a single
replacement Global Security and (iii) a new CUSIP number
to be assigned to such replacement Global Security. Upon
receipt of such a notice, DTC will send to its
Participants (including the Trustee) a written
reorganization notice to the effect that such exchange
will occur on such date. Prior to the specified exchange
date, the Trustee will deliver to the CUSIP Service
Bureau a written notice setting forth such exchange date
and the new CUSIP number and stating that, as of such
exchange date, the CUSIP numbers of the Global
Securities to be exchanged will no longer be valid. On
the specified exchange date, the Trustee will exchange
such Global Securities for a single Global Security
bearing the new CUSIP number and a new Interest Accrual
Date, and the CUSIP numbers of the
A-7
exchanged Global Securities will, in accordance with
CUSIP Service Bureau procedures, be cancelled and not
immediately reassigned. Notwithstanding the foregoing,
if the Global Securities to be exchanged exceed U.S.
$500,000,000 in aggregate principal amount, one Global
Security will be authenticated and issued to represent
each U.S. $500,000,000 principal amount of the exchanged
Global Security and an additional Global Security will
be authenticated and issued to represent any remaining
principal amount of such Global Securities (see
"Denominations" below).
Maturities: Each Book-Entry Note will mature on a date from nine
months to 60 years from its date of issue.
Notice of Redemption
and Repayment Dates: The Trustee will give notice to DTC prior to each
redemption date or repayment date (as specified in the
Note), if any, at the time and in the manner set forth
in the Letter of Representation.
Denominations: Book-Entry Notes will be issued in principal amounts of
U.S. $100,000 or an integral multiple of U.S. $1,000 in
excess thereof, unless otherwise specified in the
applicable Pricing Supplement. Global Securities will be
issued in principal amounts not in excess of U.S.
$500,000,000. If one or more Book-Entry Notes having an
aggregate principal amount in excess of U.S.
$500,000,000 would, but for the preceding sentence, be
represented by a single Global Security, then one Global
Security will be issued to represent each U.S.
$500,000,000 principal amount of such Book-Entry Note or
Notes and an additional Global Security will be issued
to represent any remaining principal amount of such
Book-Entry Note or Notes. In such a case, each of the
Global Securities representing such Book-Entry Note or
Notes shall be assigned the same CUSIP number.
Interest: General. Interest on each Book-Entry Note will accrue
from the Interest Accrual Date of the Global Security
representing such Note. Each payment of interest on a
Book-Entry Note will include interest accrued to but
excluding the Interest Payment Date; provided that in
A-8
the case of Floating Rate Notes that reset daily or
weekly, interest payments will include interest accrued
to and including the Record Date immediately preceding
the Interest Payment Date, except that at maturity or
earlier redemption or repayment, the interest payable
will include interest accrued to, but excluding, the
maturity date or the date of redemption or repayment, as
the case may be. Interest payable at the maturity or
upon redemption or repayment of a Book-Entry Note will
be payable to the person to whom the principal of such
Note is payable. Standard & Poor's Corporation will use
the information received in the pending deposit message
described under Settlement Procedure "C" below in order
to include the amount of any interest payable and
certain other information regarding the related Global
Security in the appropriate weekly bond report published
by Standard & Poor's Corporation.
Record Dates. The Record Date with respect to any
Interest Payment Date shall be the date fifteen calendar
days immediately preceding such Interest Payment Date.
Fixed Rate Book-Entry Notes. Unless otherwise specified
in the applicable Pricing Supplement, interest payments
on Fixed Rate Book-Entry Notes, other than Amortizing
Notes, will be made semiannually on March 15 and
September 15 of each year, (or, if so indicated in such
Note, annually on September 15 of each year) and at
maturity or upon any earlier redemption or repayment and
Book Entry Amortizing Notes will pay principal and
interest semiannually each March 15 and September 15, or
quarterly each March 15, June 15, September 15, and
December 15, and at maturity (or any redemption or
repayment date); provided, however, that in the case of
a Fixed Rate Book-Entry Note issued between a Record
Date and an Interest Payment Date, the first interest
payment will be made on the Interest Payment Date
following the next succeeding Record Date.
Floating Rate Book-Entry Notes. Interest payments will
be made on Floating Rate Book-Entry Notes monthly,
A-9
quarterly, semiannually or annually. Unless otherwise
agreed upon, interest will be payable, in the case of
Floating Rate Book-Entry Notes with a daily, weekly
or monthly Interest Reset Date, on the third
Wednesday of each month or on the third Wednesday of
March, June, September and December, as specified
pursuant to Settlement Procedure "A" below; in the
case of Notes with a quarterly Interest Reset Date,
on the third Wednesday of March, June, September and
December of each year; in the case of Notes with a
semi-annual Interest Reset Date, on the third
Wednesday of the two months specified pursuant to
Settlement Procedure "A" below; and in the case of
Notes with an annual Interest Reset Date, on the
third Wednesday of the month specified pursuant to
Settlement Procedure "A" below; provided however,
that if an Interest Payment Date for Floating Rate
Book-Entry Notes would otherwise be a day that is not
a Business Day with respect to such Floating Rate
Book-Entry Notes, such Interest Payment Date will be
the next succeeding Business Day with respect to such
Floating Rate Book-Entry Notes, except in the case of
a LIBOR Note if such Business Day is in the next
succeeding calendar month, such Interest Payment Date
will be the immediately preceding Business Day; and
provided, further, that in the case of a Floating
Rate Book-Entry Note issued between a Record Date and
an Interest Payment Date, the first interest payment
will be made on the Interest Payment Date following
the next succeeding Record Date.
