<PAGE>
As filed with the Securities and Exchange Commission on March 2, 1994
File No. 33-51629
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------
POST-EFFECTIVE AMENDMENT NO. 1
TO
Form S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------
General Electric Capital Corporation
(Exact name of registrant as specified in its charter)
New York 6159 13-1500700
(State or other (Primary Standard Industrial (I.R.S. Employer
Jurisdiction of Classification Code Number) Identification Number)
Incorporation or
Organization)
260 Long Ridge Road,
Stamford, Connecticut 06927
(203) 357-4000
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
-----------------
BRUCE C. BENNETT
Associate General Counsel -- Treasury Operations and Assistant Secretary
260 Long Ridge Road
Stamford, Connecticut 06927
(203) 357-4000
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent For Service)
-----------------
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement.
-----------------
If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. / /
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, check the following box. /X/
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================================
Proposed Maximum Proposed Maximum
Title of Each Class of Amount to Offering Price Aggregate Amount of
Securities to be Registered be Registered Per Unit (1) Offering Price (1) Registration Fee
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Loan Obligation (2)............... $55,000,000 100% $55,000,000 $18,966
====================================================================================================================
<FN>
(1) No separate consideration will be received for the New Loan Agreement
issuable upon exchange of the Old Loan Agreement.
(2) Includes interests in the Loan Obligation offered to bondholders referred to
herein.
</TABLE>
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
PROSPECTUS
GENERAL ELECTRIC CAPITAL CORPORATION
Offer to exchange its new $55,000,000 principal amount Loan Obligation,
including interests therein, to the California Alternative Energy Source
Financing Authority, which has been registered under the Securities Act of
1933, for its old $55,000,000 principal amount Loan Obligation, including
interests therein, to the California Alternative Energy Source Financing
Authority
General Electric Capital Corporation ("GE Capital" or the
"Company"), hereby amends its offer (as so amended, the "Exchange Offer"), upon
the terms and subject to the conditions set forth in this prospectus (the
"Prospectus") and the letter of transmittal previously delivered by the Company
(the "Letter of Transmittal"), to exchange its new $55,000,000 principal amount
loan obligation (including interests of holders of the Bonds therein),
evidenced by a new loan agreement to be dated as of February 1, 1994 between
GE Capital and the California Alternative Energy Source Financing Authority
(the "Authority") (such new loan agreement, including the interests therein,
being referred to herein as the "New Loan Agreement"), which will have been
registered under the Securities Act of 1933, as amended (the "Securities Act"),
pursuant to the Registration Statement of which this Prospectus is a part, for
its old $55,000,000 principal amount loan obligation (including interests of
holders of the Bonds therein), evidenced by the loan agreement dated as of
September 1, 1993 between GE Capital and the Authority (such old loan
agreement, including the interests therein, being referred to herein as the
"Old Loan Agreement"). The form and terms of the New Loan Agreement are the
same as the form and terms of the Old Loan Agreement except that the New Loan
Agreement (including the interests therein) will have been registered under the
Securities Act. The Old Loan Agreement and the New Loan Agreement are
sometimes referred to herein collectively as the "Loan Agreement." The Loan
Agreement provides for a loan to GE Capital of the proceeds of $55,000,000
aggregate principal amount of California Alternative Energy Source Financing
Authority Cogeneration Facility Revenue Bonds (General Electric Capital
Corporation -- Arroyo Energy Project) 1993 Series A and 1993 Series B due
October 1, 2020 (the "Bonds"). The Company and Mercantile-Safe Deposit and
Trust Company (the "Loan Agreement Trustee") have entered into an Indenture,
dated as of February 1, 1994 (the "Loan Agreement Indenture") relating to the
New Loan Agreement. The Bonds were sold by the Authority to the Initial
Purchasers (as defined herein) in a transaction not registered under the
Securities Act in reliance upon the exemption provided in Section 4(2) because
the Loan Agreement had not been registered as a separate security under the
Securities Act. The Initial Purchasers subsequently sold the Bonds to qualified
institutional buyers in reliance on Rule 144A under the Securities Act. The
objective of the Exchange Offer is to enable the Bonds to be tradeable by the
holders thereof without the restrictions described under "THE EXCHANGE OFFER --
Consequences of Failure to Exchange." After the completion of the Exchange
Offer, the Bonds may be offered for resale, resold and otherwise transferred
by holders thereof (other than any holder which is an "affiliate" of the
Company or the Authority within the meaning of Rule 405 under the Securities
Act) without compliance with the registration and prospectus delivery
provisions of the Securities Act, provided that the Bonds were acquired in
the ordinary course of such holders' business and such holders have no
arrangement with any person to participate in the distribution of the Bonds.
Each broker-dealer that holds Bonds for its own account after the completion
of the Exchange Offer must acknowledge that it will deliver a prospectus in
connection with any resale of the Bonds. By so delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within
the meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of the Bonds where such Bonds were acquired by such broker-dealer
as a result of market-making activities or other trading activities. The
Company will, for a period of 90 days after the Expiration Date (as defined
herein), make this Prospectus available to any broker-dealer for use in
connection with any such resale. See "Plan of Distribution."
The Bonds were issued pursuant to an Indenture of Trust, dated
as of September 1, 1993 (the "Bond Indenture"), between the Authority and
BankAmerica National Trust Company, as trustee (the "Bond Trustee"), for
the purpose of (i) extending funds to GE Capital pursuant to the Loan Agreement
in order to enable GE Capital to extend funds to Goal Line, L.P., a Delaware
limited partnership (the "Partnership"), when and as needed to finance a
portion of the costs of acquisition, construction and installation of an
electric power production cogeneration facility (the "Project") to be owned
by the Partnership and located in Escondido, San Diego County, California,
and (ii) paying a portion of costs of issuance of the Bonds. Upon completion of
the construction of the Project and the satisfaction of certain conditions
precedent, GE Capital will become a limited partner of the Partnership.
The Exchange Offer shall be made to the Bond Trustee, as assignee
of the Authority's rights under the Loan Agreement for the benefit of the
holders of the Bonds and, solely with respect to the interests in the
New Loan Agreement, to the beneficial owners of the Bonds. GE Capital will
accept for exchange the Old Loan Agreement and the interests therein validly
tendered and not withdrawn further prior to 5:30 p.m., New York City time,
on March 15, 1994, unless further extended by GE Capital in its sole
discretion (the "Expiration Date"). Any tender of the Old Loan Agreement
or the interests therein may be withdrawn at any time prior to the
Expiration Date. The Exchange Offer is subject to certain customary
conditions. See "The Exchange Offer." GE Capital has agreed pursuant to the
Registration Rights Agreement (as defined herein) to pay the expenses of
the Exchange Offer and to indemnify the Initial Purchasers against
certain liabilities in connection with the Exchange Offer, including
liabilities under the Securities Act.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
The date of this Prospectus is March , 1994
---
<PAGE>
UNTIL MAY 7, 1994 (90 DAYS AFTER COMMENCEMENT OF THE EXCHANGE OFFER), ALL
DEALERS EFFECTING TRANSACTIONS IN THE BONDS MAY BE REQUIRED TO DELIVER A
PROSPECTUS.
AVAILABLE INFORMATION
GE Capital is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and, in accordance
therewith, files reports and other information with the Securities and Exchange
Commission (the "Commission"). Such reports and other information can be
inspected and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, as well as the
Regional Offices of the Commission at 500 West Madison Street, Chicago, Illinois
60661 and 7 World Trade Center, New York, New York 10048 and copies can be
obtained from the Public Reference Section of the Securities Exchange Commission
at 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. Reports
and other information concerning the Company can also be inspected at the
offices of the New York Stock Exchange, 20 Broad Street, New York, New York
10005, on which certain of GE Capital securities are listed.
DOCUMENTS INCORPORATED BY REFERENCE
There is hereby incorporated in this Prospectus by reference GE
Capital's Annual Report on Form 10-K for the fiscal year ended December 31, 1992
and GE Capital's Quarterly Reports on Form 10-Q for the fiscal quarters ended
March 27, 1993, June 26, 1993 and September 25, 1993, heretofore filed with the
Securities and Exchange Commission pursuant to the 1934 Act, to which reference
is hereby made.
All documents filed by GE Capital pursuant to Section 13(a),
13(c), 14 or 15(d) of the 1934 Act after the date of this Prospectus and prior
to the termination of the offering made hereby shall be deemed to be
incorporated in this Prospectus by reference and to be a part hereof from the
date of filing of such documents.
GE Capital hereby undertakes to provide without charge to each
person, including any beneficial owner, to whom a copy of this Prospectus has
been delivered, on the written or oral request of such person, a copy of any or
all of the documents referred to above which have been or may be incorporated in
this Prospectus by reference, other than exhibits to such documents, unless such
exhibits are specifically incorporated by reference into such documents.
Requests for such copies should be directed to Bruce C. Bennett, Associate
General Counsel-Treasury Operations and Assistant Secretary, General Electric
Capital Corporation, 260 Long Ridge Road, Stamford, Connecticut 06927 (Telephone
No. (203) 357-4000). In order to ensure timely delivery of the documents, any
request should be made by March 7, 1994.
---------------
INTRODUCTION
This Prospectus constitutes a prospectus with respect to the
obligation of GE Capital under the Loan Agreement in support of the Bonds. The
Loan Agreement provides for a loan to GE Capital of the proceeds of the Bonds.
The New Loan Agreement is issued under the Loan Agreement Indenture. See
"Description of the Loan Agreement." Capitalized terms not otherwise defined
herein shall have the meanings set forth in Appendix A hereof.
The proceeds received by GE Capital under the Loan Agreement
were used to extend funds to Goal Line, L.P., a Delaware limited partnership
(the "Partnership") pursuant to a loan agreement, dated as of September 1, 1993
(the "Partnership Loan Agreement"), between the Partnership and GE Capital to
fund a portion of the costs of acquisition, construction and installation of an
electric power production cogeneration facility to be located in Escondido, San
Diego County, California (the "Project").
The Partnership is a special purpose limited partnership formed
under the laws of the State of Delaware. The general partner of the Partnership
is Arroyo Energy Limited Partnership, a limited partnership formed under the
laws of the State of California. Upon completion of the construction of the
Project and subject to the satisfaction of certain conditions precedent, GE
Capital will be admitted as a limited partner of the Partnership.
2
<PAGE>
GENERAL ELECTRIC CAPITAL CORPORATION
GE Capital was incorporated in 1943 in the State of New York,
under the provisions of the New York Banking Law relating to investment
companies, as successor to General Electric Contracts Corporation, formed in
1932. Until November 1987, the name of GE Capital was General Electric Credit
Corporation. All outstanding common stock of GE Capital is owned by General
Electric Capital Services, Inc., a Delaware corporation, formerly known as
General Electric Financial Services, Inc. ("GE Capital Services"), which is in
turn wholly owned by General Electric Company, a New York corporation ("GE
Company"). The business of GE Capital (which term, as used hereinafter under the
above caption means GE Capital and its consolidated affiliates) originally
related principally to financing the distribution and sale of consumer and other
products of GE Company. Currently, however, the type and brand of products
financed and the financial services offered are significantly more diversified.
Substantially all of the products financed by GE Capital are products
manufactured by companies other than GE Company.
GE Capital operates in four finance industry segments and in a
specialty insurance industry segment. GE Capital's financing activities include
a full range of leasing, loan and asset management services. GE Capital's
specialty insurance activities include providing private mortgage insurance,
financial (primarily municipal) guarantee insurance, creditor insurance,
reinsurance and, for financing customers, credit life and property and casualty
insurance. GE Capital is an equity investor in a retail organization and certain
other financial services organizations.
Services of GE Capital are offered primarily in the United
States, Canada and Europe. Computerized accounting and service centers, located
in Connecticut, Ohio, Georgia and England, provide financing offices and other
service locations with data processing, accounting, collection, reporting and
other administrative support. GE Capital's principal executive offices are
located at 260 Long Ridge Road, Stamford, Connecticut 06927 (telephone number
(203) 357-4000).
Consolidated Ratio of Earnings to Fixed Charges
<TABLE>
<CAPTION>
Nine Months Ended
Year Ended December 31, September 25, 1993
- ---------------------------------------------------------------------------------------- ---------------------
1988 1989 1990 1991 1992
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
1.30 1.30 1.31 1.34 1.44 1.66
---- ---- ---- ---- ---- ----
</TABLE>
For purposes of computing the consolidated ratio of earnings to
fixed charges, earnings consist of net earnings adjusted for the provision for
income taxes, minority interest and fixed charges. Fixed charges consist of
interest and discount on all indebtedness and one-third of annual rentals, which
GE Capital believes is a reasonable approximation of the interest factor of such
rentals.
USE OF PROCEEDS
The Exchange Offer is intended to satisfy certain of GE
Capital's obligations under the Registration Rights Agreement (as defined
herein). GE Capital will not receive any cash proceeds from the issuance of the
New Loan Agreement offered hereby. In consideration for issuing the New Loan
Agreement as contemplated in this Prospectus, GE Capital will receive in
exchange the Old Loan Agreement, the form and terms of which are the same as the
form and terms of the New Loan Agreement, except as otherwise described herein
under "The Exchange Offer -- Terms of the Exchange Offer."
3
<PAGE>
THE EXCHANGE OFFER
Purpose and Effect of the Exchange Offer
The Old Loan Agreement was executed and delivered in connection
with the sale of the Bonds on September 29, 1993 by GE Capital, as obligor
thereunder and issuer thereof, and the Authority, as obligee thereunder and
holder thereof (which rights as holder, other than rights with respect to
certain fees, indemnities and the enforcement of certain covenants, have been
assigned to the Bond Trustee for the benefit of the holders of the Bonds). The
Bonds were sold by the Authority on September 29, 1993 to The First Boston
Corporation, Artemis Capital Group, Inc. and Pryor, McClendon, Counts & Co.,
Inc. (the "Initial Purchasers"), pursuant to the Bond Purchase Agreement, dated
September 29, 1993, among the Initial Purchasers and the Authority (the "Bond
Purchase Agreement") in a transaction not registered under the Securities Act in
reliance upon the exemption provided in Section 4(2) of the Securities Act. The
Initial Purchasers subsequently sold the Bonds to qualified institutional buyers
in reliance on Rule 144A under the Securities Act. As a condition to the Bond
Purchase Agreement, the Initial Purchasers and GE Capital entered into a
Registration Rights Agreement, dated as of September 1, 1993 (the "Registration
Rights Agreement"). Pursuant to the Registration Rights Agreement, GE Capital
agreed with the Initial Purchasers to, at its cost, use its best efforts to
prepare and cause to become effective on or prior to February 8, 1994 a
registration statement with respect to a registered exchange offer to exchange
the Old Loan Agreement for the New Loan Agreement, or to obtain a "no-action"
letter or opinion of counsel with respect to the resale of the Bonds, in each
case to enable, or to confirm that, the Bonds will be tradeable by the holders
thereof without the restrictions described under "-- Consequences of Failure
to Exchange." Accordingly, upon the effectiveness of the Exchange Offer, GE
Capital shall offer (i) the New Loan Agreement to the Bond Trustee, as assignee
of the Authority's rights under the Loan Agreement (the "Holder") for the
benefit of the holders of the Bonds, in exchange for the Old Loan Agreement,
and (ii) interests in the New Loan Agreement to the beneficial owners of the
Bonds (the "Bondholders") in exchange for their interests in the Old Loan
Agreement, it being the objective of the Exchange Offer to enable each holder of
the Bonds to trade the Bonds without any such restrictions, provided that such
holder of the Bonds is not an affiliate of GE Capital or the Authority. A copy
of the Registration Rights Agreement has been filed as an exhibit to the
Registration Statement of which this Prospectus is a part. The Registration
Statement is intended to satisfy GE Capital's obligations under the Registration
Rights Agreement. Following the consummation of the Exchange Offer, the
Registration Rights Agreement, other than certain surviving indemnities, will
be of no further force and effect.
Terms of the Exchange Offer
Upon the terms and subject to the conditions set forth in this
Prospectus and in the Letter of Transmittal, GE Capital will accept the Old Loan
Agreement, validly tendered by the Holder and not withdrawn prior to the
Expiration Date, and interests in the Old Loan Agreement, validly tendered by
Bondholders and not withdrawn prior to the Exchange Date. GE Capital will issue
the New Loan Agreement in exchange for the Old Loan Agreement. The form and
terms of the New Loan Agreement are the same as the form and terms of the Old
Loan Agreement, except that the New Loan Agreement (including the interests
therein) will have been registered under the Securities Act.
GE Capital shall be deemed to have accepted the validly
tendered Old Loan Agreement when, as and if GE Capital has given oral or written
notice thereof to the Holder, and shall be deemed to have accepted validly
tendered interests in the Old Loan Agreement upon the delivery of the completed
Letter of Transmittal to GE Capital in accordance with the instructions therein.
There will be no exchange agent in connection with the Exchange Offer.
The Company has not requested, and does not intend to request,
an interpretation by the staff of the Commission with respect to whether the
Bonds may be offered for sale, resold or otherwise transferred by any holder
without compliance with the registration and prospectus delivery provisions of
the Securities Act. Instead, based on an interpretation by the staff of the
Commission set forth in a series of no-action letters issued to third-parties,
the Company believes that, after the completion of the Exchange Offer, the Bonds
may be offered for sale, resold and otherwise transferred by any holder of such
Bonds (other than any such holder which is an "affiliate" of the Company or the
Authority within the meaning of Rule 405 under the Securities Act) without
compliance with the registration and prospectus delivery provisions of the
Securities Act, provided that such Bonds were acquired in the ordinary course of
such holder's business and such holder has no arrangement or understanding with
any person to participate in the distribution of such Bonds. Any holder who
plans to participate in a distribution of the Bonds cannot rely on such
interpretation by the staff of the Commission and must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with any resale transaction. Each broker-dealer that holds Bonds for
its own account, where such Bonds were acquired by such broker-dealer as a
result of market-making activities or other trading activities, must acknowledge
that it will deliver a prospectus in connection with any resale of such Bonds.
See "Plan of Distribution."
