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EXHIBIT 1
New York, New York
To the Representative(s) named in
Schedule I hereto of the Under-
writers named in Schedule II hereto
Dear Sirs:
General Electric Capital Services, Inc., a Delaware
corporation (hereinafter referred to as the Company), proposes to issue its
Notes described in Schedule I hereto (hereinafter referred to as the Notes) to
be issued pursuant to the provisions of the Indenture relating thereto listed
in Schedule I hereto (hereinafter referred to as the Note Indenture), between
the Company, General Electric Company, a New York corporation (hereinafter
referred to as the Guarantor) and the Trustee named in Schedule I hereto
(hereinafter referred to as the Note Trustee), and the Guarantor proposes to
guarantee the due and punctual payment by the Company of principal and interest
and all other moneys payable on the Notes, in accordance with the terms of the
guarantee (hereinafter referred to as the Guarantee) endorsed on each Note.
The Notes and the Guarantee are sometimes herein collectively called the
"Securities". The Company and the Guarantor have filed with the Securities and
Exchange Commission (hereinafter referred to as the Commission), and there has
become effective, a registration statement (the file number of which is set
forth in Schedule I hereto), including a prospectus, relating to the
Securities. The registration statement as amended to the date of this
Agreement is hereinafter referred to as the Registration Statement, and the
prospectus as amended to the date of this Agreement is hereinafter referred to
as the Prospectus (including in each case documents incorporated by reference).
I.
The Company hereby agrees to sell to the several Underwriters
named in Schedule II hereto, and the Underwriters, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agree to purchase from the Company, severally and not
jointly, the principal amounts of Notes, guaranteed as aforesaid by the
Guarantor, set forth opposite
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their names in Schedule II hereto, plus accrued interest, if any, from the date
set forth in Schedule I hereto to the date of payment and delivery.
II.
The Company is advised by you that the Underwriters propose to
make a public offering of their respective portions of the Securities as soon
after this Agreement is entered into as in your judgment is advisable (unless
the timing of the offering is otherwise described in Schedule I hereto). The
terms of the public offering of the Notes are as specified in Schedule I
hereto.
III.
Payment for the Notes, guaranteed as aforesaid by the
Guarantor, shall be made by wire transfer in immediately available funds
(unless payment in other form or funds is specified in Schedule I hereto) to
the account of the Company specified by the Company to the Underwriters the
business day prior to the time of closing, on the date and at the time
specified in Schedule I hereto, upon delivery to you for the respective
accounts of the several Underwriters of the Notes, guaranteed as aforesaid by
the Guarantor, registered in such names and in such denominations as you shall
request in writing not less than two full business days prior to the date of
delivery. The time and date of such payment and delivery are herein referred
to as the Closing Date.
IV.
The several obligations of the Underwriters hereunder are
subject to the following conditions:
(a) to be satisfied by the Company:
(1) 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 subsidiaries, taken as a whole, from that set
forth in the Registration Statement and the Prospectus; and you shall
have received on the Closing Date a certificate, dated the Closing
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.
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(2) You shall have received on and as of the Closing Date
an opinion of either the Senior Vice President, General Counsel and
Secretary of the Company or the Associate General Counsel and
Assistant Secretary of the Company, dated the Closing Date, to the
effect that (i) the Company has been duly incorporated and is validly
existing under the laws of the State of New York; (ii) the Company is
duly qualified to transact business and is in good standing in the
jurisdictions in which the conduct of its business or the ownership of
its property requires such qualification; (iii) the Note Indenture 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 Trust Indenture Act of 1939, as amended; (iv) the Notes have
been duly authorized and, when executed and authenticated in
accordance with the provisions of the Note Indenture and delivered to
and paid for by the Underwriters, will be valid and binding
obligations of the Company and will be entitled to the benefits of the
Note Indenture; (v) this Agreement has been duly authorized, executed
and delivered by the Company and is a valid and binding agreement of
the Company, except as rights to indemnity and contribution hereunder
may be limited under applicable law; (vi) neither the execution and
delivery of this Agreement nor the issuance and sale of the Notes by
the Company as provided herein will contravene the Organization
Certificate or by-laws of the Company or result in any violation of
any of the terms or provisions of any law, rule or regulation (other
than with respect to applicable state securities or Blue Sky laws, as
to which such counsel need not express any opinion) or of any
indenture, mortgage or other agreement or instrument known to such
counsel by which the Company or any of its subsidiaries is bound;
(vii) the statements contained in the Prospectus under the caption
"Description of Notes" fairly present the matters referred to therein;
(viii) each document incorporated by reference in the Prospectus which
was filed pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act") (except for the financial statements and
schedules and other financial and statistical material included
therein or omitted therefrom, as to which such counsel need not
express any opinion) complied when so filed as to form in all material
respects with the Exchange Act and the applicable rules and
regulations thereunder; (ix) the Registration Statement and the
Prospectus and any supplements and amendments thereto (except for the
financial statements and schedules and other financial
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and statistical material included therein or omitted therefrom and
except for supplements relating only to securities other than the
Securities, as to which such counsel need express no opinion) comply
as to form in all material respects with the Act and the rules and
regulations of the Commission thereunder; and (x) 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 such counsel need not express any belief) each
part of the Registration Statement at the time such part became
effective did not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and the
Prospectus as of the date of the prospectus supplement relating to the
Securities did not, and the Prospectus (as amended or supplemented)
does not, contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made
not misleading.
