GENERAL ELECTRIC CAPITAL CORPORATION
Variable Denomination
Floating Rate Demand Notes
DISTRIBUTION AGREEMENT
as of February 1, 1992
GECC CAPITAL MARKETS GROUP, INC.
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Dear Sirs:
General Electric Capital Corporation, a New York
corporation (the "Company"), confirms its agreement with
you with respect to the issue and sale by the Company of
up to $3,000,000,000 aggregate principal amount of its
Variable Denomination Floating Rate Demand Notes (the
"Notes").
The Notes are to be issued pursuant to an indenture dated as
of October 1, 1991 between the Company and Mercantile-Safe
Deposit and Trust Company, as trustee (the "Trustee") (such
indenture as may be amended or supplemented being referred to
herein as the "Indenture"). The Company has authorized the
issuance of Notes through you pursuant to the terms of this
Agreement. The Notes will be issued in uncertificated form
and will be administered by The Northern Trust Company (the
"Processing Agent") pursuant to a Processing Agent Agreement,
dated as of February 1, 1992, between the Company and the
Processing Agent. Subject to the terms and conditions stated
herein, the Company hereby appoints you as a distribution
agent of the Company in respect of the Notes.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on
Form S-3 (No. 3343420) relating to the Notes and the offering
thereof from time to time in accordance with Rule 415 under
the Securities Act of 1933, as amended (the "1933 Act").
Such registration statement has been declared effective by
the Commission, and the Indenture has been qualified under
the Trust Indenture Act of 1939 (the "1939 Act"). Such
registration statement and the prospectus relating to the
Notes filed pursuant to Rule 424 under the 1933 Act,
including all documents incorporated therein by reference, as
from time to time amended or supplemented by the filing of
documents pursuant to the Securities Exchange Act of 1934, as
amended (the "1934 Act"), the 1933 Act or otherwise, are
referred to herein as the "Registration Statement" and the
"Prospectus", respectively, except that if any revised
prospectus shall be provided to you 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 date of this
Agreement (the "Commencement Date") (whether or not such
revised prospectus is required to be filed by the Company
pursuant to Rule 424(b) of the 1933 Act Regulations), the
term "Prospectus" shall refer to such revised prospectus from
and after the time it is first provided to you for such use.
Notwithstanding anything to the contrary above in this
paragraph, The Company shall have the right at any time and
from time to time to substitute for the Registration
Statement one or more other registration statements (each a
"Substitute Registration Statement") on Form S-3 relating to
the Notes and the offering and sale thereof from time to time
in accordance with Rule 415 under the 1933 Act, by written
notification of such substitution to you and
the Trustee. By such notification, the Company shall be
deemed to have made with respect to each such Substitute
Registration Statement, each of the representations set forth
in the first two sentences of this paragraph, and from and
after the date of such notification, such Substitute
Registration Statement or Substitute Registration Statements
shall become the Registration Statement as defined in this
paragraph and as used for all purposes throughout this
Agreement.
SECTION 1. Representations and Warranties. (a) The Company
represents and warrants to you as of the Commencement Date,
as of the date of each sale of Notes and as of the times
referred to in Section 6 (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) 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 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 you 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 you 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
subsidiaries, taken as a whole, from that set forth in the
Registration Statement and the Prospectus;
(v) the aggregate principal amount of Variable
Denomination Floating Rate Demand Notes outstanding at any
one time will not exceed U.S.$3,000,000,000; 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 you
expressly for use therein.
(b) Additional Certifications. Any certificate signed
by any officer of the Company and delivered to you or to your
counsel in connection with an offering of Notes shall be
deemed a representation and warranty by the Company to you as
to the matters covered thereby.
SECTION 2. Act as Distribution Agent. (a) On the basis of
the representations and warranties herein contained, but
subject to the terms and conditions herein set forth, you
agree to act as a distribution agent of the Company and to
use your 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 you of purchases of the Notes
commencing at any time for any period of time or permanently.
Upon receipt of instructions from the Company, you will
forthwith suspend solicitation of purchases from the Company
until such time as the Company has advised you that such
solicitation may be resumed.
You shall have the right to suspend solicitations, commencing
at any time you reasonably believe that there has occurred a
material adverse change in the condition of the Company and
its consolidated subsidiaries, taken as a whole, from that
then set forth in the Registration Statement and the
Prospectus, and ending at the time you have 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). The Company agrees to pay your
out-of-pocket expenses incurred in respect of the performance
of your obligations under this Agreement.
(b) Information. The Company authorizes you, in
connection with your 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 you agree that you will not use any other
information in connection with your solicitation of purchases
of the Notes.
(c) Registered Broker-Dealer. You represent that you
are a broker-dealer registered under the 1934 Act.
SECTION 3. Covenants of the Company. The Company covenants
with you as follows: (a) Notice of Certain Events. The
Company will notify you promptly (i) of the effectiveness of
any amendment to the Registration Statement (including any
posteffective 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, (iii) 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,
and (iv) 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. The
Company will deliver to you two conformed copies 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 you as many copies of the Prospectus
(as amended or supplemented) as you shall reasonably request
so long as you are required to deliver a Prospectus in
connection with sales or solicitations of offers to purchase
the Notes.
(c) Revisions of Prospectus C 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 you, 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 you to cease the
solicitation of offers to purchase the Notes. If the Company
shall determine that solicitation of purchases of the Notes
shall be resumed, then, prior to the Company's authorizing
you to resume solicitations of purchases of the 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 you;
provided, however, that if on the date of such filing you
shall have suspended solicitation of purchases of the Notes
pursuant to a request from the Company, 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.
(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 you; provided, however, that if on the date of such filing
you shall have suspended solicitation of purchases of Notes
pursuant to a request from the Company, 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.
