Exhibit 1(a)
GENERAL ELECTRIC CAPITAL CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(NOTES AND WARRANTS
TO PURCHASE NOTES)
__________, 200_
From time to time, General Electric Capital Corporation, a Delaware
corporation (the "Company"), may enter into one or more underwriting agreements
that provide for the sale of designated securities to the several underwriters
named therein. The standard provisions set forth herein may be incorporated by
reference in any such underwriting agreement (with respect to such designated
securities, the "Underwriting Agreement"). The Underwriting Agreement, including
the provisions incorporated therein by reference, is herein referred to as this
Agreement. Terms defined in the Underwriting Agreement are used herein as
therein defined.
The Company has filed with the Securities and Exchange Commission (the
"Commission"), and there has become effective, a registration statement (the
file number of which will be set forth in the Underwriting Agreement), including
a prospectus, relating to the Notes and Warrants and has filed with, or
transmitted for filing to, or shall promptly hereafter file with or transmit for
filing to, the Commission a prospectus supplement (the "Prospectus Supplement")
specifically relating to the Offered Securities and the Warrant Notes pursuant
to Rule 424 under the Securities Act of 1933, as amended (the "Securities Act").
The term "Registration Statement" means such registration statement, including
the exhibits thereto, as amended to the date of this Agreement. The term "Basic
Prospectus" means the prospectus included in the Registration Statement. The
term "Prospectus" means the Basic Prospectus together with the Prospectus
Supplement. The term "preliminary prospectus" means a preliminary prospectus
supplement specifically relating to the Offered Securities and the Warrant
Notes, together with the Basic Prospectus. As used herein, the terms "Basic
Prospectus", "Prospectus" and "preliminary prospectus" shall include in each
case the documents incorporated by reference therein. The terms "supplement" and
"amendment" or "amend" as used herein shall include all documents deemed to be
incorporated by reference in the Prospectus that are filed subsequent to the
date of the Basic Prospectus by the Company with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"). If the Company
files a registration statement to register additional securities pursuant to
Rule 462(b) under the Securities Act, which registration statement shall become
effective upon filing with the Commission (the "Rule 462 Registration
Statement"), then any reference to the "Registration Statement" shall refer to
the Registration Statement referred to above and the Rule 462 Registration
Statement, in each case as amended to the date of this Agreement.
1. Delayed Delivery Contracts. If the Prospectus provides for sales of
--------------------------
Offered Securities pursuant to Delayed Delivery Contracts (as defined below),
the Company hereby authorizes the Underwriters to solicit offers to purchase
Contract Securities (as defined below) on the terms and subject to the
conditions set forth in the Prospectus pursuant to Delayed Delivery Contracts
substantially in the form of Schedule I attached hereto but with such changes
therein as the Company may authorize or approve (hereinafter referred to as
"Delayed Delivery Contracts"). Delayed Delivery Contracts are to be with one or
more institutional investors approved by the Company and of the types set forth
in the Prospectus. The aggregate principal amount of Contract Securities shall
not exceed the amount set forth in the Prospectus. On the Closing Date, the
Company will pay to the Manager as compensation for the accounts of the
Underwriters the commission specified in the Underwriting Agreement in respect
of all Contract Securities. The Underwriters will not have any responsibility in
respect of the validity or the performance of Delayed Delivery Contracts. The
Offered Securities to be purchased pursuant to Delayed Delivery Contracts are
referred to as "Contract Securities." The term "Underwriters' Securities" means
the Offered Securities other than Contract Securities.
If the Company executes and delivers Delayed Delivery Contracts with
institutional investors, the aggregate amount of Offered Securities to be
purchased by the several Underwriters shall be reduced by the aggregate amount
of Contract Securities. Such reduction shall be in the amount which shall bear
the same proportion to the total principal amount of Contract Securities as the
principal amount of Notes and the amount of Warrants set forth opposite the name
of the respective Underwriter bears to the aggregate principal amount of Notes
and the amount of Warrants, respectively, set forth in the Underwriting
Agreement, except to the extent that the Manager determines that such reduction
shall be otherwise than in such proportions, and so advises the Company in
writing; provided, however, that the total amount of Offered Securities to be
purchased by all Underwriters shall be the aggregate amount set forth in the
Underwriting Agreement less the aggregate amount of the Contract Securities.