Notice of Interest Payment and Record Dates. On the
first Business Day of January, April, July and
October of each year, the Trustee will deliver to the
Company and DTC a written list of Record Dates and
Interest Payment Dates that will occur with respect
to Book-Entry Notes during the six-month period
beginning on such first Business Day.
Calculation of Interest: Fixed Rate Book-Entry Notes. Interest on Fixed Rate
Book-Entry Notes (including interest for partial
periods) will be calculated on the basis of a year of
twelve thirty-day months.
A-10
Floating Rate Book-Entry Notes. Interest rates on
Floating Rate Book-Entry Notes will be determined
as set forth in the form of Notes. Interest on
Floating Rate Book-Entry Notes will be calculated
on the basis of actual days elapsed and a year of
360 days except that in the case of Treasury Rate
Notes, interest will be calculated on the basis
of the actual number of days in the year.
Payments of Principal
and Interest: Payments of Interest. Promptly after each Record
Date, the Trustee will deliver to the Company and
DTC a written notice specifying by CUSIP number
the amount of interest to be paid on each Global
Security other than an Amortizing Note on the
following Interest Payment Date (other than an
Interest Payment Date coinciding with maturity or
any earlier redemption or repayment date) and the
total of such amounts. DTC will confirm the
amount payable on each such Global Security on
such Interest Payment Date by reference to the
daily bond reports published by Standard & Poor's
Corporation. In the case of Amortizing Notes, the
Trustee will provide separate written notice to
DTC prior to each Interest Payment Date at the
time and in the manner set forth in the Letter of
Representation. The Company will pay to the
Trustee, as paying agent, the total amount of
interest due on such Interest Payment Date (and,
in the case of an Amortizing Note, principal and
interest) (other than at maturity), and the
Trustee will pay such amount to DTC at the times
and in the manner set forth below under "Manner
of Payment." If any Interest Payment Date for a
Fixed Rate Book-Entry Note is not a Business Day,
the payment due on such day shall be made on the
next succeeding Business Day and no interest
shall accrue on such payment for the period from
and after such Interest Payment Date.
Payments at Maturity or Upon Redemption or
Repayment. On or about the first Business Day of
each month, the Trustee will deliver to the
Company and DTC a written list of principal and
interest to be paid on each Global Security other
than an Amortizing Note maturing either at
maturity or on a redemption or
A-11
repayment date in the following month. The
Company and DTC will confirm the amounts of such
principal and interest payments with respect to
each such Global Security on or about the fifth
Business Day preceding the Maturity Date or
redemption or repayment date of such Global
Security. In the case of Amortizing Notes, the
Trustee will provide separate written notice to
DTC prior to the Maturity Date and any redemption
or repayment date, as the case may be, at the
times and in the manner set forth in the Letter
of Representation. The Company will pay to the
Trustee, as the paying agent, the principal
amount of such Global Security, together with
interest due at such Maturity Date or redemption
or repayment date. The Trustee will pay such
amounts to DTC at the times and in the manner set
forth below under "Manner of Payment." If any
Maturity Date or redemption or repayment date of
a Global Security representing Book-Entry Notes
is not a Business Day, the payment due on such
day shall be made on the next succeeding Business
Day with respect to such Note, except that, in
the case of Book-Entry LIBOR Note, if such
Business Day is in the next succeeding calendar
month, such Interest Payment Date or redemption
or repayment date shall be the immediately
preceding day that is a Business Day with respect
to such Book-Entry LIBOR Note. Promptly after
payment to DTC of the principal and interest due
on the Maturity Date or redemption or repayment
date of such Global Security, the Trustee will
cancel such Global Security in accordance with
the terms of the Indenture and deliver it to the
Company with a certificate of cancellation.
Manner of Payment. The total amount of any
principal and interest due on Global Securities
on any Interest Payment Date or at maturity or
upon redemption or repayment shall be paid by the
Company to the Trustee in funds available for
immediate use by the Trustee not later than 9:30
A.M. (New York City time) on such date. The
Company will make such payment on such Global
Securities by instructing the Trustee to withdraw
funds from an account maintained by the Company
at the Trustee. The Company will confirm such
instructions in writing to the Trustee. Payment
shall be
A-12
made prior to 10:00 A.M. (New York City time) or
as soon thereafter as practicable, on each
Maturity Date or redemption or repayment date or,
if either such date is not a Business Day, as
soon as possible thereafter, the Trustee will pay
by separate wire transfer (using Fed wire message
entry instructions in a form previously specified
by DTC) to an account at the Federal Reserve Bank
of New York previously specified by DTC, in funds
available for immediate use by DTC, each payment
of principal (together with interest thereon) due
on Global Securities on any Maturity Date or
redemption or repayment date. On each Interest
Payment Date or, if any such date is not a
Business Day, as soon as possible thereafter,
interest payments and, in the case of Amortizing
Notes, interest and principal payments shall be
made to DTC in same day funds in accordance with
existing arrangements between the Trustee and
DTC. Thereafter on each such date, DTC will pay,
in accordance with its SDS operating procedures
then in effect, such amounts in funds available
for immediate use to the respective Participants
in whose names the Book-Entry Notes represented
by such Global Securities are recorded in the
book-entry system maintained by DTC. Neither the
Company nor the Trustee shall have any
responsibility or liability for the payment by
DTC to such Participants of the principal of and
interest on the Book-Entry Notes.
Withholding Taxes. The amount of any taxes
required under applicable law to be withheld from
any interest payment on a Book-Entry Note will be
determined and withheld by the Participant,
indirect participant in DTC or other person
responsible for forwarding payments directly to
the beneficial owner of such Note.