The Holder and the Bondholders will not be required to pay
brokerage commissions, fees or transfer taxes with respect to the exchange of
the Old Loan Agreement (including the interests therein) pursuant to the
Exchange Offer. GE Capital will pay all charges and expenses in connection with
the Exchange Offer. See "-- Fees and Expenses."
Bondholder Acknowledgments
Each Bondholder will certify in the Letter of Transmittal
that it is not an "affiliate" of the Company or the Authority within the meaning
of Rule 405 under the Securities Act and that it acquired the Bonds in the
ordinary course of such Bondholder's business and that such Bondholder has no
arrangement with any person to participate in a distribution of such Bonds. Each
Bondholder which is a broker-dealer holding Bonds for its own account must
acknowledge that it will deliver a prospectus in connection with any resale of
such Bonds. By so acknowledging and by delivering a prospectus, a broker-dealer
will not be deemed to admit that it is an "underwriter" within the meaning of
the Securities Act. This Prospectus, as it may be amended or supplemented from
time to time, may be used by a broker-dealer in connection with resales of Bonds
where such Bonds were acquired by such broker-dealer as a result of market-
making activities or other trading activities. The Company will, for a period of
90 days after the Expiration Date, make this Prospectus available to any broker-
dealer for use in connection with any such resale.
Expiration Date; Extensions; Amendments
GE Capital has extended the Exchange Offer to 5:30 p.m., New
York City time, on March 15, 1994, (as so amended, the "Expiration Date,"
unless GE Capital, in its sole discretion, further extends the Exchange
Offer, in which case the term "Expiration Date" shall mean the latest date
and time to which the Exchange Offer is extended). In order to further extend
the Exchange Offer, GE Capital will notify the Holder and the Bondholders of
any extension by oral or written notice, prior to 9:00 a.m., New York City
time, on the next business day after the previously scheduled Expiration Date.
PP
4
<PAGE>
GE Capital reserves the right, in its sole discretion, (i) to
delay accepting the Old Loan Agreement, (ii) to further extend the Exchange
Offer, (iii) if any of the conditions set forth below under trustee"--
Conditions of the Exchange Offer" shall not have been satisfied, to terminate
the Exchange Offer, by giving oral or written notice of such delay, extension
or termination to the Holder and the Bondholders, or (iv) to amend the terms
of the Exchange Offer in any manner. If the Exchange Offer is amended in a
manner determined by GE Capital to constitute a material change, GE Capital
will promptly disclose such amendments by means of a prospectus supplement that
will be delivered to the Holder and the Bondholders, and GE Capital will extend
the Exchange Offer for a period of five to ten business days, depending upon the
significance of the amendment and the manner of disclosure to the Holder and
the Bondholders, if the Exchange Offer would otherwise expire during such five
to ten business day period. The Exchange Offer has been extended by GE Capital
to 5:30 p.m., New York City time, on March 15, 1994. The purpose of the
extension is to enable GE Capital to qualify the Loan Agreement Indenture with
the Commission.
Procedures for Tendering
Only the Holder may tender the Old Loan Agreement in the
Exchange Offer; Bondholders may tender their interests in the Old Loan
Agreement in the Exchange Offer. To tender the Old Loan Agreement in the
Exchange Offer, the Holder must complete, sign and date a Letter of Transmittal
and mail or otherwise deliver such Letter of Transmittal, together with the Old
Loan Agreement, to GE Capital at the address set forth therein, or such other
address as agreed to by GE Capital, for receipt prior to the Expiration Date.
The Holder validly tendered the Old Loan Agreement in the Exchange Offer on
February 8, 1994, and has not withdrawn its tender. To tender an interest in
the Old Loan Agreement, a Bondholder must complete, sign and date a Letter of
Transmittal and mail or otherwise deliver such Letter of Transmittal to
GE Capital at the address set forth therein, or such other address as
agreed to by GE Capital, for receipt prior to the Expiration Date. It is not
necessary for a Bondholder to include any additional document or
instrument with its Letter of Transmittal.
The tender by the Holder or a Bondholder, as the case may be,
will constitute an agreement between the Holder or such Bondholder and GE
Capital in accordance with the terms and subject to the conditions set
forth herein and in the Letter of Transmittal.
Letters of Transmittal previously delivered by the Holder and
Bondholders continue to be valid, and new Letters of Transmittal reflecting the
extension of the Exchange Offer will not be prepared. Valid tenders of the
Old Loan Agreement by the Holder and the interests therein by Bondholders
pursuant to the Exchange Offer prior to the date hereof continue to be valid,
and no further actions are required to be taken by the Holder or Bondholders,
as the case may be, with respect thereto.
All questions as to the validity, form, eligibility (including
time of receipt), acceptance and withdrawal of the Old Loan Agreement or any
interest therein will be determined by GE Capital in its sole discretion, which
determination will be final and binding. GE Capital reserves the right
to waive any defects, irregularities or conditions of tender. GE Capital's
interpretation of the terms and conditions of the Exchange Offer (including the
instructions in the Letter of Transmittal) will be final and binding. Unless
waived, any defects or irregularities in connection with the tender of the
Old Loan Agreement or any interest therein must be cured within such time as
GE Capital shall determine. Although GE Capital intends to notify the
Holder or a Bondholder, as the case may be, of defects or irregularities with
respect to the tender, neither GE Capital nor any other person shall incur any
liability for failure to give such notification. The tender of the Old Loan
Agreement or any interest therein will not be deemed to have been made until
such defects or irregularities have been cured or waived.
Withdrawal of Tender
Except as otherwise provided herein, the tender of the Old Loan
Agreement or any interest therein may be withdrawn at any time prior to the
Expiration Date or, if the tendered Old Loan Agreement or such interest has not
yet been accepted for exchange, after the expiration of forty business days
from the commencement of the Exchange Offer.
To withdraw the tender of the Old Loan Agreement or any
interest therein, a written notice of withdrawal must be received by GE
Capital at its address set forth in the Letter of Transmittal prior to the
Expiration Date. Any such notice of withdrawal must be signed by the
Holder or Bondholder, as the case may be, in the same manner as the original
signature on the Letter of Transmittal by which the Old Loan Agreement or
such interest was tendered. All questions as to the validity, form and
eligibility (including time of receipt) of such notice will be determined
by GE Capital in its sole discretion, which determination shall be final
and binding on all parties. The Old Loan Agreement or such interest so
withdrawn will be deemed not to have been validly tendered for purposes of the
Exchange Offer and the New Loan Agreement or such interest will not be issued
with respect thereto unless the Old Loan Agreement or such interest so
withdrawn is validly re-tendered. A properly withdrawn Old Loan Agreement or
any interest therein may be re-tendered by following one of the procedures
described above under "-- Procedures for Tendering" at any time prior to
the Expiration Date.
Conditions of the Exchange Offer
Notwithstanding any other term of the Exchange Offer, GE
Capital shall not be required to accept for exchange, or exchange, the Old Loan
Agreement or any interest therein for the New Loan Agreement or any interest
therein, and may terminate the Exchange Offer as provided herein before the
acceptance of such Old Loan Agreement or any interest therein, if:
(a) any action or proceeding is instituted or threatened in any
court or by or before any governmental agency with respect to the
Exchange Offer, or any material adverse development has occurred in any
existing action or proceeding with respect to GE Capital which, in the
5
<PAGE>
sole judgment of GE Capital, might materially impair the ability of GE
Capital to proceed with the Exchange Offer or to accomplish the
objective of the Exchange Offer as described under "THE EXCHANGE OFFER
-- Purpose and Effect of Exchange Offer"; or
(b) any law, statute, rule or regulation or applicable
interpretation of the staff of the Commission is proposed, adopted or
enacted, which, in the sole judgment of GE Capital, might materially
impair the ability of GE Capital to proceed with the Exchange Offer or
to accomplish the objective of the Exchange Offer as described under
"THE EXCHANGE OFFER -- Purpose and Effect of Exchange Offer".
If GE Capital determines in its sole discretion that any of the
conditions are not satisfied, GE Capital may (i) refuse to accept the Old Loan
Agreement and any interest therein and return the Old Loan Agreement to the
Holder and any interests therein to Bondholders, (ii) extend the Exchange Offer
and retain the Old Loan Agreement and any interest therein tendered prior
to the Expiration Date, subject, however, to the rights of the Holder to
withdraw the Old Loan Agreement or of Bondholders to withdraw interests therein,
as the case may be (see "-- Withdrawal of Tenders"), or (iii) waive such
unsatisfied conditions with respect to the Exchange Offer and accept a validly
tendered Old Loan Agreement and any interests therein which have not been
withdrawn. If such waiver constitutes a material change to the Exchange Offer,
GE Capital will promptly disclose such waiver by means of a prospectus
supplement that will be distributed to the Holder and Bondholders, and GE
Capital will extend the Exchange Offer for a period of five to ten business
days, depending upon the significance of the waiver and the manner of
disclosure to the Holder and Bondholders, if the Exchange Offer would otherwise
expire during such five to ten business day period.
Fees and Expenses
The expenses of soliciting the tender will be borne by GE
Capital. The solicitation is being made by mail; however, the solicitation may
also be made by telecopy, telephone or in person by officers and regular
employees of GE Capital and its affiliates.
GE Capital has not retained any dealer-manager in connection
with the Exchange Offer and will not make any payments to brokers, dealers or
others soliciting acceptance of the Exchange Offer.
The cash expenses to be incurred in connection with the
Exchange Offer will be paid by GE Capital and are estimated in the aggregate to
be approximately $125,000. Such expenses include legal fees and printing costs,
among others. No transfer taxes are applicable to the exchange of the Old Loan
Agreement or any interest therein pursuant to the Exchange Offer.
Consequences of Failure to Exchange
If the Holder does not exchange the Old Loan Agreement, then
the Loan Agreement will remain a restricted separate security, and the Bonds
will also remain restricted securities, within the meaning of Rule 144 of the
Securities Act. If a Bondholder does not exchange its interest in the Old Loan
Agreement, then such Bondholder's Bonds will remain restricted securities within
the meaning of Rule 144 of the Securities Act. Accordingly, in either such case
the restricted Bonds would be able to be resold only (i) to the Authority or
GE Capital, (ii) pursuant to a registration statement which has been
declared effective under the Securities Act, (iii) for so long as the
restricted Bonds are eligible for resale pursuant to Rule 144A, to a person
whom the seller reasonably believes is a qualified institutional buyer within
the meaning of Rule 144A under the Securities Act, that purchases for its own
account or for the account of a qualified institutional buyer to whom notice is
given that the transfer is being made in reliance on Rule 144A, (iv) pursuant to
offers and sales that occur outside the United States within the meaning of
Regulation S under the Securities Act, (v) to an institutional "accredited
investor" within the meaning of subparagraph (a)(1), (2), (3) or (7) of Rule 501
under the Securities Act that is purchasing for its own account or for the
account of such an institutional "accredited investor," in each case in a
minimum principal amount of the restricted Bonds of $500,000 or (vi) pursuant
to any other available exemption from the registration requirements of the
Securities Act, subject in each of the foregoing cases to any requirement
of law that the disposition of its property or the property of such investor
account or accounts be at all times within its or their control.
In addition, if the Holder does not validly exchange the Old
Loan Agreement, the Interest Rate Periods of the Bonds may be affected as
follows. The term of the Bonds is divided into consecutive Interest Rate
Periods, during which the Bonds will bear interest at a Weekly Interest Rate
or a Term Interest Rate. The first Interest Rate Period for each Series of
Bonds was a Weekly Interest Rate Period to and including October 5, 1993.
From October 6, 1993 to and including February 28, 1994 the Bonds will bear
interest at Weekly Interest Rates and thereafter the Bonds will,
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at the direction of GE Capital, bear interest at Weekly Interest Rates or Term
Interest Rates. However, if GE Capital has not notified the Bond Trustee on or
prior to February 8, 1994 that GE Capital has commenced the Exchange Offer or
obtained a "no-action" letter or opinion of counsel as required by the
Registration Rights Agreement, the Interest Rate Period with respect to all
Bonds shall be a Term Interest Rate Period for the period of time remaining
to the maturity of the Bonds, the effective date of which shall be
March 1, 1994, and the Bonds shall bear interest at a Term Interest Rate
determined no later than March 1, 1994. GE Capital delivered such notice to
the Bond Trustee on February 8, 1994.
Accounting Treatment
The loan evidenced by the New Loan Agreement will be recorded
at the same carrying value as the loan evidenced by the Old Loan Agreement,
which is face value plus any accrued but unpaid interest, as reflected in GE
Capital's accounting records on the date of the exchange. Accordingly, no gain
or loss will be recognized by GE Capital for accounting purposes upon
consummation of the Exchange Offer. The expenses of the Exchange Offer will be
amortized by GE Capital over the term of the loan evidenced by the New Loan
Agreement in accordance with generally accepted accounting principles.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES OF THE EXCHANGE OFFER
The following sets forth certain anticipated federal income tax
consequences of the Exchange Offer. It is based upon the provisions of the
Internal Revenue Code of 1986, as amended (the "Code"), the final, temporary and
proposed regulations promulgated thereunder, and administrative rulings and
judicial decisions now in effect, all of which are subject to change (possibly
with retroactive effect) or different interpretations. No ruling has been or
will be requested by GE Capital from the Internal Revenue Service on any tax
matters relating to the New Loan Agreement. The Holder and the holders of the
Bonds should consult their own tax advisors concerning the federal income tax
consequences of the Exchange Offer in the light of their particular
circumstances.
The exchange of the Old Loan Agreement for the New Loan
Agreement pursuant to the Exchange Offer should not be treated as an "exchange"
for federal income tax purposes because the New Loan Agreement should not be
considered to differ materially in kind or extent from the Old Loan Agreement.
Rather, the New Loan Agreement received by the Holder should be treated as a
continuation of the Old Loan Agreement in the hands of the Holder. As a result,
there should be no federal income tax consequences to the Holder exchanging the
Old Loan Agreement for the New Loan Agreement pursuant to the Exchange Offer.
Furthermore, holders of the Bonds should not have any federal income tax
consequences arising from the exchange of the Old Loan Agreement for the New
Loan Agreement by the Holder and, in particular, the holders of the Bonds should
not be considered to have exchanged their Bonds for new obligations differing
materially in kind or extent from the Bonds for federal income tax purposes.
DESCRIPTION OF THE LOAN AGREEMENT
General
The Loan Agreement provides for a loan to GE Capital of the
proceeds of the Bonds.
The Loan Agreement will remain in full force and effect from
the date thereof and shall continue in effect so long as any of the Bonds are
outstanding or the Bond Trustee holds any moneys under the Bond Indenture,
whichever is later. GE Capital's obligations under the Loan Agreement
relating to the tax status of the Bonds, indemnification and expense
reimbursement shall survive the payment of the Bonds. The New Loan Agreement is
issued under the Loan Agreement Indenture. The following summaries of certain
provisions of the Loan Agreement Indenture do not purport to be complete, and
are subject to, and are qualified in their entirety by reference to, all the
provisions of the Loan Agreement Indenture, a copy of which has been filed as an
exhibit to the Registration Statement of which this Prospectus is a part.
The Loan Agreement Indenture does not contain any provisions
that limit the ability of GE Capital to incur indebtedness or that afford the
Holder or Bondholders protection in the event that GE Company, as sole
stockholder of GE Capital, causes GE Capital to engage in a highly leveraged
transaction, reorganization, restructuring, merger or similar transaction.
Payment Obligations Under the Loan Agreement
GE Capital shall pay or cause to be paid to the Bond Trustee
such amounts as shall be necessary to pay the principal (whether at maturity
or upon redemption or acceleration) of, and premium, if any, and interest on
the Bonds, and the purchase price of Bonds tendered for purchase (to the
extent that such price exceeds the proceeds of the remarketing of such Bonds),
at such times as the same shall become due and payable. Each such payment shall
at all times be
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sufficient to pay the total amount of interest, principal (whether at maturity
or upon redemption or acceleration) and premium, if any, payable on the Bonds,
or the purchase price thereof on the dates of payment provided in the Bond
Indenture.
The obligations of GE Capital to make the payments under the
Loan Agreement and to perform and observe the other agreements contained in the
Loan Agreement are absolute and unconditional, irrespective of any defense or
any rights of set-off, recoupment or counterclaim that GE Capital might
otherwise have against the Authority or the Partnership, and are not contingent
upon the receipt by GE Capital of any payments from the Partnership under the
Partnership Loan Agreement. The exchange of the Old Loan Agreement for the New
Loan Agreement will not affect the validity of the Loan Agreement or the nature
of GE Capital's obligations thereunder.
The Authority's rights and benefits under the Loan Agreement
(except for the rights of the Authority to receive certain payments relating to
indemnification and attorneys' fees and expenses and the Authority's right to
enforce certain covenants made by GE Capital for the benefit of the Authority)
are assigned to the Bond Trustee as security for the Bonds and to provide a
source of payment for the interest and principal owing by the Authority to the
holders of the Bonds pursuant to the terms of the Bond Indenture.
Certain Covenants of GE Capital
During the term of the Loan Agreement, GE Capital covenants,
among other things, as follows:
Inducement Agreement. GE Capital has caused to be executed and
delivered to the Authority simultaneously with the Loan Agreement an Inducement
Agreement between the Partnership and the Authority. (See "DESCRIPTION OF THE
INDUCEMENT AGREEMENT" herein). GE Capital has agreed that, if at any time GE
Capital becomes, directly or indirectly, the owner of the Project such that the
Partnership no longer owns the Project, GE Capital will comply with all of the
covenants contained in the Inducement Agreement.
Maintenance of Tax-Exempt Status. GE Capital has covenanted and
agreed that it has not taken or permitted to be taken and will not take or, to
the extent within its control, permit to be taken any action, which would cause
the interest on any Bonds not to be Tax-Exempt to the holders thereof (except
for any Bond held by a "substantial user" of the Project or a "related person"
to such "substantial user," as such terms are defined in Section 147 of the
Code). GE Capital has further covenanted and agreed to comply with each of the
undertakings required of GE Capital in the Tax Certificate.