2. Public Offering. The Company is advised by the Manager that the
---------------
Underwriters propose to make a public offering of their respective portions of
the Underwriters' Securities as soon after this Agreement is entered into as in
the Manager's judgment is advisable. The terms of the public offering of the
Underwriters' Securities are as specified in the Underwriting Agreement.
3. Purchase and Delivery. Payment for the Underwriters' Securities
---------------------
shall be made by wire transfer in immediately available funds (unless payment in
2
other form of funds is specified in the Underwriting Agreement) to the account
specified by the Company to the Manager the business day prior to the time of
closing, on the date and at the time specified in the Underwriting Agreement,
upon delivery to the nominee of The Depository Trust Company for the respective
accounts of the several Underwriters of one or more global notes representing
the Underwriters' Securities.
4. Conditions to Closing. The several obligations of the Underwriters
---------------------
hereunder are subject to the following conditions:
(a) 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 (to the knowledge of the Company) 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; and the Manager
shall have received on the Closing Date a certificate, dated the Closing Date
and signed by an executive officer of the Company, to the effect that no stop
order suspending the effectiveness of the Registration Statement is in effect
and no proceedings for such purpose are pending before or (to the knowledge of
such executive officer) threatened by the Commission, and 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.
(b) The Manager shall have received on and as of the Closing Date an
opinion of either the Senior Vice President, General Counsel and Secretary of
the Company or the Associate General Counsel-Treasury Operations and Assistant
Secretary of the Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated and is validly existing
under the laws of the State of Delaware;
(ii) 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;
(iii) the Note Indenture, the Warrant Note Indenture and the Warrant
Agreement have been duly authorized, executed and delivered by
the Company, are valid and binding agreements of the Company
enforceable against the Company in accordance with their terms
and the Note Indenture and the Warrant Note Indenture have
been qualified under the Trust Indenture Act of 1939 as
amended;
(iv) the Notes, the Warrant Notes and the Warrants have been duly
authorized and, when executed and authenticated in accordance
with the provisions of the Note Indenture, the Warrant Note
Indenture and the Warrant Agreement and delivered to and paid
for by the Underwriters (or, in the case of Contract
Securities, by institutional investors pursuant to Delayed
Delivery Contracts), and in the case of the Warrant Notes,
upon exercise of the Warrants, will be valid and binding
obligations of the Company enforceable against the Company in
accordance with their terms and will entitle
3
the holders thereof to the benefits of the Note Indenture, the
Warrant Note Indenture and the Warrant Agreement;
(v) this 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
indemnity and contribution hereunder may be limited under
applicable law;
(vi) the Delayed Delivery Contracts have been duly authorized,
executed and delivered by the Company and are valid and
binding agreements of the Company enforceable against the
Company in accordance with their terms;
(vii) neither the execution and delivery of this Agreement nor the
issuance and sale of the Offered Securities by the Company as
provided herein (or issuance of the Warrant Notes by the
Company upon exercise of the Warrants) 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
state 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; and no
consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or
body is required for the issuance and sale of the Notes or the
consummation by the Company of the transactions contemplated
by this Agreement or the Indenture, except such as have been
obtained under the Securities Act and the Trust Indenture Act
of 1939, as amended, and such as may be required under the
applicable state securities or Blue Sky laws;
(viii) the statements contained in the Prospectus under the captions
"Description of Notes," "Description of Warrants" and "Delayed
Delivery Arrangement" fairly present the matters referred to
therein;
(ix) each document incorporated by reference in the Prospectus
which was filed pursuant to the Exchange 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
Exchange Act and the applicable rules and regulations
thereunder;
(x) 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 relating only to securities other than the Offered
Securities, as to which such counsel need express no
4
opinion) comply as to form in all material respects with the
Securities Act and the rules and regulations of the Commission
thereunder; and
(xi) 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 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 as of the date of the Prospectus Supplement
relating to the Offered Securities did not, and the Prospectus
(as amended or supplemented) 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.
(c) The Manager shall have received on and as of the Closing Date an
opinion of Xxxxx Xxxx & Xxxxxxxx, counsel for the Underwriters, dated the
Closing Date, covering the matters in (i), (iii), (iv), (v), (vi), (viii), (x)
and (xi) of paragraph (b) above.