(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 0000 Xxx) 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 you, 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. The Company will
endeavor, in cooperation with you, to qualify the Notes for
offering and sale under the applicable securities laws of
such states and other jurisdictions of the United States as
you 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 consent to
service of process or to qualify as a foreign corporation in
any jurisdiction in which it is not so qualified. 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 3(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:
(a) The preparation and filing of the Registration
Statement and all amendments thereto and the Prospectus and
any amendments or supplements thereto;
(b) The fees and disbursements of the Company's
accountants and of the Trustee and the Processing Agent and
their respective counsel;
(c) 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 and
any Legal Investment Survey;
(d) The printing and delivery to you 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 you of
the Prospectus and any amendments or supplements thereto in
connection with solicitations of sales of the Notes;
(e) The printing and delivery to you of copies of the
Indenture and any Blue Sky Survey and any Legal Investment
Survey;
(f) Any fees charged by rating agencies for the rating
of the Notes;
(g) The fees and expenses, if any, incurred with
respect to any filing with the National Association of
Securities Dealers, Inc.; and
(h) Any advertising and other out-of-pocket expenses
incurred with the approval of the Company.
SECTION 5. Conditions of Obligations. Your obligations to
solicit offers to purchase the Notes as agent of the Company
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. As of the Commencement Date, you
shall have received the following documents: (i) Opinion of
Company Counsel. The opinion of the Senior Vice President,
General Counsel and Secretary of the Company or the Associate
General Counsel and Assistant Secretary of the Company, dated
as of such Commencement Date, in form and substance
satisfactory to you, 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 will be
valid land binding obligations of the Company and will be
entitled to the benefits of the Indenture.
(E) This Agreement has been duly authorized, executed
and delivered by the Company and is a valid and binding
agreement of the Company, except as rights to indemnity
hereunder 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 or regulation 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 or, any judgment, order or decree of any
governmental body, agency or court having Jurisdiction over
the Company or any of its subsidiaries.
(G) The statements contained in the Prospectus under
the captions "Certain terms of the 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 included therein, 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 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 included therein, 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, 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 Special Counsel to the Company.
The opinion of White & Case, special counsel for the Company,
dated as of such Commencement Date, covering the matters
referred to in subparagraph (i) under the subheadings (A),
(C), (E), (G), (I), (J) and (K). (iii) 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 (ii) 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 its 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 its review
and discussion of the contents thereof (including documents
incorporated by reference), but are without independent check
or verification except as stated therein.
(b) Officer's Certificate. At the Commencement Date, 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
subsidiaries, taken as a whole, from that set forth in the
Registration Statement and the Prospectus; and you shall have
received on the Commencement Date a certificate, dated the
Commencement 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.
If any condition specified in this Section shall not have
been fulfilled, this Agreement may be terminated by you by
notice to the Company at any time at or prior to the
Commencement 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 agreements set forth in
Section 7 hereof, and the provisions of Sections 8 and 12
hereof shall remain in affect.
SECTION 6. Additional Covenants of the Company. The Company
covenants and agrees that: each acceptance by it of an offer
for the purchase of Notes shall be deemed to be an
affirmation that the representations and warranties of the
Company contained in this Agreement and in any certificate
theretofor delivered to you pursuant hereto are true and
correct at the time of such acceptance or sale, as the case
may be (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).
SECTION 7. Indemnification. (a) Indemnification of You.
The Company agrees to indemnify and hold you harmless 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 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 you expressly for use
therein.
(b) Indemnification of Company. You agree 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 you, but only with reference to
information relating to you furnished in writing by you
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 7(a) or 7(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 fees and disbursements 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 you in the case of parties
indemnified pursuant to Section 7(a) and by the Company in
the case of parties indemnified pursuant to Section 7(b).
The indemnifying party shall not be liable for
any settlement of any proceeding affected 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 indemnify the indemnified party from and against
any loss or liability by reason of such settlement or
judgment.
SECTION 8. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and
agreements contained in this 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 your behalf, 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 9. Termination. (a) Termination of this Agreement.
This Agreement may be terminated as to a party for any
reason, at any time by either party hereto upon the giving of
90 days' written notice of such termination to the other
party hereto.
(b) General. In the event of any such termination,
neitherparty will have any liability to the other party
hereto, except that 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 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 indemnity agreements
set forth in Section 7 hereof, and the provisions of Sections
8 and 12 hereof shall remain in effect.
SECTION 10. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have
been duly given if mailed or transmitted by any standard form
of telecommunication. Notices to you shall be directed to
GECC Capital Markets Group, Inc., 000 Xxxx Xxxxx Xxxx,
Xxxxxxxx, Xxxxxxxxxxx 00000, attention of Senior Vice
President and Treasurer; and notices to the Company shall be
directed to it at: 000 Xxxx Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxx
00000, attention of Vice President and Treasurer.
SECTION 11. Parties. This Agreement shall inure to the
benefit of and be binding upon you and the Company and your
and the Company's respective successors thereto. Nothing
expressed or mentioned in this 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 Section 7 and their heirs and legal representatives,
any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained.
This Agreement and all conditions and provisions hereof 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. No purchaser of Notes
shall be deemed to be a successor by reason merely of such
purchase.
SECTION 12. Governing Law. This Agreement and the rights
and obligations of the parties created hereby shall be
governed by
the laws of the State of New York applicable to agreements
made and to be performed in such State.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a
counterpart hereof, whereupon this instrument along with all
counterparts will become a binding agreement between you and
the Company in accordance with its terms.
Very truly yours,
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
Title: Vice President and Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written:
GECC CAPITAL MARKETS GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxx
Title: Senior Vice President and
Treasurer