Sale of Assets; Merger. GE Capital has agreed not to dissolve
or dispose of all or substantially all of its assets and will not combine or
consolidate with or merge into another person or permit one or more persons to
consolidate with or merge into it, except that GE Capital may combine,
consolidate with, or merge into a person legally existing under the laws of any
State of the United States, or permit one or more persons to consolidate with or
merge into, or sell or transfer to another person all or substantially all of
its assets and thereafter to dissolve if (i) the surviving, resulting or
transferee person is GE Capital or assumes all of GE Capital's obligations under
the Loan Agreement, (ii) the surviving, resulting or transferee person is a
person qualified to do business in California, (iii) the surviving, resulting or
transferee person shall not be in default under the Loan Agreement immediately
after such consolidation, merger, sale or transfer, and (iv) the credit rating
on the Bonds shall be at a level of Moody's "Baa3" or S&P "BBB-" (or equivalent)
or higher immediately after the effective date of such consolidation, merger,
sale or transfer.
Financial Statements. GE Capital has agreed to submit to the
Bond Trustee and the Authority audited annual financial statements of GE
Capital within 120 days after the close of its fiscal year.
Registration Rights Agreement. GE Capital has agreed to use its
best efforts to effect the registered exchange offer or to obtain the
"no-action" letter or opinion of counsel described under "The Exchange Offer --
Purpose and Effect of the Exchange Offer."
Modification of the Loan Agreement Indenture
The Loan Agreement Indenture contains provisions permitting
GE Capital and the Loan Agreement Trustee, with the consent of the holders of
not less than 66 2/3% in aggregate principal amount of the securities issued
thereunder (with the Holder and the Bondholders voting together as a single
class) to execute supplemental indentures adding any provisions to or changing
in any manner or eliminating any of the provisions of the Loan Agreement
Indenture or any supplemental indenture or modifying in any manner the rights
of the holders of the securities issued thereunder, provided that no such
supplemental indenture shall, among other things (i) change the character of
the obligation under the Loan Agreement from being payable as provided therein
or reduce the principal amount thereof, without the consent of the holder of
each security so affected, (ii) make the principal or interest on the
obligation under the Loan Agreement payable in any currency other than U.S.
dollars, without the consent of the holder of each security so effected or
(iii) reduce the aforesaid percentage of such securities, the consent of the
holders of which is required for any supplemental indenture, without the
consent of the holder of each such security so affected.
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Events of Default and Remedies
Events of Default. The following are Events of Default under
the Loan Agreement:
(i) failure by GE Capital to pay when due any amount under
the Loan Agreement which failure causes an Event of Default under the
Bond Indenture; or
(ii) failure by GE Capital, for any reason other than Force
Majeure, to observe and perform any covenant, condition or agreement on
the part of GE Capital required to be observed or performed pursuant to
the terms of the Loan Agreement, other than the making of payments
referred to in (i) above, which continues for a period of 60 days after
written notice thereof to GE Capital is given by the Authority or the
Bond Trustee, unless the Authority may agree in writing to an extension
of such time; provided, that if the failure stated in such notice
cannot be corrected within such period, the Authority will not
unreasonably withhold its consent to an extension of such time if
corrective action is instituted within such period and diligently
pursued until the default is corrected; or
(iii) the occurrence of an "Event of Default" of the
Partnership under and as defined in the Inducement Agreement; or
(iv) an Act of Bankruptcy of GE Capital.
Remedies. Upon the occurrence and continuance of an Event of
Default under the Loan Agreement:
(i) the Bond Trustee shall declare, by written notice, the
unpaid amount payable under the Loan Agreement to be immediately due
and payable, whereupon such amount shall become immediately due and
payable, if concurrently with or prior to such notice the unpaid
principal amount of the Bonds shall have been declared due and
payable; or
(ii) the Bond Trustee may have access to and may
inspect, examine and make copies of the books and records and any and
all accounts, data and federal income tax and other tax returns of GE
Capital, except that such remedy shall not be available (unless ordered
by a court) in the case of an Event of Default described in clause
(iii) below; or
(iii) the Authority or the Bond Trustee may take any action
at law or in equity to collect the payments then due and thereafter to
become due under the Loan Agreement or to enforce performance and
observance of any obligation, agreement or covenant of GE Capital under
the Loan Agreement.
In addition to the above remedies, GE Capital has covenanted
that in case an Event of Default occurs with respect to the payment of any
amount that GE Capital is required to make to the Bond Trustee under the Loan
Agreement as a repayment of the loan, then, upon demand of the Bond Trustee, GE
Capital shall pay to the Bond Trustee the whole amount that then shall have
become due and payable, with interest, to the extent permitted by law, on the
amount then overdue at the rate of interest per annum borne by the Bonds until
such amount has been paid. In case GE Capital shall fail forthwith to pay such
amounts upon such demand, the Bond Trustee shall be entitled to institute any
action or proceeding at law or in equity for the collection of the sums so due
and unpaid.
GE Capital's obligations under the Loan Agreement are unsecured
and rank pari passu (equally and ratably) with all other unsecured and
unsubordinated indebtedness of GE Capital. GE Capital's obligations under the
Loan Agreement have been rated AAA by Standard & Poor's Corporation.
The preceding is a summary of certain provisions contained in
the Loan Agreement and the Loan Agreement Indenture and is subject in all
respects to the Loan Agreement and the Loan Agreement Indenture, copies of which
have been filed as exhibits to the Registration Statement of which this
Prospectus is a part.
Concerning the Loan Agreement Trustee
Mercantile-Safe Deposit and Trust Company acts as trustee
under (i) an Indenture with the Company dated as of September 1, 1982, as
amended and supplemented, (ii) an Indenture with the Company dated as of March
15, 1986, as amended and supplemented and (iii) an Indenture with the Company
dated as of October 1, 1991. A number of series of senior, unsecured notes of
the Company are presently outstanding under each of such Indentures.
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DESCRIPTION OF THE INDUCEMENT AGREEMENT
General
The Inducement Agreement contains representations, warranties
and covenants with respect to the Project made by the Partnership for the
benefit of the Authority, and provides an inducement to the Authority to issue
the Bonds and make a loan of the Bond proceeds to GE Capital.
The Inducement Agreement will remain in full force and effect
from the date thereof and shall continue in effect so long as any of the Bonds
are outstanding or the Bond Trustee holds any moneys under the Bond Indenture,
whichever is later. The Partnership's obligations under the Inducement
Agreement relating to the tax status of the Bonds, indemnification and expense
reimbursement shall survive the payment of the Bonds. The exchange of the Old
Loan Agreement for the New Loan Agreement will not affect the validity of the
Inducement Agreement or the nature of the Partnership's obligations thereunder.
Payment Obligations Under the Inducement Agreement
The Partnership has guaranteed to the Authority, for the
benefit of the holders of the Bonds, GE Capital's obligations under the Loan
Agreement to pay the principal or purchase price of, premium, if any, and
interest on the Bonds and the Partnership shall pay such amounts to the Bond
Trustee if the Bond Trustee has (a) declared an Event of Default under the Loan
Agreement as a result of a failure by GE Capital to make any such payment and
(b) exhausted all remedies that may be exercised by the Bond Trustee under the
Loan Agreement as a result of such Event of Default.
The Authority's rights and benefits under the Inducement
Agreement (except for the rights of the Authority to receive certain payments
relating to indemnification and attorneys' fees and expenses and the Authority's
right to enforce certain covenants made by GE Capital for the benefit of the
Authority) are assigned to the Bond Trustee as collateral for the Bonds and to
provide a source of payment for the interest and principal owing by the
Authority to the holders of the Bonds pursuant to the terms of the Bond
Indenture.
The obligations of the Partnership to make the payments under
the Inducement Agreement and to perform and observe the other agreements
contained in the Inducement Agreement are absolute and unconditional,
irrespective of any defense or any rights of set-off, recoupment or counterclaim
that the Partnership might otherwise have against the Authority or GE Capital.
The Partnership shall pay to GE Capital, to the extent of
available funds, all amounts owed to GE Capital pursuant to the Partnership Loan
Agreement. Such payments are not assigned as security for the benefit of the
registered holders of the Bonds and neither the Authority, the Bond Trustee
nor the registered holders of the Bonds shall have any right, title or
interest in any such payment to GE Capital. The Partnership also is
required to pay certain costs and expenses of the Bond Trustee and the
Authority.
Certain Covenants of the Partnership
During the term of the Inducement Agreement, the Partnership
covenants, among other things, as follows:
Construction of the Project. The Partnership has agreed to use
the Bond proceeds loaned to it by GE Capital to acquire, construct and install,
or to complete the acquisition, construction and installation of the Project and
of all other facilities deemed necessary for the operation of the Project,
substantially in accordance with the plans and specifications prepared therefor
by the Partnership and approved by the Authority.
Maintenance of Tax-Exempt Status. The Partnership has
covenanted and agreed that it has not taken or permitted to be taken and will
not take or, to the extent within its control, permit to be taken any action
which would cause the interest on any Bonds not to be Tax-Exempt to the holders
thereof (except for any Bond held by a "substantial user" of the Project or a
"related person" to such "substantial user," as such terms are defined in
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Section 147 of the Code). The Partnership has further covenanted and agreed to
comply with each of the undertakings required of the Partnership in the Tax
Certificate.
Sale of Assets; Merger. The Partnership has agreed not to
dissolve or dispose of all or substantially all of its assets and will not
combine or consolidate with or merge into another person or permit one or more
persons to consolidate with or merge into it, except that the Partnership may
combine, consolidate with, or merge into a person legally existing under the
laws of any State of the United States, or permit one or more persons to
consolidate with or merge into it, or sell or transfer to another person all or
substantially all of its assets and thereafter to dissolve if (i) the surviving,
resulting or transferee person is the Partnership or assumes all of the
Partnership's obligations under the Inducement Agreement, (ii) the surviving,
resulting or transferee person is a person qualified to do business in
California, (iii) the surviving, resulting or transferee person shall have a net
worth (as determined in accordance with generally accepted accounting
principles) immediately after such consolidation, merger, sale or transfer
greater than or equal to the net worth of the Partnership at the end of the
fiscal quarter immediately preceding the effective date of such consolidation,
sale or transfer, and (iv) the credit rating on the Bonds immediately after the
effective date of consolidation, merger, sale or transfer shall be at a level
equivalent to, or higher than, on the date immediately preceding such date.
Maintenance and Repair and Taxes. The Partnership has agreed
that it will maintain the Project (i) in as reasonably safe condition as its
operations permit and (ii) in good repair and good operating condition, ordinary
wear and tear excepted. The Partnership has agreed to pay or cause to be paid
(a) all taxes and governmental charges which, if not paid, would become a charge
on the receipts of the Project prior to or on parity with the charge thereon
created under the Inducement Agreement, and (b) all utility charges and other
charges levied against the Project or incurred in the operation, maintenance,
use, occupancy and upkeep of the Project and all assessments and charges
lawfully imposed that may be secured by a lien; provided that if any such
assessments or governmental charges legally may be paid in installments, the
Partnership is only required to pay such installments due during the term of the
Inducement Agreement and the Loan Agreement.
Maintenance of Insurance. The Project has agreed to keep or
cause to be kept (i) the Project insured against such risks and in such amounts
and for such occurrences as similar properties are usually insured by those
constructing or operating properties similar to the Project by means of policies
issued by reputable insurance companies doing business in California, and (ii)
insurance against all direct or contingent loss or liability for personal
injury, death or property damage occasioned by the operation of the Project.
Financial Statements. The Partnership has agreed to submit to
the Bond Trustee and the Authority audited annual financial statements of
the Partnership within 120 days after the close of its fiscal year.
Events of Default and Remedies
The following are Events of Default under the Inducement
Agreement:
(i) failure by the Partnership, for any reason other than
Force Majeure, to observe or perform any covenant, condition or
agreement on its part required to be observed or performed pursuant
to the terms of the Inducement Agreement, where such failure
continues unremedied for sixty (60) days after written notice thereof to
the Partnership by the Authority or Bond Trustee, unless the
Authority and the Bond Trustee shall agree in writing to an extension of
such time; provided, that if the failure stated in the notice
cannot be corrected within such period, the Authority and Bond Trustee
will not unreasonably withhold their consent to an extension of time if
corrective action is instituted within such period and diligently
pursued until the default is corrected; or
(ii) an Act of Bankruptcy of the Partnership.
Remedies. Upon the occurrence and continuance of an Event of
Default under the Inducement Agreement:
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(i) the Bond Trustee may have access to and may inspect,
examine and make copies of the books and records and any and all
accounts, data and federal income tax and other tax returns of the
Partnership; or
(ii) the Authority or the Bond Trustee may take any action
at law or in equity to collect the payments then due and thereafter to
become due under the Loan Agreement or to enforce performance and
observance of any obligation, agreement or covenant of the Partnership
under the Inducement Agreement.
The preceding is a summary of certain provisions contained in
the Inducement Agreement and is subject in all respects to the Inducement
Agreement, a copy of which has been filed as an exhibit to the Registration
Statement of which this Prospectus is a part.
PLAN OF DISTRIBUTION
Each broker-dealer that holds Bonds for its own account must
acknowledge in the Letter of Transmittal delivered to holders of the Bonds that
it will deliver a prospectus in connection with any resale of such Bonds. This
Prospectus, as it may be amended or supplemented from time to time, may be
used by a broker-dealer in connection with resales of Bonds where such Bonds
were acquired as a result of market-making activities or other trading
activities. The Company will, for a period of 90 days after the Expiration Date,
make this Prospectus, as amended or supplemented, available to any broker-dealer
for use in connection with any such resale. In addition, until May 7, 1994, all
dealers effecting transactions in the Bonds may be required to deliver a
prospectus.
Bonds held by broker-dealers for their own account after
completion of the Exchange Offer may be sold from time to time in one or more
transactions in the over-the-counter market, in negotiated transactions, through
the writing of options on the Bonds or a combination of such methods of resale,
at market prices prevailing at the time of resale, at prices related to such
prevailing market prices or negotiated prices. Any such resale may be made
directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any such
broker-dealer and/or the purchasers of any such Bonds. Any broker-dealer that
resells Bonds after completion of the Exchange Offer and any broker or dealer
that participates in a distribution of such Bonds may be deemed to be an
"underwriter" within the meaning of the Securities Act and any profit on any
such resale of Bonds and any commissions or concessions received by any such
persons may be deemed to be underwriting compensation under the Securities Act.
By acknowledging that it will deliver and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within
the meaning of the Securities Act.
For a period of 90 days after the Expiration Date, the Company
will promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents.
LEGAL MATTERS
Certain legal matters in connection with the New Loan Agreement
will be passed upon for the Company by Pillsbury Madison & Sutro, 235 Montgomery
Street, San Francisco, CA 94104, special California counsel for the Company.
EXPERTS
The financial statements and schedules of General Electric
Capital Corporation and consolidated affiliates as of December 31, 1992 and 1991
and for each of the years in the three-year period ended December 31, 1992,
appearing in GE Capital's Annual Report on Form 10-K for the year ended December
31, 1992, incorporated by reference herein, have been incorporated herein in
reliance upon the report of KPMG Peat Marwick, independent certified public
accountants, incorporated by reference herein, and upon the authority of said
firm as experts in accounting and auditing.
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APPENDIX A
CERTAIN DEFINITIONS
Unless the context otherwise requires, the following terms
shall, for the purposes of this Prospectus, have the meanings herein specified,
as follows:
"Act of Bankruptcy" shall mean any of the following with respect to any
person (A) the commencement by such party of a voluntary case under the federal
bankruptcy laws, as now in effect or hereafter amended, or any other applicable
federal or state bankruptcy, insolvency or similar laws, or (B) the filing of a
petition with a court having jurisdiction over such party under the federal
bankruptcy laws, as now in effect or hereafter amended, or any other applicable
federal or state bankruptcy, insolvency or similar laws, which has not been
discharged or stayed within sixty (60) days, or (C) the admission of such party
in writing of its inability to pay its debts generally as they become due, or
(D) the appointment of a receiver, a trustee or a liquidator of such party in
any proceeding brought against such party, or (E) the assignment by such party
for the benefit of its creditors, or (F) the entry by such party into an
agreement of composition with its creditors.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Force Majeure" shall mean strikes, lockouts or other industrial
disturbances; acts of public enemies; orders of any kind of the government of
the United States or of the State of California or any of their departments,
agencies or officials, or any civil or military authority; insurrections; riots;
epidemics; landslides; lightning; earthquakes; fires; hurricanes; storms;
floods; washouts; droughts; arrests; restraint of government and people; civil
disturbances; explosions; breakage or accident to machinery, transmission pipes
or canals; partial or entire failure of utilities; or any other cause or event
not reasonably within the control of the party claiming Force Majeure, it being
agreed that the settlement of strikes, lockouts and other industrial
disturbances shall be entirely within the discretion of such party and such
party shall not be required to make settlement of strikes, lockouts and other
industrial disturbances by acceding to the demands of the opposing party or
parties when such course of action is, in the judgment of the party claiming
Force Majeure, unfavorable to it.
"Interest Rate Period" shall mean either a Weekly Interest Rate Period
or a Term Interest Rate Period.
"Moody's" shall mean Moody's Investors Service, a corporation organized
and existing under the laws of the State of Delaware, its successors and
assigns.
"Registration Rights Agreement" shall mean the Registration Rights
Agreement, dated as of September 1, 1993, by and among GE Capital and the
Initial Purchasers.
"S&P" shall mean Standard & Poor's Corporation, a corporation organized
and existing under the laws of the State of New York, its successors and
assigns.
"Series" shall mean any series of Bonds issued pursuant to the
Bond Indenture.
"Tax Certificate" shall mean the Tax Certificate and Agreement with
respect to the Bonds, dated October 1, 1993, by and among the Authority, GE
Capital and the Partnership, as amended in accordance with its terms.
"Tax-Exempt" means, with respect to interest on any obligations of a
state or local government, including the Bonds, that such interest is excluded
from gross income for federal income tax purposes, whether or not such interest
is includable as an item of tax preference or otherwise includable directly or
indirectly for purposes of calculating other tax liabilities, including any
alternative minimum tax or environmental tax under the Code.
"Term Interest Rate" shall mean a fixed rate of interest on a Series of
Bonds.
