GENERAL ELECTRIC CAPITAL CORPORATION
Global Medium-Term Notes, Series A
Due From 9 Months to 60 Years from Date of Issue
AMENDED AND RESTATED U.S. DISTRIBUTION AGREEMENT
as of May 3, 1999
CHASE SECURITIES INC.
270 Park Avenue
New York, New York 10017
DEUTSCHE BANK SECURITIES INC.
1301 Avenue of the Americas
New York, New York 10020
GECC CAPITAL MARKETS GROUP, INC.
260 Long Ridge Road
Stamford, Connecticut 06927
GOLDMAN, SACHS & CO.
80 Broad Street
New York, New York 10004
LEHMAN BROTHERS INC.
3 World Financial Center
New York, New York 10285
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
World Financial Center
North Tower
New York, New York 10281-1218
J.P. MORGAN SECURITIES INC.
60 Wall Street
New York, New York 10260
WARBURG DILLON READ LLC
677 Washington Blvd.
Stamford, Connecticut 06901
Ladies and Gentlemen:
General Electric Capital Corporation, a New York corporation (the
"Company"), and Kidder, Peabody & Co. Incorporated, Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch"), The First Boston
Corporation, GECC Capital Markets Group, Inc. ("GECC Capital Markets"), CSFB -
Effectenbank Aktiengesellschaft, Goldman, Sachs & Co. oHG, Merrill Lynch Bank
AG, S.G. Warburg & Co. GmbH, Schweizerische Bankgesellschaft (Deutschland) AG,
Schweizerischer Bankverein (Deutschland) AG and J.P. Morgan GmbH are parties to
an Amended and Restated U.S. Distribution Agreement dated as of August 31, 1993,
as amended by Amendment No. 1 dated as of December 14, 1993 and Amendment No. 2
dated as of February 21, 1994 (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"), in an aggregate principal amount of U.S.$7,377,518,501.
The Company and Chase Securities Inc., Deutsche Bank Securities, GECC Capital
Markets, Goldman, Sachs & Co., Lehman Brothers Inc., Merrill Lynch, J.P. Morgan
Securities Inc. and Warburg Dillon Read 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 The Chase
Manhattan Bank, as successor trustee (the "Trustee") as supplemented by the
First Supplemental Indenture dated as of May 3, 1999, (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 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
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;
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 the applicable percentage of the
public offering price of each Note sold by the Company as a result of a
solicitation made by such Agent as set forth in Exhibit A hereto or such other
amount as the Company and such Agent may agree. 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.
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 B 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 B 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 C 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
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 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 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.
(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;
(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 Glenn J. Goggins, 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 New York.
(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, if 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 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 organization certificate 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
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, 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 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 E 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 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,
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 Glenn J. Goggins, 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 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 [ ], 1999]
set forth as Exhibit D 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 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 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.
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 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:
Chase Securities Inc.
270 Park Avenue
New York, NY 10017
Phone: (212) 834-4421
Fax: (212) 834-6081
Attention: Medium Term Notes Desk
Deutsche Bank Securities Inc.
1301 Avenue of the Americas
New York, NY 10020
Phone: (212) 469-3528
Fax: (212) 469-6898
Attention: Mr. Bruce Cairnduff
General Electric Capital Corporation
GECC Capital Markets Group, Inc.
260 Long Ridge Road
Stamford, CT 06927
Phone: (203) 357-4000
Fax: (203) 357-4975
Attention: Senior Vice President-Corporate Treasury
and Global Funding Operation
Goldman, Sachs & Co.
80 Broad Street
New York, NY 10004
Phone:
Fax:
Attention: Credit Control-Medium Term Notes
Lehman Brothers Inc.
3 World Financial Center
New York, NY 10285
Phone: (212) 526-8400
Fax: (212) 527-7007
Attention: MTN Product Management
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner
& Smith Incorporated
North Tower
World Financial Center
New York, NY 10281-1323
Phone: (212) 449-4900
Fax: (212) 449-2760
Attention: MTN Product Management
J.P. Morgan Securities Inc.
60 Wall Street
New York, NY 10260
Telephone: 212-648-0591
Telecopier: 212-648-5909
Attention: Medium-Term Note Desk
Warburg Dillon Read LLC
677 Washington Blvd.
Stamford, CT 06901
Phone: 203-719-1342
Fax: 203-719-7139
Attention: Debt Capital Markets
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:
Title:
CONFIRMED AND ACCEPTED, as of the
date first above written:
CHASE SECURITIES INC.