(b) to be satisfied by the Guarantor:
(1) 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 (not in the ordinary
course of business) in the condition of the Guarantor and its
subsidiaries, taken as a whole, from that set forth in the
Registration Statement and the Prospectus; and you shall have received
on the Closing Date a certificate of the Guarantor, dated the Closing
Date and signed by an officer of the Guarantor, to the foregoing
effect. The officer making such certificate may rely upon the best of
his knowledge as to proceedings pending or threatened.
(2) You shall have received on and as of the Closing Date
an opinion of the Corporate Counsel of the Guarantor, dated the
Closing Date, to the effect that (i) the Guarantor has been duly
incorporated, is validly existing and in good standing under the laws
of the State of New York; (ii) the Note Indenture has been duly
authorized, executed and delivered by the Guarantor, is a valid and
binding agreement of the Guarantor, enforceable in accordance with is
terms
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(subject to applicable equitable principles and except as may be
limited by bankruptcy, insolvency, reorganization or other similar
laws affecting creditors' rights generally) and the Note Indenture has
been qualified under the Trust Indenture Act of 1939, as amended;
(iii) the Guarantee has been duly authorized and, when executed and
endorsed on the Notes in accordance with the provisions of the Note
Indenture, will be a valid and binding obligation of the Guarantor,
enforceable in accordance with its terms (subject to applicable
equitable principles and except as may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting creditors'
rights generally); (iv) this Agreement has been duly authorized,
executed and delivered by the Guarantor and is a valid and binding
agreement of the Guarantor, enforceable in accordance with its terms
(subject to applicable equitable principles and except as rights to
indemnity and contribution hereunder may be limited under applicable
law and except as may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting creditors' rights
generally); (v) neither the execution and delivery of this Agreement
nor the execution and delivery of the Guarantee by the Guarantor as
provided herein will contravene the Restated Certificate of
Incorporation, as amended, or by-laws, as amended, of the Guarantor or
result in any violation of any of the terms or provisions of any law,
rule or regulation (other than with respect to applicable state
securities or Blue Sky laws, as to which such counsel need not express
any opinion) or of any indenture, mortgage or other agreement or
instrument known to such counsel by which the Guarantor or any of its
subsidiaries is bound; (vi) such counsel believes that each document
incorporated by reference in the Prospectus which was filed by the
Guarantor pursuant to the Exchange Act (except for the financial
statements and schedules and other financial statistical data
contained, referred to or incorporated by reference therein or omitted
therefrom, as to which, in each case, such counsel need not express
any opinion) complied when so filed as to form in all material
respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder; (vii) such counsel believes
that the Registration Statement and the Prospectus and any supplements
and amendments thereto as of their respective effective or issue dates
(except for (a) the financial statements and schedules and other
financial and statistical data contained, referred to or incorporated
by reference therein or omitted therefrom,
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(b) the statements contained in the Prospectus under the captions
"Description of Notes" and "Plan of Distribution", and (c) supplements
and amendments relating only to securities other than the Securities,
as to which, in each case, such counsel need express no opinion)
insofar as they related to the Guarantor and the Guarantee complied as
to form in all material respects with the Act and the applicable rules
and regulations of the Commission thereunder; and (viii) such counsel
believes that (except for (a) the financial statements and schedule and
other financial and statistical data contained, referred to or
incorporated by reference therein or omitted therefrom, (b) the
statements contained in the Prospectus under the captions "Description
of Notes" and "Plan of Distribution", and (c) supplements and
amendments relating only to securities other than the Securities, as to
which, in each case, such counsel need not express any belief) each
part of the Registration Statement that relates to the Guarantor or the
Guarantee, at the time such part became effective, did not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and the Prospectus, as of the date of the
prospectus supplement relating to the Securities, did not, and the
Prospectus (as amended or supplemented, other than as to supplements
relating only to securities other than the Securities) 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.