"Term Interest Rate Period" shall mean each period during which a Term
Interest Rate is in effect.
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"Weekly Interest Rate" shall mean a variable interest rate on a Series
of Bonds established weekly.
"Weekly Interest Rate Period" shall mean each period during which
Weekly Interest Rates are in effect.
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No dealer, salesperson or other individual has been authorized to give any
information or to make any representation other than those contained or
incorporated by reference in this Prospectus in connection with the offer
contained in this Prospectus and, if given or made, such information or
representation must not be relied upon as having been authorized by GE Capital
or by any agent, underwriter or dealer. Neither the delivery of this Prospectus
nor any sale made hereunder shall, under any circumstances, create any
implication that there has been no change in the affairs of GE Capital since
dates as of which information is given in this Prospectus. This Prospectus does
not constitute an offer or solicitation by anyone in any state in which such
offer or solicitation is not authorized or in which the person making such offer
or solicitation is not qualified to do so or is to any person to whom it is
unlawful to make such offer or solicitation.
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TABLE OF CONTENTS
Page
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Available Information....................................... 2
Documents Incorporated by Reference......................... 2
Introduction................................................ 2
General Electric Capital Corporation........................ 3
Use of Proceeds............................................. 3
The Exchange Offer.......................................... 4
Certain Federal Income Tax Consequences of
the Exchange Offer........................................ 7
Description of the Loan Agreement........................... 7
Description of the Inducement Agreement..................... 10
Plan of Distribution........................................ 12
Legal Matters............................................... 12
Experts..................................................... 12
================================================================================
GENERAL ELECTRIC
CAPITAL CORPORATION
Offer to exchange its new
$55,000,000 principal amount Loan
Obligation, including interests therein,
to the California Alternative
Energy Source
Financing Authority,
which has been registered under
the Securities Act of 1933, for
its old $55,000,000 principal amount
Loan Obligation, including interests therein, to the
California Alternative Energy
Source Financing Authority
---------------
PROSPECTUS
---------------
March , 1994
---
================================================================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers.
Under Sections 7018-7022 of the New York Banking Law the
Company may or shall, subject to various exceptions and limitations, indemnify
its directors or officers as follows:
a. If a director or officer is made or threatened to be made a
party to an action by or in the right of the Company to procure a
judgment in its favor, by reason of the fact that he is or was a
director or officer of the Company or is or was serving at the request
of the Company as a director or officer of some other enterprise
(including an employee benefit plan), the Company may indemnify him
against amounts paid in settlement and reasonable expenses, including
attorney's fees, incurred in the defense or settlement of such action
or an appeal therein, if such director or officer acted, in good faith,
for a purpose which he reasonably believed to be in (or, in the case of
service for any other enterprise, not opposed to) the best interests of
the Company, except that no indemnification is available under such
statutory provisions in respect of a threatened action or a pending
action which is settled or otherwise disposed of, or any claim or issue
or matter as to which such person is found liable to the Company,
unless in each such case a court determines that such person is fairly
and reasonably entitled to indemnity for such amount as the court deems
proper.
b. With respect to any action or proceeding other than one by
or in the right of the Company to procure a judgment in its favor, if a
director or officer is made or threatened to be made a party by reason
of the fact that he was a director or officer of the Company, or served
some other enterprise (including an employee benefit plan) at the
request of the Company, the Company may indemnify him against
judgments, fines, amounts paid in settlement and reasonable expenses,
including attorney's fees incurred as a result of such action or
proceeding, or an appeal therein, if he acted in good faith for a
purpose which he reasonably believed to be in (or, in the case of
service for any other enterprise, not opposed to) the best interests of
the Company and, in criminal actions or proceedings, in addition, had
no reasonable cause to believe that his conduct was unlawful.
c. A director or officer that has been successful, on the
merits or otherwise, in the defense of a civil or criminal action or
proceeding of the character described in subparagraphs a or b above,
shall be entitled to indemnification as authorized in such paragraphs.
The foregoing statement is subject to the detailed provisions of Sections
7018-7022 of the New York Banking Law.
The indemnification and advancement of expenses granted
pursuant to the New York Banking Law, as summarized in the foregoing paragraph,
are not exclusive of any other rights to indemnification or advancement of
expenses to which a director or officer may be entitled, provided that no
indemnification may be made if a judgment adverse to the director or officer
establishes that his acts were committed in bad faith or were the result of
active and deliberate dishonesty and were material to the cause so adjudicated,
or that he personally gained a financial profit or other advantage to which he
was not legally entitled. The By-Laws of the Company provide that directors and
officers of the Company shall be indemnified to the fullest extent permitted by
law in connection with any actual or threatened action or proceeding (including
civil, criminal, administrative or investigative proceedings) arising out of
their service to the Company or to another organization at the Company's
request. Persons who are not directors or officers of the Company may be
similarly indemnified in respect of such service to the extent authorized at any
time by the Board of Directors.
II-1
<PAGE>
The directors of the Company are insured under officers and
directors liability insurance policies purchased by GE Company. The directors,
officers and employees of the Company are also insured against fiduciary
liabilities under the Employee Retirement Income Security Act of 1974.
Item 21. Exhibits.
Exhibit
Number Description
------ -----------
*4(a) Loan Agreement.
*4(b) Form of New Loan Agreement.
*4(c) Inducement Agreement.
*4(d) Registration Rights Agreement.
**4(e) Form of Loan Agreement Indenture.
*5 Opinion and Consent of special California counsel for the
Company.
*12 Computation of ratio of earnings to fixed charges.
*23(a) Consent of Pillsbury Madison & Sutro, special California
counsel for the Company, is included in its opinion referred
to in Exhibit 5 above.
*23(b) Consent of KPMG Peat Marwick (contained in Part II of this
Registration Statement).
*24 Powers of Attorney.
**25(a) Forms T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of Mercantile-Safe Deposit
and Trust Company in respect of the Indenture filed as
Exhibit 4(e).
*99 Form of Letter of Transmittal
- ----------------------
* Previously filed.
** Filed herewith.
II-2
<PAGE>
Item 22. Undertakings.
The undersigned registrant hereby undertakes that for purposes
of determining any liability under the Securities Act of 1933, (1) each filing
of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof, and
(2) each post-effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
The undersigned registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction that was not
the subject of and included in the registration statement when it became
effective.
The undersigned registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Item 4, 10(b), 11 or 13 of Form S-4, within one business day of receipt of such
request, and to send the incorporated documents by first class mail or other
equally prompt means. This includes information contained in documents filed
subsequent to the effective date of the registration statement through the date
of responding to the request.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions described under Item 15
above, or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant, General Electric Capital Corporation, has duly caused this Post
Effective Amendment to the Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Stamford, State of
Connecticut, on the 2nd day of March, 1994.
General Electric Capital Corporation
By /s/ JAMES A. PARKE
--------------------------------
Title: Senior Vice President, Finance
Pursuant to the requirements of the Securities Act of 1933,
this Post-Effective Amendment to the Registration Statement has been signed
below by the following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
Chairman of the Board, \
President and Chief |
Executive Officer |
* (Principal Executive |
- --------------------------------------------- Officer) |
(Gary C. Wendt) |
|
Senior Vice President, |
Finance (Principal |
/s/ JAMES A. PARKE Financial and Accounting |
- --------------------------------------------- Officer) and Director |
(James A. Parke) |
|
|
Senior Vice President |
* Corporate Treasury and |
- --------------------------------------------- Global Funding Operation > March 2, 1994
(Jeffrey S. Werner) |
|
|
|
* |
- --------------------------------------------- |
(Nigel D.T. Andrews) Director |
|
|
|
* |
- --------------------------------------------- |
(James R. Bunt) Director |
|
|
|
- --------------------------------------------- |
(Michael A. Carpenter) Director |
/
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
* \
- --------------------------------------------- |
(Dennis D. Dammerman) Director |
|
|
|
|
- --------------------------------------------- |
(Paolo Fresco) Director |
|
|
|
* |
- --------------------------------------------- |
(Benjamin W. Heineman, Jr.) Director |
|
|
|
* |
- --------------------------------------------- |
(Burton J. Kloster, Jr.) Director |
|
|
* |
- --------------------------------------------- |
(Hugh J. Murphy) Director |
|
|
|
|
* |
- --------------------------------------------- |
(Denis J. Nayden) Director > March 2, 1994
|
|
|
|
- --------------------------------------------- |
(John M. Samuels) Director |
|
|
|
* |
- --------------------------------------------- |
(Edward D. Stewart) Director |
|
|
|
* |
- --------------------------------------------- |
(John F. Welch, Jr.) Director |
/
</TABLE>
II-5
<PAGE>
<TABLE>
<S> <C> <C>
Signature Title Date
--------- ----- ----
*By /s/ JAMES A. PARKE
-------------------------------------
(James A. Parke)
Attorney-in-fact
</TABLE>
II-6
<PAGE>
CONSENT OF COUNSEL
The consent of Pillsbury Madison & Sutro, special California
counsel for the Company, to the reference to such counsel under Legal Matters in
the Prospectus, and to the use of its opinion as an Exhibit to the Registration
Statement, is included in said opinion.
II-7
<PAGE>
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement on Form S-4, of our report dated February 12, 1993 relating to the
financial statements and schedules of the Company and consolidated affiliates as
of December 31, 1992 and 1991 and for each of the years in the three-year period
ended December 31, 1992 appearing in the Company's Annual Report on Form 10-K
for the year ended December 31, 1992.
We further consent to the reference to our firm under Experts in
the Prospectus.
KPMG Peat Marwick
Stamford, Connecticut
December 20, 1993
II-8
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description Page
------ ----------- ----
*4(a) Loan Agreement.
*4(b) Form of New Loan Agreement.
*4(c) Inducement Agreement.
*4(d) Registration Rights Agreement.
**4(e) Form of Loan Agreement Indenture.
*5 Opinion and Consent of special California counsel for the
Company.
*12 Computation of ratio of earnings to fixed charges.
*23(a) Consent of Pillsbury Madison & Sutro, special California
counsel for the Company, is included in its opinion referred
to in Exhibit 5 above.
*23(b) Consent of KPMG Peat Marwick (contained in Part II of this
Registration Statement).
*24 Powers of Attorney.
**25(a) Forms T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of Mercantile-Safe Deposit
and Trust Company in respect of the Indenture filed as
Exhibit 4(e).
*99 Form of Letter of Transmittal
- ----------------------
* Previously filed.
** Filed herewith.
<PAGE>
GENERAL ELECTRIC CAPITAL CORPORATION,
Issuer
and
MERCANTILE-SAFE DEPOSIT AND TRUST COMPANY,
Trustee
INDENTURE
Dated as of February 1, 1994
LOAN OBLIGATION AND INTERESTS THEREIN
-------------------------------------
<PAGE>
REFERENCE SHEET*
Reference is made to the following provisions of the Trust
Indenture Act of 1939, as amended, which establish certain duties and
responsibilities of the Company and the Trustee which may not be set forth in
this Indenture:
<TABLE>
<CAPTION>
SECTION SUBJECT SECTION SUBJECT
- ------- ------- ------- -------
<S> <C> <C> <C>
310(b) Disqualification of the 315(b) Notice of default from the
Trustee for conflicting Trustee to Securityholders
interest
311 Preferential collection of 315(c) Duties of the Trustee in
claims of the Trustee as case of default
creditor of the Company
312(a) Periodic filing of 315(d) Provisions relating to
information by the Company responsibility of the
with Trustee Trustee
312(b) Access of Securityholders 315(e) Assessment of costs
to information against litigating
Securityholders in
certain circimstances
313(a) Annual report of the Trustee 316(a) Directions and waivers
to Securityholders by Securityholders in
certain circumstances
313(b) Additional reports of the 316(b) Prohibition of
Trustee to Securityholders impairment of right of
Securityholders to payment
314(a) Reports by the Company, 316(c) Right of the Company to set
including annual compliance record date for certain
certificate purposes
314(c) Evidence of compliance with 317(a) Special powers of the
conditions precedent Trustee
315(a) Duties of the Trustee prior 318(a) Provisions of Trust
to default Indenture Act of 1939 to
control in case of
conflict
</TABLE>
* This reference sheet is not a part of the Indenture.
<PAGE>
TABLE OF CONTENTS
PAGE
----
ARTICLE I
DEFINITIONS
Section 1.1. Definitions............................................ 1
Authority...................................................... 1
Board of Directors............................................. 1
Bonds.......................................................... 2
Company........................................................ 2
Dollars........................................................ 2
Event of Default............................................... 2
Indenture...................................................... 2
Interests...................................................... 2
Loan Agreement................................................. 2
Loan Obligation................................................ 2
Officers' Certificate.......................................... 2
Opinion of Counsel............................................. 2
Outstanding.................................................... 2
Paying Agent................................................... 3
Person......................................................... 3
principal office of the Trustee................................ 3
Responsible Officer............................................ 3
Security" or "Securities....................................... 3
Securityholder", "holder of a Security......................... 3
Security Register.............................................. 3
Subsidiary..................................................... 3
Trustee........................................................ 4
Trust Indenture Act of 1939.................................... 4
ARTICLE II
AMOUNT, FORM, PRIORITY, PAYMENT,
INTEREST AND RESTRICTION ON TRANSFER
Section 2.1. Amount................................................. 4
Section 2.2. Form................................................... 4
Section 2.3. Priority............................................... 4
Section 2.4. Payment................................................ 4
Section 2.5. Interest............................................... 4
Section 2.6. Restriction on Transfer of Securities.................. 4
Section 2.7. Assignment of Loan Agreement........................... 4
- i -
<PAGE>
PAGE
----
ARTICLE III
REDEMPTION OF SECURITIES
Section 3.1. Prepayment of the Loan Obligation...................... 5
Section 3.2. Redemption of the Interests............................ 5
ARTICLE IV
COVENANTS
Section 4.1. Payment of Principal and Interest...................... 5
Section 4.2. Maintenance of Security Register; Maintenance of
Office or Agency....................................... 5
Section 4.3. Appointments to Fill Vacancies in Trustee's Office..... 6
Section 4.4. Provisions as to Paying Agent.......................... 6
Section 4.5. Statement as to Compliance............................. 6
ARTICLE V
SECURITYHOLDER LISTS
AND REPORTS BY THE TRUSTEE
Section 5.1. Securityholder Lists................................... 6
Section 5.2. Delivery of Reports by the Trustee..................... 6
ARTICLE VI
REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS ON EVENT OF DEFAULT
Section 6.1. Events of Default...................................... 7
Section 6.2. Payment of Loan Obligation on Default; Suit Therefor... 8
Section 6.3. Application of Moneys Collected by Trustee............. 9
Section 6.4. Proceedings by Securityholders......................... 10
Section 6.5. Proceedings by Trustee................................. 10
Section 6.6. Remedies Cumulative and Continuing..................... 10
Section 6.7. Direction of Proceedings and Waiver of Defaults by
Securityholders........................................ 11
ARTICLE VII
CONCERNING THE TRUSTEE
- ii -
<PAGE>
PAGE
----
Section 7.1. Reliance on Documents, Opinions, etc................... 11
Section 7.2. No Responsibility for Recitals......................... 11
Section 7.3. Ownership of Securities................................ 11
Section 7.4. Moneys to be Held in Trust............................. 11
Section 7.5. Compensation and Expenses of Trustee................... 12
Section 7.6. Officers' Certificate as Evidence...................... 12
Section 7.7. Eligibility of Trustee................................. 12
Section 7.8. Resignation or Removal of Trustee...................... 12
Section 7.9. Acceptance by Successor Trustee........................ 13
Section 7.10. Succession by Merger, etc.............................. 14
ARTICLE VIII
CONCERNING THE SECURITYHOLDERS
Section 8.1. Action by Securityholders.............................. 14
Section 8.2. Proof of Execution by Securityholders.................. 14
Section 8.3. Who Are Deemed Absolute Owners......................... 14
Section 8.4. Revocation of Consents................................. 15
ARTICLE IX
SECURITYHOLDERS' MEETINGS
Section 9.1. Purposes of Meetings................................... 15
Section 9.2. Call of Meetings by Trustee............................ 15
Section 9.3. Call of Meetings by the Company or Securityholders..... 16
Section 9.4. Qualifications for Voting.............................. 16
Section 9.5. Regulations............................................ 16
Section 9.6. Voting................................................. 17
Section 9.7. No Delay of Rights by Meeting.......................... 17
ARTICLE X
SUPPLEMENTAL INDENTURES
Section 10.1. Supplemental Indentures without Consent of
Securityholders....................................... 17
Section 10.2. Supplemental Indentures with Consent of
Securityholders....................................... 18
Section 10.3. Compliance with Trust Indenture Act; Effect of
Supplemental Indentures............................... 19
Section 10.4. Evidence of Compliance of Supplemental Indenture
to be Furnished Trustee. ............................. 19
- iii -
<PAGE>
PAGE
----
ARTICLE XI
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 11.1. Company May Not Consolidate, etc., Except Under
Certain Conditions.................................... 19
Section 11.2. Loan Obligation to be Secured in Certain Events....... 20
Section 11.3. Successor Corporation to be Substituted............... 20
Section 11.4. Documents to be Given Trustee......................... 20
ARTICLE XII
SATISFACTION AND DISCHARGE OF INDENTURE
Section 12.1. Discharge of Indenture................................ 20
Section 12.2. Deposited Moneys to be Held in Trust by Trustee....... 20
ARTICLE XIII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 13.1. Indenture and Loan Obligation Solely Corporate
Obligations........................................... 21
ARTICLE XIV
MISCELLANEOUS PROVISIONS
Section 14.1. Provisions Binding on Company's Successors............ 21
Section 14.2. Official Acts by Successor Corporation................ 21
Section 14.3. Addresses for Notices, etc............................ 21
Section 14.4. NEW YORK CONTRACT..................................... 21
Section 14.5. Legal Holidays........................................ 22
Section 14.6. Table of Contents, Headings, etc...................... 22
Section 14.7. Execution in Counterparts............................. 22
Section 14.8. Separability.......................................... 22
Section 14.9. Benefits.............................................. 22
Exhibit A: Amended and Restated Loan Agreement
- iv -
<PAGE>
THIS INDENTURE, dated as of February 1, 1994 between General
Electric Capital Corporation, a corporation duly organized and existing under
the laws of the State of New York (the "Company"), and Mercantile-Safe Deposit
and Trust Company, a banking association duly organized and existing under the
laws of the State of Maryland (the "Trustee").