By
-----------------------------------
Name:
Title:
DEUTSCHE BANK SECURITIES INC.
By
-----------------------------------
Name:
Title:
GECC CAPITAL MARKETS GROUP, INC.
By
-----------------------------------
Name:
Title:
GOLDMAN, SACHS & CO.
By
-----------------------------------
Name:
Title:
LEHMAN BROTHERS INC.
By
-----------------------------------
Name:
Title:
MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED
By
-----------------------------------
Name:
Title:
J.P. MORGAN SECURITIES INC.
By
-----------------------------------
Name:
Title:
WARBURG DILLON READ LLC
By
-----------------------------------
Name:
Title:
EXHIBIT A
Term Commission Rate
From 9 months but less than 1 year .050%
From 1 year but less than 18 year .075
From 18 months but less than 2 years .125
From 2 years but less than 3 years .175
From 3 years but less than 4 years .250
From 4 years but less than 5 years .300
From 5 years but less than 6 years .350
From 6 years but less than 7 years .375
From 7 years but less than 8 years .400
From 8 years but less than 9 years .425
From 9 years but less than 10 years .450
From 10 years but less than 15 years .475
From 15 years but less than 20 years .550
From 20 years to 60 years .600
EXHIBIT B
[Principal Amount]
GENERAL ELECTRIC CAPITAL CORPORATION
Global Medium-Term Notes, Series A
TERMS AGREEMENT
______________, 199_
GENERAL ELECTRIC CAPITAL CORPORATION
260 Long Ridge Road
Stamford, Connecticut 06927
Attention: Senior Vice President-Corporate Treasury
and Global Funding Operation
Re: Amended and Restated U.S. Distribution Agreement
Dated as of May 3, 1999
The undersigned agrees to purchase Global Medium-Term Notes, Series A,
having the following terms:
ALL NOTES: FIXED RATE NOTES: FLOATING RATE NOTES:
---------- ----------------- --------------------
Principal Amount: Interest Rate: Base Rate:
Purchase Price: Applicability of Annual Index Maturity:
Interest:
Settlement Date and Time: IF AMORTIZING NOTES: Spread:
Place of Delivery: Amortization Schedule: Spread Multiplier:
Issue Date: IF DUAL CURRENCY Alternate Rate Event
NOTES: Spread:
Specified Currency: Optional Payment Initial Interest Rate:
Currency:
Maturity Date: Face Amount Currency: Interest Reset Dates:
Initial Accrual Period OID: Designated Exchange Rate: Maximum Interest Rate:
Yield to Maturity: Option Value Calculation Minimum Interest Rate:
Agent:
Optional Repayment Date(s): Option Election Date(s): Interest Reset Period:
Initial Redemption Date: IF INDEXED NOTES: Interest Payment Period:
Initial Redemption Indexed Currency: Interest Payment
Percentage: Date(s):
Applicability of Annual Percentage Reduction:
Redemption Percentage
Reduction:
If yes, state Annual Currency Base Rate:
Percentage Reduction:
Applicbility of Modified Determination Agent:
Payment upon Acceleration:
If yes, state the Issue
Price:
Applicability of Annual
Redemption Percentage
Increase:
If yes, state each
redemption date and
redemption price:
[The certificate referred to in Section 5(b) of the U.S. Distribution
Agreement, the opinions referred to in Section 5(a) 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.]
[NAME OF AGENT]
By
----------------------------
Title:
------------------------
Accepted:
GENERAL ELECTRIC CAPITAL CORPORATION
By
----------------------------
Title:
------------------------
EXHIBIT C
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 Chase Securities Inc., Deutsche Bank Securities, GECC Capital Markets Group,
Inc., Goldman, Sachs & Co., Lehman Brothers Inc., Merrill Lynch, J.P. Morgan
Securities Inc. and Warburg Dillon Read LLC (each an "Agent") has agreed to
solicit offers to purchase the Notes in registered form. The Notes are being
sold pursuant to a U.S. Distribution Agreement dated as of May 3, 1999 (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 The Chase
Manhattan Bank, as successor trustee (the "Trustee") as supplemented by the
First Supplemental Indenture dated as of May 3, 1999, (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 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 one or
more global securities 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 operating procedures, and Certificated Notes will be issued in
accordance 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. $200,000,000
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, Interest Rate
Basis, 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 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 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 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. $200,000,000 in aggregate principal
amount, one Global Security will be authenticated and
issued to represent each U.S. $200,000,000 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. Global Securities will be
denominated in principal amounts not in excess of
U.S. $200,000,000. If one or more Book-Entry Notes
having an aggregate principal amount in excess of
U.S. $200,000,000 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. $200,000,000 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
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, 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 (other than
maturity) 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. Unless otherwise
specified in the applicable Pricing Supplement,
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.