In rendering such opinion, such counsel (1) may rely as to
matters of fact, to the extent such counsel deems proper, on certificates of
responsible officers and public officials and (2) may state that such counsel
expresses no opinion as to laws, rules, regulations, consents, approvals,
authorizations or orders other than those of the State of New York and the
federal law of the United States of America, provided that no opinion need be
expressed on or in respect to the New York securities laws.
(c) You shall have received on and as of the Closing Date
an opinion of Davis Polk & Wardwell, counsel for the Underwriters, dated the
Closing Date, covering the matters in clauses (iii), (iv), (v), (vii), (ix) and
(x) of paragraph (a)(2) above and the matters in clauses (ii), (iii), (iv),
(vii) and (viii) of paragraph (b)(2) above.
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In rendering the opinion referred to in paragraph (a)(2)
above, such counsel may state that with respect to (ix) and (x) of paragraph
(a)(2) above, such counsel's opinion and belief is based upon his participation
in the preparation of the Registration Statement and the Prospectus and any
amendments and supplements thereto (including documents incorporated by
reference therein) and review and discussion of the contents thereof, but is
without independent check or verification except as stated therein. In
rendering the opinion referred to in paragraph (b)(2) above, such counsel may
state that with respect to (vi), (vii) and (viii) thereof, such counsel's
belief is based upon review and discussion of the contents of the Registration
Statement and the Prospectus and any amendments and supplements thereto
(including documents incorporated by reference) by him or members of his staff
who report to him or with certain officials of the Guarantor, but are without
independent check or verification except as stated therein. In rendering the
opinions referred to in paragraph (c) above, such counsel may state that with
respect to (ix) and (x) of paragraph (a)(2) above and (vii) and (viii) of
paragraph (b)(2) above, such counsel's opinion and belief is based upon their
participation in the preparation of the Registration Statement and the
Prospectus and any amendments and supplements thereto (other than documents
incorporated by reference) and upon their review and discussion of the contents
thereof (including documents incorporated by reference), but is without
independent check or verification except as stated therein.
(d) You shall have received on the Closing Date, a letter
dated the Closing Date in form and substance satisfactory to you, from KPMG
Peat Marwick LLP, independent public accountants, containing statements and
information of the type ordinarily included in accountants' "comfort letters"
to underwriters concerning the financial statements and certain financial
information with respect to each of the Company and the Guarantor contained in
or incorporated by reference into the Registration Statement and the
Prospectus.
V.
(a) In further consideration of the agreements of the
Underwriters herein contained, the Company covenants as follows:
(1) To furnish to each of you without charge two copies
of the Registration Statement (including exhibits and documents
incorporated by reference), and to each other Underwriter a copy of
the Registration
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Statement (without exhibits but including documents incorporated by
reference), and, during the period mentioned in paragraph (c) below,
as many copies of the Prospectus and any amendments or supplements
thereto prepared pursuant to paragraph (c) below as you may reasonably
request. The terms "supplement" and "amendment" or "amend" as used in
this Agreement include all documents subsequently filed by the Company
or the Guarantor pursuant to the Exchange Act which are deemed to be
incorporated by reference in the Prospectus from the date of filing
such documents in accordance with Form S-3.
(2) To prepare and file (or mail for filing) with the
Commission pursuant to Rule 424 under the Act, as promptly as
practicable after the execution of this Agreement, a prospectus
supplement setting forth such information as is necessary so that the
Prospectus, when delivered to a purchaser of the Securities, will
comply with law and, before amending the Registration Statement or
supplementing the Prospectus with respect to the Securities, to
furnish you a copy of each such proposed amendment or supplement.
(3) If, during such period after the first date of the
public offering of the Securities as in the opinion of your counsel a
prospectus is required by law to be delivered in connection with sales
by an Underwriter or dealer, any event shall occur as a result of
which it is necessary to amend or supplement the Prospectus in order
to make the statements therein, in the light of the circumstances when
the Prospectus is delivered to a purchaser, not misleading, or if it
is necessary to amend or supplement the Prospectus to comply with law,
forthwith to prepare and furnish, at its own expense, to the
Underwriters and to the dealers (whose names and addresses you shall
furnish to the Company) to which Securities may have been sold by you
on behalf of the Underwriters and to any other dealers upon request,
either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not,
in the light of the circumstances when the Prospectus is delivered to
a purchaser, be misleading or so that the Prospectus will comply with
law.