Preparation of
Pricing Supplement: If any order to purchase a Book-Entry Note is
accepted by or on behalf of the Company, the
Company will prepare a pricing supplement (a
"Pricing Supplement") reflecting the terms of
such Note and will arrange to file such Pricing
Supplement with the Commission in accordance with
the applicable paragraph of Rule 424 under the
Act, will deliver the number of copies of such
A-13
Pricing Supplement to the relevant Agent as such
Agent shall request by the close of business on
the following Business Day. The relevant Agent
will cause such Pricing Supplement to be
delivered to the purchaser of the Note. In each
instance that a Pricing Supplement is prepared,
the Agents receiving such Pricing Supplement will
affix the Pricing Supplement to Prospectuses
prior to their use. Outdated Pricing Supplements,
and the Prospectuses to which they are attached
(other than those retained for files), will be
destroyed.
Settlement: The receipt by the Company of immediately
available funds in payment for a Book-Entry Note
and the authentication and issuance of the Global
Security representing such Note shall constitute
"settlement" with respect to such Note. All
orders accepted by the Company will be settled on
the fifth Business Day pursuant to the timetable
for settlement set forth below unless the Company
and the purchaser agree to settlement on another
day, which shall be no earlier than the next
Business Day.
Settlement Procedures: Settlement Procedures with regard to each
Book-Entry Note sold by the Company to or through
an Agent shall be as follows:
A. The relevant Agent will advise the Company by
telephone that such Note is a Book-Entry Note
and of the following settlement information:
1. Principal amount.
2. Maturity Date.
3. In the case of a Fixed Rate Book-Entry
Note, the Interest Rate, the
applicability of Annual Interest Payments
and whether such Note is an Amortizing
Note and, if so, the amortization
schedule, or, in the case of a Floating
Rate Book-Entry Note, the Initial
Interest Rate (if known at such time),
Interest Payment Dates, Interest Payment
Period, Calculation Agent, Base Rate,
Index Maturity, Interest Reset Period,
Initial
A-14
Interest Reset Date, Interest Reset
Dates, Spread or Spread Multiplier (if
any), Minimum Interest Rate (if any),
Maximum Interest Rate (if any) and the
Alternate Rate Event Spread (if any).
4. Redemption or repayment provisions, if
any.
5. Settlement date and time.
6. Price.
7. Agent's commission, if any, determined
as provided in the Agreement.
8. Whether the Note is an OID Note, and
if it is an OID Note, the total amount
of OID, the yield to maturity, the
initial accrual period OID and the
applicability of Modified Payment upon
Acceleration (and, if so, the Issue
Price).
9. Any other applicable Terms.
B. The Company will advise the Trustee by
telephone or electronic transmission
(confirmed in writing at any time on the
same date) of the information set forth in
Settlement Procedure "A" above. The
Trustee will then assign a CUSIP number to
the Global Security representing such Note
and will notify the Company and the Agent
of such CUSIP number by telephone as soon
as practicable.
C. The Trustee will enter a pending deposit
message through DTC's Participant Terminal
System, providing the following settlement
information to DTC, the relevant Agent and
Standard & Poor's Corporation:
1. The information set forth in
Settlement Procedure "A".
A-15
2. The Initial Interest Payment Date for
such Note, the number of days by
which such date succeeds the related
DTC Record Date (which in the case of
Floating Rate Notes which reset daily
or weekly, shall be the date five
calendar days immediately preceding
the applicable Interest Payment Date
and, in the case of all other Notes,
shall be the Record Date as defined
in the Note) and, if known, amount of
interest payable on such Initial
Interest Payment Date.
3. The CUSIP number of the Global
Security representing such Note.
4. Whether such Global Security will
represent any other Book-Entry Note
(to the extent known at such time).
5. Whether such Note is an Amortizing
Note (by an appropriate notation in
the comments field of DTC's
Participant Terminal System).
6. The number of Participant accounts to
be maintained by DTC on behalf of the
Agents and the Trustee.
D. The Trustee will complete and authenticate
the Global Security representing such
Note.
E. DTC will credit such Note to the Trustee's
participant account at DTC.
F. The Trustee will enter an SDS deliver
order through DTC's Participant Terminal
System instructing DTC to (i) debit such
Note to the Trustee's participant account
and credit such Note to the relevant
Agent's participant account and (ii) debit
such Agent's settlement account and credit
the Trustee's settlement account for an
amount equal to the price of such Note
less such Agent's commission, if any. The
entry of such a deliver order shall
constitute a representation and
A-16
warranty by the Trustee to DTC that the
Global Security representing such
Book-Entry Note has been issued and
authenticated.
G. Unless the relevant Agent purchased such
Note as principal, such Agent will enter
an SDS deliver order through DTC's
Participant Terminal System instructing
DTC (i) to debit such Note to such Agent's
participant account and credit such Note
to the participant accounts of the
Participants with respect to such Note and
(ii) to debit the settlement accounts of
such Participants and credit the
settlement account of such Agent for an
amount equal to the price of such Note.
H. Transfers of funds in accordance with SDS
deliver orders described in Settlement
Procedures "F" and "G" will be settled in
accordance with SDS operating procedures
in effect on the settlement date.
I. The Trustee will credit to the U.S. dollar
account of the Company maintained at a
Trustee located in New York City, notified
to the Trustee from time to time in
writing, in funds available for immediate
use in the amount transferred to the
Trustee, in accordance with Settlement
Procedure "F".