In rendering the opinion referred to in paragraph (b) above, such
counsel may state that with respect to (x) and (xi) of paragraph (b) above, such
counsel's opinion and belief is 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 upon his
review and discussion of the contents thereof,but is without independent check
or verification except as stated therein. In rendering the opinion referred to
in paragraph (c) above, such counsel may state that with respect to (x) and (xi)
of paragraph (b) above, such counsel's opinion and belief is 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 is without
independent check or verification except as stated therein. In rendering the
opinions referred to in paragraphs (b) and (c) above, such counsel may state
that with respect to (iii), (iv), (v) and (vi) of paragraph (b) above, such
counsel's 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).
(d) The Manager shall have received on the Closing Date a letter dated
the Closing Date, in form and substance satisfactory to the Manager, from KPMG
LLP, independent public accountants, 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.
5
(e) Subsequent to the date of execution of this Agreement and prior to
the Closing Date (i) no downgrading shall have occurred in the rating accorded
any debt securities of the Company by Standard & Poor's Corporation, Xxxxx'x
Investors Service, Inc. or any other "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436(g)(2) under the
Securities Act and (ii) no such organization shall have given any notice of any
intended or potential downgrading of, or of any review or possible change that
does not indicate an improvement in, any such rating.
5. Covenants of the Company. In further consideration of the
------------------------
agreements of the Underwriters herein contained, the Company covenants as
follows:
(a) To furnish to the Manager, without charge (i) upon the request of
the Manager, two conformed copies of the Registration Statement (including
exhibits and documents incorporated by reference), and for delivery to each
other Underwriter a conformed copy of the Registration Statement (without
exhibits but including documents incorporated by reference) and (ii) during the
period mentioned in paragraph (c) below, as many copies of the Prospectus and
any amendments or supplements thereto prepared pursuant to paragraph (c) below
as the Manager may reasonably request. In the case of the Prospectus, to furnish
copies of the Prospectus prior to 5:00 p.m., on the business day following the
date of this Agreement, in such quantities as the Manager may reasonably
request.
(b) To prepare and file (or mail for filing) with the Commission
pursuant to Rule 424 under the Securities Act as promptly as practicable after
the execution of this Agreement, a prospectus supplement setting forth such
information as is necessary so that the Prospectus, when delivered to a
purchaser of the Offered Securities, will comply with law and, before amending
the Registration Statement or supplementing the Prospectus with respect to the
Offered Securities, to furnish the Manager a copy of each such proposed
amendment or supplement.
(c) If, during such period after the first date of the public offering
of the Offered Securities as in the opinion of Xxxxx Xxxx & Xxxxxxxx a
prospectus is required by law to be delivered in connection with sales by an
Underwriter or dealer, any event shall occur as a result of which it is
necessary to amend or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to amend or supplement the
Prospectus to comply with law, forthwith to (i) prepare and furnish, at its own
expense, to the Underwriters and to the dealers (whose names and addresses the
Manager shall furnish to the Company) to which Offered Securities may have been
sold by the Manager on behalf of the Underwriters and to any other dealers upon
request, either amendments or supplements to the Prospectus or (ii) file with
the Commission such reports pursuant to the Exchange Act, or amendments to
reports previously filed by the Company thereunder so that in case of either
clause (i) or (ii) of this paragraph (c) the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the Prospectus
will comply with law.
(d) To endeavor to qualify the Offered Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the Manager shall
6
reasonably request and to pay all expenses (including fees and disbursements of
counsel) reasonably incurred in connection with such qualification and in
connection with the determination of the eligibility of the Offered Securities
for investment under the laws of such jurisdictions as the Manger may so
designate; provided that the Company shall not be required to qualify to do
business in any jurisdiction where it is not now qualified, to take any action
which would subject it to general or unlimited service of process in any
jurisdiction where it is not now subject or to qualify the Offered Securities
for offer and sale in any jurisdiction (notified to the Manager prior to the
execution of the Underwriting Agreement) in which the Company is unable or
unwilling to comply with disclosure or reporting requirements imposed by such
jurisdiction.
(e) To make generally available to its security holders as soon as
practicable an earnings statement (which need not be audited) covering a twelve-
month period beginning after the date of this Agreement which shall satisfy the
provisions of Section 11(a) of the Securities Act and the rules and regulations
of the Commission thereunder.