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 or CMT 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
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 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 Trustee 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 a
copy of such Pricing Supplement to the relevant Agent
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 third 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, Interest Rate
Basis, Index Maturity, Interest Reset
Period, Initial 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
Company will then assign a CUSIP number to the
Global Security representing such Note and will
notify the Trustee 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".
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 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 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 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 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.
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.
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 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 (other than at
maturity) 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
or CMT Rate Notes, interest will be calculated on the
basis of the actual number of days in the year.
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
case may be will be made. If any Interest Payment
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 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. If the
Maturity Date, redemption or repayment date for any
Certificated Floating Rate Note would follow a day
that is not a Business Day with respect to such Note
the payment due on such Maturity Date, redemption or
repayment date shall be made on the next succeeding
Business Day and no interest on such payment for the
period from and after such Maturity Date, redemption
date or repayment date will be made.
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 a
copy of such Pricing Supplement to the relevant Agent
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 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, Interest Rate
Basis, 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.
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.
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 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
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.
EXHIBIT D
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, between the Issuer and 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 an
Amended and Restated U.S. Distribution Agreement, dated as of May 3, 1999 (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 28, 1999, the Prospectus Supplement dated
May 3, 1999 (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
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.
(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 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
the Chase Manhattan Bank Corporate Trust and Securities Window, 55 Water Street
Room 234 North Building, New York, NY 10041 [insert telephone and fax numbers];
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.
EXHIBIT E
GENERAL ELECTRIC CAPITAL CORPORATION
Executive Officer's Certificate
I, ____________________________, ____________________ of General Electric
Capital Corporation, a New York corporation, (the "Company"), DO HEREBY CERTIFY
pursuant to Section 5(b)of the Amended and Restated U.S. Distribution Agreement
dated as of May 3, 1999, 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:
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 Amended and Restated U.S. Distribution
Agreement referred to above.
IN WITNESS WHEREOF, I have signed this certificate as of this __ day of [
], 1999.
________________________________
[NAME]
[TITLE]
Global Medium-Term Notes, Series A
Due From 9 Months to 60 Years from Date of Issue
AMENDED AND RESTATED U.S. DISTRIBUTION AGREEMENT
as of May 3, 1999
CHASE SECURITIES INC.
270 Park Avenue
New York, New York 10017
DEUTSCHE BANK SECURITIES INC.
1301 Avenue of the Americas
New York, New York 10020
GECC CAPITAL MARKETS GROUP, INC.
260 Long Ridge Road
Stamford, Connecticut 06927
GOLDMAN, SACHS & CO.
80 Broad Street
New York, New York 10004
LEHMAN BROTHERS INC.
3 World Financial Center
New York, New York 10285
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
World Financial Center
North Tower
New York, New York 10281-1218
J.P. MORGAN SECURITIES INC.
60 Wall Street
New York, New York 10260
WARBURG DILLON READ LLC
677 Washington Blvd.
Stamford, Connecticut 06901
Ladies and Gentlemen:
General Electric Capital Corporation, a New York corporation (the
"Company"), and Kidder, Peabody & Co. Incorporated, Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch"), The First Boston
Corporation, GECC Capital Markets Group, Inc. ("GECC Capital Markets"), CSFB -
Effectenbank Aktiengesellschaft, Goldman, Sachs & Co. oHG, Merrill Lynch Bank
AG, S.G. Warburg & Co. GmbH, Schweizerische Bankgesellschaft (Deutschland) AG,
Schweizerischer Bankverein (Deutschland) AG and J.P. Morgan GmbH are parties to
an Amended and Restated U.S. Distribution Agreement dated as of August 31, 1993,
as amended by Amendment No. 1 dated as of December 14, 1993 and Amendment No. 2
dated as of February 21, 1994 (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"), in an aggregate principal amount of U.S.$7,377,518,501.
The Company and Chase Securities Inc., Deutsche Bank Securities, GECC Capital
Markets, Goldman, Sachs & Co., Lehman Brothers Inc., Merrill Lynch, J.P. Morgan
Securities Inc. and Warburg Dillon Read 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 The Chase
Manhattan Bank, as successor trustee (the "Trustee") as supplemented by the
First Supplemental Indenture dated as of May 3, 1999, (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 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
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;
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 the applicable percentage of the
public offering price of each Note sold by the Company as a result of a
solicitation made by such Agent as set forth in Exhibit A hereto or such other
amount as the Company and such Agent may agree. 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.
