Exhibit 1(d)
SELLING AGENT AGREEMENT
by and among
General Electric Capital Corporation
and the
Agents named herein
March 29, 2006
GENERAL ELECTRIC CAPITAL CORPORATION
GE Capital* InterNotes(R)
Due From 9 Months to 60 Years from Date of Issue
SELLING AGENT AGREEMENT
as of March 29, 2006
To the Agents listed on the signature page hereto:
General Electric Capital Corporation, a Delaware corporation (the "COMPANY"),
and Banc of America Securities LLC, Incapital LLC, ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co., Inc., Citigroup Capital Markets, Inc. (f/n/a Solomon ▇▇▇▇▇
▇▇▇▇▇▇ Inc.), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co., L.P., ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, Prudential Securities
Incorporated, UBS Financial Services Inc. and Wachovia Securities LLC
(collectively, the "AGENTS") entered into a Selling Agent Agreement dated
November 22, 2002, as amended on May 17, 2005 (collectively, the "ORIGINAL
SELLING AGREEMENT"), with respect to the issue and sale by the Company of its GE
Capital * InterNotes(R) (the "NOTES").
The Company and Agents desire to amend and restate the Original Selling
Agreement and hereby enter into this Amended and Restated Selling Agent
Agreement (this "SELLING AGREEMENT"), with respect to the issue and sale by the
Company of its Notes.
The Notes are to be issued pursuant to Third Amended and Restated Indenture
dated as of February 27, 1997, between the Company and JPMorgan Chase Bank, N.A.
(formerly known as The Chase Manhattan Bank, as successor trustee (the
"TRUSTEE"), as supplemented by the First Supplemental Indenture dated as of May
3, 1999, the Second Supplemental Indenture dated as of July 2, 2001 and a Third
Supplemental Indenture dated as of November 22, 2002 (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 global security in
----------
* GE Capital is a registered trademark of General Electric Company InterNotes(R)
is a registered servicemark of Incapital Holdings LLC
1
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 and each Agent agrees to use its reasonable best efforts
to solicit offers to purchase Notes upon terms acceptable to the Company at such
time and in such amounts as the Company shall from time to time specify and in
accordance with the terms hereof, and after consultation with Incapital LLC (the
"PURCHASING AGENT"), (ii) agrees that whenever the Company determines from time
to time to sell Notes pursuant to this Agreement, it will enter into a Terms
Agreement (as defined below) relating to such sale in accordance with the
provisions of Section 2(c) hereof between the Company and the Purchasing Agent,
with the Purchasing Agent purchasing such Notes as principal for resale to other
Agents or dealers (the "SELECTED DEALERS"), each of whom will purchase as
principal, and (iii) 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, as amended (the "1934 ACT"), to solicit purchases of Notes through the
Purchasing Agent; provided however, that such sales will be made on terms
substantially the same as those contained in this Agreement and any such
additional firm will receive the applicable concession thereon determined in
accordance with Exhibit A hereto. Any such additional firm designated by the
Company pursuant to clause (iii) above shall be considered an Agent hereunder
for all purposes with respect to each transaction with respect to which such
appointment is made.
An automatic shelf registration statement as defined in Rule 405 under the
Securities Act of 1933, as amended (the "1933 ACT") in respect of the Notes has
been filed on Form S-3 with the Securities and Exchange Commission (the
"COMMISSION") not earlier than three years prior to the date hereof. The
registration statement has become effective pursuant to the rules and
regulations promulgated by the Commission under the 1933 Act (the "1933 ACT
REGULATIONS") and the Indenture was filed as an exhibit to the Registration
Statement and has been duly qualified under the Trust Indenture Act of 1939, as
amended (the "1939 ACT"). The Company has filed pursuant to Rule 424 under the
1933 Act a prospectus supplement specifically relating to the offering of the
Notes under the global medium term note program (the "PROSPECTUS SUPPLEMENT")
and will file particular pricing supplements for each particular
2
offering of a tranche of Notes. The term "REGISTRATION STATEMENT" as used with
respect to a particular tranche of Notes, means the registration statement, as
deemed revised at the time of such registration statement's effectiveness for
purposes of Section 11 of the 1933 Act as such section applies to the Company
and the Agents for such offering of a tranche of Notes pursuant to Rule
430B(f)(1) and Rule 430B(f)(2) under the 1933 Act (the "EFFECTIVE TIME"),
including (i) all documents then filed as a part thereof or incorporated or
deemed to be incorporated by reference therein and (ii) any information
contained or incorporated by reference in a prospectus filed with the Commission
pursuant to Rule 424(b) under the 1933 Act, to the extent such information is
deemed, pursuant to Rule 430B(f)(1) under the 1933 Act, to be part of the
Registration Statement at the Effective Time. The term "BASIC PROSPECTUS" means
the prospectus included in the Registration Statement exclusive of any
supplement filed pursuant to Rule 424. The Basic Prospectus, as supplemented by
the Prospectus Supplement, is referred to herein as the "PROGRAM PROSPECTUS".
Prior to the determination of the final terms of a particular tranche of Notes
the term "PROSPECTUS" means the Program Prospectus, and after such
determination, such document plus a supplement (the "PRICING SUPPLEMENT")
prepared for the sale of the particular tranche of Notes and including a
description of the final terms of such tranche of Notes and the terms of the
offering thereof. The term "PRELIMINARY PROSPECTUS" means a preliminary
prospectus supplement specifically relating to a tranche of Notes together with
the Program Prospectus applicable to the method of offering thereof. The term
"PERMITTED FREE WRITING PROSPECTUS" as used herein means the documents attached
as Schedule II to the applicable Terms Agreement for a tranche of Notes. The
"PRICING EFFECTIVE TIME" as used herein shall occur when either (i) a Permitted
Free Writing Prospectus with the final terms of the offering and either the
Program Prospectus or a Preliminary Prospectus, or (ii) the Pricing Supplement,
prepared by the Company, and the Program Prospectus, shall be made available to
the Agents for electronic delivery to purchasers (the documentation in (i) or
(ii), as applicable, in the aggregate, the "PRICING DISCLOSURE MATERIAL").
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 at the Pricing Effective Time as of the date of the closing of
each sale of Notes (the date of each such sale being referred to herein as a
"SETTLEMENT DATE"), and as of the times referred to in Section 6(a) 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 or any Permitted
3
Free Writing 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) at the Commencement Date, the Registration Statement did
not, and at the Effective Time the Registration Statement did not or will
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 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 Pricing Effective Time, if any);
(v) the aggregate principal amount of the Company's Notes
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;
(vi) no event exists which would constitute an event of default
under the Indenture;
(vii) at the time made available by the Company to the Agents for
electronic delivery with respect to a tranche of Notes, the "PRICING
DISCLOSURE MATERIAL", will not contain an 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 in which they were
made, not misleading:
4
(viii) the Registration Statement constitutes an "AUTOMATIC SHELF
REGISTRATION STATEMENT" (as defined in Rule 405 of the ▇▇▇▇ ▇▇▇) filed
within three years of the date hereof; no notice of objection of the
Commission with respect to the use of the Registration Statement pursuant
to Rule 401(g)(2) under the 1933 Act has been received by the Company;
and the Company is a "well-known seasoned issuer" as defined in Rule 405,
including not being an "ineligible issuer", as defined in Rule 405 at the
"determination dates" relevant to the offering and sale of Notes under
the Registration Statement (as described in such definition); No stop
order suspending the effectiveness of the registration statement has been
issued and no proceeding, to the knowledge of the Company, for that
purpose or pursuant to Section 8A of the 1933 Act has been initiated or
threatened by the Commission; and
(ix) the Company has not used any free writing prospectus other
than a Permitted Free Writing Prospectus or used a Permitted Free Writing
Prospectus except in compliance with Rule 433 under the 1933 Act and
otherwise in compliance with the 1933 Act;
except that the representations and warranties set forth in paragraphs (i),
(ii), (iii) and (vii) of this Section 1(a) do not apply to statements or
omissions in the Registration Statement, the Prospectus or the Pricing
Disclosure Material 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 AND PURCHASES OF NOTES.
(a) The Agents propose to solicit offers to purchase the Notes upon
the terms and conditions set forth herein and in the Prospectus and upon the
terms communicated to the Agents from time to time by the Company or the
Purchasing Agent, as the case may be. For the purpose of such solicitation, the
Agents will use the Prospectus as then amended or supplemented which has been
most recently distributed to the Agents by the Company, and the Agents will
solicit offers to purchase only as permitted or contemplated thereby and herein
and will solicit offers to purchase the Notes only as permitted by the 1933 Act
and the applicable securities laws or regulations of any jurisdiction. The
Company reserves the right, in its sole discretion, to suspend solicitation of
offers to purchase the Notes commencing at any time for any period of time or
permanently. Upon receipt of instructions (which may be given orally but to be
5
confirmed in writing) from the Company, the Agents will suspend promptly
solicitation of offers to purchase until such time as the Company has advised
the Agents that such solicitation may be resumed.
(b) Unless otherwise instructed by the Company, the Agents are
authorized to solicit offers to purchase the Notes only in denominations of
$1,000 or more (in multiples of $1,000). The Agents are not authorized to
appoint subagents or to engage the services of any other broker or dealer in
connection with the offer or sale of the Notes without the consent of the
Company. Unless otherwise instructed by the Company, the Purchasing Agent shall
communicate to the Company, orally or in writing, each offer to purchase Notes.
The Company shall have the sole right to accept offers to purchase Notes and may
reject any proposed offers to purchase Notes as a whole or in part. The Company
agrees to pay the Purchasing Agent, as consideration for soliciting offers to
purchase Notes pursuant to a Terms Agreement, a concession in the form of a
discount equal to the percentages of the initial offering price of each Note
actually sold as set forth in Exhibit A hereto (the "CONCESSION"); provided,
HOWEVER, that the Company and the Purchasing Agent may agree also to a
Concession greater than or less than the percentages set forth on Exhibit A
hereto; provided that in no case shall the concession exceed 8% of the initial
offering proceeds. The actual aggregate Concession with respect to each tranche
of Notes will be set forth in the related Pricing Supplement. The Purchasing
Agent and the other Agents or Selected Dealers will share the above-mentioned
Concession in such proportions as they may agree.