(4) To endeavor to qualify the Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions as
you shall reasonably request and to pay all expenses (including fees
and disbursements of counsel) in connection with such qualification
and
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in connection with the determination of the eligibility of the
Securities for investment under the laws of such jurisdictions as you
may designate; provided that the Company shall not be required to
qualify to do business in any jurisdiction where it is not now
qualified or to take any action which would subject it to general or
unlimited service of process in any jurisdiction where it is not now
subject or to qualify the Securities for offer and sale in any
jurisdiction (notified to the Representative prior to the execution of
the Underwriting Agreement) in which the Company is unable or
unwilling to comply with disclosure or reporting requirements imposed
by such jurisdiction.
(5) To make generally available to its security holders
as soon as practicable an earnings statement (which need not be
audited) covering a twelve-month period beginning after the date of
this Agreement which shall satisfy the provisions of Section 11(a) of
the Act and the rules and regulations of the Commission thereunder.
(b) In further consideration of the agreements of the
Underwriters herein contained, the Guarantor covenants to make generally
available to its security holders as soon as practicable an earnings statement
(which need not be audited) covering a twelve-month period beginning after the
date of this Agreement which shall satisfy the provisions of Section 11(a) of
the Act and the rules and regulations of the Commission thereunder.
VI.
The Company represents and warrants to each Underwriter that
(i) each document filed by the Company pursuant to the Exchange Act which is
incorporated by reference in the Prospectus complied when so filed in all
material respects with the Exchange Act and the rules and regulations
thereunder, and each document, if any, hereafter filed and so incorporated by
reference in the Prospectus will comply when so filed with the Exchange 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 supplements relating only to securities
other than the Securities) will on the Closing Date comply, in all material
respects with the Act and the applicable rules and regulations of the
Commission thereunder; (iii) each preliminary prospectus, if any, filed
pursuant to Rule 424 under the Act complied when so filed in all material
respects with the Act and the applicable rules and
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regulations thereunder; and (iv) each part of the Registration Statement at the
time such part became effective did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and the Prospectus as
of the date of the prospectus supplement relating to the Notes did not, and the
Prospectus (as amended or supplemented, other than as to supplements relating
only to securities other than the Securities) on the Closing Date will not,
contain any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; except that these representations
and warranties do no apply to statements or omissions in the Registration
Statement or the Prospectus or any preliminary prospectus (x) that relate to the
Guarantor or the Guarantee or (y) based upon information furnished to the
Company in writing by any Underwriter expressly for use therein.
The Guarantor represents and warrants to each Underwriter that
(i) each document filed by the Guarantor pursuant to the Exchange Act which is
incorporated by reference in the Prospectus complied when so filed in all
material respects with the Exchange Act and the rules and regulations
thereunder, and each document, if any, hereafter filed and so incorporated by
reference in the Prospectus will comply when so filed with the Exchange Act,
rules and regulations; and (ii) each part of the Registration Statement at the
time such part became effective did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and the Prospectus as
of the date of the prospectus supplement relating to the Notes did not, and the
Prospectus (as amended or supplemented, other than as to supplements relating
only to securities other than the Securities) on the Closing Date will not,
contain any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that these
representations and warranties apply to statements or omissions in the
Registration Statement or the Prospectus only insofar as they relate to the
Guarantor or the Guarantee.
The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act, or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities caused by any
untrue
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statement or alleged untrue statement of a material fact contained in the
Registration Statement, any preliminary prospectus or the Prospectus (if used
within the period set forth in paragraph (c) of Article V hereof and as amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission (x) that relates to the Guarantor or the
Guarantee or (y) based upon information furnished in writing to the Company by
any Underwriter expressly for use therein; provided, however, that the
foregoing indemnity agreement with respect to any preliminary prospectus or any
Prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any losses, claims, damages or liabilities otherwise covered
by this paragraph purchased Securities, or to the benefit of any person
controlling such Underwriter, if a copy of the Prospectus (as then amended and
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Underwriter to such
person if required by law so to have been delivered, at or prior to the written
confirmation of the sale of Securities to such person, and if the Prospectus
(as so amended or supplemented, would have cured the defect giving rise to such
loss, claim, damage or liability.