W I T N E S S E T H :
WHEREAS, the Company has duly authorized the issuance of (i) its
unsecured Loan Obligation to the Authority and (ii) Interests of the holders
of the Bonds therein, as in this Indenture provided (as such terms are
hereinafter defined); and
WHEREAS, the Company has done all acts and things necessary to
make this Indenture, when duly executed and delivered by the parties hereto, a
valid agreement of the Company according to its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the acquisition of
the Securities by the holders thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all holders from time to time of
the Securities as follows:
ARTICLE I
DEFINITIONS
Section 1.1. DEFINITIONS. The terms defined in this Section
1.1 (except as herein otherwise expressly provided or unless the context
otherwise requires) for all purposes of this Indenture shall have the
respective meanings specified in this Section 1.1. All other terms used in
this Indenture which are defined in the Trust Indenture Act of 1939, as
amended, or which are by reference therein defined in the Securities Act of
1933, as amended (except as herein otherwise expressly provided or unless the
context otherwise requires), shall have the meanings assigned to such terms in
said Trust Indenture Act and in said Securities Act as in force at the date of
this Indenture as originally executed. The words "HEREIN", "HEREOF", and
"HEREUNDER" and other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other subdivision.
"AUTHORITY" means the California Alternative Energy Source
Financing Authority, the issuer of the Bonds.
"BOARD OF DIRECTORS" means the Board of Directors of the Company
or any committee of such Board or specified officers of the Company to which
the powers of such Board have been lawfully delegated.
<PAGE>
2
"BONDS" means the $27,500,000 aggregate principal amount
California Alternative Energy Source Financing Authority Cogeneration Facility
Revenue Bonds (General Electric Capital Corporation -- Arroyo Energy Project)
1993 Series A and the $27,500,000 aggregate principal amount California
Alternative Energy Source Financing Authority Cogeneration Facility Revenue
Bonds (General Electric Capital Corporation -- Arroyo Energy Project) 1993
Series B.
"COMPANY" means General Electric Capital Corporation, a New York
corporation, until any successor corporation shall have become such pursuant
to the provisions of Article XI, and thereafter "Company" shall mean such
successor, except as otherwise provided in Section 11.3.
"DOLLARS" and "$" mean the lawful currency of the United States
of America.
"EVENT OF DEFAULT" has the meaning specified in Section 6.1.
"INDENTURE" means this instrument as originally executed or as
it may be amended or supplemented from time to time as herein provided.
"INTERESTS" means the interests of the holders of the Bonds in
the Loan Obligation, in the aggregate principal amount of $55,000,000.
"LOAN AGREEMENT" means the Amended and Restated Loan Agreement
between the Authority and the Company, dated as of February 1, 1994, as it may
from time to time be supplemented or amended, in the form attached hereto as
Exhibit A.
"LOAN OBLIGATION" means the Company's $55,000,000 loan
obligation to the Authority pursuant to the Loan Agreement.
"OFFICERS' CERTIFICATE" means a certificate signed by the
President, the Chairman or any vice chairman of the Board or any Vice
President and by the Treasurer or any Assistant Treasurer, the Comptroller or
the Secretary or any Assistant Secretary of the Company and delivered to the
Trustee. Each such certificate shall comply with Section 314(c) of the Trust
Indenture Act of 1939, to the extent applicable.
"OPINION OF COUNSEL" means an opinion in writing signed by legal
counsel, who may be an employee of or of counsel to the Company or may be
other counsel satisfactory to the Trustee. Each such opinion shall comply
with Section 314(c) of the Trust Indenture Act of 1939, to the extent
applicable.
"OUTSTANDING", when used with reference to Securities, shall
mean, except as otherwise required by the Trust Indenture Act of 1939, as of
any particular time, all Securities held by Securityholders as shown on the
Securities Register, except:
(a) Securities, or portions thereof, theretofore prepaid or
redeemed, as the case may be, by the Company pursuant to the provisions
of this Indenture; and
<PAGE>
3
(b) Securities, or portions thereof, the payment or prepayment
of which moneys in the necessary amount have been theretofore deposited
in trust with the Trustee or set aside and segregated in trust by the
Company (who shall act as its own Paying Agent); PROVIDED that if the
Loan Obligation is to be prepaid, notice of such prepayment shall have
been given as in Article III provided, or provision therefor
satisfactory to the Trustee has been made for the giving of such notice.
"PAYING AGENT" means any Person (including the Company)
authorized by the Company to pay the principal of or interest on the Loan
Obligation on behalf of the Company.
"PERSON" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"PRINCIPAL OFFICE OF THE TRUSTEE", or other similar term, shall
mean the office of the Trustee at which at any particular time its corporate
trust business shall be principally administered, which office at the date
hereof is located at Two Hopkins Plaza, G Level, Baltimore, Maryland 21201.
"RESPONSIBLE OFFICER" when used with respect to the Trustee
means the chairman or any vice chairman of the board of directors, the
chairman or any vice chairman of the executive committee of the board of
directors, the president, any executive vice president, any senior vice
president, any vice president, any second vice president, any assistant vice
president, the cashier, any assistant cashier, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, any senior trust officer,
any trust officer, any assistant trust officer, or any other officer or
assistant officer of the Trustee customarily performing functions similar to
those performed by the persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred because of his
knowledge of and familiarity with the particular subject.
"SECURITY" or "SECURITIES" means the Loan Obligation or the
Interests individually, as the case may be, or the Loan Obligation and the
Interests collectively, as the case may be, issued under this Indenture, which
are evidenced by an individual record or entries in the name of the particular
Securityholder established on the Security Register.
"SECURITYHOLDER", "HOLDER OF A SECURITY" or other similar
terms, mean, with respect to a Security, a Person in whose name at the time a
particular Security is registered in the Security Register.
"SECURITY REGISTER" has the meaning specified in Section 4.2(a).
"SUBSIDIARY" means any corporation of which the Company directly
or indirectly owns or controls at the time at least a majority of the
outstanding stock having under ordinary circumstances (not dependent upon the
happening of a contingency) voting power to elect a majority of the board of
directors of such corporation.
<PAGE>
4
"TRUSTEE" means the corporation or association named as Trustee
in this Indenture and, subject to the provisions of Article VII hereof, shall
also include its successors and assigns as Trustee hereunder.
"TRUST INDENTURE ACT OF 1939" means the Trust Indenture Act of
1939, as amended, as it was in force at the date of execution of this
Indenture, except as provided in Section 10.3.
ARTICLE II
AMOUNT, FORM, PRIORITY, PAYMENT,
INTEREST AND RESTRICTION ON TRANSFER
Section 2.1. AMOUNT. The aggregate principal amount of
Securities issued under this Indenture shall be $110,000,000 (being the
equivalent of the $55,000,000 aggregate principal amount Loan Obligation, plus
$55,000,000 aggregate principal amount of Interests).
Section 2.2. FORM. (a) The Loan Obligation shall be evidenced
by the Loan Agreement.
(b) The Interests shall be issued in uncertificated form and no
other instrument evidencing the Interests will be issued. The Interests shall
not be severable from the Bonds.
Section 2.3. PRIORITY. The Securities shall be unsecured and
shall rank PARI PASSU with all other unsecured and unsubordinated
indebtedness of the Company.
Section 2.4. PAYMENT. The Loan Obligation shall be payable as
provided in the Loan Agreement. No separate payments shall be made in respect
of the Interests.
Section 2.5. INTEREST. Interest on the Loan Obligation shall
be payable as provided in the Loan Agreement.
Section 2.6. RESTRICTION ON TRANSFER OF SECURITIES. (a) The
Loan Obligation may not be transferred in whole or in part, except that
certain of the Authority's rights under the Loan Agreement may be assigned to
the trustee in respect of the Bonds as provided in Section 4.4 of the Loan
Agreement.
(b) The Interests are not transferable except in connection with
any transfer of the Bonds.
Section 2.7. ASSIGNMENT OF LOAN AGREEMENT. The Trustee hereby
acknowledges that certain of the Authority's rights under the Loan Agreement
have been assigned to the trustee in respect of the Bonds as provided in
Section 4.4 of the Loan Agreement.
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ARTICLE III
REDEMPTION OF SECURITIES
Section 3.1. PREPAYMENT OF THE LOAN OBLIGATION. The Loan
Obligation, or a portion thereof, shall be prepaid when any monies under the
Loan Agreement are prepaid as provided in Article VII of the Loan Agreement.
Any such prepayment shall be subject to the additional applicable provisions
of the Loan Agreement.
Section 3.2. REDEMPTION OF THE INTERESTS. Interests, or a
portion thereof, shall be automatically redeemed, without further action by
the Company or the Trustee, when monies under the Loan Agreement are prepaid
as provided in Article VII of the Loan Agreement and Bonds are redeemed as
provided in Article IV of the indenture in respect of the Bonds (the "Bond
Indenture"). Any such redemption shall be subject to the additional
applicable provisions of the Bond Indenture.
ARTICLE IV
COVENANTS
Section 4.1. PAYMENT OF PRINCIPAL AND INTEREST. The Company
covenants and agrees that it will duly and punctually pay or cause to be paid
the principal of, and interest on, the Loan Obligation in accordance with the
terms of the Loan Agreement.
Section 4.2. MAINTENANCE OF SECURITY REGISTER; MAINTENANCE OF
OFFICE OR AGENCY. (a)The Company will keep at an office or agency proper
books of record and account (which books may be in written form or in any
other form capable of being converted into written form) in which full and
correct entries shall be made of all funds invested in the Securities,
together with interest accrued thereon, if any, and all prepayments or
redemptions thereof, and which shall contain the names and addresses of all
Securityholders and the principal amounts of their respective Securities
(collectively, the "Security Register").
(b) The Company will maintain in the Borough of Manhattan, the
City of New York an office or agency where notices and demands hereunder upon
the Company, as appropriate, in respect of the Securities and this Indenture
may be served. The Company will give prompt written notice to the Trustee and
the Securityholders of the location, and any change in the location, of any
such office or agency. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such notices and demands may be made or served at the
principal office of the Trustee.
The Company hereby initially designates the office of the Company
located at 570 Lexington Avenue, New York, New York 10022 as the office or
agency of the Company in the Borough of Manhattan, the City of New York, where
notices and demands to or upon the Company in respect of the Securities or of
this Indenture may be served.
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6
Section 4.3. APPOINTMENTS TO FILL VACANCIES IN TRUSTEE'S
OFFICE. The Company, whenever necessary to avoid or fill a vacancy in the
office of the Trustee, will appoint, in the manner provided in Section 7.8, a
successor trustee, so that there shall at all times be a Trustee with respect
to the Securities hereunder.
Section 4.4. PROVISIONS AS TO PAYING AGENT. (a) The Company
shall act as its own paying agent with respect to the Loan Obligation, and
will, on or before each date on which payments on the Loan Obligation shall
have become due and payable, pay directly to the trustee in respect of the
Bonds, as assignee of certain of the Authority's rights under the Loan
Agreement (or, if such assignment shall have been released, directly to the
Trustee), a sum sufficient to pay all amounts so due under the Loan Agreement,
and will promptly notify the Trustee of any failure by the Company (or by any
other obligor on the Loan Obligation) to make any such payment on the Loan
Obligation when the same shall become due and payable under the Loan
Agreement.
(b) Anything in this Section 4.4 to the contrary notwithstanding,
the Company may, at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture, or for any other reason, pay or cause to be
paid to the trustee in respect of the Bonds, as assignee of certain of the
Authority's rights under the Loan Agreement (or, if such assignment shall have
been released, directly to the Trustee), all sums held in trust by it, or any
Paying Agent thereunder, as required by this Section, and if such sums are
paid directly to the Trustee, such sums shall be held by the Trustee upon the
trusts herein contained.
Section 4.5. STATEMENT AS TO COMPLIANCE. The Company will
deliver to the Trustee on or before June 1 in each year (beginning with the
first June 1 which is not less than 60 days following the first date of
issuance of Securities under this Indenture) a certificate complying with
Section 314(a)(4) of the Trust Indenture Act of 1939.
ARTICLE V
SECURITYHOLDER LISTS
AND REPORTS BY THE TRUSTEE
Section 5.1. SECURITYHOLDER LISTS. The Company covenants and
agrees that it will furnish or cause to be furnished to the Trustee with
respect to the Securities, (i) at such times as required by Section 312(a) of
the Trust Indenture Act of 1939 and (ii) at such other times as the Trustee
may request in writing, within 30 days after receipt by the Company of any
such request, a list in such form as the Trustee may reasonably require of the
names and addresses of the holders of Securities as of a date not more than 15
days prior to the time such information is furnished.
Section 5.2. DELIVERY OF REPORTS BY THE TRUSTEE. The reports
to be transmitted by the Trustee pursuant to the requirements of Section 313
of the Trust Indenture Act of 1939, as amended, shall be required to be
transmitted on or before the first May 15 which is not less than sixty days
following the first date of issuance of any Securities under this Indenture,
and
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7
on or before May 15 in every year thereafter, so long as any Securities are
Outstanding hereunder.
ARTICLE VI
REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS ON EVENT OF DEFAULT
Section 6.1. EVENTS OF DEFAULT. "EVENT OF DEFAULT" whenever
used herein with respect to Securities means any one of the following events,
continued for the period of time, if any, and after the giving of notice, if
any, designated in this Indenture:
(a) default in the payment of principal of or any installment of
interest upon the Loan Obligation as and when the same shall become due
and payable as provided in the Loan Agreement; or
(b) the occurrence of an "Event of Default" as defined in the
Loan Agreement (other than pursuant to Section 6.1(c) thereof) (subject
to the further provisions of Section 6.1 of the Loan Agreement).
If an Event of Default with respect to the Securities at the time
outstanding occurs and is continuing, then and in each and every such case,
unless the principal of the Loan Obligation shall have already become due and
payable, either the Trustee or the holders of not less than twenty-five
percent in aggregate principal amount of the Securities then Outstanding
hereunder, by notice in writing to the Company (and to the Trustee if given by
holders), may declare the principal amount of the Loan Obligation to be due
and payable immediately, and upon any such declaration the same shall become
and shall be immediately due and payable, anything in this Indenture or in the
Loan Agreement contained to the contrary notwithstanding. This provision,
however, is subject to the condition that if, at any time after the principal
amount of the Loan Obligation shall have been so declared due and payable, and
before any judgment or decree for the payment of the moneys due shall have
been obtained or entered as hereinafter provided, the Company shall pay or
shall deposit with the Trustee a sum sufficient to pay all matured
installments of interest, if any, upon the Loan Obligation and the principal
of the Loan Obligation which shall have become due otherwise than by
acceleration and all amounts payable to the Trustee pursuant to the provisions
of Section 7.5, and any and all defaults under this Indenture with respect to
Securities, other than the nonpayment of principal of and accrued interest on
the Loan Obligation which shall have become due solely by acceleration, shall
have been remedied or cured or waived or provision shall have been made
therefor to the satisfaction of the Trustee, then and in every such case the
holders of a majority in aggregate principal amount of the Securities then
Outstanding, by written notice to the Company and to the Trustee, may waive
all defaults and rescind and annul such declaration and its consequences; but
no such waiver or rescission and annulment shall extend to or shall affect any
subsequent default or shall impair any right consequent thereon.
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8
In case the Trustee shall have proceeded to enforce any right
under this Indenture and such proceedings shall have been discontinued or
abandoned because of such rescission or annulment or for any other reason or
shall have been determined adversely to the Trustee, then and in every such
case the Company and the Trustee shall be restored respectively to their
several positions and rights hereunder, and all rights, remedies and powers of
the Company and the Trustee shall continue as though no such proceedings had
been taken.
Section 6.2. PAYMENT OF LOAN OBLIGATION ON DEFAULT; SUIT
THEREFOR. The Company covenants that in case default shall be made in the
payment of principal of or installment of interest upon the Loan Obligation as
and when the same shall become due and payable in accordance with the Loan
Agreement, then, upon demand of the Trustee, the Company will pay to the
Trustee, for the benefit of the holder of the Loan Obligation the whole amount
that then shall have become due and payable on the Loan Obligation for
principal and interest and, to the extent that payment of such interest shall
be legally enforceable, interest on any overdue principal and on any overdue
interest, at the rate or rates prescribed in accordance with the terms of the
Loan Agreement; and, in addition thereto, such further amount as shall be
sufficient to cover costs and expenses of collection, and any further amounts
payable to the Trustee pursuant to the provisions of Section 7.5.
In case the Company shall fail forthwith to pay such amounts upon
such demand, the Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any actions or proceedings at law
or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceedings to judgment or final decree, and may
enforce any such judgment or final decree against the Company, or any other
obligor upon the Loan Obligation, and collect in the manner provided by law
out of the property of the Company or any other obligor on the Loan Obligation
wherever situated the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or
for the reorganization of the Company or any other obligor on the Loan
Obligation under the Federal Bankruptcy Code or any other similar applicable
Federal or State law, or in case a receiver or trustee (or other similar
official) shall have been appointed for the property of the Company, or such
other obligor upon the Loan Obligation, or in the case of any other similar
judicial proceedings relative to the Company, or other obligor on the Loan
Obligation, or to the creditors or property of the Company or such other
obligor upon the Loan Obligation, the Trustee, irrespective of whether the
principal of the Loan Obligation shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand pursuant to the provisions of this Section
6.2, shall be entitled and empowered, by intervention in such proceedings or
otherwise, to file and prove a claim or claims for the whole amount of
principal and interest, if any, owing and unpaid in respect of the Loan
Obligation and, in case of any judicial proceedings, to file such proofs of
claim and other papers or documents as may be necessary or advisable in order
to have the claims of the Trustee and of the Securityholders allowed in such
judicial proceedings relative to the Company, or any other obligor on the Loan
Obligation, its creditors, or its property, and to collect and receive any
moneys or other property payable or deliverable on any such claims, and to
distribute the same after the deduction of costs and expenses of collection,
and any further amounts payable to the
<PAGE>
9
Trustee pursuant to the provisions of Section 7.5 and incurred by it up to the
date of such distribution; and any receiver, assignee or trustee (or other
similar official) in bankruptcy or reorganization is hereby authorized by each
of the Securityholders to make such payments to the Trustee, and, in the event
that the Trustee shall consent to the making of such payments directly to the
holder of the Loan Obligation, to pay to the Trustee costs and expenses of
collection and any further amounts payable to the Trustee pursuant to the
provisions of Section 7.5 and incurred by it up to the date of such
distribution.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Securityholder
any plan of reorganization, arrangement, adjustment or composition affecting
any of the Securities or the rights of any holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Securityholder in any such
proceeding.