J. Unless the relevant Agent purchased such
Note as principal, such Agent will confirm
the purchase of such Note to the purchaser
either by transmitting to the Participants
with respect to such Note a confirmation
order or orders through DTC's
institutional delivery system or by
mailing a written confirmation to such
purchaser.
K. Monthly, the Trustee will send to the
Company a statement setting forth the
principal amount of Notes outstanding as
of that date under the Indenture and
setting forth a brief description of
A-17
any sales of which the Company has advised the
Trustee but which have not yet been settled.
Settlement
Procedures
Timetable: For sales by the Company of Book-Entry Notes to or through
an Agent for settlement on the first Business Day after the
sale date, Settlement Procedures "A" through "J" set forth
above shall be completed as soon as possible but not later
than the respective times (New York City time) set forth
below:
Settlement
Procedure Time
--------- ----
A. 11:00 A.M. on the sale date
B. 12:00 Noon on the sale date
C. 2:00 P.M. on the sale date
D. 9:00 A.M. on settlement date
E. 10:00 A.M. on settlement date
F-G 2:00 P.M. on settlement date
H. 4:45 P.M. on settlement date
I-J 5:00 P.M. on settlement date
If a sale is to be settled more than one Business
Day after the sale date, Settlement Procedures
"A", "B" and "C" shall be completed as soon as
practicable but no later than 11:00 A.M., 12 Noon
and 2:00 P.M., respectively, on the first
Business Day after the sale date. If the Initial
Interest Rate for a Floating Rate Book-Entry Note
has not been determined at the time that
Settlement Procedure "A" is completed, Settlement
Procedure "B" and "C" shall be completed as soon
as such rate has been determined but no later
than 12 Noon and 2:00 P.M., respectively, on the
second Business Day before the settlement date.
Settlement Procedure "H" is subject to extension
in accordance with any extension of Fed wire
closing deadlines and in the other events
specified in the SDS operating procedures in
effect on the settlement date. If settlement of a
Book-Entry Note is rescheduled or cancelled, the
Trustee, after receiving notice from the Company
or the Agent, will deliver to DTC, through
A-18
DTC's Participant Terminal System, a cancellation message
to such effect by no later than 2:00 P.M. on the Business
Day immediately preceding the scheduled settlement date.
Failure to Settle: If the Trustee fails to enter an SDS deliver order with
respect to a Book-Entry Note pursuant to Settlement
Procedure "F", the Trustee may deliver to DTC, through
DTC's Participant Terminal System, as soon as practicable
a withdrawal message instructing DTC to debit such Note
to the Trustee's participant account, provided that the
Trustee's participant account contains a principal amount
of the Global Security representing such Note that is at
least equal to the principal amount to be debited. If a
withdrawal message is processed with respect to all the
Book-Entry Notes represented by a Global Security, the
Trustee will mark such Global Security "cancelled," make
appropriate entries in the Trustee's records and send
such cancelled Global Security to the Company. The CUSIP
number assigned to such Global Security shall, in
accordance with CUSIP Service Bureau procedures, be
cancelled and not immediately reassigned. If a withdrawal
message is processed with respect to one or more, but not
all, of the Book-Entry Notes represented by a Global
Security, the Trustee will exchange such Global Security
for two Global Securities, one of which shall represent
such Book-Entry Note or Notes and shall be cancelled
immediately after issuance and the other of which shall
represent the remaining Book-Entry Notes previously
represented by the surrendered Global Security and shall
bear the CUSIP number of the surrendered Global Security.
If the purchase price for any Book-Entry Note is not
timely paid to the Participants with respect to such Note
by the beneficial purchaser thereof (or a person,
including an indirect participant in DTC, acting on
behalf of such purchaser), such Participants and, in
turn, the relevant Agent may enter SDS deliver orders
through DTC's Participant Terminal System reversing the
orders entered pursuant to Settlement Procedures "F" and
"G", respectively. Thereafter, the Trustee will
A-19
deliver the withdrawal message and take the related
actions described in the preceding paragraph.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Book-Entry Note, DTC may take
any actions in accordance with its SDS operating
procedures then in effect.
In the event of a failure to settle with respect to one
or more, but not all, of the Book-Entry Notes to have
been represented by a Global Security, the Trustee will
provide, in accordance with Settlement Procedures "D"
and "F", for the authentication and issuance of a Global
Security representing the Book-Entry Notes to be
represented by such Global Security and will make
appropriate entries in its records.
A-20
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
The Trustee will serve as registrar in connection with the Certificated
Notes.
Issuance: Each Certificated Note will be dated and issued as of the
date of its authentication by the Trustee. Each
Certificated Note will bear an Original Issue Date, which
will be (i) with respect to an original Certificated Note
(or any portion thereof), its original issuance date (which
will be the settlement date) and (ii) with respect to any
Certificated Note (or portion thereof) issued subsequently
upon transfer or exchange of a Certificated Note or in lieu
of a destroyed, lost or stolen Certificated Note, the
original issuance date of the predecessor Certificated
Note, regardless of the date of authentication of such
subsequently issued Certificated Note.
Registration: Certificated Notes will be issued only in fully registered
form without coupons.
Transfers and
Exchanges: A Certificated Note may be presented for transfer or
exchange at the corporate trust office of the Trustee.
Certificated Notes will be exchangeable for other
Certificated Notes having identical terms but different
denominations without service charge. Certificated Notes
will not be exchangeable for Book-Entry Notes.
Maturities: Each Certificated Note will mature on a date from nine
months to 60 years from its date of issue.