The Guarantor agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act, or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities caused by any
untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement, any preliminary prospectus or the Prospectus (if
used within the period set forth in paragraph (c) of Article V hereof and as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, but only insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission that relates to the Guarantor or the
Guarantee, provided, however, that the foregoing indemnity with respect to any
preliminary prospectus or any Prospectus shall not inure to the benefit of any
Underwriter from whom the person asserting any losses, claims, damages or
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liabilities otherwise covered by this paragraph purchased Securities, or to the
benefit of any person controlling such Underwriter, if a copy of the Prospectus
(as then amended and supplemented if the Company shall have furnished any
amendments or supplements thereto) was not sent or given by or on behalf of
such Underwriter to such person if required by law so to have been delivered,
at or prior to the written confirmation of the sale of Securities to such
person, and if the Prospectus (as so amended or supplemented) would have cured
the defect giving rise to such loss, claim, damage or liability.
Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company and the Guarantor, and each person, if
any, who controls the Company or the Guarantor, as the case may be, within the
meaning of Section 15 of the Act, or Section 20 of the Exchange Act, to the
same extent as the foregoing indemnities from the Company and the Guarantor to
each Underwriter, but only with reference to information relating to such
Underwriter furnished in writing by such Underwriter expressly for use in the
Registration Statement, the Prospectus or any preliminary prospectus.
In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either of the three preceding paragraphs,
such person (the "indemnified party") shall promptly notify the person against
whom such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party, and any others the indemnifying party may designate in such proceeding
and shall pay the reasonable fees and expenses of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be
at the expense of such indemnified party unless (i) the indemnifying party and
the indemnified party shall have mutually agreed to the retention of such
counsel of (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
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parties and that all such fees and expenses shall be reimbursed as they are
incurred. Such firm shall be designated in writing by the Manager in the case
of parties indemnified pursuant to the second preceding paragraph and by the
Company in the case of parties indemnified pursuant to the first preceding
paragraph. The indemnifying party shall not be liable for any settlement of
any proceeding effected without its written consent but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment.
If the indemnification provided for in this Article VI 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 or the Guarantor,
in such proportion as is appropriate to reflect the relative benefits received
by the Company or the Guarantor on the one hand and the Underwriters on the
other from the offering of the Securities, (ii) if the indemnifying party is an
Underwriter, in such proportion as is appropriate to reflect the relative fault
of such Underwriter on the one hand and the Company and/or the Guarantor 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 clauses (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 or the Guarantor
on the one hand and the Underwriters on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the
Prospectus. The relative fault of the Company or the Guarantor on the one hand
and of the Underwriters on the other shall be determined by reference to, among
other things, whether the untrue statement or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information
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supplied by the Company or the Guarantor or statements made or furnished by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company, the Guarantor and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Article VI
were determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation which does
not take account of the equitable considerations provided for, in the
respective cases, in clauses (i), (ii) and (iii) of the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Article VI, no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by such Underwriter and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Article VI are several, in proportion to the
respective amounts of Notes purchased by each of such Underwriters, and not
joint.
The indemnity and contribution agreements contained in this
Article VI and the representations and warranties of the Company and the
Guarantor in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation
made by or on behalf of any Underwriter or any person controlling any
Underwriter or by or on behalf of the Company or the Guarantor or their
respective directors or officers or any person controlling either the Company
or the Guarantor and (iii) acceptance of and payment for the Securities.
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VII.
Unless otherwise provided in Schedule I hereto, this Agreement
shall be subject to termination in the discretion of a majority in interest of
the Underwriters at any time prior to the Closing Date, by notice given to the
Company, if (i) trading in securities generally on the New York Stock Exchange
shall have been suspended or materially limited; (ii) a general moratorium on
commercial banking activities in the State of New York or the United States
shall have been declared by Federal authorities; or (iii) there shall have
occurred any material outbreak, or material escalation, of hostilities or other
national or international calamity or crisis, of such magnitude and severity in
its effect on the financial markets of the United States, in the reasonable
judgment of a majority in interest of the Underwriters, as to prevent or
materially impair the marketing, or enforcement of contracts for sale, of the
Securities.
VIII.
If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of the Company or
the Guarantor to comply with the terms or to fulfill any of the conditions of
this Agreement, or if for any reason the Company or the Guarantor shall be
unable to perform their respective obligations under this Agreement, the
Company will reimburse the Underwriters or such Underwriters as have so
terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with the Securities.