Unless otherwise authorized by the Company, all Notes shall be
sold to the public at a purchase price not to exceed 100% of the principal
amount thereof, plus accrued interest, if any. Such purchase price shall be set
forth in the confirmation statement of the Agent or Selected Dealer responsible
for such sale and delivered to the purchaser along with a notice of availability
(pursuant to Rule 172 of the ▇▇▇▇ ▇▇▇) or a copy of the Pricing Disclosure
Material.
(c) Procedural details relating to the issue and delivery of, and the
solicitation of purchases and payment for, the Notes are set forth in the
Administrative Procedures attached hereto as Exhibit B (the "PROCEDURES"), as
amended from time to time. Unless otherwise provided in a Terms Agreement, the
provisions of the Procedures shall apply to all transactions contemplated
hereunder. The Agents and the Company each agree to perform the respective
duties and obligations specifically provided to be performed by each in the
Procedures as amended from time to time. The Procedures may only be amended by
written agreement of the Company and the Agents. To the extent the Procedures in
effect from time to time conflict with any provision of this Agreement, the
provisions of this Agreement shall govern.
6
(d) Each sale of Notes shall be made in accordance with the terms of
this Agreement and a separate agreement in substantially the form attached as
Exhibit C (a "TERMS AGREEMENT") to be entered into which will provide for the
sale of such Notes to, and the purchase and reoffering thereof, by the
Purchasing Agent as principal. A Terms Agreement may also specify certain
provisions relating to the reoffering of such Notes by the Purchasing Agent. The
Terms Agreement shall not be effective, and the Agents agree that no contracts
of sale may be entered into by the Agents in respect of a sale of Notes as
described in this section, until the Company has made the Pricing Disclosure
Material available to the Agents and the Pricing Effective Time occurs. The
offering of Notes by the Company hereunder and the Purchasing Agent's agreement
to purchase Notes pursuant to any Terms Agreement shall be deemed to have been
made on the basis of the representations, warranties and agreements of the
Company herein contained and shall be subject to the terms and conditions herein
set forth. Each Terms Agreement shall describe the Notes to be purchased
pursuant thereto by the Purchasing Agent as principal, and may specify, among
other things, the principal amount of Notes to be purchased, the interest rate
or formula and maturity date or dates of such Notes, the interest payment dates,
if any, the net proceeds to the Company, the initial public offering price at
which the Notes are proposed to be reoffered, and the Settlement Date, whether
the Notes provide for a Survivor's Option, whether the Notes are redeemable or
repayable and on what terms and conditions, and any other relevant terms. In
connection with the resale of the Notes purchased, without the consent of the
Company, the Agents are not authorized to appoint subagents or to engage the
service of any other broker or dealer, nor may you reallow any portion of the
Concession paid to you. Terms Agreements, each of which shall be substantially
in the form of Exhibit C hereto, or as otherwise agreed to between the Company
and the Purchasing Agent, may take the form of an exchange of any standard form
of written telecommunication between the Purchasing Agent and the Company
(e) 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, the Prospectus and any Permitted Free Writing
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, including any free writing prospectuses prepared by or on behalf of the
Agent and not required to be filed by the Company pursuant to Rule 433 under the
1933 Act.
(f) 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
7
as shall be specified in the relevant Terms Agreement, on the date required for
such delivery set forth in Section 5 hereof.
(g) REGISTERED BROKER-DEALERS. Each Agent represents that it is a
broker-dealer registered under the 1934 Act.
(h) OBLIGATIONS SEVERAL. The Company acknowledges that the obligations
of the Agents are several and, subject to the provisions of this Agreement
applicable thereto, 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 filing and 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, other than prospectus supplements related to specific Note offerings
and 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 or pursuant to Section 8A of the 1933 Act. 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 any Permitted Free Writing Prospectus
and the Prospectus (as amended or supplemented) as such Agent shall reasonably
request so long as such Agent is required to deliver a Prospectus (or in lieu
thereof the notice referred to in Rule 173(a) under the ▇▇▇▇ ▇▇▇) in connection
with sales or solicitations of offers to purchase the Notes.
8
(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 (or in lieu thereof the notice
referred to in Rule 173(a) under the ▇▇▇▇ ▇▇▇) is required by law to be
delivered in connection with the sale of the Notes by the Purchasing Agent as
principal, any event shall occur as a result of which it is necessary to amend
or supplement the Prospectus or the Pricing Disclosure Material in order that
the Prospectus or Pricing Disclosure Material 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 under which they were made, and in order that timely information
is provided pursuant to Rule 159 of the 1933 Act, 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
Prospectus or Pricing Disclosure Material 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, upon the reasonable request of any Agent, shall make available
electronically such reports to such 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 none of the Agents shall then hold any Notes as purchased as principal
from the Purchasing Agent or pursuant to a Terms Agreement, the Company shall
not be obligated to make available electronically 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
the Purchasing Agent.
(e) PROSPECTUS REVISIONS -- AUDITED FINANCIAL INFORMATION. Promptly
after the filing with the Commission of the Company's annual report on Form
9
10-K including the audited financial statements of the Company for the preceding
fiscal year, the Company, upon the request of any Agent, shall make available
electronically such report to such Agent; provided, however, that if on the date
of such filing the Agents shall have suspended solicitation of purchases of
Notes pursuant to a request from the Company, and if none of the Agents shall
then hold any Notes purchased as principal from the Purchasing Agent or pursuant
to a Terms Agreement, the Company shall not be obligated to make available
electronically 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 the Purchasing Agent.
(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 Rule 158(c) under the ▇▇▇▇ ▇▇▇) 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 make available
electronically to any Agent, upon request of such Agent, promptly after the
filing thereof with the Commission, its reports on Form 8-K.
(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 (or in lieu thereof the notice referred to in Rule 173(c) under the
▇▇▇▇ ▇▇▇) 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.
10
(j) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS.
The Company will (i) in respect of the Notes, promptly within the time periods
specified therein, effect the filings required of it pursuant to Rule 424 and/or
Rule 433 under the 1933 Act, and (ii) take such steps as it deems necessary to
ascertain promptly whether each Prospectus or Permitted Free Writing Prospectus
transmitted for filing under Rule 424 or Rule 433 of the 1933 Act, as
applicable, were received for filing by the Commission and, in the event that
any was not, it will promptly file the relevant Prospectus or Permitted Free
Writing Prospectus, as applicable.
(k) FILING FEES. The Company will pay the required Commission filing
fees related to the Notes within the time required by Rule 456(b)(1) under the
Act and otherwise in accordance with Rules 456(b) and 457(r) under the 1933 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 and any Permitted Free Writing Prospectus;
(ii) The preparation, issuance and delivery of the Notes;
(iii) The fees and disbursements of the Company's independent
public accountants and of the Trustee and its counsel;
(iv) The reasonable fees and disbursements of ▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇▇, counsel for the Agents;
(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, to the extent and
in the quantities required hereby, of copies of the Registration
Statement and any amendments thereto, the Pricing Disclosure Material 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;
11
(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, and the obligation of the Purchasing Agent to
purchase Notes pursuant to any Terms Agreement will be subject at all times to
the accuracy of the representations and warranties on the part of the Company
herein and to the accuracy of the statements of the Company's officers made in
any certificate furnished pursuant to the provisions hereof, to the performance
and observance by the Company of all covenants and agreements herein contained
on its part to be performed and observed and to the following additional
conditions precedent:
(a) LEGAL OPINIONS. At the Commencement Date and at each Settlement
Date with respect to any applicable Terms Agreement, if called for by such Terms
Agreement, the Agents shall have received the following documents:
(i) OPINION OF COMPANY COUNSEL. The opinion of the General
Counsel, Corporate Treasury and Assistant Secretary of the Company, or
other counsel satisfactory to such Agent(s), dated as of such
Commencement Date, in form and substance satisfactory to the Agents and
counsel for the Agents, to the effect that:
(A) The Company has been duly incorporated and is
validly existing under the laws of the State of Delaware.
(B) The Company is duly qualified to transact business
and is in good standing in the jurisdictions in which the conduct
of its business or the ownership of its property requires such
qualification.
(C) The Indenture has been duly authorized, executed and
delivered by the Company, is a valid and binding agreement of the
Company and has been qualified under the 1939 Act.
(D) [For Commencement Dates only: When authorized] [For
other dates: The Notes have been authorized, executed and
12
authenticated in accordance with the provisions of the Indenture
and delivered to and paid for by any purchaser of Notes sold
through any Agent as principal pursuant to the applicable Terms
Agreement between the Company and the Purchasing Agent, 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 applicable, the Terms
Agreement, has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company
enforceable against the Company in accordance with its terms,
except as rights to contribution and indemnity hereunder (or
thereunder) may be limited under applicable law.
(F) Neither the execution and delivery of this Agreement
nor the issuance and sale of the Notes by the Company as provided
herein will contravene the certificate of incorporation or by-laws
of the Company or result in any violation of any of the terms or
provisions of any law, rule or regulation (other than with respect
to applicable securities or Blue Sky laws, as to which such
counsel need not express any opinion) or of any indenture,
mortgage or other agreement or instrument known to such counsel by
which the Company or any of its subsidiaries is bound.
(G) The statements contained in the Prospectus under the
captions "Description of Notes", "Description of Debt Securities"
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.
13
(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 has been filed by the Company with the
Commission subsequent to such date, at the time of the most recent
such filing, at the time of issuance of this opinion, 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 did not
contain, as of the Commencement Date, and 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 Tax
Counsel of the Company, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP or other tax
counsel satisfactory to such Agent(s) dated as of such Commencement Date
or Settlement Date, confirming the accuracy of the opinion of such
counsel set forth under the caption "United States Federal Taxation" in
the Prospectus.