All rights of action and of asserting claims under this Indenture,
or under the Securities, may be enforced by the Trustee without the possession
of any of the Securities or the production thereof in any trial or other
proceeding relative thereto, and any such suit or proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall be for the ratable benefit of the holders of
the Securities in respect of which such action was taken. In any proceedings
brought by the Trustee (and also any proceedings in which a declaratory
judgment of a court may be sought as to the interpretation or construction of
any provision of this Indenture, to which the Trustee shall be a party) the
Trustee shall be held to represent all the holders of the Securities to which
such proceedings relate, and it shall not be necessary to make any holders of
such Securities parties to any such proceedings.
Section 6.3. APPLICATION OF MONEYS COLLECTED BY TRUSTEE. Any
moneys collected by the Trustee pursuant to this Article shall be applied in
the order following, at the date or dates fixed by the Trustee for the
distribution of such moneys:
FIRST: To the payment of all amounts due the Trustee pursuant to
the provisions of Section 7.5;
SECOND: In case the principal of the Outstanding Loan Obligation
in respect of which such moneys have been collected shall not have
become due (upon prepayment, by declaration, repayment or otherwise) and
be unpaid, to the payment of interest, if any, on such Loan Obligation;
THIRD: In case the principal of the Outstanding Loan Obligation
in respect of which such moneys have been collected shall have become
due (upon prepayment, by declaration, repayment or otherwise), to the
payment of the whole amount then owing and unpaid upon such Loan
Obligation for principal and interest, if any, with interest on the
overdue principal and (to the extent that such interest has been
collected by the Trustee) upon overdue installments of interest, if any;
and in case such moneys shall be insufficient to pay in full the whole
amounts so due and unpaid upon such Loan Obligation, then to the payment
of such principal, and interest, if any, without preference
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10
or priority of principal over interest, if any, or of interest, if any,
over principal, ratably to the aggregate of such principal, and accrued
and unpaid interest, if any; and
FOURTH: To the payment of the remainder, if any, to the Company,
to the extent such moneys were provided thereby, its successors or
assigns, or to whosoever may be lawfully entitled to receive the same,
or as a court of competent jurisdiction may direct.
Section 6.4. PROCEEDINGS BY SECURITYHOLDERS. No holder of any
Security shall have any right by virtue of or by availing of any provision of
this Indenture to institute any suit, action or proceeding in equity or at law
upon or under or with respect to this Indenture or for the appointment of a
receiver or trustee (or other similar official), or for any other remedy
hereunder, unless such holder previously shall have given to the Trustee
written notice of default with respect to Securities and of the continuance
thereof, as hereinbefore provided, and unless also the holders of not less
than twenty-five percent in aggregate principal amount of the Securities then
Outstanding shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit
or proceeding, it being understood and intended, and being expressly
covenanted by the taker and holder of every Security with every other taker
and holder and the Trustee, that no one or more holders of Securities shall
have any right in any manner whatever by virtue of or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of any
other holder of Securities, or to obtain or seek to obtain priority over or
preference to any other such holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all holders of Securities.
Section 6.5. PROCEEDINGS BY TRUSTEE. In case of an Event of
Default hereunder the Trustee may in its discretion proceed to protect and
enforce the rights vested in it by this Indenture by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce
any of such rights, either by suit in equity or by action at law or by
proceeding in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the
exercise of any power granted in this Indenture, or to enforce any other legal
or equitable right vested in the Trustee by this Indenture or by law.
Section 6.6. REMEDIES CUMULATIVE AND CONTINUING. All powers
and remedies given by this Article VI to the Trustee or to the Securityholders
shall, to the extent permitted by law, be deemed cumulative and not exclusive
of any thereof or of any other powers and remedies available to the Trustee or
the holders of such Securities, by judicial proceedings or otherwise, to
enforce the performance or observance of the covenants and agreements
contained in this Indenture, and no delay or omission of the Trustee or of any
holder of any such Securities to exercise any right or power accruing upon any
default occurring and continuing as aforesaid shall impair any such right or
power, or shall be construed to be a waiver of any such default or an
acquiescence therein; and, subject to the provisions of Section 6.4, every
power and remedy given
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11
by this Article VI or by law to the Trustee or to the Securityholders may be
exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the Securityholders.
Section 6.7. DIRECTION OF PROCEEDINGS AND WAIVER OF DEFAULTS BY
SECURITYHOLDERS. The holders of a majority in aggregate principal amount of
the Securities at the time Outstanding shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred on the Trustee,
with respect to the Securities, PROVIDED, HOWEVER, that (subject to the
requirements of Section 315 of the Trust Indenture Act of 1939) the Trustee
shall have the right to decline to follow any such direction if the Trustee,
being advised by counsel, determines that the action or proceeding so directed
may not lawfully be taken or if the Trustee in good faith by its board of
directors or trustees, executive committee, or a trust committee of directors
or trustees and/or Responsible Officers shall determine that the action or
proceeding so directed could involve the Trustee in personal liability. The
holders of a majority in aggregate principal amount of the Securities at the
time Outstanding may on behalf of the holders of all of the Securities waive
any past default or Event of Default and its consequences except a default in
the payment of interest on, or the principal of, the Loan Obligation with
respect to Securities. Upon any such waiver the Company, the Trustee and the
holders of the Securities shall be restored to their former positions and
rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon. Whenever any default or Event of Default hereunder shall have been
waived as permitted by this Section 6.7, said default or Event of Default
shall for all purposes of the Securities and this Indenture be deemed to have
been cured and to be not continuing.
ARTICLE VII
CONCERNING THE TRUSTEE
Section 7.1. RELIANCE ON DOCUMENTS, OPINIONS, ETC. The
provisions of Section 315 (a) of the Trust Indenture Act of 1939 are, by this
reference, incorporated into this Section 7.1.
Section 7.2. NO RESPONSIBILITY FOR RECITALS. The recitals
contained herein shall be taken as the statements of the Company and the
Trustee assumes no responsibility for the correctness of the same. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or the Securities. The Trustee shall not be accountable for the use
or application by the Company of any of the Securities or of the proceeds
thereof.
Section 7.3. OWNERSHIP OF SECURITIES. The Trustee and any
agent of the Company or of the Trustee, in its individual or any other
capacity, may become the owner or pledgee of Securities with the same rights
it would have if it were not Trustee or such agent.
Section 7.4. MONEYS TO BE HELD IN TRUST. The provisions of
Section 317(b) of the Trust Indenture Act of 1939 are, by this reference,
incorporated into this Section 7.4.
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12
Section 7.5. COMPENSATION AND EXPENSES OF TRUSTEE. The Company
covenants and agrees to pay to the Trustee on an annual basis, and the Trustee
shall be entitled to, reasonable compensation (which shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust) and, except as otherwise expressly provided, the Company will pay or
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Indenture (including the reasonable compensation
and the expenses and disbursements of its counsel and of all Persons not
regularly in its employ) except any such expense, disbursement or advance as
may arise from its gross negligence or bad faith. If any property other than
cash shall at any time be subject to the lien of this Indenture, the Trustee,
if and to the extent authorized by a receivership or bankruptcy court of
competent jurisdiction or by the supplemental instrument subjecting such
property to such lien, shall be entitled to make advances for the purpose of
preserving such property or of discharging tax liens or other prior liens or
encumbrances thereon. The Company also covenants to indemnify the Trustee
for, and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on the part of the Trustee, arising out of or
in connection with the acceptance or administration of this trust and its
duties hereunder, including the costs and expenses of defending itself against
any claim of liability in the premises. The obligations of the Company under
this Section 7.5 to compensate the Trustee, to pay or reimburse the Trustee
for expenses, disbursements and advances and to indemnify the Trustee shall
constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture. Such additional indebtedness
shall be secured by a lien prior to that of the Securities upon all property
and funds held or collected by the Trustee as such, except funds held in trust
for the benefit of the holders of particular Securities.
Section 7.6. OFFICERS' CERTIFICATE AS EVIDENCE. The provisions
of Section 315(a)(2) of the Trust Indenture Act of 1939 are, by this
reference, incorporated into this Section 7.6.
Section 7.7. ELIGIBILITY OF TRUSTEE. The provisions of Section
310 of the Trust Indenture Act are, by this reference, incorporated into this
Section 7.7. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 7.7, the Trustee shall resign
immediately in the manner and with the effect specified in Section 7.8.
Section 7.8. RESIGNATION OR REMOVAL OF TRUSTEE. (a) The
Trustee, or any trustee or trustees hereafter appointed, may at any time
resign by giving written notice of resignation to the Company and by mailing
notice thereof to the holders of Securities at their addresses as they shall
appear on the Security Register. Upon receiving such notice of resignation,
the Company shall promptly appoint a successor trustee or trustees by written
instrument, in duplicate, executed by order of the Board of Directors of the
Company, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee. If no successor trustee shall
have been so appointed and have accepted appointment within 60 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor trustee, or
any Securityholder who has been a bona fide holder of a Security or Securities
for at least six months may, subject to the requirements of Section 315(e) of
the Trust Indenture Act of 1939, on behalf of himself and all others similarly
situated,
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13
petition any such court for the appointment of a successor trustee. Such
court may thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall cease to be eligible in accordance with the
provisions of Section 7.7 and shall fail to resign after written request
therefor by the Company or by any such Securityholder, or
(2) the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its
property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, the Company may remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, executed by order of
the Board of Directors of the Company, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee, or,
subject to the requirements of Section 315(e) of the Trust Indenture Act of
1939, any Securityholder who has been a bona fide holder of a Security for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor trustee. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, remove the Trustee
and appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount of
the Securities at the time Outstanding may at any time remove the Trustee and
appoint a successor trustee by written notice of such action to the Company,
the Trustee and the successor trustee.
(d) Any resignation or removal of the Trustee and any
appointment of a successor trustee pursuant to any of the provisions of this
Section 7.8 shall become effective upon acceptance of appointment by the
successor trustee as provided in Section 7.9.
Section 7.9. ACCEPTANCE BY SUCCESSOR TRUSTEE. Any successor
trustee appointed as provided in Section 7.8 shall execute, acknowledge and
deliver to the Company and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become vested with all the rights,
powers, duties and obligations of its predecessor hereunder, with like effect
as if originally named as trustee herein; but, nevertheless, on the written
request of the Company or of the successor trustee, the trustee ceasing to act
shall, upon payment (or due provision therefor) of any amounts then due it
pursuant to the provisions of Section 7.5, execute and deliver an instrument
transferring to such successor trustee all the rights and powers of the
trustee so ceasing to act. Upon request of any such successor trustee, the
Company shall execute any and all instruments in writing in order more fully
and certainly to vest in and confirm to such successor trustee all such rights
and powers. Any trustee ceasing to act shall, nevertheless, retain a lien
upon all
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14
property or funds held or collected by such trustee to secure any amounts then
due it pursuant to the provisions of Section 7.5.
Upon acceptance of appointment by a successor trustee as provided
in Section 7.9, the Company shall mail notice of the succession of such
trustee hereunder to the holders of Securities at their addresses as they
shall appear on the Security Register. If the Company fails to mail such
notice within ten days after the acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be mailed at the
expense of the Company.
Section 7.10. SUCCESSION BY MERGER, ETC. Any corporation into
which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to the corporate trust business of the Trustee, shall be the
successor to the Trustee hereunder, provided such corporation shall be
qualified under the requirements of the Trust Indenture Act of 1939 and
eligible under the provisions of Section 7.7, without the execution or filing
of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
ARTICLE VIII
CONCERNING THE SECURITYHOLDERS
Section 8.1. ACTION BY SECURITYHOLDERS. Whenever in this
Indenture it is provided that the holders of a specified percentage in
aggregate principal amount of the Securities may take any action (including
the making of any demand or request, the giving of any notice, consent or
waiver or the taking of any other action) the fact that at the time of taking
any such action the holders of such specified percentage have joined therein
may be evidenced (a) by any instrument or any number of instruments of
similar tenor executed by such Securityholders in person or by agent or proxy
appointed in writing, or (b) by the record of such holders of Securities
voting in favor thereof at any meeting of such Securityholders duly called and
held in accordance with the provisions of Article IX, or (c) by a combination
of such instrument or instruments and any such record of such a meeting of
such Securityholders.
Section 8.2. PROOF OF EXECUTION BY SECURITYHOLDERS. Subject to
the requirements of Section 315 of the Trust Indenture Act of 1939 and
Sections 7.1 and 9.5, proof of the execution of any instrument by a
Securityholder or his agent or proxy shall be sufficient if made in accordance
with such reasonable rules and regulations as may be prescribed by the Trustee
or in such manner as shall be satisfactory to the Trustee. The ownership of
Securities shall be proved by the Security Register.
The record of any Securityholders' meeting shall be proved in the
manner provided in Section 9.6.
Section 8.3. WHO ARE DEEMED ABSOLUTE OWNERS. The Company, the
Trustee and any agent of the Company or of the Trustee may deem the Person in
whose name a Security shall be registered in the Security Register to be, and
may treat him as, the absolute owner of
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15
such Security (whether or not such Security shall be overdue, if applicable)
for the purpose of receiving payment of or on account of the principal of and
interest on such Security, if any, and for all other purposes; and neither the
Company nor the Trustee nor any agent of the Company or the Trustee shall be
affected by any notice to the contrary. All such payments so made to any
holder for the time being, or upon his order, shall be valid, and, to the
extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon any such Security.
Section 8.4. REVOCATION OF CONSENTS. At any time prior to (but
not after) the evidencing to the Trustee, as provided in Section 8.1, of the
taking of any action by the holders of the percentage in aggregate principal
amount of the Securities specified in this Indenture in connection with such
action, any holder of a Security which is shown by the evidence to be included
in the Securities the holders of which have consented to such action may, by
filing written notice with the Trustee at its principal office and upon proof
of holding as provided in Section 8.2, revoke such action so far as concerns
such Security.
ARTICLE IX
SECURITYHOLDERS' MEETINGS
Section 9.1. PURPOSES OF MEETINGS. A meeting of holders of
Securities may be called at any time and from time to time pursuant to the
provisions of this Article IX for any of the following purposes:
(1) to give any notice to the Company or to the Trustee, or to
give any directions to the Trustee, or to consent to the waiving of any
default hereunder and its consequences, or to take any other action
authorized to be taken by Securityholders pursuant to any of the
provisions of Article VI;
(2) to remove the Trustee and nominate a successor trustee
pursuant to the provisions of Article VII;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 10.2; or
(4) to take any other action authorized to be taken by or on
behalf of the holders of any specified aggregate principal amount, or
specified percentage in aggregate principal amount, of the Securities
under any other provision of this Indenture or under applicable law.
Section 9.2. CALL OF MEETINGS BY TRUSTEE. The Trustee may at
any time call a meeting of holders of Securities to take any action specified
in Section 9.1, to be held at such time and at such place in the Borough of
Manhattan, the City of New York, as the Trustee shall determine. Notice of
every meeting of the holders of Securities, setting forth the time and the
place of such meeting and in general terms the action proposed to be taken at
such meeting, shall be mailed to holders of Securities at their addresses as
they shall appear on the Security Register.
<PAGE>
16
Such notice shall be mailed not less than 20 nor more than 90 days prior to
the date fixed for the meeting.
Section 9.3. CALL OF MEETINGS BY THE COMPANY OR
SECURITYHOLDERS. In case at any time the Company, pursuant to a resolution
of its Board of Directors, or the holders of at least ten percent in aggregate
principal amount of the Securities then Outstanding, shall have requested the
Trustee to call a meeting of the holders of Securities, by written request
setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have mailed the notice of such meeting
within 20 days after receipt of such request, then the Company or such
Securityholders, in the amount specified above, may determine the time and the
place in said Borough of Manhattan for such meeting and may call such meeting
to take any action authorized in Section 9.1, by mailing notice thereof as
provided in Section 9.2.
Section 9.4. QUALIFICATIONS FOR VOTING. To be entitled to vote
at any meeting of Securityholders a Person shall (a) be a holder of a Security
on the Security Register or (b) be a Person appointed by an instrument in
writing as proxy by a holder of such a Security. The only Persons who shall
be entitled to be present or to speak at any meeting of Securityholders shall
be the Persons entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
Section 9.5. REGULATIONS. Notwithstanding any other provisions
of this Indenture, the Trustee may make such reasonable regulations as it may
deem advisable for any meeting of Securityholders, in respect of proof of the
holding of Securities and of the appointment of proxies, and with regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
fit. Except as otherwise permitted or required by any such regulations, the
holding of Securities shall be proved in the manner provided in Section 8.2
and the appointment of any proxy shall be proved in the manner specified in
Section 8.2.
The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called
by the Company or by Securityholders as provided in Section 9.3, in which case
the Company or the Securityholders calling the meeting, as the case may be,
shall in like manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by majority vote of the
meeting.
At any meeting each holder of Securities or proxy shall be
entitled to one vote for each $1,000 principal amount of Securities held or
represented by him; PROVIDED, HOWEVER, that no vote shall be cast or
counted at any meeting in respect of any Security challenged as not
Outstanding and ruled by the chairman of the meeting to be not Outstanding.
The chairman of the meeting shall have no right to vote other than by virtue
of such Securities held by him or instruments in writing as aforesaid duly
designating him as the person to vote on behalf of other such Securityholders.