This Agreement may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
15
16
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Very truly yours,
GENERAL ELECTRIC CAPITAL
SERVICES, INC.
By:
--------------------------------
Name:
Title:
GENERAL ELECTRIC COMPANY
By:
-------------------------------
Name:
Title:
Accepted, as of the date set
forth in Schedule I hereto.
,
- -----------------------------------
acting severally
on behalf of the Underwriters named
in Schedule II hereto.
By:
-------------------------------
Name:
Title:
16
17
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Very truly yours,
GENERAL ELECTRIC CAPITAL
SERVICES, INC.
By:
--------------------------------
Name:
Title:
GENERAL ELECTRIC COMPANY
By:
--------------------------------
Name:
Title:
Accepted, as of the date set
forth in Schedule I hereto.
,
- -----------------------------------
acting severally
on behalf of the Underwriters named
in Schedule II hereto.
By:
-------------------------------
Name:
Title:
17
18
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Very truly yours,
GENERAL ELECTRIC CAPITAL
SERVICES, INC.
By:
--------------------------------
Name:
Title:
GENERAL ELECTRIC COMPANY
By:
--------------------------------
Name:
Title:
Accepted, as of the date set
forth in Schedule I hereto.
,
- -----------------------------------
acting severally
on behalf of the Underwriters named
in Schedule II hereto.
By:
-------------------------------
Name:
Title:
18
19
SCHEDULE I
Underwriting Agreement dated as of ______________________
Registration Statement No._____________________________
Representative(s) and address(es):
Title of Securities: __% Guaranteed Subordinated Notes due
________________________
Principal Amount of Notes: $300,000,000
Title of Note Indenture: Indenture dated as of ______________ among General
Electric Capital Services, Inc., General Electric
Company, as Guarantor, and Chase Manhattan Bank,
National Association, as Trustee
Note Trustee: Chase Manhattan Bank, National Association
Transfer Agent and Registrar: Chase Manhattan Bank,
National Association
Certain Terms of the Securities:
Maturity:____________________
Interest Rate:______________
Interest Payment Dates: ____________ and _____________ of each year,
commencing _______________________
Redemption Provisions: The Notes are not redeemable prior to maturity
Repayment Provisions: The Notes are not repayable at the option of
the Holder
The Securities are to be represented by one or more Global Notes issued to the
nominee of The Depository Trust Company unless otherwise indicated in this
Schedule I.
20
Purchase Price: ____% of the principal amount of the Securities, plus accrued
interest, if any, on the Securities from _____________ ______.
The Securities are to be offered to the public at the Initial Public Offering
Price specified below, and to dealers at prices which represent concessions not
in excess of the Dealer Concession set forth below, and any Underwriter may
allow and such dealers may reallow concessions not in excess of the Reallowance
Concession set forth below.
Initial Public Offering Price: _____% of the principal amount of the
Securities, plus accrued interest, if any, on the Securities from ___________.
Dealer Concession: ___% of the principal
amount of the Securities.
Reallowance Concession: ___% of the principal
amount of the Securities.
Applicability of Article VII:
If Article VII does not constitute a part
of this Agreement, place an "X" in the box
which follows:
/ /
Payment (if other than by wire transfer in immediately
available funds):
Closing: ______________ at 10:00 a.m., New York City time, at the
offices of Davis Polk & Wardwell, 450 Lexington Avenue, New York, New 10017
2
21
The foregoing terms set forth on this Schedule I are hereby
confirmed.
GENERAL ELECTRIC CAPITAL
SERVICES, INC.
By:
--------------------------------
Title:
GENERAL ELECTRIC COMPANY
By:
--------------------------------
Title:
,
-----------------------------------
acting severally on behalf of the
Underwriters named in Schedule II
hereto.
By:
--------------------------------
Title:
3
22
The foregoing terms set forth on this Schedule I are hereby confirmed.
GENERAL ELECTRIC CAPITAL
SERVICES, INC.
By:
--------------------------------
Title:
GENERAL ELECTRIC COMPANY
By:
--------------------------------
Title:
,
-----------------------------------
acting severally on behalf of the
Underwriters named in Schedule II
hereto.
By:
--------------------------------
Title:
4
23
SCHEDULE II
Principal Amount of
Underwriter Notes to be Purchased
- ----------- ---------------------
Total $
==============