(f) To notify the Manager not less than 48 hours prior to the Closing
Date of the aggregate principal amount of Contract Securities, if any.
6. Representations and Warranties; Indemnification and Contribution.
--------------------------------------------------------------------
The Company represents and warrants to each Underwriter that (i) each document
filed by the Company pursuant to the Exchange Act which is incorporated by
reference in the Prospectus complied when so filed in all material respects with
the Exchange 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 Exchange Act and the
rules and regulations thereunder; (ii) the Registration Statement and the
Prospectus comply, and the Registration Statement and the Prospectus (and any
amendments and supplements thereto, other than supplements relating only to
securities other than the Offered Securities) will on the Closing Date comply in
all material respects with the Securities Act and the rules and regulations of
the Commission thereunder; (iii) each preliminary prospectus, if any, filed
pursuant to Rule 424 under the Securities Act complied when so filed in all
material respects with the Securities Act and the rules and regulations
thereunder; (iv) 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 herein or necessary to make the
statements therein not misleading, and the Prospectus as of the date of the
Prospectus Supplement relating to the Offered Securities did not, and the
Prospectus (as amended or supplemented, other than as to supplements relating
only to securities other than the Offered Securities) on the Closing 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; except that these
representations and warranties 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 Underwriter expressly for use therein; and (v) the
Company has complied with all provisions of Section 517.075, Florida Statutes
(Chapter 92-198, Laws of Florida).
7
The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange 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 the Prospectus (if used within the
period set forth in paragraph (c) of Section 5 hereof 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 allege untrue
statement or omission based upon information furnished in writing to the Company
by any Underwriter expressly for use therein; provided, however, that the
foregoing indemnity agreement with respect to any preliminary prospectus shall
not inure to the benefit of any Underwriter from whom the person asserting any
such losses, claims, damages or liabilities purchased Offered Securities, or any
person controlling such Underwriter, if a copy of the Prospectus (as then
amended or supplemented if the Company shall have furnished any amendment or
supplements thereto) was not sent or given by or on behalf of such Underwriter
to such person, if required by law so to have been delivered, at or prior to the
written confirmation of the sale of the Offered Securities 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.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and any person who controls the Company within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act to the same extent as
the foregoing indemnity from the Company to each Underwriter, but only with
reference to information relating to such Underwriter furnished in writing by
such Underwriter expressly for use in the Registration Statement, the Prospectus
or any preliminary prospectus.
In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to either of the two preceding paragraphs, 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
8
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 Manager in the case of parties indemnified pursuant
to the second preceding paragraph and by the Company in the case of parties
indemnified pursuant to the first preceding paragraph. 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 indemnify the indemnified
party from and against any loss or liability by reason of such settlement or
judgment. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
If the indemnification provided for in this Section 6 is unavailable to
an indemnified party under the second or third paragraphs hereof 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) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other from the offering of the Offered
Securities, (ii) if the allocation provided by clause (i) above 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 but also the relative fault of
the Company on the one hand and the Underwriters on the other in connection with
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company
and the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the Prospectus, bear to the aggregate
public offering price of the Notes. The relative fault of the Company on the one
hand and of the Underwriters on the other shall be determined by reference to,
among other things, whether the untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the Company
or by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 6 were determined by pro rata
allocation (even if the Underwriters 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
9
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this Section 6, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Offered Securities underwritten by such
Underwriter and distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter 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 Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this Section 6 are several,
in proportion to the respective amounts of Offered Securities underwritten by
each of such Underwriters, and not joint.
The indemnity and contribution agreements contained in this Section 6
and the representations and warranties of the Company in this Agreement shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter or by or on behalf of the
Company, its directors or officers or any person controlling the Company and
(iii) acceptance of and payment for any of the Offered Securities.
7. Termination. Unless otherwise provided in the Underwriting
-----------
Agreement, this Agreement shall be subject to termination in the discretion of a
majority in interest of the Underwriters at any time prior to the Closing Date,
by notice given by the Manager to the Company, 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 or New York
State 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 a majority in interest of
the Underwriters, as to prevent or materially impair the marketing, or
enforcement of contracts for sale, of the Securities.
If this Agreement shall be terminated by the Underwriters, or any of
them, because (a) of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or (b) for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of- pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with the Offered
Securities.