(iii) OPINION OF COUNSEL TO THE AGENTS. The opinion of ▇▇▇▇▇ ▇▇▇▇
& ▇▇▇▇▇▇▇▇, counsel to the Agents, dated as of such Commencement Date,
covering the matters referred to in subparagraph (i) under the
subheadings (A), (C), (D), (E), (G) and (I) above and to the following
effect (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 and amendments
relating only to securities other than the Notes, as to which such
counsel need express no opinion) appear on their face to be appropriately
responsive in
14
all material respects to the requirements of the 1933 Act and the
applicable rules and regulations of the Commission thereunder, and (y)
nothing has come to the attention of such counsel that causes such
counsel to believe that insofar as relevant at the Commencement Date (it
being understood that the terms of the Notes have not yet been
determined), (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) any part of the
Registration Statement at the time it became effective, and if an
amendment to the Registration Statement has been filed by the Company
with the Commission subsequent to such date, at the time of the most
recent such filing, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and the
Prospectus contained, as of the Commencement Date, contains any untrue
statement of a material fact or omitted or omits 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.
(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, the
Pricing Disclosure Material 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 (x) and (y) of subparagraph (iii) above, such
counsel's opinion and belief are based upon their participation in the
preparation of the Registration Statement, the Pricing Disclosure
Material 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).
15
(b) OFFICER'S CERTIFICATE. At the Commencement Date and at each
Settlement Date with respect to any applicable 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 Pricing Effective
Time, 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 D 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, a letter from KPMG LLP, independent public accountants, dated as of the
Commencement 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.
16
SECTION 6. ADDITIONAL COVENANTS OF THE COMPANY. The Company covenants and
agrees that:
(a) REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. Each sale of the
Notes to the Purchasing 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 sale and an
undertaking that such representations and warranties will be true and correct at
the time of delivery to the Purchasing Agent or to the Agents, of the Note or
Notes relating to such sale 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
(except for an amendment or supplement limited to information as to the offering
or sale of a particular tranche of Notes) or a new Registration Statement is
used by the Company with respect to the Notes, and (ii) there is filed with the
Commission any annual report on Form 10-K, quarterly report on Form 10-Q or
periodic report on Form 8-K incorporated by reference into the Prospectus and
Purchasing Agent reasonably requests, the Company shall furnish or cause to be
furnished to the Purchasing Agent promptly a certificate in form satisfactory to
the Purchasing 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 none of the Agents shall then hold any Notes purchased as principal
from the Purchasing Agent pursuant to a Terms Agreement;
(c) SUBSEQUENT DELIVERY OF LEGAL OPINIONS. Each time that the
Registration Statement or the Prospectus shall be amended or supplemented
(except for an amendment or supplement limited to information as to the offering
17
or sale of a particular tranche of Notes) or a new Registration Statement is
used by the Company with respect to the Notes, the Company shall furnish or
cause to be furnished promptly to the Agents a written opinion of the General
Counsel, Corporate Treasury 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, 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(d) 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) DISCRETIONARY ACCOUNTS. It will not confirm sales of any Notes to
accounts over which it exercises discretionary authority.
(c) BONA FIDE PURCHASER. It will not buy or hold Notes, as principal,
18
unless such Notes are intended to be sold on the Settlement Date to a bona fide
purchaser who is not an affiliate of such Agent. Notwithstanding the foregoing,
nothing herein shall prohibit any Agent from creating a secondary market for the
Notes.
(d) ▇▇▇▇▇▇▇▇▇▇.▇▇▇ WEBSITE. The Company is not responsible for any
material contained on the ▇▇▇▇▇▇▇▇▇▇.▇▇▇ website other than material prepared
and provided to you by the Company for inclusion on the website.
(e) SELLING RESTRICTIONS COMPLIANCE. (i) Each Agent hereby certifies
that such Agent has anti-money laundering policies and procedures in place in
accordance with the requirements imposed by the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism (USA PATRIOT Act) Act of 2001, Pub. L, 107-56, 115 Stat. 380 (October
26, 2001), or any rules or regulations promulgated thereunder, and will comply
with legal measures administered by the Office of Foreign Assets Control of the
United States Department of the Treasury. Each Agent also certifies that such
Agent has implemented an anti-money laundering compliance program pursuant to
NASD Rule 3011; and (ii) Each Agent will comply with all applicable laws and
regulations in each country or jurisdiction outside of the United States in or
from which it purchases, offers, sells or delivers Notes or has in its
possession or distributes the Prospectus for such Notes or any other offering
material and will obtain any consent, approval or permission required by it for
the purchase, offer or sale by it of the Notes under the laws and regulations in
force in any jurisdiction to which it is subject or in which it makes such
purchases, offers or sales and the Company shall have no responsibility
therefor.
(f) FREE WRITING PROSPECTUS USE. Except as otherwise agreed by the
Company and specified in a Terms Agreement with respect to a particular offering
of a tranche of Notes, it has not made and will not make any offer relating to
the Notes that would constitute a free writing prospectus, as defined in Rule
405 under the 1933 Act, other than a Permitted Free Writing Prospectus or a free
writing prospectus which is not required to be filed by the Company pursuant to
Rule 433 under the 1933 Act; provided, that, if so specified in the Terms
Agreement or the Company shall otherwise so notify the Agents in writing, the
Agent will make no offer relating to the Notes that will constitute a free
writing prospectus as defined in Rule 405 under the 1933 Act, other than a
Permitted Free Writing Prospectus, without the prior consent of the Company. Any
such material prepared by or on behalf of such Agent will only be used if it
complies in all material respects with the requirement of the 1933 Act and the
1933 Act Regulations.
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
19
and liabilities caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, any Preliminary
Prospectus, any Permitted Free Writing Prospectus, the Pricing Disclosure
Material 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), any Permitted Free
Writing Prospectus, the Pricing Disclosure Material, or any Prospectus 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 Pricing Disclosure Material or the
Prospectus (as then amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) was provided (with notice that it
contains additional or different material information) to such Agent by the
Company sufficiently far enough in advance of the time of sale in order to
enable such Agent to convey to the purchaser of the Notes and was not conveyed
by or on behalf of such Agent to such person at or prior to the entry into the
contract of sale of the Notes to such person pursuant to Rule 159 of the 1933
Act, and if the Pricing Disclosure Material or 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, (i)
with reference to information relating to such Agent furnished in writing by
such Agent expressly for use in the Registration Statement, any Permitted Free
Writing Prospectus, the Pricing Disclosure Material or the Prospectus or any
amendments or supplements thereto and (ii) arising from any other free writing
prospectus prepared by or on behalf of such Agent, except to the extent arising
from the information furnished in writing by the Company expressly for use
therein.
(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
20
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 indemnify 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
21
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.
22
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 ▇▇▇▇ ▇▇▇) 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 Purchasing Agent may, and
upon the request of an Agent with respect to any Notes being purchased by such
Agent shall, 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
23
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 the
Purchasing Agent or such Agent, 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 second 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 Purchasing 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 to the Purchasing 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 listed on Annex A, attached hereto.
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
24
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.
Section 15. RELATIONSHIP. The Company and the Agents acknowledge and agree
that in connection with all aspects of each transaction contemplated by this
Agreement, the Company and the Underwriters have an arms-length business
relationship that creates no fiduciary duty on the part of either party and each
expressly disclaims any fiduciary relationship
25
Very truly yours,
GENERAL ELECTRIC CAPITAL
CORPORATION
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President Corporate
Treasury & Global Funding Operation
CONFIRMED AND ACCEPTED,
as of the date first above written
Banc of America Securities LLC
By /s/ ▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Principal
Incapital LLC
By /s/▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co., Inc.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President, Fixed
Income Trading
Citigroup Capital Markets Inc.
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Managing Director
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co., L.P.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: General Principal
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Authorized Signatory
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Executive Director
UBS Financial Services Inc.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
Wachovia Securities LLC.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
ANNEX A
AGENT CONTACT INFORMATION
Banc of America Securities LLC
Bank of America ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇-▇▇-▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Incapital LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
#1 North Jefferson
Corporate Debt Syndication
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co., Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SF345CAL-19-113
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Citigroup Capital Markets Inc.
Transaction Execution Group
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co., L.P.
Corporate Bond Department
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
A-1
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
Global Transaction Management Group
4 World Financial ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Manager - Continuously Offered Products
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
w/copy to:
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Investment Banking Information Center
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
UBS Financial Services Inc.
Taxable Fixed Income Department
Attention: Corporate Desk
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Wachovia Securities LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ Plaza
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ Corci
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
A-2
EXHIBIT A
DEALER AGENT PROGRAM
--------------------
The following Concessions are payable as a percentage of the non-discounted
Price to Public of each Note sold through the Purchasing Agent.
9 months to less than 23 months ............... 0.200%
23 months to less than 35 months ............... 0.400%
35 months to less than 47 months ............... 0.625%
47 months to less than 59 months ............... 0.750%
59 months to less than 71 months ............... 1.000%
71 months to less than 83 months ............... 1.100%
83 months to less than 95 months ............... 1.200%
95 months to less than 107 months ............... 1.300%
107 months to less than 119 months ............... 1.400%
119 months to less than 131 months ............... 1.500%
131 months to less than 143 months ............... 1.600%
143 months to less than 179 months ............... 1.750%
179 months to less than 239 months ............... 2.000%
239 months to less than 360 months ............... 2.500%
360 months or greater ............................ 3.000%
A-3
EXHIBIT B
General Electric Capital Corporation
INTERNOTES
DUE FROM NINE MONTHS OR MORE FROM DATE OF ISSUE
ADMINISTRATIVE PROCEDURES
InterNotes, due from nine months or more from date of issue are offered on a
continuing basis by General Electric Capital Corporation. The Notes will be
offered by Incapital LLC (the "Purchasing Agent"), Banc of America Securities
LLC, ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co., Citigroup Capital Markets
Inc., ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co., L.P., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, Prudential Securities
Incorporated, UBS Financial Services Inc. and Wachovia Securities LLC
(collectively, the "Agents") pursuant to a Selling Agent Agreement among the
Company and the Agents dated as of the date hereof (the "Selling Agent
Agreement") and one or more terms agreements substantially in the form attached
to the Selling Agent Agreement as Exhibit C (each a "Terms Agreement"). The
Notes are being resold by the Purchasing Agent (and by any Agent that purchases
them from the Purchasing Agent) (i) directly to customers of the Agents or (ii)
to selected broker-dealers (the "Selected Dealers") for distribution to their
customers pursuant to a Master Selected Dealer Agreement (a "Dealers Agreement")
attached to the Selling Agent Agreement as Exhibit E. The Agents have agreed to
use their reasonable best efforts to solicit purchases of the Notes. The Notes
are senior debt and have been registered with the Securities and Exchange
Commission (the "SEC"). JPMorgan Chase Bank, N.A is the trustee (the "Trustee")
for debt under a Third Amended and Restated Indenture dated as of February 27,
1997, as supplemented from time to time, between the Company and the Trustee (as
supplemented, the "Indenture") covering the Notes. Pursuant to the terms of the
Indenture, JPMorgan Chase Bank, N.A. also will serve as authenticating agent,
issuing agent and paying agent.