Currency: The currency denomination with respect to any Certificated
Note and the payment of interest and the repayment of
principal with respect to any such Certificated Note shall
be as set forth therein and in the applicable Pricing
Supplement.
Denominations: The denomination of any Certificated Note will be a minimum
of 100,000 units of the Specified Currency or an integral
multiple of 1,000 units of such Specified Currency in
excess thereof, unless otherwise specified in the
applicable Pricing Supplement.
A-21
Interest: General. Interest on each Certificated Note will accrue
from the Original Issue Date of such Note for the first
interest period and from the most recent date to which
interest has been paid for all subsequent interest periods.
Each payment of interest on a Certificated Note will
include interest accrued to but excluding the Interest
Payment Date; provided that in the case of Floating Rate
Notes which reset daily or weekly, interest payments will
include interest accrued to and including the Record Date
immediately preceding the Interest Payment Date, except
that at maturity or earlier redemption or repayment, the
interest payable will include interest accrued to, but
excluding, the Maturity Date or the date of redemption or
repayment, as the case may be.
Fixed Rate Certificated Notes. Unless otherwise specified
pursuant to Settlement Procedure "A" below, interest
payments on Fixed Rate Certificated Notes, other than
Amortizing Notes, will be made semiannually on March 15 and
September 15 of each year (or, if so indicated in such
Note, annually on September 15 of each year) and at
maturity or upon any earlier redemption or repayment and
Certified Amortizing Notes will pay principal and interest
semiannually each March 15 and September 15, or quarterly
each March 15, June 15, September 15, and December 15, and
at maturity or upon any earlier redemption or repayment;
provided, however, that in the case of Certificated Fixed
Rate Notes issued between a Record Date and an Interest
Payment Date, the first interest payment will be made on
the Interest Payment Date following the next succeeding
Record Date.
Floating Rate Certificated Notes. Interest payments will be
made on Floating Rate Certificated Notes monthly,
quarterly, semiannually or annually. Interest will be
payable, in the case of Floating Rate Certificated Notes
with a daily, weekly or monthly Interest Reset Date, on the
third Wednesday of each month or on the third Wednesday of
March, June, September and December, as specified pursuant
to settlement
A-22
procedure "A" below; in the case of Notes with a
quarterly interest Payment Reset Date, on the
third Wednesday of March, June, September and
December of each year; in the case of Notes with
a semi-annual Interest Reset Date, on the third
Wednesday of the two months specified pursuant to
Settlement Procedure "A" below; and in the case
of Notes with an annual Interest Reset Date, on
the third Wednesday of the month specified
pursuant to Settlement Procedure "A" below;
provided, however, that if an Interest Payment
Date for Floating Rate Certificated Notes would
otherwise be a day that is not a Business Day
with respect to such Floating Rate Certificated
Notes, such Interest Payment Date will be the
next succeeding Business Day with respect to such
Floating Rate Certificated Notes, except that in
the case of a LIBOR Note if such Business Day is
in the next succeeding calendar month, such
Interest Payment Date will be the immediately
preceding Business Day; and provided, further,
that in the case of a Floating Rate Certificated
Note issued between a Record Date and an Interest
Payment Date, the first interest payment will be
made on the Interest Payment Date following the
next succeeding Record Date.
Calculation of Interest: Fixed Rate Certificated Notes. Interest on Fixed
Rate Certificated Notes (including interest for
partial periods) will be calculated on the basis
of a year of twelve thirty-day months.
Floating Rate Certificated Notes. Interest rates
on Floating Rate Certificated Notes will be
determined as set forth in the form of such
Notes. Interest on Floating Rate Certificated
Notes will be calculated on the basis of actual
days elapsed and a year of 360 days except that
in the case of Treasury Rate Notes, interest will
be calculated on the basis of the actual number
of days in the year.
A-23
Payments of
Principal and
Interest: The Trustee will pay the principal amount of each
Certificated Note at maturity or upon redemption or
repayment upon presentation and surrender of such Note to
the Trustee. Such payment, together with payment of
interest due at maturity or upon redemption or repayment
of such Note, will be made in funds available for
immediate use by the Trustee and in turn by the holder of
such Note. Certificated Notes presented for payment to
the Trustee at maturity or upon redemption or repayment
will be cancelled by the Trustee and delivered to the
Company with a certificate of cancellation. All interest
payments on a Certificated Note (other than interest due
at maturity or upon redemption or repayment) will be made
by check drawn on the Trustee (or another person
appointed by the Trustee) and mailed by the Trustee to
the person entitled thereto as provided in such Note and
the Indenture; provided, however, that the holder of
$5,000,000 or more of Notes having the same Interest
Payment Date will be entitled to receive payment by wire
transfer of immediately available funds. Following each
Record Date, the Trustee will furnish the Company with a
list of interest payments to be made on the following
Interest Payment Date for each Certificated Note and in
total for all Certificated Notes. Interest at maturity or
upon redemption or repayment will be payable to the
person to whom the payment of principal is payable. The
Trustee will provide monthly to the Company lists of
principal and interest, to the extent ascertainable, to
be paid on Certificated Notes maturing or to be redeemed
in the next month. The Trustee will be responsible for
withholding taxes on interest paid on Certificated Notes
as required by applicable law.