Any meeting of holders of Securities with respect to which a meeting was duly
called pursuant to the provisions of Section 9.2 or 9.3 may be adjourned from
time to time by a majority of those present, whether or not constituting a
quorum, and the meeting may be held as so adjourned without further notice.
<PAGE>
17
Section 9.6. VOTING. The vote upon any resolution submitted to
any meeting of holders of Securities shall be by written ballots on which
shall be subscribed the signatures of such holders of Securities or of their
representatives by proxy and the principal amount of such Securities held or
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or
against any resolution and who shall make and file with the secretary of the
meeting their verified written reports in duplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of each meeting of
Securityholders shall be prepared by the secretary of the meeting and there
shall be attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one or more
persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that said notice was mailed as provided in Section
9.2. The record shall show the principal amount of the Securities voting in
favor of or against any resolution. The record shall be signed and verified
by the affidavits of the permanent chairman and secretary of the meeting and
one of the duplicates shall be delivered to the Company and the other to the
Trustee to be preserved by the Trustee, the latter to have attached thereto
the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of
the matters therein stated.
Section 9.7. NO DELAY OF RIGHTS BY MEETING. Nothing in this
Article IX shall be deemed or construed to authorize or permit, by reason of
any call of a meeting of Securityholders or any rights expressly or impliedly
conferred hereunder to make such call, any hindrance or delay in the exercise
of any right or rights conferred upon or reserved to the Trustee or to the
Securityholders under any of the provisions of this Indenture or of the
Securities.
ARTICLE X
SUPPLEMENTAL INDENTURES
Section 10.1. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
SECURITYHOLDERS. The Company, when authorized by resolution of its Board of
Directors, and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto for one or more of the following
purposes:
(a) to evidence the succession of another corporation to the
Company, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Company
pursuant to Article XI hereof;
(b) to add to the covenants of the Company such further
covenants, restrictions or conditions for the protection of the holders
of Securities as the Board of Directors of the Company and the Trustee
shall consider to be for the protection of the holders of Securities or
as may be required by Section 11.2, and to make the occurrence, or the
occurrence and continuance, of a default in any of such additional
covenants, restrictions or conditions a default or an Event of Default
permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; PROVIDED, HOWEVER,
<PAGE>
18
that in respect of any such additional covenant, restriction or
condition such supplemental indenture may provide for a particular
period of grace after default (which period may be shorter or longer
than that allowed in the case of other defaults) or may provide for an
immediate enforcement upon such default or may limit the remedies
available to the Trustee upon such default;
(c) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may be
defective or inconsistent with any other provision contained herein or
in any supplemental indenture, or to make such other provisions in
regard to matters or questions arising under this Indenture which shall
not adversely affect the interests of the holders of the Securities; and
(d) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities or to
add to or change any of the provisions of this Indenture, as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one trustee, pursuant to the requirements of
Section 7.9.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer and assignment of any property thereunder, but the
Trustee shall not be obligated to, but may in its discretion, enter into any
such supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section 10.1 may be executed by the Company and the Trustee without the
consent of the holders of any of the Securities at the time Outstanding,
notwithstanding any of the provisions of Section 10.2.
Section 10.2. SUPPLEMENTAL INDENTURES WITH CONSENT OF
SECURITYHOLDERS. With the consent (evidenced as provided in Sections 8.1 and
8.2) of the holders of not less than 66-2/3% in aggregate principal amount of
the Securities at the time Outstanding, the Company, when authorized by
resolution of its Board of Directors, and the Trustee may from time to time
and at any time enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any supplemental
indenture or of modifying in any manner the rights of the holders of the
Securities; PROVIDED, HOWEVER, that no such supplemental indenture shall
(i) change the character of the Loan Obligation from being payable as provided
in the Loan Agreement or reduce the principal amount of the Loan Obligation
without the consent of the holder of the Loan Obligation and the holders of
the Interests, (ii) make the principal or interest on the Loan Obligation
payable in any coin or currency other than U.S. dollars without the consent of
the holder of the Loan Obligation and the holders of the Interests or (iii)
reduce the aforesaid percentage in aggregate principal amount of Securities,
the holders of which are required to consent to any such supplemental
indenture, without the consent of the holder of each Security so affected.
<PAGE>
19
Upon the request of the Company, accompanied by copies of the
resolutions of its Board of Directors authorizing the execution and delivery
of any such supplemental indenture, and upon the filing with the Trustee of
evidence of the consent of Securityholders as aforesaid, the Trustee shall
join with the Company in the execution of such supplemental indenture unless
such supplemental indenture affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may in
its discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Securityholders
under this Section 10.2 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall
approve the substance thereof.
Section 10.3. COMPLIANCE WITH TRUST INDENTURE ACT; EFFECT OF
SUPPLEMENTAL INDENTURES. Any supplemental indenture executed pursuant to the
provisions of this Article X shall comply with the Trust Indenture Act of
1939, as then in effect. Upon the execution of any supplemental indenture
pursuant to the provisions of this Article Ten, this Indenture shall be deemed
to be modified and amended in accordance therewith and the respective rights,
limitations of rights, obligations, duties and immunities under this Indenture
of the Trustee, the Company and the holders of Securities shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
Section 10.4. EVIDENCE OF COMPLIANCE OF SUPPLEMENTAL INDENTURE
TO BE FURNISHED TRUSTEE. The Trustee, subject to the requirements of Section
315 of the Trust Indenture Act of 1939 and Section 7.1, may receive an
Officers' Certificate and an Opinion of Counsel as conclusive evidence that
any supplemental indenture executed pursuant hereto complies with the
requirements of this Article X.
ARTICLE XI
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 11.1. COMPANY MAY NOT CONSOLIDATE, ETC., EXCEPT UNDER
CERTAIN CONDITIONS. The Company covenants that it will not merge or
consolidate with any other corporation or sell, convey, transfer or otherwise
dispose of all or substantially all of its assets to any corporation, unless
(i) the Company shall be the continuing corporation, or the successor
corporation (if other than the Company) shall, by supplemental indenture
satisfactory to the Trustee, executed and delivered to the Trustee by such
corporation, expressly assume the due and punctual payment of the principal of
and interest on the Loan Obligation and the due and punctual performance and
observance of all of the covenants and conditions of this Indenture to be
performed by the Company, and (ii) the Company or such successor corporation,
as the case may be, shall not, immediately after such merger or consolidation,
or such sale, conveyance, transfer or other disposition, be in default in the
performance of any such covenant or condition. In the event of any such sale,
conveyance (other than by way of lease), transfer or other
<PAGE>
20
disposition, the predecessor company may be dissolved, wound up and liquidated
at any time thereafter.
Section 11.2. LOAN OBLIGATION TO BE SECURED IN CERTAIN EVENTS.
If, upon any such consolidation or merger, or upon any such sale, conveyance,
transfer or other disposition, any of the property of the Company or of any
Subsidiary owned immediately prior thereto would thereupon become subject to
any mortgage, pledge, lien or encumbrance, the Company, prior to or
simultaneously with such consolidation, merger, sale, conveyance, transfer or
other disposition, will by indenture supplemental hereto secure the due and
punctual payment of the principal of and interest on the Loan Obligation
(equally and ratably with any other indebtedness of the Company then entitled
thereto) by a direct lien on such property, prior to all liens other than any
theretofore existing thereon.
Section 11.3. SUCCESSOR CORPORATION TO BE SUBSTITUTED. In case
of any such consolidation, merger, sale, conveyance (other than by way of
lease), transfer or other disposition, and upon any such assumption by the
successor corporation, such successor corporation shall succeed to and be
substituted for the Company with the same effect as if it had been named
herein as the Company, and the Company shall be relieved of any further
obligation under this Indenture and under the Securities.
Section 11.4. DOCUMENTS TO BE GIVEN TRUSTEE. The Trustee,
subject to the requirements of Section 315 of the Trust Indenture Act of 1939
and Section 7.1, may receive an Officers' Certificate and an Opinion of
counsel as conclusive evidence that any such consolidation, merger, sale,
conveyance, transfer or other disposition, and any such assumption, comply
with the provisions of this Article XI.
ARTICLE XII
SATISFACTION AND DISCHARGE OF INDENTURE
Section 12.1. DISCHARGE OF INDENTURE. When (a) the Loan
Obligation has become due and payable in accordance with the Loan Agreement,
(b) the Company shall have deposited with the Trustee, in trust, funds
sufficient to pay the Loan Obligation, including principal and interest due or
to become due to such date of payment and (c) there shall have been paid all
sums payable hereunder by the Company, then this Indenture shall cease to be
of further effect, and the Trustee, on demand of the Company accompanied by an
Officers' Certificate of the Company and an Opinion of Counsel for the Company
and at the cost and expense of the Company, shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture, the Company,
however, hereby agreeing to reimburse the Trustee for any costs or expenses
thereafter reasonably and properly incurred by the Trustee in connection with
this Indenture or the Securities.
Section 12.2. DEPOSITED MONEYS TO BE HELD IN TRUST BY TRUSTEE.
All moneys deposited with the Trustee pursuant to the provisions of Section
12.1 shall be held in trust and applied by it to the payment, either directly
or through any Paying Agent (including the Company if acting as its own paying
agent), to the holder of the Loan Obligation for payment or
<PAGE>
21
prepayment of which such moneys have been deposited with the Trustee, of all
sums due and to become due thereon for principal and interest.
ARTICLE XIII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 13.1. INDENTURE AND LOAN OBLIGATION SOLELY CORPORATE
OBLIGATIONS. No recourse for the payment of the principal of or interest on
the Loan Obligation, or for any claim based thereon or otherwise in respect
thereof, and no recourse under or upon any obligation, covenant or agreement
of the Company in this Indenture or in any supplemental indenture, or in any
Security, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, officer or director, as
such, past, present or future, of the Company or of any successor corporation,
either directly or through the Company or any successor corporation, whether
by virtue of any constitution, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise; it being expressly understood that
all such liability is hereby expressly waived and released as a condition of,
and as a consideration for, the execution of this Indenture and the issue of
the Securities.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
Section 14.1. PROVISIONS BINDING ON COMPANY'S SUCCESSORS.
All the covenants, stipulations, promises and agreements by the Company in
this Indenture contained shall bind its successors and assigns whether so
expressed or not.
Section 14.2. OFFICIAL ACTS BY SUCCESSOR CORPORATION. Any act
or proceeding by any provision of this Indenture authorized or required to be
done or performed by any board, committee or officer of the Company shall and
may be done and performed with like force and effect by the like board,
committee or officer of any corporation that shall at the time be the lawful
sole successor of the Company.
Section 14.3. ADDRESSES FOR NOTICES, ETC. Any notice or demand
which by any provision of this Indenture is required or permitted to be given
or served by the Trustee or by the holders of Securities on the Company may be
given or served by being deposited postage prepaid by first class mail in a
post office letter box addressed (until another address is filed by the
Company with the Trustee) to General Electric Capital Corporation, Attention:
Vice President and Treasurer, 260 Long Ridge Road, Stamford, Connecticut
06927. Any notice, direction, request or demand by any Securityholder to or
upon the Trustee shall be deemed to have been sufficiently given or made, for
all purposes, if given or made in writing at the principal office of the
Trustee, addressed to the attention of its Corporate Trustee Administration
Department.
Section 14.4. NEW YORK CONTRACT. THIS INDENTURE AND EACH
SECURITY SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF
<PAGE>
22
THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF SAID STATE.
Section 14.5. LEGAL HOLIDAYS. In any case where any date on
which a payment is due will be in the City of New York, New York, a Saturday,
a Sunday, a legal holiday or a day on which banking institutions are
authorized or required by law or executive order to close or remain closed,
then payment of such interest on or principal of the Securities need not be
made on such date but may be made on the next succeeding day not in either
such city, a Saturday, a Sunday, a legal holiday or a day on which banking
institutions are authorized or required by law or executive order to close or
remain closed, with the same force and effect as if made on such date, and no
interest shall accrue for the period from and after such date.
Section 14.6. TABLE OF CONTENTS, HEADINGS, ETC. The table of
contents and the titles and headings of the articles and sections of this
Indenture have been inserted for convenience of reference only, are not to be
considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.
Section 14.7. EXECUTION IN COUNTERPARTS. This Indenture may be
executed in any number of counterparts, each of which shall be an original,
but such counterparts shall together constitute but one and the same
instrument.
Section 14.8. SEPARABILITY. In case any provision in this
Indenture shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 14.9. BENEFITS. Nothing in this Indenture, expressed
or implied, shall give to any Person, other than the parties hereto and their
successors hereunder, and the holders of the Securities, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
<PAGE>
23
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed and their respective corporate seals to be hereunto
affixed and attested, all as of February 1, 1994.
GENERAL ELECTRIC CAPITAL
CORPORATION
By
--------------------------------------
Title: Senior Vice President
Corporate Treasury and
Global Funding Operation
[CORPORATE SEAL]
Attest:
By
-------------------------------
Title: Assistant Secretary
MERCANTILE-SAFE DEPOSIT
AND TRUST COMPANY
By
--------------------------------------
Title:
[CORPORATE SEAL]
Attest:
By
-------------------------------
Title: Assistant Secretary
<PAGE>
STATE OF CONNECTICUT )
: ss.:
COUNTY OF FAIRFIELD )
On this ___ day of February, 1994, before me personally came
_____________, to me personally known, who, being by me duly sworn, did depose
and say that he resides at _____________________________; that he is a
_______________ of Mercantile-Safe Deposit and Trust Company, one of the
corporations described in and which executed the above instrument; that he
knows the corporate seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his name thereto by
like authority.
[NOTARIAL SEAL]
-----------------------------------
Notary Public
<PAGE>
STATE OF MARYLAND )
: ss.:
COUNTY OF HARFORD )
On this ___ day of February, 1994, before me personally came
_______________, to me personally known, who, being by me duly sworn, did
depose and say that he resides at __________________________________; that he
is _______________ of General Electric Capital Corporation, one of the
corporations described in and which executed the above instrument; that he
knows the corporate seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his name thereto by
like authority.
[NOTARIAL SEAL]
-----------------------------------
Notary Public
<PAGE>
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________________
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION UNDER
THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
________________________
MERCANTILE-SAFE DEPOSIT AND TRUST COMPANY
(Exact name of trustee as specified in its charter)
Maryland 52-0904511
(State of incorporation (I.R.S. employer
if not a national bank) identification no.)
2 Hopkins Plaza
Baltimore, Maryland 21201
(Address of trustee's principal (Zip Code)
executive offices)
_____________________________
GENERAL ELECTRIC CAPITAL CORPORATION
(Exact name of obligor specified in its charter)
New York 13-1500700
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
570 Lexington Ave.
New York, New York 10022
(Address of principal (Zip Code)
executive offices)
________________________________
NOTES
(Title of the indenture securities)
________________________________________________________________________________
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Federal Deposit Insurance Corporation, Washington D.C. Bank
Commissioner for the State of Maryland, Baltimore, Maryland
(b) Whether it is authorized to exercise corporate trust powers.
The Trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH OBLIGOR AND UNDERWRITERS.
If the obligor or any underwriter for the obligor is an
affiliate of the trustee, describe each such affiliation:
None. (See Note on page 5)
ITEM 3. VOTING SECURITIES OF THE TRUSTEE.
Furnish the following information as to each class of voting
securities of the trustee:
As of March , 1994
<TABLE>
<CAPTION>
Col. A Col. B
Title of Class Amount Outstanding
-------------- ------------------
<S> <C>
Capital Stock
par value $10 per share 545,000 shares
</TABLE>
ITEM 4. TRUSTEESHIPS UNDER OTHER INDENTURES.
If the trustee is a trustee under another indenture under which any
other securities, or certificates of interest or participation in any
other securities, of the obligor are outstanding, furnish the
following information:
(a) Title of the securities outstanding under each such other indenture
Variable Denomination Floating Rate Demand Notes
-1-
<PAGE>
(b) A brief statement of the facts relied upon as a basis for the claim
that no conflicting interest within the meaning of Section 310 (b)(1)
of the Act arises as a result of the trusteeship under any such other
indenture, including a statement as to how the indenture securities
will rank as compared with the securities issued under such other
indenture.
All securities isssued under either indenture are unsecured debt
obligations which rank pari passu.
ITEM 5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE OBLIGOR
OR UNDERWRITERS.
If the trustee or any of the directors or executive officers of the
trustee is a director, officer, partner, employee, appointee, or
representative of the obligor or of any underwriter for the obligor,
identify each such person having any such connection and state the
nature of each such connection.
(See Note on page 5)
ITEM 6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS
OFFICIALS.
Furnish the following information as to the voting securities of the
trustee owned beneficially by the obligor and each director, partner
and executive officer of the obligor.
As of March , 1994
The amount of voting securities of the trustee owned beneficially by
the obligor and its directors and executive officers, taken as a
group, does not exceed one percent of the outstanding voting
securities of the trustee.
(See Note on page 5)
ITEM 7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR
OFFICIALS.
- 2 -
<PAGE>
Furnish the following information as to the voting securities of the
trustee owned beneficially by each underwriter for the obligor and
each director, partner and executive officer of each such underwriter.
As of March , 1994
The amount of voting securities of the trustee owned beneficially by
each underwriter for the obligor and its directors and executive
officers, taken as a group, does not exceed one percent of the
outstanding voting securities of the trustee.
(See Note on page 5.)
ITEM 8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE.
Furnish the following information as to securities of the obligor
owned beneficially or held as collateral security for obligations in
default by the trustee:
As of March , 1994
The trustee does not own beneficially or hold as collateral security
for obligations in default any securities of any class of the obligor
in excess of one percent of the outstanding securities of such class.
(See Note on page 5)
ITEM 9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of an underwriter for the
obligor, furnish the following information as to each class of
securities of such underwriter any of which are so owned or held by
the trustee.
As of March , 1994
The trustee does not own beneficially or hold as collateral security
for obligations in default any securities of any class of an
underwriter for the obligor in excess of one percent of the
outstanding securities of such class.
(See Note on page 5)
-3-
<PAGE>
ITEM 10. OWNERSHIP OF HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF CERTAIN
AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR.