Each tranche of Notes will be issued in book-entry only form ("Notes") and
represented by one or more fully registered global notes without coupons (each,
a "Global Note") held by the Trustee, as agent for The Depository Trust
Corporation ("DTC") and recorded in the book-entry system maintained by DTC.
Each Global Note will have the annual interest rate, maturity and other terms
set forth in the relevant Pricing Supplement (as defined in the Selling Agent
Agreement). Owners of beneficial interests in a Global Note will be entitled to
physical delivery of Notes issued in certificated form equal in principal amount
to their respective beneficial interests only upon certain limited circumstances
described in the Indenture.
Administrative procedures and specific terms of the offering are explained
below. Administrative and record-keeping responsibilities will be handled for
the Company by its Treasury Department. The Company will advise the Agents and
the Trustee in writing of those persons handling administrative responsibilities
with whom the Agents and the Trustee are to communicate regarding offers to
purchase Notes and the details of their delivery.
Notes will be issued in accordance with the administrative procedures set forth
in herein. To the extent the procedures set forth below conflict with or omit
certain of the provisions of the Notes,
B-1
the Indenture, the Selling Agent Agreement or the Prospectus and the Pricing
Supplement (together, the "Prospectus"), the relevant provisions of the Notes,
the Indenture, the Selling Agent Agreement and the Prospectus shall control.
Capitalized terms used herein that are not otherwise defined shall have the
meanings ascribed thereto in the Selling Agent Agreement, the Prospectus in the
form most recently filed with the SEC pursuant to Rule 424 of the 1933 Act, or
in the Indenture.
Administrative Procedures for Notes
-----------------------------------
In connection with the qualification of 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
obligations under a Letter of Representations from the Company and the Trustee
to DTC, dated November 22, 2002 and a Medium-Term Note Certificate Agreement
between the Trustee and DTC (the "Certificate Agreement") dated November 13,
2001 and its obligations as a participant in DTC, including DTC's Same-Day Funds
Settlement System ("SDFS"). The procedures set forth below may be modified in
compliance with DTC's then-applicable procedures and upon agreement by the
Company, the Trustee and the Purchasing Agent.
Maturities: Each Note will mature on a date (the "Maturity
Date") not less than nine months after the date of
delivery by the Company of such Note. Notes will
mature on any date selected by the initial purchaser
and agreed to by the Company. "Maturity" when used
with respect to any Note, means the date on which
the outstanding principal amount of such Note
becomes due and payable in full in accordance with
its terms, whether at its Maturity Date or by
declaration of acceleration, call for redemption,
repayment or otherwise.
Issuance: All Notes having the same terms will be represented
initially by a single Global Note. Each Global Note
will be dated and issued as of the date of its
authentication by the Trustee.
Each Global Note will bear an original issue date
(the "Original Issue Date"). The Original Issue Date
shall remain the same for all Notes subsequently
issued upon transfer, exchange or substitution of an
original Note regardless of their dates of
authentication.
Identification The Company has received from the CUSIP Service
Numbers: Bureau (the CUSIP Service Bureau") of Standard &
Poor's Corporation ("Standard & Poor's") one series
of CUSIP numbers consisting of approximately 900
CUSIP numbers for future assignment to Global Notes.
The Company will provide the Purchasing Agent, DTC
and the Trustee with a list of such CUSIP numbers. On
behalf of the Company, the Purchasing Agent will
assign CUSIP numbers as described below under
"Procedure for Rate Setting and Posting". DTC will
notify the CUSIP Service Bureau periodically of the
B-2
CUSIP numbers that the Company has assigned to Global
Notes. The Company will reserve additional CUSIP
numbers when necessary for assignment to Global Notes
and will provide the Purchasing Agent, the Trustee
and DTC with the list of additional CUSIP numbers so
obtained.
Registration: Unless otherwise specified by DTC, Global Notes will
be issued only in fully registered form without
coupons. Each Global Note will be registered in the
name of Cede & Co., as nominee for DTC, on the Note
Register maintained under the Indenture by the
Trustee. The beneficial owner of a 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 of 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 interests in a Global Note will be
accomplished 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
interests.
Exchanges: The Trustee, at the Company's request, may deliver
to DTC and the CUSIP Service Bureau at any time a
written notice of consolidation specifying (a) the
CUSIP numbers of two or more Global Notes
outstanding on such date that represent Notes having
the same terms (except that Original Issue Dates
need not be the same) and for which interest, if
any, has been paid to the same date and which
otherwise constitute Notes of the same series and
tenor under the Indenture, (b) a date, occurring at
least 30 days after such written notice is delivered
and at least 30 days before the next Interest
Payment Date, if any, for the related Notes, on
which such Global Notes shall be exchanged for a
single replacement Global Note; and (c) a new CUSIP
number, obtained from the Company, to be assigned to
such replacement Global Note. Upon receipt of such
a notice, DTC will send to its participants
(including the relevant Agent) and 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 written notice setting
forth such exchange date and
B-3
the new CUSIP number and stating that, as of such
exchange date, the CUSIP numbers of the Global Notes
to be exchanged will no longer be valid. On the
specified exchange date, the Trustee will exchange
such Global Notes for a single Global Note bearing
the new CUSIP number and the CUSIP numbers of the
exchanged Global Notes will, in accordance with CUSIP
Service Bureau procedures, be cancelled and not
immediately reassigned. Notwithstanding the
foregoing, if the Global Notes to be exchanged exceed
$500,000,000 in aggregate principal or face amount or
any other limit set by DTC (the "Permitted Amount"),
one replacement Global Note will be authenticated and
issued to represent each Permitted Amount of
principal or face amount of the exchanged Global
Notes and an additional Global Note will be
authenticated and issued to represent any remaining
principal amount of such Global Notes (See
"Denominations" below).
Denominations: Unless otherwise agreed by the Company, Notes will
be issued in denominations of $1,000 or more (in
multiples of $1,000). Global Notes will be
denominated in principal or face amounts not in
excess of the Permitted Amount. If one or more
Notes having an aggregate principal or face amount
in excess of the Permitted Amount would, but for the
preceding sentence, be represented by a single
Global Note, then one Global Note will be issued to
represent each Permitted Amount of principal or face
amount of such Note or Notes and an additional
Global Note will be Issued to represent any
remaining principal amount of such Note or Notes.
In such case, each of the Global Notes representing
such Note or Notes shall be assigned the same CUSIP
number.
Issue Price: Unless otherwise specified in an applicable Pricing
Supplement, each Note will be issued at the
percentage of principal amount specified in the
Prospectus relating to such Note.
Interest: GENERAL. Each Note will bear interest at a fixed
rate. Interest on each Note will accrue from the
Original Issue Date of such Note for the first
interest period and from the most recent Interest
Payment Date to which interest has been paid for all
subsequent interest periods. Except as set forth
hereafter, each payment of interest on a Note will
include interest accrued to, but excluding, as the
case may be, the Interest Payment Date or the date
of Maturity (other than a Maturity Date of a Note
occurring on the 31st day of a month in which case
such payment of interest will include interest
accrued to but excluding the 30th day of such
month). Any payment of principal, premium or
interest required to be made on a day that is not a
Business Day (as defined below) may be made on the
next succeeding Business Day and no interest shall
accrue as a result of any such delayed payment.
B-4
Each pending deposit message described under
Settlement Procedure "C" below will be routed to
Standard & Poor's Corporation, which will use the
message to include certain information regarding the
related Notes in the appropriate daily bond report
published by Standard & Poor's Corporation.
Each Note will bear interest from, and including, its
Original Issue Date at the rate per annum set forth
thereon and in the applicable Pricing Supplement
until the principal amount thereof is paid, or made
available for payment, in full. Unless otherwise
specified in the applicable Pricing Supplement,
interest on each Note will be payable either monthly,
quarterly, semi-annually or annually on each Interest
Payment Date and at Maturity (or on the date of
redemption or repayment if a Note is repurchased by
the Company prior to maturity pursuant to mandatory
or optional redemption or repayment provisions or the
Survivor's Option). Interest will be payable to the
person in whose name a Note is registered at the
close of business on the Regular Record Date next
preceding each Interest Payment Date; provided,
however, interest payable at Maturity, on a date of
redemption or repayment or in connection with the
exercise of the Survivor's Option will be payable to
the person to whom principal shall be payable.
Any payment of principal, and premium, if any, or
interest required to be made on a Note on a day which
is not a Business Day need not be made on such day,
but may be made on the next succeeding Business Day
with the same force and effect as if made on such
day, and no additional interest shall accrue as a
result of such delayed payment. Unless otherwise
specified in the applicable Pricing Supplement, any
interest on the Notes will be computed on the basis
of a 360-day year of twelve 30-day months. The
interest rates the Company will agree to pay on
newly-issued Notes are subject to change without
notice by the Company from time to time, but no such
change will affect any Notes already issued or as to
which an offer to purchase has been accepted by the
Company.
The Interest Payment Dates for a Note that provides
for monthly interest payments shall be the fifteenth
day of each calendar month, commencing in the
calendar month that next succeeds the month in which
the Note is issued. In the case of a Note that
provides for quarterly interest payments, the
Interest Payment Dates shall be the fifteenth day of
each third month, commencing in the third succeeding
calendar month following the month in which the Note
is issued. In the case of a Note that provides for
semi-annual
B-5
interest payments, the Interest Payment dates shall
be the fifteenth day of each sixth month, commencing
in the sixth succeeding calendar month following the
month in which the Note is issued. In the case of a
Note that provides for annual interest payments, the
Interest Payment Date shall be the fifteenth day of
every twelfth month, commencing in the twelfth
succeeding calendar month following the month in
which the Note is issued. The Regular Record Date
with respect to any Interest Payment Date shall be
the first day of the calendar month in which such
Interest Payment Date occurred, except that the
Regular Record Date with respect to the final
Interest Payment Date shall be the final Interest
Payment Date.