If any Interest Payment Date or the Maturity Date or
redemption or repayment date of a Fixed Rate Certificated
Note is not a Business Day, the payment due on such day
shall be made on the next succeeding Business Day and no
interest on such payment for the period from and after
such Interest Payment Date, Maturity Date or redemption
or repayment date, as the
A-24
case may be. If any Interest Payment Date or the
Maturity Date or redemption or repayment date for any
Certificated Floating Rate Note would fall on a day
that is not a Business Day with respect to such Note,
such Interest Payment Date, Maturity Date or
redemption or repayment date will be the following day
that is a Business Day with respect to such Note,
except that, in the case of a Certificated LIBOR Note,
if such Business Day is in the next succeeding
calendar month, such Interest Payment Date shall be
the immediately preceding day that is a Business Day
with respect to such Certificated LIBOR Note.
Preparation of
Pricing Supplement: If any order to purchase a Certificated Note is
accepted by or on behalf of the Company, the Company
will prepare a pricing supplement (a "Pricing
Supplement") reflecting the terms of such Note and
will arrange to file such Pricing Supplement with the
Commission in accordance with the applicable paragraph
of Rule 424 under the Act, will deliver the number of
copies of such Pricing Supplement to the relevant
Agent as such Agent shall request by the close of
business on the following Business Day. The relevant
Agent will cause such Pricing Supplement to be
delivered to the purchaser of the Note.
In each instance that a Pricing Supplement is
prepared, the Agents receiving such Pricing Supplement
will affix the Pricing Supplement to Prospectuses
prior to their use. Outdated Pricing Supplements, and
the Prospectuses to which they are attached (other
than those retained for files), will be destroyed.
Settlement: The receipt by the Company of immediately
available funds in exchange for an authenticated
Certificated Note delivered to the relevant Agent and
such Agent's delivery of such Note against receipt of
immediately available funds shall constitute
"settlement" with respect to such Note. All offers
accepted by the Company will be settled on or before
the fifth Business Day next succeeding the date of
acceptance pursuant to the timetable for settlement
set forth below, unless the
A-25
Company and the purchaser agree to settlement on
another date.
Settlement
Procedures: Settlement Procedures with regard to each Certificated
Note sold by the Company to or through an Agent shall
be as follows:
A. The relevant Agent will advise the Company by
telephone that such Note is a Certificated Note
and of the following settlement information:
1. Name in which such Note is to be registered
("Registered Owner").
2. Address of the Registered Owner and address
for payment of principal and interest.
3. Taxpayer identification number of the
Registered Owner (if available).
4. Principal amount.
5. Maturity Date.
6. In the case of a Fixed Rate Certificated
Note, the Interest Rate, the applicability of
Annual Interest Payments and whether such Note
is an Amortizing Note and, if so, the
amortization schedule, or, in the case of a
Floating Rate Certificated Note, the Initial
Interest Rate (if known at such time),
Interest Payment Dates, Interest Payment
Period, Calculation Agent, Base Rate, Index
Maturity, Interest Reset Period, Interest
Reset Dates, Spread or Spread Multiplier (if
any), Minimum Interest Rate (if any), Maximum
Interest Rate (if any), and the Alternate Rate
Event Spread (if any).
7. Redemption or repayment provisions, if any.
8. Settlement date and time.
A-26
9. Price.
10. Agent's commission, if any, determined as
provided in the Agreement.
11. Denominations.
12. Specified Currency.
13. Whether the Note is an OID Note, and if it is
an OID Note, the total amount of OID, the
yield to maturity, the initial accrual period
OID and the applicability of Modified Payment
upon Acceleration (and, if so, the Issue
Price).
14. Whether the Note is an Indexed Note, and if it
is an Indexed Note, the Indexed Currency, the
Currency Base Rate and the Determination
Agent.
15. Whether the Note is a Dual Currency
Note, and if it is a Dual Currency Note, the
Face Amount Currency, the Optional Payment
Currency, the Designated Exchange Rate, the
Option Election Dates and the Option Value
Calculation Agent.
16. Any other applicable terms.
B. The Company will advise the Trustee by telephone
or electronic transmission (confirmed in writing
at any time on the sale date) of the information
set forth in Settlement Procedure "A" above.
C. The Company will have delivered to the Trustee a
pre-printed four ply packet for such Note, which
packet will contain the following documents in
forms that have been approved by the Company, the
relevant Agent and the Trustee:
1. Note with customer confirmation.
A-27
2. Stub One - For the Trustee.
3. Stub Two - For the relevant Agent.
4. Stub Three - For the Company.
D. The Trustee will complete such Note and
authenticate such Note and deliver it (with the
confirmation) and Stubs One and Two to the
relevant Agent, and such Agent will acknowledge
receipt of the Note by stamping or otherwise
marking Stub One and returning it to the Trustee.
Such delivery will be made only against such
acknowledgment of receipt and evidence that
instructions have been given by such Agent for
payment to the U.S. dollar account of the Company
maintained at the Trustee, New York, New York (or,
with respect to Notes payable in a Specified
Currency other than U.S. dollars, to an account
maintained at a Trustee selected by the Company
notified to the relevant Agent from time to time
in writing,) in funds available for immediate use,
of an amount equal to the price of such Note less
such Agent's commission, if any. In the event that
the instructions given by such Agent for payment
to the account of the Company are revoked, the
Company will as promptly as possible wire transfer
to the account of such Agent an amount of
immediately available funds equal to the amount of
such payment made.
E. Unless the relevant Agent purchased such Note as
principal, such Agent will deliver such Note (with
confirmation) to the customer against payment in
immediately payable funds. Such Agent will obtain
the acknowledgment of receipt of such Note by
retaining Stub Two.
F. The Trustee will send Stub Three to the Company by
first-class mail. Periodically, the Trustee will
also send to the Company a statement setting forth
the principal amount of the Notes Outstanding as
of that date under the Indenture and setting forth
a
A-28
brief description of any sales of which the
Company has advised the Trustee but which have
not yet been settled.