8. Defaulting Underwriters. If, on the Closing Date any one or more of
-----------------------
the Underwriters shall fail or refuse to purchase Offered Securities which it or
they have agreed to purchase hereunder on such date, and the aggregate principal
amount of Offered Securities which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate principal amount of the Offered Securities to be purchased on
10
such date, the other Underwriters shall be obligated severally in the
proportions that the principal amount of Offered Securities set forth opposite
their respective names in the Underwriting Agreement bears to the aggregate
principal amount of Offered Securities set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as the Manager may
specify, to purchase the Offered Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the principal amount of Offered Securities that any
Underwriter has agreed to purchase be increased pursuant to this Section by an
amount in excess of one-ninth of such principal amount of Offered Securities
without the written consent of such Underwriter. If on the Closing Date any
Underwriter or Underwriters shall fail or refuse to purchase Offered Securities
which it or they have agreed to purchase hereunder on such date, and the
aggregate principal amount of Offered Securities with respect to which such
default occurs is more than one-tenth of the aggregate principal amount of
Offered Securities to be purchased on such date, and arrangements satisfactory
to the Manager and the Company for the purchase of such Offered Securities are
not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or the Company.
In any such case either the Manager or the Company shall have the right to
postpone the Closing Date but in no event for longer than seven days, in order
that the required changes, if any, in the Prospectus or in any other documents
or arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
9. Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the State of New York.
10. Headings. The headings of the sections of this Agreement have been
--------
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
11
SCHEDULE I
DELAYED DELIVERY CONTRACT
As of ___________, 200_
General Electric Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Dear Sirs:
The undersigned hereby agrees to purchase from General Electric Capital
Corporation, a Delaware corporation (the "Company"), and the Company agrees to
sell to the undersigned the Company's securities described in Schedule A annexed
hereto (the "Securities"), offered by the Company's Prospectus dated
______________, 200_ and Prospectus Supplement dated ____________, 200_, receipt
of copies of which are hereby acknowledged, at a purchase price stated in
Schedule A and on the further terms and conditions set forth in this Agreement.
The undersigned does not contemplate selling Securities prior to making payment
therefor.
The undersigned will purchase from the Company Securities in the
principal amount and numbers on the delivery date(s) set forth in Schedule A.
Each such date on which Securities are to be purchased hereunder is hereinafter
referred to as a "Delivery Date".
Payment for the Securities which the undersigned has agreed to purchase
on each Delivery Date shall be made to the Company or its order by wire transfer
of immediately available funds to the account specified by the Company to the
undersigned the business day prior to the Delivery Date, at 10:00 a.m. (New York
time) on the Delivery Date, upon delivery to the nominee of The Depositary Trust
Company for the account of the undersigned or the undersigned's designee one or
more global notes representing the Securities to be purchased by the undersigned
on the Delivery Date.
12
The obligation of the undersigned to take delivery of and make payment
for the Securities on the Delivery Date shall be subject to the conditions that
(1) the purchase of Securities to be made by the undersigned shall not at the
time of delivery be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company shall have sold, and delivery shall
have taken place to the underwriters (the "Underwriters") named in the
Prospectus Supplement referred to above of, such part of the Securities as is to
be sold to them. Promptly after completion of sale and delivery to the
Underwriters, the Company will mail or deliver to the undersigned at its address
set forth below notice to such effect, accompanied by a copy of the opinion of
counsel for the Company delivered to the Underwriters in connection therewith.
Failure to take delivery of and make payment for Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this agreement.
This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
If this Agreement is acceptable to the Company, it is requested that
the Company sign the form of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set forth below. This will
become a binding agreement, as of the date first above written, between the
Company and the undersigned when such counterpart is so mailed or delivered.
2
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
Yours very truly,
-------------------------
(Purchaser)
By _________________________
-------------------------
(Title)
-------------------------
-------------------------
(Address)
Accepted:
GENERAL ELECTRIC
CAPITAL CORPORATION
By __________________________________
Vice President and Treasurer
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed is
as follows: (Please print)
Telephone No.
Name (Including Area Code) Department
---- --------------------- ----------
3
SCHEDULE A
Securities:
----------
Principal Amounts or Quantities
to be Purchased:
---------------
Purchase Price:
--------------
4
Delivery Date(s):
----------------
5