Each payment of interest on a Note shall include
accrued interest from and including the Original
Issue Date or from and including the last day in
respect of which interest has been paid (or duly
provided for), as the case may be, to, but excluding,
the Interest Payment Date or Maturity Date, as the
case may be.
Calculation of Interest: Interest on the Notes (including interest for
partial periods) will be calculated on the basis of
a 360-day year of twelve 30-day months. (Examples
of interest calculations are as follows: October 1,
1998 to April 1, 1999 equals 6 months and 0 days, or
180 days; the interest paid equals 180/360 times the
annual rate of interest times the principal amount
of the Note. The period from December 3, 1998 to
April 1, 1999 equals 3 months and 28 days, or 118
days; the interest payable equals 118/360 times the
annual rate of interest times the principal amount
of the Note.)
Business Day: "Business Day" means, unless otherwise specified in
the applicable Pricing Supplement, any weekday that
is (1) not a legal holiday in New York, New York and
(2) not a day on which banking institutions in New
York, New York are authorized or required by law or
regulation to be closed.
Payments of Principal
and Interest: PAYMENTS OF PRINCIPAL AND INTEREST. Promptly after
each Regular Record Date, the Trustee will deliver
to the Company and DTC a written notice specifying
by CUSIP number the amount of interest, if any, to
be paid on each Global Note on the following
Interest Payment Date (other than an Interest
Payment Date coinciding with a Maturity Date) and
the total of such amounts. DTC will confirm the
amount payable on each Global Note on such Interest
Payment Date by reference to the daily bond reports
published by Standard & Poor's. On such Interest
Payment Date, the Company will pay to the Trustee,
and the Trustee in turn will pay to DTC, such total
B-6
amount of interest due (other than on the Maturity
Date), at the times and in the manner set forth
below under "Manner of Payment." If any Interest
Payment Date for any 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 ON THE MATURITY DATE. On or about the first
Business Day of each month, the Trustee will deliver
to the Company and DTC a written list of principal,
premium, if any, and interest to be paid on each
Global Note representing Notes maturing or subject to
redemption (pursuant to a sinking fund or otherwise)
or repayment ("Maturity") in the following month. The
Trustee, the Company and DTC will confirm the amounts
of such principal, premium, if any, and interest
payments with respect to each Global Note on or about
the fifth Business Day preceding the Maturity Date of
such Global Note. On the Maturity Date, the Company
will pay to the Trustee, and the Trustee in turn will
pay to DTC, the principal amount of such Global Note,
together with interest and premium, if any, due on
such Maturity Date, at the times and in the manner
set forth below under "Manner of Payment." If the
Maturity Date of any Global 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 Maturity Date. Promptly after payment to DTC of
the principal and interest due on the Maturity Date
of such Global Note and all other Notes represented
by such Global Note, the Trustee will cancel and
dispose of such Global Note in accordance with the
Indenture and so advise the Company.
MANNER OF PAYMENT. The total amount of any principal,
premium, if any, and interest due on Global Notes on
any Interest Payment Date or at Maturity shall be
paid by the Company to the Trustee in immediately
available funds on such date. The Company will make
such payment on such Global Notes to an account
specified by the Trustee. Prior to 10:00 a.m., New
York City time, on the date of Maturity or as soon as
practicable thereafter, the Trustee will make payment
to DTC in accordance with existing arrangements
between DTC and the Trustee, in funds available for
immediate use by DTC, each payment of interest,
principal and premium, if any, due on a Global Note
on such date. On each Interest Payment Date (other
than on the Maturity Date) the Trustee will pay DTC
such interest payments 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 SDFS operating
procedures then in effect, such amounts in
B-7
funds available for immediate use to the respective
Participants with payments in amounts proportionate
to their respective holdings in principal amount of
beneficial interest in such Global Note as are
recorded in the book-entry system maintained by DTC.
Neither the Company nor the Trustee shall have any
direct responsibility or liability for the payment by
DTC of the principal of, or premium, if any, or
interest on, the Notes to such Participants.
WITHHOLDING TAXES. The amount of any taxes required
under applicable law to be withheld from any interest
payment on a Note will be determined and withheld by
the Participant, indirect participant in DTC or other
person responsible for forwarding payments and
materials directly to the beneficial owner of such
Note.
Procedure for Rate
Setting and Posting: The Company and the Agents will discuss, from time
to time, the aggregate principal amounts of, the
Maturities, the Issue Price and the interest rates
to be borne by Notes that may be sold as a result of
the solicitation of orders by the Agents. If the
Company decides to set interest rates borne by any
Notes in respect of which the Agents are to solicit
orders (the setting of such interest rates to be
referred to herein as "Posting") or if the Company
decides to change interest rates previously posted
by it, it will promptly advise the Agents of the
prices and interest rates to be posted.
The Purchasing Agent will assign a separate CUSIP
number for each tranche of Notes to be posted, and
will so advise and notify the Company and the Trustee
of said assignment by telephone and/or by telecopier
or other form of electronic transmission. The
Purchasing Agent will include the assigned CUSIP
number on all Posting notices communicated to the
Agents and Selected Dealers.
Offering of Notes: In the event that there is a
Posting, the Purchasing Agent will communicate to
each of the Agents and Selected Dealers the aggregate
principal amount and Maturities of, along with the
interest rates to be borne by, each tranche of Notes
that is the subject of the Posting. Thereafter, the
Purchasing Agent, along with the other Agents and the
Selected Dealers, will solicit offers to purchase the
Notes accordingly.
Purchase of Notes by
the Purchasing Agent: The Purchasing Agent will, no later than 12:00 noon
(New York City time) on the seventh day subsequent
to the day on which such Posting occurs, or if such
seventh day is not a Business Day on the
B-8
preceding Business Day, or on such other Business Day
and time as shall be mutually agreed upon by the
Company and the Agents (any such day, a "Trade Day"),
(i) complete, execute and deliver to the Company a
Terms Agreement that sets forth, among other things,
the amount of each tranche that the Purchasing Agent
is offering to purchase or (ii) inform the Company
that none of the Notes of a particular tranche will
be purchased by the Purchasing Agent.
Acceptance and
Rejection of Orders: Unless otherwise agreed by the Company and the
Agents, the Company has the sole right to accept
orders to purchase Notes and may reject any such
order in whole or in part. Unless otherwise
instructed by the Company, the Purchasing Agent will
promptly advise the Company by telephone of all
offers to purchase Notes received by it, other than
those rejected by it in whole or in part in the
reasonable exercise of its discretion. No order for
less than $1,000 principal amount of Notes will be
accepted.
Upon receipt of a completed and executed Terms
Agreement from the Purchasing Agent, the Company will
(i) promptly execute and return such Terms Agreement
to the Purchasing Agent or (ii) inform the Purchasing
Agent that its offer to purchase the Notes of a
particular tranche has been rejected, in whole or in
part. The Purchasing Agent will thereafter promptly
inform the other Agents and participating Selected
Dealers of the action taken by the Company.
Preparation of Pricing If any offer to purchase a Note is accepted by or on
Supplement: behalf of the Company, the Company will provide a
Pricing Supplement (substantially in the form
attached to the Selling Agent Agreement as Exhibit D)
reflecting the terms of such Note and will have filed
such Pricing Supplement with the SEC in accordance
with the applicable paragraph of Rule 424(b) under
the Act. The Company shall use its reasonable best
efforts to send such Pricing Supplement by email or
telecopy to the Purchasing Agent and the Trustee by
3:00 p.m. (New York City Time) on the applicable
Trade Day. The Purchasing Agent shall use its
reasonable best efforts to send such Pricing
Supplement and the Prospectus by email or telecopy or
overnight express (for delivery by the close of
business on the applicable Trade Day, but in no event
later than 11:00 a.m. New York City time, on the
Business Day following the applicable Trade Date) to
each Agent (or other Selected Dealer) which made or
presented the offer to purchase the applicable Note
and the Trustee at the following applicable address:
B-9
IF TO BANC OF AMERICA SECURITIES LLC, TO:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
IF TO INCAPITAL LLC, TO:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
IF TO ▇.▇. ▇▇▇▇▇▇▇ & SONS, INC, TO:
#1 North Jefferson
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
IF TO ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & CO., INC., TO:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co., Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SF345CAL-19-113
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
IF TO CITIGROUP CAPITAL MARKETS, INC., TO:
Citigroup Capital Markets Inc.
Transaction Execution Group
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
B-10
IF TO ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & CO., L.P., TO:
Corporate Bond Department
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
IF TO ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED, TO:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Production Technologies
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Prospectus Operations/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇/5/6
email: ▇▇▇▇▇▇▇▇@▇▇▇.▇▇.▇▇.▇▇▇
IF TO ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED, TO:
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: MTN Trading Desk, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
IF TO UBS FINANCIAL SERVICES INC., TO:
Taxable Financial Income Department
Attention: Corporate Desk
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
IF TO WACHOVIA SECURITIES LLC, TO:
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ Plaza
West Tower, 3rd Floor
Richmond, VA 23219
Attn: ▇▇▇▇▇▇ Corci
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
B-11
AND IF TO THE TRUSTEE, TO:
JPMorgan Chase Bank
▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Worldwide Securities Services
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
For record keeping purposes, one copy of each Pricing
Supplement, as so filed, shall also be mailed or
telecopied to:
Banc of America Securities LLC
Bank of America Corporate Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Each such Agent (or Selected Dealer), in turn,
pursuant to the terms of the Selling Agent Agreement
and the Master Selected Dealer Agreement, will
deliver to the purchaser a notice of availability
(pursuant to Rule 172 of the ▇▇▇▇ ▇▇▇) or cause to be
delivered a copy of the Prospectus and the applicable
Pricing Supplement to each purchaser of Notes from
such Agent or Selected Dealer.
Outdated Pricing Supplements and the Prospectuses to
which they are attached (other than those retained
for files) will be destroyed.