Settlement
Procedures
Timetable: For sales by the Company of Certificated Notes to
or through an Agent, Settlement Procedures "A"
through "F" set forth above shall be completed on
or before the respective times (New York City
time) set forth below:
Settlement
Procedure Time
A. 2:00 P.M. on day before settlement date
B. 3:00 P.M. on day before settlement date
C-D 2:15 P.M. on settlement date
E 3:00 P.M. on settlement date
F 5:00 P.M. on settlement date
A-29
Failure to Settle: If a purchaser fails to accept delivery of and
make payment for any Certificated Note, the
relevant Agent will notify the Company and the
Trustee by telephone and return such Note to the
Trustee. Upon receipt of such notice, the Company
will immediately wire transfer to the account of
such Agent an amount equal to the amount
previously credited thereto in respect of such
Note. Such wire transfer will be made on the
settlement date, if possible, and in any event not
later than the Business Day following the
settlement date. If the failure shall have
occurred for any reason other than a default by
such Agent in the performance of its obligations
hereunder and under the Distribution Agreement
with the Company, then the Company will reimburse
such Agent or the Trustee, as appropriate, on an
equitable basis for its loss of the use of the
funds during the period when they were credited to
the account of the Company. Immediately upon
receipt of the Certificated Note in respect of
which such failure occurred, the Trustee will mark
such Note "cancelled," make appropriate entries in
the Trustee's records and send such Note to the
Company.
A-30
EXHIBIT C
GENERAL ELECTRIC CAPITAL CORPORATION
Global Medium-Term Notes, Series A
MASTER CALCULATION AGENT AGREEMENT
WHEREAS, General Electric Capital Corporation (the "Issuer") has authorized
the issuance of Global Medium-Term Notes, Series A (the "Notes"), due from nine
months to 60 years from the date of issue, which may bear interest at either a
fixed or variable rate; and
WHEREAS, the Notes will be offered on a continuous basis inside the United
States by the Issuer through certain agents named in the U.S. Distribution
Agreement referred to below relating to the Notes (the "Agents"); and
WHEREAS, the Notes are to be issued under a Third Amended and Restated
Indenture, dated as of February 27, 1997, as supplemented by the First
Supplemental Indenture dated as of May 3, 1999 and the Second Supplemental
Indenture dated as of July 2, 2001, between the Issuer and JPMorgan Chase Bank
(formerly known as The Chase Manhattan Bank), as successor trustee (the
"Trustee") (as supplemented, the "Indenture"); and
WHEREAS, the Notes are to be distributed pursuant to the terms of a Second
Amended and Restated U.S. Distribution Agreement, dated as of April 16, 2002
(the "U.S. Distribution Agreement"), between the Issuer and the Agents.
NOW IT IS HEREBY AGREED that:
1. Appointment of Agent. The Issuer hereby appoints any Agent requested to
so act by the Issuer with respect to any Notes offered and sold by such Agent,
and such Agent hereby accepts such appointment, as the Issuer's agent for the
purpose of calculating the applicable interest rate (the "Interest Rate") as set
forth in the Prospectus dated April 9, 2002-, the Prospectus Supplement dated
April 16, 2002 (together the "Prospectus"), and the Pricing Supplement relating
to the particular tranche of Notes, as applicable, upon the terms and subject to
the conditions hereinafter set forth (the "Calculation Agent").
2. Obligations of Calculation Agent. The Calculation Agent shall calculate
the Interest Rate in the manner and at the times provided in the Notes, the
2
Prospectus and the applicable Pricing Supplement. The Calculation Agent shall
exercise due care to calculate such Interest Rate and shall promptly communicate
the same, in writing, to the Issuer, the Trustee and the Paying Agent. The
Calculation Agent shall, upon the request of any holder of any Note, provide
such Interest Rate as then in effect and, if determined, as it will become
effective as a result of calculations made on the most recent Interest
Determination Date with respect to such Note. The Calculation Agent's
determination of any interest rate will, absent manifest error, be binding on
the Issuer and the holders of the Notes.
3. Terms and Conditions. The Calculation Agent accepts its obligations set
forth herein, upon the terms and subject to the conditions hereof, including the
following, to all of which the Issuer agrees:
(a) The Issuer agrees to indemnify the Calculation Agent for, and to hold
it harmless against, any loss, liability or expense (including the costs and
expenses of defending against any claim of liability) incurred by the
Calculation Agent which arises out of or in connection with its acting as
Calculation Agent hereunder, except such as may result from the negligence,
willful misconduct or bad faith of the Calculation Agent or any of its officers
or employees. The Calculation Agent shall incur no liability and shall be
indemnified and held harmless by the Issuer for, or in respect of, any actions
taken, omitted to be taken or suffered to be taken in good faith by the
Calculation Agent in reliance upon (i) the written opinion of counsel or (ii)
written instructions from the Issuer.
(b) In acting under this Agreement and in connection with the Notes, the
Calculation Agent is acting solely as agent of the Issuer and does not assume
any obligation or relationship of agency or trust for or with any of the owners
or holders of the Notes.
(c) The Calculation Agent shall be protected and shall incur no liability
for or in respect of any action taken or omitted to be taken or anything
suffered by it in reliance upon any notice, direction, certificate, affidavit,
statement or other paper, documents of communication reasonably believed by it
to be genuine and to have been approved or signed by the proper party or
parties.