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 B 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 B 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 C 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
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 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 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.
(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;
(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 Glenn J. Goggins, 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 New York.
(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, if 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 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 organization certificate 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
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, 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 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 E 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 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,
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 Glenn J. Goggins, 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 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 [ ], 1999]
set forth as Exhibit D 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 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 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.
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 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:
Chase Securities Inc.
270 Park Avenue
New York, NY 10017
Phone: (212) 834-4421
Fax: (212) 834-6081
Attention: Medium Term Notes Desk
Deutsche Bank Securities Inc.
1301 Avenue of the Americas
New York, NY 10020
Phone: (212) 469-3528
Fax: (212) 469-6898
Attention: Mr. Bruce Cairnduff
General Electric Capital Corporation
GECC Capital Markets Group, Inc.
260 Long Ridge Road
Stamford, CT 06927
Phone: (203) 357-4000
Fax: (203) 357-4975
Attention: Senior Vice President-Corporate Treasury
and Global Funding Operation
Goldman, Sachs & Co.
80 Broad Street
New York, NY 10004
Phone:
Fax:
Attention: Credit Control-Medium Term Notes
Lehman Brothers Inc.
3 World Financial Center
New York, NY 10285
Phone: (212) 526-8400
Fax: (212) 527-7007
Attention: MTN Product Management
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner
& Smith Incorporated
North Tower
World Financial Center
New York, NY 10281-1323
Phone: (212) 449-4900
Fax: (212) 449-2760
Attention: MTN Product Management
J.P. Morgan Securities Inc.
60 Wall Street
New York, NY 10260
Telephone: 212-648-0591
Telecopier: 212-648-5909
Attention: Medium-Term Note Desk
Warburg Dillon Read LLC
677 Washington Blvd.
Stamford, CT 06901
Phone: 203-719-1342
Fax: 203-719-7139
Attention: Debt Capital Markets
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:
Title:
CONFIRMED AND ACCEPTED, as of the
date first above written:
CHASE SECURITIES INC.
By
-----------------------------------
Name:
Title:
DEUTSCHE BANK SECURITIES INC.
By
-----------------------------------
Name:
Title:
GECC CAPITAL MARKETS GROUP, INC.
By
-----------------------------------
Name:
Title:
GOLDMAN, SACHS & CO.
By
-----------------------------------
Name:
Title:
LEHMAN BROTHERS INC.
By
-----------------------------------
Name:
Title:
MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED
By
-----------------------------------
Name:
Title:
J.P. MORGAN SECURITIES INC.
By
-----------------------------------
Name:
Title:
WARBURG DILLON READ LLC
By
-----------------------------------
Name:
Title:
EXHIBIT A
Term Commission Rate
From 9 months but less than 1 year .050%
From 1 year but less than 18 year .075
From 18 months but less than 2 years .125
From 2 years but less than 3 years .175
From 3 years but less than 4 years .250
From 4 years but less than 5 years .300
From 5 years but less than 6 years .350
From 6 years but less than 7 years .375
From 7 years but less than 8 years .400
From 8 years but less than 9 years .425
From 9 years but less than 10 years .450
From 10 years but less than 15 years .475
From 15 years but less than 20 years .550
From 20 years to 60 years .600
EXHIBIT B
[Principal Amount]
GENERAL ELECTRIC CAPITAL CORPORATION
Global Medium-Term Notes, Series A
TERMS AGREEMENT
______________, 199_
GENERAL ELECTRIC CAPITAL CORPORATION
260 Long Ridge Road
Stamford, Connecticut 06927
Attention: Senior Vice President-Corporate Treasury
and Global Funding Operation
Re: Amended and Restated U.S. Distribution Agreement
Dated as of May 3, 1999
The undersigned agrees to purchase Global Medium-Term Notes, Series A,
having the following terms:
ALL NOTES: FIXED RATE NOTES: FLOATING RATE NOTES:
---------- ----------------- --------------------
Principal Amount: Interest Rate: Base Rate:
Purchase Price: Applicability of Annual Index Maturity:
Interest:
Settlement Date and Time: IF AMORTIZING NOTES: Spread:
Place of Delivery: Amortization Schedule: Spread Multiplier:
Issue Date: IF DUAL CURRENCY Alternate Rate Event
NOTES: Spread:
Specified Currency: Optional Payment Initial Interest Rate:
Currency:
Maturity Date: Face Amount Currency: Interest Reset Dates:
Initial Accrual Period OID: Designated Exchange Rate: Maximum Interest Rate:
Yield to Maturity: Option Value Calculation Minimum Interest Rate:
Agent:
Optional Repayment Date(s): Option Election Date(s): Interest Reset Period:
Initial Redemption Date: IF INDEXED NOTES: Interest Payment Period:
Initial Redemption Indexed Currency: Interest Payment
Percentage: Date(s):
Applicability of Annual Percentage Reduction:
Redemption Percentage
Reduction:
If yes, state Annual Currency Base Rate:
Percentage Reduction:
Applicbility of Modified Determination Agent:
Payment upon Acceleration:
If yes, state the Issue
Price:
Applicability of Annual
Redemption Percentage
Increase:
If yes, state each
redemption date and
redemption price:
[The certificate referred to in Section 5(b) of the U.S. Distribution
Agreement, the opinions referred to in Section 5(a) 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.]