Delivery of Confirmation
and Prospectus to
Purchaser
by Presenting Agent: Subject to "Suspension of Solicitation; Amendment or
Supplement" below, the Agents will deliver to the
purchaser a notice of availability (pursuant to Rule
172 of the ▇▇▇▇ ▇▇▇) or deliver a Prospectus and
Pricing Supplement as herein described with respect
to each Note sold by it.
B-12
For each offer to purchase a Note accepted by or on
behalf of the Company, the Purchasing Agent will
confirm in writing with each Agent or Selected Dealer
the terms of such Note, the amount being purchased by
such Agent or Selected Dealer and other applicable
details described above and delivery and payment
instructions, with a copy to the Company.
In addition, the Purchasing Agent, other Agent or
Selected Dealer, as the case may be, will deliver to
the purchaser a notice of availability (pursuant to
Rule 172 of the ▇▇▇▇ ▇▇▇) or deliver to investors
purchasing the Notes the Prospectus (including the
Pricing Supplement) in relation to such Notes prior
to or simultaneously with delivery of the
confirmation of sale or delivery of the Note.
Settlement: The receipt of immediately available funds by the
Company in payment for Notes and the authentication
and issuance of the Global Note representing such
Notes shall constitute "Settlement" with respect to
such Note. All orders accepted by the Company will
be settled within one to three Business Days
pursuant to the timetable for Settlement set forth
below, unless the Company and the purchaser agree to
Settlement on a later date, and shall be specified
upon acceptance of such offer; provided, however, in
all cases the Company will notify the Trustee on the
date issuance instructions are given.
Settlement Procedures: In the event of a purchase of Notes by any Agent, as
agent, appropriate Settlement details, if different
from those set forth below, will be set forth in the
applicable Terms Agreement to be entered into
between such Agent and the Company pursuant to the
Selling Agent Agreement. Settlement Procedures with
regard to each Note sold by an Agent, as principal
for the Company, shall be as follows:
A. After the acceptance of an offer by the Company
with respect to a Note, the Purchasing Agent
will communicate the following details of the
terms of such offer (the "Note Sale
Information") to the Company by telephone
confirmed in writing or by facsimile
transmission or other acceptable written means:
1. Principal amount of the purchase;
2. Interest Rate per annum;
B-13
3. Interest Payment Frequency;
4. Settlement Date;
5. Maturity Date;
6. Price to Public;
7. Purchasing Agent's commission determined
pursuant to Section IV(a) of the Selling
Agent Agreement;
8. Net proceeds to the Company;
9. Trade Date;
10. If a Note is redeemable by the Company or
repayable by the Noteholder, such of the
following as are applicable:
(i) The date on and after which such
Note may be redeemed/repaid (the
"Redemption/ Repayment Commencement
Date"),
(ii) Initial redemption/repayment price
(% of par), and
(iii) Amount (% of par) that the initial
redemption/repayment price shall
decline (but not below par) on each
anniversary of the
Redemption/Repayment Commencement
Date;
11. Whether the Note has a Survivor's Option;
12. DTC Participant Number of the institution
through which the customer will hold the
beneficial interest in the Global Note; and
13. Such other terms as are necessary to
complete the applicable form of Note.
B-14
B. The Company will confirm the previously assigned
CUSIP number to the Global Note representing
such Note and then advise the Trustee and the
Purchasing Agent by telephone, or by telecopier
or other form of electronic transmission
(confirmed in writing at anytime on the same
date) of the information received in accordance
with Settlement Procedure "A" above, the
assigned CUSIP number and the name of the
Purchasing Agent. Each such communication by the
Company will be deemed to constitute a
representation and warranty by the Company to
the Trustee and the Agents that (i) such Note is
then, and at the time of issuance and sale
thereof will be, duly authorized for issuance
and sale by the Company; (ii) such Note, and the
Global Note representing such Note, will conform
with the terms of the Indenture; and (iii) upon
authentication and delivery of the Global Note
representing such Note, the aggregate principal
amount of all Notes issued under the Indenture
will not exceed the aggregate principal amount
of Notes authorized for issuance at such time by
the Company.
C. The Trustee will communicate to DTC and the
Purchasing Agent through DTC's Participant
Terminal System, a pending deposit message
specifying the following Settlement information:
1. The information received in accordance with
Settlement Procedure "A".
2. The numbers of the participant accounts
maintained by DTC on behalf of the Trustee
and the Purchasing Agent.
3. The initial Interest Payment Date for such
Note, number of days by which such date
succeeds the related DTC record date (which
term means the Regular Record Date), and if
then calculated, the amount of interest
payable on such Initial Interest Payment
Date (which amount shall have been
confirmed by the Trustee).
4. The CUSIP number of the Global Note
representing such Notes.
5. The frequency of interest.
B-15
6. Whether such Global Note represents any
other Notes issued or to be issued (to the
extent then known).
D. DTC will credit such Note to the participant
account of the Trustee maintained by DTC.
E. The Trustee will complete and deliver a Global
Note representing such Note in a form that has
been approved by the Company, the Agents and the
Trustee.
F. The Trustee will authenticate the Global Note
representing such Note and maintain possession
of such Global Note.
G. The Trustee will enter an SDFS 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 participant account of the
Purchasing Agent maintained by DTC and (ii)
debit the settlement account of the Purchasing
Agent and credit the settlement account of the
Trustee maintained by DTC, in an amount equal to
the price of such Note less the Purchasing
Agent's commission. The entry of such a deliver
order shall be deemed to constitute a
representation and warranty by the Trustee to
DTC that (a) the Global Note representing such
Note has been issued and authenticated and (b)
the Trustee is holding such Global Note pursuant
to the Certificate Agreement.
H. The Purchasing Agent will enter an SDFS deliver
order through DTC's Participant Terminal System
instructing DTC to (i) debit such Note to the
Purchasing Agent's participant account and
credit such Note to the participant accounts of
the Participants to whom such Note is to be
credited maintained by DTC and (ii) debit the
settlement accounts of such Participants and
credit the settlement account of the Purchasing
Agent maintained by DTC, in an amount equal to
the price of the Note less the agreed upon
commission so credited to their accounts.
I. Transfers of funds in accordance with SDFS
deliver orders described in Settlement
Procedures "G" and "H" will be settled in
accordance with SDFS operating procedures in
effect on the Settlement Date.
B-16
J. The Trustee will credit to an account of the
Company maintained at JPMorgan Chase Bank, N.A.
funds available for immediate use in an amount
equal to the amount credited to the Trustee's
DTC participant account in accordance with
Settlement Procedure "G".
K. The Trustee will send a copy of the Global Note
representing such Note by first-class mail to
the Company.
L. Each Agent and Selected Dealer will confirm the
purchase of each Note to the purchaser thereof
either by transmitting to the Participant to
whose account such Note has been credited a
confirmation order through DTC's Participant
Terminal System or by mailing a written
confirmation to such purchaser. In all cases the
Prospectus as most recently amended or
supplemented must accompany or precede such
confirmation.
M. Each Business Day, 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 the CUSIP
number(s) assigned to, and a brief description
of, any orders which the Company has advised the
Trustee but which have not yet been settled.
Settlement Procedures
Timetable: In the event of a purchase of Notes by the
Purchasing Agent, as principal, appropriate
Settlement details, if different from those set
forth below will be set forth in the applicable
Terms Agreement to be entered into between the
Purchasing Agent and the Company pursuant to the
Selling Agent Agreement.
Settlement Procedures "A" through "M" 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 4:00 p.m. on the Trade Day.
B 5:00 p.m. on the Trade Day.
C 2:00 p.m. on the Business Day before the
Settlement Date.
D 10:00 a.m. on the Settlement Date.
E 12:00 p.m. on the Settlement Date.
F 12:30 a.m. on the Settlement Date.
B-17
G-H 2:00 p.m. on the Settlement Date.
I 4:45 p.m. on the Settlement Date.
▇-▇ 5:00 p.m. on the Settlement Date.
M Weekly or at the request of the Company.
NOTE: The Prospectus as most recently amended or
supplemented must accompany or precede any written
confirmation given to the customer (Settlement
Procedure "L"). Settlement Procedure "I" is subject
to extension in accordance with any extension Fedwire
closing deadlines and in the other events specified
in the SDFS operating procedures in effect on the
Settlement Date.
If Settlement of a Note is rescheduled or cancelled,
the Trustee will deliver to DTC, through DTC's
Participant Terminal System, a cancellation message
to such effect by no later than 2:00 p.m., New York
City time, on the Business Day immediately preceding
the scheduled Settlement Date.
B-18
Failure to Settle: If the Trustee fails to enter an SDFS deliver order
with respect to a Note pursuant to Settlement
Procedure "G", 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 participant account of the
Trustee maintained at DTC. DTC will process the
withdrawal message, provided that such participant
account contains Notes having the same terms and
having a principal amount that is at least equal to
the principal amount of such Note to be debited. If
withdrawal messages are processed with respect to
all the Notes issued or to be issued represented by
a Global Note, the Trustee will cancel such Global
Note in accordance with the Indenture, make
appropriate entries in its records and so advise the
Company. The CUSIP number assigned to such Global
Note shall, in accordance with CUSIP Service Bureau
procedures, be cancelled and not immediately
reassigned. If withdrawal messages are processed
with respect to one or more, but not all, of the
Notes represented by a Global Note, the Trustee will
exchange such Global Note for two Global Notes, one
of which shall represent such Notes and shall be
cancelled immediately after issuance, and the other
of which shall represent the remaining Notes
previously represented by the surrendered Global
Note and shall bear the CUSIP number of the
surrendered Global Note. If the purchase price for
any 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
related Agent may enter SDFS deliver orders through
DTC's participant Terminal System reversing the
orders entered pursuant to Settlement Procedures "G"
and "H", respectively. Thereafter, the Trustee will
deliver the withdrawal message and take the related
actions described in the preceding paragraph. If
such failure shall have occurred for any reason
other than default by the Agent in the performance
of its obligations hereunder or under the Selling
Agent Agreement, the Company will reimburse the
Agent on an equitable basis for its reasonable
out-of-pocket accountable expenses actually incurred
and loss of the use of funds during the period when
they were credited to the account of the Company.