(d) The Calculation Agent and any of its affiliates, or any of their
respective officers, managing directors, employees and shareholders, may become
the owner of, or acquire an interest in, any Notes, with the same rights that it
or they would have if it were not the Calculation Agent, and may engage or be
interested in any financial or other transaction with the Issuer as freely as if
it were not the Calculation Agent.
(e) The Calculation Agent shall be obligated to perform such duties and
only such duties as are herein specifically set forth, and no implied duties or
obligations shall be read into this Agreement against the Calculation Agent.
3
(f) Unless herein otherwise specifically provided, any order, certificate,
notice, request, direction or other communication from the Issuer made or given
by it under any provision of this Agreement shall be sufficient if signed by any
authorized representatives of the Issuer.
4. Resignation; Removal; Successor. (a) The Calculation Agent may at any
time resign as Calculation Agent by giving written notice to the Issuer of such
intention on its part, specifying the date on which its desired resignation
shall become effective; provided, however, that such date shall never be earlier
than 120 days after the receipt of such notice by the Issuer, unless the Issuer
agrees to accept less notice. The Calculation Agent may be removed at any time
by the filing with it of any instrument in writing signed by an authorized
officer of the Issuer and specifying such removal and the date when it is
intended to become effective. Such resignation or removal shall take effect upon
the date of the appointment by the Issuer, as hereinafter provided, of a
successor Calculation Agent and the acceptance of such appointment by such
successor Calculation Agent. A successor Calculation Agent shall be appointed by
the Issuer by an instrument in writing signed on behalf of the Issuer and filed
with the entity designated as the successor Calculation Agent. Upon the
appointment of a successor Calculation Agent and acceptance by it of such
appointment, the Calculation Agent so superseded shall cease to be such
Calculation Agent hereunder. Upon its resignation or removal, the Calculation
Agent shall be entitled to the reimbursement of all reasonable out-of-pocket
expenses (including reasonable counsel fees) incurred in connection with the
services rendered by it hereunder, in either case to the effective date of such
resignation or removal.
(b) Any successor Calculation Agent appointed hereunder shall execute and
deliver to its predecessor and to the Issuer an instrument accepting such
appointment hereunder, and thereupon such successor Calculation Agent, without
any further act, deed or conveyance, shall become vested with all the authority,
rights, powers, trusts, immunities, duties and obligations of such predecessor
with like effect as if originally named as such Calculation Agent hereunder, and
such predecessor, upon payment of its charges and disbursements then unpaid,
shall thereupon become obligated to transfer and deliver, and such successor
Calculation Agent shall be entitled to receive, copies of any relevant records
maintained by such predecessor Calculation Agent.
(c) Any corporation into which the Calculation Agent may be merged, or any
corporation other than the Calculation Agent resulting from a merger or
consolidation to which the Calculation Agent shall be party, or any corporation
to which the Calculation Agent shall sell or otherwise transfer all or
substantially all of its assets and business shall, to the extent permitted by
applicable law, be the successor Calculation Agent under this Agreement without
the execution or filing of any paper or any further act on the part of any of
the parties hereto. Notice of
4
any such merger, consolidation or sale shall forthwith be given to the Issuer
and the Paying Agent.
5. Notices. Any notice required to be given hereunder shall be delivered
in person, sent by letter or telecopy or communicated by telephone (subject, in
the case of communication by telephone, to confirmation dispatched within two
Business Days by letter or telecopy): (a) in the case of the Issuer, to 260 Long
Ridge Road, Stamford, Connecticut 06927 (Attention: Senior Vice President -
Corporate Treasury and Global Funding Operation), Telephone No. 203-357-4000,
Fax No. 203-357-4975; (b) in the case of the Trustee and the Paying Agent, to
JPMorgan Chase Bank, Corporate Trust and Securities Window, 55 Water Street Room
234 North Building, New York, NY 10041 Telephone No. 212-638-0450, Fax No.
212-638-7375; or, in any case, to any other address to which the party receiving
notice shall have notified the party giving such notice in writing. Any notice
hereunder given by telecopy or letter shall be deemed to be served when, in the
ordinary course of transmission or post, as the case may be, it would be
received.
6. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
7. Terms. Terms used but not defined herein shall have the meanings
assigned to them in the applicable Prospectus Supplement.
5
EXHIBIT D
GENERAL ELECTRIC CAPITAL CORPORATION
Executive Officer's Certificate
I, ____________________________, ____________________ of General Electric
Capital Corporation, a Delaware corporation, (the "Company"), DO HEREBY CERTIFY
pursuant to Section 5(b) of the Second Amended and Restated U.S. Distribution
Agreement dated as of April 16, 2002 (the "Distribution Agreement"), among the
Company and the Agents named therein, relating to the Global Medium Term Notes,
Series A and the related Terms Agreement dated as of [ ] between the Company and
[Name of Agent] that:
The representations and warranties of the Company contained in the
Distribution Agreement are true and correct on and as of the date
hereof, as if made on and as of such date and the Company has complied
with all agreements and satisfied all conditions on its part to be
performed or satisfied under the Distribution Agreement at or prior to
the date hereof; and
No stop order suspending the effectiveness of the Registration
Statement is in effect, and, to the best of my knowledge, no
proceedings for such purpose are pending before or threatened by the
Securities and Exchange Commission; and there has been no material
adverse change in the condition of the Company and its subsidiaries,
taken as a whole, from that set forth in the Registration Statement,
the Prospectus, the Prospectus Supplement and the Pricing Supplement.
Capitalized terms used in this certificate have the meanings
ascribed to them in the Distribution Agreement.
IN WITNESS WHEREOF, I have signed this certificate as of this __ day of [
], 20___.
______________________________
[NAME]
[TITLE]