[NAME OF AGENT]
By
----------------------------
Title:
------------------------
Accepted:
GENERAL ELECTRIC CAPITAL CORPORATION
By
----------------------------
Title:
------------------------
EXHIBIT C
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 Chase Securities Inc., Deutsche Bank Securities, GECC Capital Markets Group,
Inc., Goldman, Sachs & Co., Lehman Brothers Inc., Merrill Lynch, J.P. Morgan
Securities Inc. and Warburg Dillon Read LLC (each an "Agent") has agreed to
solicit offers to purchase the Notes in registered form. The Notes are being
sold pursuant to a U.S. Distribution Agreement dated as of May 3, 1999 (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 The Chase
Manhattan Bank, as successor trustee (the "Trustee") as supplemented by the
First Supplemental Indenture dated as of May 3, 1999, (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 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 one or
more global securities 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 operating procedures, and Certificated Notes will be issued in
accordance 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. $200,000,000
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, Interest Rate
Basis, 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 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 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 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. $200,000,000 in aggregate principal
amount, one Global Security will be authenticated and
issued to represent each U.S. $200,000,000 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. Global Securities will be
denominated in principal amounts not in excess of
U.S. $200,000,000. If one or more Book-Entry Notes
having an aggregate principal amount in excess of
U.S. $200,000,000 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. $200,000,000 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
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, 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 (other than
maturity) 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. Unless otherwise
specified in the applicable Pricing Supplement,
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.
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 or CMT 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
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 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 Trustee 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 a
copy of such Pricing Supplement to the relevant Agent
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 third 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, Interest Rate
Basis, Index Maturity, Interest Reset
Period, Initial 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
Company will then assign a CUSIP number to the
Global Security representing such Note and will
notify the Trustee 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".
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 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 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 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 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.
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.
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 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 (other than at
maturity) 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
or CMT Rate Notes, interest will be calculated on the
basis of the actual number of days in the year.
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
case may be will be made. If any Interest Payment
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 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. If the
Maturity Date, redemption or repayment date for any
Certificated Floating Rate Note would follow a day
that is not a Business Day with respect to such Note
the payment due on such Maturity Date, redemption or
repayment date shall be made on the next succeeding
Business Day and no interest on such payment for the
period from and after such Maturity Date, redemption
date or repayment date will be made.
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 a
copy of such Pricing Supplement to the relevant Agent
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 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, Interest Rate
Basis, 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.
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.
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 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
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.
EXHIBIT D
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, between the Issuer and 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 an
Amended and Restated U.S. Distribution Agreement, dated as of May 3, 1999 (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 28, 1999, the Prospectus Supplement dated
May 3, 1999 (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
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.
(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 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
the Chase Manhattan Bank Corporate Trust and Securities Window, 55 Water Street
Room 234 North Building, New York, NY 10041 [insert telephone and fax numbers];
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.
EXHIBIT E
GENERAL ELECTRIC CAPITAL CORPORATION
Executive Officer's Certificate
I, ____________________________, ____________________ of General Electric
Capital Corporation, a New York corporation, (the "Company"), DO HEREBY CERTIFY
pursuant to Section 5(b)of the Amended and Restated U.S. Distribution Agreement
dated as of May 3, 1999, 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:
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 Amended and Restated U.S. Distribution
Agreement referred to above.
IN WITNESS WHEREOF, I have signed this certificate as of this __ day of [
], 1999.
________________________________
[NAME]
[TITLE]