B-19
Notwithstanding the foregoing, upon any failure to
settle with respect to a Note, DTC may take any
actions in accordance with its SDFS operating
procedures then in effect. In the event of a failure
to settle with respect to one or more, but not all,
of Notes that were to have been represented by a
Global Note, the Trustee will provide, in accordance
with Settlement Procedures "D" and "E", for the
authentication and issuance of a Global Note
representing the other Notes to have been represented
by such Global Note and will make appropriate entries
in its records.
Procedure for
Rate Changes: Each time a decision has been reached to change
rates, the Company will promptly advise the
Agents of the new rates, who will forthwith suspend
solicitation of purchases of Notes at the prior
rates. The Agents may telephone the Company with
recommendations as to the changed interest rates.
Suspension of Solicitation
Amendment or Supplement: Subject to the Company's representations, warranties
and covenants contained in the Selling Agent
Agreement, the Company may instruct the Agents to
suspend at any time for any period of time or
permanently, the solicitation of orders to purchase
Notes. Upon receipt of such instructions (which may
be given orally), each Agent will forthwith suspend
solicitation until such time as the Company has
advised it that solicitation of purchases may be
resumed.
In the event that at the time the Company suspends
solicitation of purchases there shall be any orders
outstanding for settlement, the Company will promptly
advise the Agents and the Trustee whether such orders
may be settled and whether copies of the Prospectus
as in effect at the time of the suspension may be
delivered in connection with the settlement of such
orders. The Company will have the sole responsibility
for such decision and for any arrangements which may
be made in the event that the Company determines that
such orders may not be settled or that copies of such
Prospectus may not be so delivered.
B-20
If the Company decides to amend or supplement the
Registration Statement or the Prospectus, it will
promptly advise the Agents and furnish the Agents and
the Trustee with the proposed amendment or supplement
and with such certificates and opinions as are
required, all to the extent required by and in
accordance with the terms of the Selling Agent
Agreement. Subject to the provisions of the Selling
Agent Agreement, the Company may file with the
Commission any supplement to the Prospectus relating
to the Notes. The Company will provide the Agents and
the Trustee with copies of any such supplement, and
confirm to the Agents that such supplement has been
filed with the SEC.
Trustee Not to Risk Funds: Nothing herein shall be deemed to require the Trustee
to risk or expend its own funds in connection with
any payment to the Company, or the Agents or the
purchasers, it being understood by all parties that
payments made by the Trustee to either the Company or
the Agents shall be made only to the extent that
funds are provided to the Trustee for such purpose.
Advertising Costs: The Company shall have the sole right to approve the
form and substance of any advertising an Agent may
initiate in connection with such Agent's solicitation
to purchase the Notes. The expense of such
advertising will be solely the responsibility of such
Agent, unless otherwise agreed to by the Company.
B-21
EXHIBIT C
TERMS AGREEMENT
_________, 2006
General Electric Capital Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Senior Vice President - Corporate Treasury & Global Funding Operation
The undersigned agrees to purchase the following aggregate principal amount of
GE Capital InterNotes:
$____________
The terms of such Notes shall be as follows:
CUSIP Number: __________
Interest Rate: _____%
Maturity Date: __________
Price to Public: 100%
Agent's Concession: ___%
Net Proceeds to Issuer: _________
Settlement Date, Time and Place: __________
Survivor's Option: __________
Interest Payment Frequency: __________
Optional Redemption/Repayment, if any: __________
Initial Redemption/Repayment Date[s]: __________
Redemption/Repayment Price: Initially ___% of Principal Amount and declining by
___% of the Principal Amount on each anniversary of the Initial Redemption/
Repayment Date until the Redemption/Repayment Price is 100% of the
Principal Amount.
[Any other terms and conditions agreed to by the Purchasing Agent and the
Company]
INCAPITAL LLC
By:___________________________________
Title:________________________________
ACCEPTED
GENERAL ELECTRIC CAPITAL CORPORATION
By:___________________________________
Title:________________________________
C-1
Exhibit D
Form of Pricing Supplement
--------------------------
Pricing Supplement Dated: ___________ Rule 424(b)(3)
(To Prospectus Dated March 29, 2006) File No. 333-______
Pricing Supplement No. ______________
GENERAL ELECTRIC CAPITAL CORPORATION
INTERNOTES(SM)
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
_________________________________________________________________
Trade Date: ____________________________________
Issue Date: ___________________________________
Joint Lead Managers: ___________________________
Agents: __________________________________
_________________________________________________________________
______________________________________________________________
CUSIP AGGREGATE PRICE CONCESSION NET INTEREST
PRINCIPAL TO PROCEEDS RATE
AMOUNT PUBLIC TO ISSUER
______________________________________________________________
______________________________________________________________
________________________________________________________________________________
INTEREST MATURITY SURVIVOR'S REDEMPTION OR REDEMPTION/
PAYMENT DATE OPTION REPAYMENT REPAYMENT TERMS
FREQUENCY YES/NO
________________________________________________________________________________
________________________________________________________________________________
Other Terms:
____________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
D-1
EXHIBIT E
Master Selected Dealer Agreement
--------------------------------
FirstName
Company
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ Postal
Dear Selected Dealer:
In connection with public offerings of securities after the date hereof
for which we are acting as manager of an underwriting syndicate or are otherwise
responsible for the distribution of securities to the public by means of an
offering of securities for sale to selected dealers, you may be offered the
right as such a selected dealer to purchase as principal a portion of such
securities. This will confirm our mutual agreement as to the general terms and
conditions applicable to your participation in any such selected dealer group
organized by us as follows.
(k) APPLICABILITY OF THIS AGREEMENT. The terms and conditions
of this Agreement shall be applicable to any public offering of
securities ("Securities"), pursuant to a registration statement filed
under the Securities Act of 1933 (the "Securities Act"), or exempt from
registration thereunder (other than a public offering of Securities
effected wholly outside the United States of America), wherein Incapital
LLC clearing through BNY Clearing Services, LLC (the "Account") (acting
for its own Account or for the account of any underwriting or similar
group or syndicate) is responsible for managing or otherwise implementing
the sale of the Securities to selected dealers ("Selected Dealers") and
has expressly informed you that such terms and conditions shall be
applicable. Any such offering of Securities to you as a Selected Dealer
is hereinafter called an "Offering". In the case of any Offering where we
are acting for the account of any underwriting or similar group or
syndicate ("Underwriters"), the terms and conditions of this Agreement
shall be for the benefit of, and binding upon, such Underwriters,
including, in the case of any Offering where we are acting with others as
representatives of Underwriters, such other representatives.
(l) CONDITIONS OF OFFERING; ACCEPTANCE AND PURCHASES. Any
Offering: (i) will be subject to delivery of the Securities and their
acceptance by us and any other Underwriters; (ii) may be
E-1
subject to the approval of all legal matters by counsel and the
satisfaction of other conditions, and (iii) may be made on the basis of
reservation of Securities or an allotment against subscription. We will
advise you by electronic mail, facsimile or other form of written
communication ("Written Communication", which term, in the case of any
Offering described in Section 3(a) or 3(b) hereof, may include a
prospectus or offering circular) of the particular method and
supplementary terms and conditions (including, without limitation, the
information as to prices and offering date referred to in Section 3(c)
hereof) of any Offering in which you are invited to participate. To the
extent such supplementary terms and conditions are inconsistent with any
provision herein, such terms and conditions shall supersede any such
provision. Unless otherwise indicated in any such Written Communication,
acceptances and other communications by you with respect to an Offering
should be sent to Incapital LLC, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, (Fax: (▇▇▇) ▇▇▇-▇▇▇▇). We reserve the right to reject
any acceptance in whole or in part. Unless notified otherwise by us,
Securities purchased by you shall be paid for on such date as we shall
determine, on one day's prior notice to you, by certified or official
bank check, in an amount equal to the Public Offering Prices (as
hereinafter defined) or, if we shall so advise you, at such Public
Offering Price less the Concession (as hereinafter defined), payable in
New York Clearing House funds to the order of BNY Clearing Services, LLC
clearing for the account of Incapital LLC, against delivery of the
Securities. If Securities are purchased and paid for at such Public
Offering Price, such Concession will be paid after the termination of the
provisions of Section 3(c) hereof with respect to such Securities.
Notwithstanding the foregoing, unless notified otherwise by us, payment
for and delivery of Securities purchased by you shall be made through the
facilities of The Depository Trust Company, if you are a member, unless
you have otherwise notified us prior to the date specified in a Written
Communication to you from us or, if you are not a member, settlement may
be made through a correspondent who is a member pursuant to instructions
which you will send to us prior to such specified date.
(m) REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
REGISTERED OFFERINGS. In the case of any Offering of Securities that are
registered under the Securities Act ("Registered Offering"), we shall provide
you with such number of copies of each preliminary prospectus and of the final
prospectus relating thereto as you may reasonably request for the purposes
contemplated by the Securities Act and the Securities Exchange Act of 1934 (the
"Exchange Act") and the applicable rules and regulations of the Securities and
E-2
Exchange Commission thereunder. You represent and warrant that you are familiar
with Rule 15c2-8 under the Exchange Act relating to the distribution of
preliminary and final prospectuses and agree that you will comply therewith. You
agree to make a record of your distribution of each preliminary prospectus and,
when furnished with copies of any revised preliminary prospectus, you will, upon
our request, promptly forward copies thereof to each person to whom you have
theretofore distributed a preliminary prospectus. You agree that in purchasing
Securities in a Registered Offering you will rely upon no statement whatsoever,
written or oral, other than the statements in the final prospectus delivered to
you by us. You will not be authorized by the issuer or other seller of
Securities offered pursuant to a prospectus or by any Underwriter to give any
information or to make any representation not contained in the prospectus in
connection with the sale of such Securities.
OFFERINGS PURSUANT TO OFFERING CIRCULAR. In the case of any Offering of
Securities, other than a Registered Offering, which is made pursuant to an
offering circular or other document comparable to a prospectus in a Registered
Offering, we shall provide you with such number of copies of each preliminary
offering circular and of the final offering circular relating thereto as you may
reasonably request. You agree that you will comply with the applicable Federal
and state laws, and the applicable rules and regulations of any regulatory body
promulgated thereunder, governing the use and distribution of offering circulars
by brokers or dealers. You agree that in purchasing Securities pursuant to an
offering circular you will rely upon no statements whatsoever, written or oral,
other than the statements in the final offering circular delivered to you by us.
You will not be authorized by the issuer or other seller of Securities offered
pursuant to an offering circular or by any Underwriter to give any information
or to make any representation not contained in the offering circular in
connection with the sale of such Securities.
OFFER AND SALE TO THE PUBLIC. With respect to any Offering of Securities,
we will inform you by a Written Communication of the public offering price, the
selling concession, the reallowance (if any) to dealers and the time when you
may commence selling Securities to the public. After such public offering has
commenced, we may change the public offering price, the selling concession and
the reallowance to dealers. The offering price, selling concession and
reallowance (if any) to dealers at any time in effect with respect to an
Offering are hereinafter referred to, respectively, as the "Public Offering
Price", the "Concession" and the "Reallowance". With respect to each Offering of
Securities, until the provisions of this Section 3(c) shall be terminated
pursuant to Section 4 hereof, you agree to offer Securities to the public at no
more than the Public Offering Price. If so notified by us, you may sell
Securities to the public at a lesser negotiated price than the Public Offering
Price, but in an amount not to exceed the "Concession." If a Reallowance is in
effect, a reallowance from the Public Offering Price not in excess of such
Reallowance may be allowed as
E-3
consideration for services rendered in distribution to dealers who are actually
engaged in the investment banking or securities business, who execute the
written agreement prescribed by section 24(c) of Article III of the Rules of
Fair Practice of the National Association of Securities Dealers, Inc. (the
"NASD") and who are either members in good standing of the NASD or foreign
banks, dealers or institutions not eligible for membership in the NASD who
represent to you that they will promptly reoffer such Securities at the Public
Offering Price and will abide by the conditions with respect to foreign banks,
dealers and institutions set forth in Section 3(e) hereof.
OVER-ALLOTMENT; STABILIZATION; UNSOLD ALLOTMENTS. We may, with respect to
any Offering, be authorized to over-allot in arranging sales to Selected
Dealers, to purchase and sell Securities for long or short account and to
stabilize or maintain the market price of the Securities. You agree that, upon
our request at any time and from time to time prior to the termination of the
provisions of Section 3(c) hereof with respect to any Offering, you will report
to us the amount of Securities purchased by you pursuant to such Offering which
then remain unsold by you and will, upon our request at any such time, sell to
us for our account or the account of one or more Underwriters such amount of
such unsold Securities as we may designate at the Public Offering Price less an
amount to be determined by us not in excess of the Concession. If, prior to the
later of (i) the termination of the provisions of Section 3(c) hereof with
respect to any Offering or (ii) the covering by us of any short position created
by us in connection with such Offering for our account or the account of one or
more Underwriters, we purchase or contract to purchase for our account or the
account of one or more Underwriters in the open market or otherwise any
Securities purchased by you under this Agreement as part of such Offering, you
agree to pay us on demand an amount equal to the Concession with respect to such
Securities (unless you shall have purchased such Securities pursuant to Section
2 hereof at the Public Offering Price in which case we shall not be obligated to
pay such Concession to you pursuant to Section 2) plus transfer taxes and
broker's commissions or dealer's ▇▇▇▇-up, if any, paid in connection with such
purchase or contract to purchase.
NASD. You represent and warrant that you are actually engaged in the
investment banking or securities business and either a member in good standing
of the NASD or, if you are not such a member, you are a foreign bank, dealer or
institution not eligible for membership in the NASD which agrees to make no
sales within the United States, its territories or its possessions or to persons
who are citizens thereof or residents therein, and in making other sales to
comply with the NASD's interpretation with respect to free riding and
withholding. You further represent, by your participation in an Offering, that
you have provided to us all documents and other information required to be filed
with respect to you, any related person or any person associated with you or any
such related person pursuant to the supplementary requirements of the NASD's
E-4
interpretation with respect to review of corporate financing as such
requirements relate to such Offering.
You agree that, in connection with any purchase or sale of the Securities
wherein a Concession, discount or other allowance is received or granted, (1)
you will comply with the provisions of section 24 of Article III of the NASD's
Rules of Fair Practice and (2) if you are a non-NASD member broker or dealer in
a foreign country, you will also comply (a), as though you were an NASD member,
with the provisions of sections 8 and 36 thereof and (b) with section 25 thereof
as that section applies to a non-NASD member broker or dealer in a foreign
country.
You further agree that, in connection with any purchase of securities
from us that is not otherwise covered by the terms of this Agreement (whether we
are acting as manager, as a member of an underwriting syndicate or a selling
group or otherwise), if a selling Concession, discount or other allowance is
granted to you, clauses (1) and (2) of the preceding paragraph will be
applicable.
RELATIONSHIP AMONG UNDERWRITERS AND SELECTED Dealers. We may buy
Securities from or sell Securities to any Underwriter or Selected Dealer and,
without consent, the Underwriters (if any) and the Selected Dealers may purchase
Securities from and sell Securities to each other at the Public Offering Price
less all or any part of the Concession. Unless otherwise specified in a separate
agreement between you and us, this agreement does not authorize you to act as
agent for: (i) us; (ii) any Underwriter; (iii) the issuer; or (iv) other seller
of any Securities in offering Securities to the public or otherwise. Neither we
nor any Underwriter shall be under any obligation to you except for obligations
assumed hereby or in any Written Communication from us in connection with any
Offering. Nothing contained herein or in any Written Communication from us shall
constitute the Selected Dealers an association or partners with us or any
Underwriter or with one another. If the Selected Dealers, among themselves or
with the Underwriters, should be deemed to constitute a partnership for Federal
income tax purposes, then you elect to be excluded from the application of
Subchapter K, Chapter 1, Subtitle A of the Internal Revenue Code of 1986 and
agree not to take any position inconsistent with that election. You authorize
us, in our discretion, to execute and file on your behalf such evidence of that
election as may be required by the Internal Revenue Service. In connection with
any Offering, you shall be liable for your proportionate amount of any tax,
claim, demand or liability that may be asserted against you alone or against one
or more Selected Dealers participating in such Offering, or against us or the
Underwriters, based upon the claim that the Selected Dealers, or any of them,
constitute an association, an unincorporated business or other entity,
including, in each case, your proportionate amount of any expense incurred in
defending against any such tax, claim, demand or liability.
E-5
BLUE SKY LAWS. Upon application to us, we shall inform you as to any
advice we have received from counsel concerning the jurisdictions in which
Securities have been qualified for sale or are exempt under the securities or
blue sky laws of such jurisdictions, but we do not assume any obligation or
responsibility as to your right to sell Securities in any such jurisdiction.
COMPLIANCE WITH LAW. You agree that in selling Securities pursuant to any
Offering (which agreement shall also be for the benefit of the issuer or other
seller of such Securities) you will comply with all applicable laws, rules and
regulations, including the applicable provisions of the Securities Act and the
Exchange Act, the applicable rules and regulations of the Securities and
Exchange Commission thereunder, the applicable rules and regulations of the
NASD, the applicable rules and regulations of any securities exchange having
jurisdiction over the Offering and the applicable laws, rules and regulations
specified in Section 3(b) hereof.
Furthermore, you acknowledge and agree that certain Offerings of
Securities (i) may be made in the United States only and/or (ii) may be
offerings of Securities of an affiliate of a United States bank but are not
savings accounts, deposits or other obligations of any such bank and would not
be guaranteed by such bank or insured by the Federal Deposit Insurance
Corporation or any other governmental agency.
(n) TERMINATION, SUPPLEMENTS AND AMENDMENTS. This Agreement shall
continue in full force and effect until terminated by a written instrument
executed by each of the parties hereto. This Agreement may be supplemented or
amended by us by written notice thereof to you, and any such supplement or
amendment to this Agreement shall be effective with respect to any Offering to
which this Agreement applies after the date of such supplement or amendment.
Each reference to "this Agreement" herein shall, as appropriate, be to this
Agreement as so amended and supplemented. The terms and conditions set forth in
Section 3(c) hereof with regard to any Offering will terminate at the close of
business on the 30th day after the commencement of the public offering of the
Securities to which such Offering relates, but in our discretion may be extended
by us for a further period not exceeding 30 days and in our discretion, whether
or not extended, may be terminated at any earlier time.
(o) SUCCESSORS AND ASSIGNS. This Agreement shall be binding on, and
inure to the benefit of, the parties hereto and other persons specified in
Section 1 hereof, and the respective successors and assigns of each of them.
(p) GOVERNING LAW. This Agreement and the terms and conditions set
forth herein with respect to any Offering together with such supplementary terms
and conditions with respect to such Offering as may be contained in any Written
Communication from us to you in connection therewith
E-6
shall be governed by, and construed in accordance with, the laws of the State of
Illinois.
Please confirm by signing and returning to us the enclosed copy of this
Agreement that your subscription to, or your acceptance of any reservation of,
any Securities pursuant to an Offering shall constitute (i) acceptance of and
agreement to the terms and conditions of this Agreement (as supplemented and
amended pursuant to Section 4 hereof) together with and subject to any
supplementary terms and conditions contained in any Written Communication from
us in connection with such Offering, all of which shall constitute a binding
agreement between you and us, individually or as representative of any
Underwriters, (ii) confirmation that your representations and warranties set
forth in Section 3 hereof are true and correct at that time, (iii) confirmation
that your agreements set forth in Sections 2 and 3 hereof have been and will be
fully performed by you to the extent and at the times required thereby and (iv)
in the case of any Offering described in Section 3(a) and 3(b) hereof,
acknowledgment that you will request and have received from us sufficient copies
of the final prospectus or offering circular, as the case may be, with respect
to such Offering in order to comply with your undertakings in Section 3(a) or
3(b) hereof.
Very truly yours,
INCAPITAL LLC
By:_____________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Managing Member
________________________________________________________________________________
CONFIRMED: ______________________, 20___
<>
By: ______________________________________
Name: ___________________________________
(Print name)
Title: ____________________________________
E-7