If the trustee owns beneficially or holds as collateral security for
obligations in default voting securities of a person who, to the
knowledge of the trustee (1) owns 10 percent or more of the voting
securities of the obligor or (2) is an affiliate, other than a
subsidiary, of the obligor, furnish the following information as to
the voting securities of such person:
As of March , 1994
The trustee does not own beneficially or hold as collateral security
for obligations in default any voting securities of any class of
person who, to the knowledge of the trustee (1) owns 10 percent or
more of the voting securities of the obligor or (2) is an affiliate,
other than a subsidiary, of the obligor, in excess of one percent of
the outstanding voting securities of such class.
(Note on page 5)
ITEM 11. OWNERSHIP OF HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF A PERSON
OWNING 50 PERCENT OF MORE OF THE VOTING SECURITIES OF THE OBLIGOR.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of a person who, to the
knowledge of the trustee, owns 50 percent or more of the voting
securities of the obligor, furnish the following information as to
each class of securities of such person any of which are so owned or
held by the trustee:
As of March , 1994
The trustee does not own beneficially of hold as collateral security
for obligations in default any securities of any class of a person
who, to the knowledge of the trustee, owns 50 percent or more of the
voting securities of the obligor, in excess of one percent of the
outstanding securities of such class.
(Note on page 5)
-4-
<PAGE>
ITEM 12. LIST OF EXHIBITS
LISTED BELOW ALL EXHIBITS FILED AS A PART OF THIS STATEMENT OF
ELIGIBILITY AND QUALIFICATION.
T-1 Articles of Incorporation of the trustee as now in effect
(incorporated by reference to Exhibit 1 to Form T-1 Statement. File
No. 22-13958 filed in conjunction with Registration No. 2-98443).
T-2 Certificate of authority of trustee to commence business (incorporated
by reference to Exhibit 2 to Form T-1 Statement. File No. 22-13958
filed in conjunction with Registration No. 2-98443).
T-3 Authorization of the trustee to exercise corporate trust powers
(incorporated by reference to Exhibit 3 to Form T-1 Statement. File
No. 22-13958 filed in conjunction with Registration No. 2-98443).
T-4 Bylaws of the trustee, as now in effect.
T-5 Not Applicable.
T-6 The consent of the trustee required by Section 321(b) of the Trust
Indenture Act of 1939.
T-7 A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining
authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
trustee of all facts on which to base responsive answers to Items 2, 5, 6, 7, 8,
9, 10 and 11, the answers to those Items are based upon incomplete information.
Items 2, 5, 6, 7, 8, 9, 10, and 11 may, however, be considered correct unless
amended by an amendment to this Form T-1.
In answering any items in this statement of eligibility and qualification
which relate to matters peculiarly within the knowledge of the obligor, or its
directors or officers, or an underwriter for the obligor, the trustee has
relied and will rely upon information furnished to it by the obligor and the
underwriter.
-5-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Reform Act of 1990,
Mercantile-Safe Deposit and Trust Company, a corporation organized and existing
under the laws of the State of Maryland, has duly caused this statement of
eligibility and qualification to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of Baltimore, Maryland on the __th
day of March, 1994.
Mercantile-Safe Deposit and Trust Company
By: /s/ Robert D. Brown
------------------------------------------
Robert D. Brown
Corporate Trust Officer
<PAGE>
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture
Reform Act of 1990, we hereby consent that reports of examinations of the
trustee by Federal, State, Territorial, or District authorities may be furnished
by such authorities to the Securities and Exchange Commission upon request
therefor.
Mercantile-Safe Deposit And Trust Company
By: Robert D. Brown
-----------------------------------------
Robert D. Brown
Corporate Trust Officer
Dated: March , 1994
-6-
<PAGE>
EXHIBIT 25(a)
_________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________________
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION UNDER
THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
________________________
MERCANTILE-SAFE DEPOSIT AND TRUST COMPANY
(Exact name of trustee as specified in its charter)
Maryland 52-0904511
(State of incorporation (I.R.S. employer
if not a national bank) identification no.)
2 Hopkins Plaza
Baltimore, Maryland 21201
(Address of trustee's principal (Zip Code)
executive offices)
_____________________________
GENERAL ELECTRIC CAPITAL CORPORATION
(Exact name of obligor specified in its charter)
New York 13-1500700
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
570 Lexington Ave.
New York, New York 10022
(Address of principal (Zip Code)
executive offices)
________________________________
NOTES
(Title of the indenture securities)
_________________________________________________________________
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
Federal Deposit Insurance Corporation, Washington D.C.
Bank Commissioner for the State of Maryland,
Baltimore, Maryland
(b) Whether it is authorized to exercise corporate trust
powers.
The Trustee is authorized to exercise corporate trust
powers.
ITEM 2. AFFILIATIONS WITH OBLIGOR AND UNDERWRITERS.
If the obligor or any underwriter for the obligor is an
affiliate of the trustee, describe each such affiliation:
None. (See Note on page 5)
ITEM 3. VOTING SECURITIES OF THE TRUSTEE.
Furnish the following information as to each class of
voting securities of the trustee:
As of March , 1994
Col. A Col. B
Title of Class Amount Outstanding
-------------- ------------------
Capital Stock
par value $10 per share 545,000 shares
ITEM 4. TRUSTEESHIPS UNDER OTHER INDENTURES.
If the trustee is a trustee under another indenture under
which any other securities, or certificates of interest
or participation in any other securities, of the obligor
are outstanding, furnish the following information:
(a) Title of the securities outstanding under each such other
indenture
Medium Term Notes, Series A
Medium Term Notes, Series B
Global Medium Term Notes, Series A
Global Medium Term Notes, Series B
Global Medium Term Notes, Series C
Variable Denomination Floating Rate Demand Notes
-1-
<PAGE>
(b) A brief statement of the facts relied upon as a basis for
the claim that no conflicting interest within the meaning
of Section 310 (b)(1) of the Act arises as a result of
the trusteeship under any such other indenture, including
a statement as to how the indenture securities will rank
as compared with the securities issued under such other
indenture.
All securities isssued under either indenture are
unsecured debt obligations which rank pari passu.
ITEM 5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH
THE OBLIGOR OR UNDERWRITERS.
If the trustee or any of the directors or executive
officers of the trustee is a director, officer,
partner, employee, appointee, or representative of the
obligor or of any underwriter for the obligor, identify
each such person having any such connection and state
the nature of each such connection.
(See Note on page 5)
ITEM 6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR
ITS OFFICIALS.
Furnish the following information as to the voting
securities of the trustee owned beneficially by the
obligor and each director, partner and executive
officer of the obligor.
As of March , 1994
The amount of voting securities of the trustee owned
beneficially by the obligor and its directors and
executive officers, taken as a group, does not exceed
one percent of the outstanding voting securities of the
trustee.
(See Note on page 5)
ITEM 7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS
OR THEIR OFFICIALS.
- 2 -
<PAGE>
Furnish the following information as to the voting
securities of the trustee owned beneficially by each
underwriter for the obligor and each director, partner
and executive officer of each such underwriter.
As of March , 1994
The amount of voting securities of the trustee owned
beneficially by each underwriter for the obligor and its
directors and executive officers, taken as a group, does
not exceed one percent of the outstanding voting
securities of the trustee.
(See Note on page 5.)
ITEM 8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE.
Furnish the following information as to securities of
the obligor owned beneficially or held as collateral
security for obligations in default by the trustee:
As of March , 1994
The trustee does not own beneficially or hold as
collateral security for obligations in default any
securities of any class of the obligor in excess of one
percent of the outstanding securities of such class.
(See Note on page 5)
ITEM 9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
If the trustee owns beneficially or holds as collateral
security for obligations in default any securities of
an underwriter for the obligor, furnish the following
information as to each class of securities of such
underwriter any of which are so owned or held by the
trustee.
As of March , 1994
The trustee does not own beneficially or hold as
collateral security for obligations in default any
securities of any class of an underwriter for the
obligor in excess of one percent of the outstanding
securities of such class.
(See Note on page 5)
-3-
<PAGE>
ITEM 10. OWNERSHIP OF HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES
OF CERTAIN AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR.
If the trustee owns beneficially or holds as collateral
security for obligations in default voting securities
of a person who, to the knowledge of the trustee (1)
owns 10 percent or more of the voting securities of the
obligor or (2) is an affiliate, other than a
subsidiary, of the obligor, furnish the following
information as to the voting securities of such person:
As of March , 1994
The trustee does not own beneficially or hold as
collateral security for obligations in default any
voting securities of any class of person who, to the
knowledge of the trustee (1) owns 10 percent or more
of the voting securities of the obligor or (2) is an
affiliate, other than a subsidiary, of the obligor,
in excess of one percent of the outstanding voting
securities of such class.
(Note on page 5)
ITEM 11. OWNERSHIP OF HOLDINGS BY THE TRUSTEE OF ANY SECURITIES
OF A PERSON OWNING 50 PERCENT OF MORE OF THE VOTING
SECURITIES OF THE OBLIGOR.
If the trustee owns beneficially or holds as collateral
security for obligations in default any securities of a
person who, to the knowledge of the trustee, owns 50
percent or more of the voting securities of the
obligor, furnish the following information as to each
class of securities of such person any of which are so
owned or held by the trustee:
As of March , 1994
The trustee does not own beneficially of hold as
collateral security for obligations in default any
securities of any class of a person who, to the
knowledge of the trustee, owns 50 percent or more
of the voting securities of the obligor, in excess
of one percent of the outstanding securities of
such class.
(Note on page 5)
-4-
<PAGE>
ITEM 12. LIST OF EXHIBITS
LISTED BELOW ALL EXHIBITS FILED AS A PART OF THIS
STATEMENT OF ELIGIBILITY AND QUALIFICATION.
T-1 (a) Articles of Incorporation of the trustee as now in
effect (incorporated by reference to Exhibit 1 to Form
T-1 Statement. File No. 22-13958 filed in conjunction
with Registration No. 2-98443).
(b) Articles of Amendment to the Articles of
Incorporation of the Trustee dated May 7, 1986.
T-2 Certificate of authority of trustee to commence
business (incorporated by reference to Exhibit 2 to
Form T-1 Statement. File No. 22-13958 filed in
conjunction with Registration No. 2-98443).
T-3 Authorization of the trustee to exercise corporate
trust powers (incorporated by reference to Exhibit 3 to
Form T-1 Statement. File No. 22-13958 filed in
conjunction with Registration No. 2-98443).
T-4 Bylaws of the trustee, as now in effect.
T-5 Not Applicable.
T-6 The consent of the trustee required by Section 321(b)
of the Trust Indenture Act of 1939.
T-7 A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the
ascertainment by the trustee of all facts on which to base
responsive answers to Items 2, 5, 6, 7, 8, 9, 10 and 11, the
answers to those Items are based upon incomplete information.
Items 2, 5, 6, 7, 8, 9, 10, and 11 may, however, be considered
correct unless amended by an amendment to this Form T-1.
In answering any items in this statement of eligibility and
qualification which relate to matters peculiarly within the
knowledge of the obligor, or its directors or officers, or an
underwriter for the obligor, the trustee has relied and will rely
upon information furnished to it by the obligor and the
underwriter.
-5-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Reform
Act of 1990, Mercantile-Safe Deposit and Trust Company, a
corporation organized and existing under the laws of the State of
Maryland, has duly caused this statement of eligibility and
qualification to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of Baltimore, Maryland
on the __ day of March, 1994.
Mercantile-Safe Deposit and Trust Company
By:__________________________________
Robert D. Brown
Corporate Trust Officer
<PAGE>
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust
Indenture Reform Act of 1990, we hereby consent that reports of
examinations of the trustee by Federal, State, Territorial, or
District authorities may be furnished by such authorities to the
Securities and Exchange Commission upon request therefor.
Mercantile-Safe Deposit And Trust Company
By: Robert D. Brown
----------------------------------
Robert D. Brown
Corporate Trust Officer
Dated: March , 1994
-6-
<PAGE>
EXHIBIT 25(a)
_________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________________
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION UNDER
THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
________________________
MERCANTILE-SAFE DEPOSIT AND TRUST COMPANY
(Exact name of trustee as specified in its charter)
Maryland 52-0904511
(State of incorporation (I.R.S. employer
if not a national bank) identification no.)
2 Hopkins Plaza
Baltimore, Maryland 21201
(Address of trustee's principal (Zip Code)
executive offices)
_____________________________
GENERAL ELECTRIC CAPITAL CORPORATION
(Exact name of obligor specified in its charter)
New York 13-1500700
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
570 Lexington Ave.
New York, New York 10022
(Address of principal (Zip Code)
executive offices)
________________________________
NOTES
(Title of the indenture securities)
_________________________________________________________________
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
Federal Deposit Insurance Corporation, Washington D.C.
Bank Commissioner for the State of Maryland,
Baltimore, Maryland
(b) Whether it is authorized to exercise corporate trust
powers.
The Trustee is authorized to exercise corporate trust
powers.
ITEM 2. AFFILIATIONS WITH OBLIGOR AND UNDERWRITERS.
If the obligor or any underwriter for the obligor is an
affiliate of the trustee, describe each such affiliation:
None. (See Note on page 5)
ITEM 3. VOTING SECURITIES OF THE TRUSTEE.
Furnish the following information as to each class of
voting securities of the trustee:
As of March , 1994
Col. A Col. B
Title of Class Amount Outstanding
-------------- ------------------
Capital Stock
par value $10 per share 545,000 shares
ITEM 4. TRUSTEESHIPS UNDER OTHER INDENTURES.
If the trustee is a trustee under another indenture under
which any other securities, or certificates of interest
or participation in any other securities, of the obligor
are outstanding, furnish the following information:
(a) Title of the securities outstanding under each such other
indenture
See attached list
- 1 -
<PAGE>
(b) A brief statement of the facts relied upon as a basis for
the claim that no conflicting interest within the
meaning of Section 310 (b)(1) of the Act arises as a
result of the trusteeship under any such other
indenture, including a statement as to how the
indenture securities will rank as compared with the
securities issued under such other indenture.
All securities issued under either indenture are
unsecured debt obligations which rank pari passu.
ITEM 5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH
THE OBLIGOR OR UNDERWRITERS.
If the trustee or any of the directors or executive
officers of the trustee is a director, officer,
partner, employee, appointee, or representative of the
obligor or of any underwriter for the obligor, identify
each such person having any such connection and state
the nature of each such connection.
(See Note on page 5)
ITEM 6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR
ITS OFFICIALS.
Furnish the following information as to the voting
securities of the trustee owned beneficially by the
obligor and each director, partner and executive
officer of the obligor.
As of March , 1994
The amount of voting securities of the trustee owned
beneficially by the obligor and its directors and
executive officers, taken as a group, does not exceed
one percent of the outstanding voting securities of the
trustee.
(See Note on page 5)
ITEM 7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS
OR THEIR OFFICIALS.
- 2 -
<PAGE>
Furnish the following information as to the voting
securities of the trustee owned beneficially by each
underwriter for the obligor and each director, partner
and executive officer of each such underwriter.
As of March , 1994
The amount of voting securities of the trustee owned
beneficially by each underwriter for the obligor and its
directors and executive officers, taken as a group, does
not exceed one percent of the outstanding voting
securities of the trustee.
(See Note on page 5.)
ITEM 8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE.
Furnish the following information as to securities of
the obligor owned beneficially or held as collateral
security for obligations in default by the trustee:
As of March , 1994
The trustee does not own beneficially or hold as
collateral security for obligations in default any
securities of any class of the obligor in excess of one
percent of the outstanding securities of such class.
(See Note on page 5)
ITEM 9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
If the trustee owns beneficially or holds as collateral
security for obligations in default any securities of
an underwriter for the obligor, furnish the following
information as to each class of securities of such
underwriter any of which are so owned or held by the
trustee.
As of March , 1994
The trustee does not own beneficially or hold as
collateral security for obligations in default any
securities of any class of an underwriter for the
obligor in excess of one percent of the outstanding
securities of such class.
(See Note on page 5)
-3-
<PAGE>
ITEM 10. OWNERSHIP OF HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES
OF CERTAIN AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR.
If the trustee owns beneficially or holds as collateral
security for obligations in default voting securities
of a person who, to the knowledge of the trustee (1)
owns 10 percent or more of the voting securities of the
obligor or (2) is an affiliate, other than a
subsidiary, of the obligor, furnish the following
information as to the voting securities of such person:
As of March , 1994
The trustee does not own beneficially or hold as
collateral security for obligations in default any
voting securities of any class of person who, to the
knowledge of the trustee (1) owns 10 percent or more
of the voting securities of the obligor or (2) is an
affiliate, other than a subsidiary, of the obligor,
in excess of one percent of the outstanding voting
securities of such class.
(Note on page 5)
ITEM 11. OWNERSHIP OF HOLDINGS BY THE TRUSTEE OF ANY SECURITIES
OF A PERSON OWNING 50 PERCENT OF MORE OF THE VOTING
SECURITIES OF THE OBLIGOR.
If the trustee owns beneficially or holds as collateral
security for obligations in default any securities of a
person who, to the knowledge of the trustee, owns 50
percent or more of the voting securities of the
obligor, furnish the following information as to each
class of securities of such person any of which are so
owned or held by the trustee:
As of March , 1994
The trustee does not own beneficially of hold as
collateral security for obligations in default any
securities of any class of a person who, to the
knowledge of the trustee, owns 50 percent or more
of the voting securities of the obligor, in excess
of one percent of the outstanding securities of
such class.
(Note on page 5)
-4-
<PAGE>
ITEM 12. LIST OF EXHIBITS
LISTED BELOW ALL EXHIBITS FILED AS A PART OF THIS
STATEMENT OF ELIGIBILITY AND QUALIFICATION.
T-1 (a) Articles of Incorporation of the trustee as now in
effect (incorporated by reference to Exhibit 1 to Form
T-1 Statement. File No. 22-13958 filed in conjunction
with Registration No. 2-98443).
(b) Articles of Amendment to the Articles of
Incorporation of the Trustee dated May 7, 1986.
T-2 Certificate of authority of trustee to commence
business (incorporated by reference to Exhibit 2 to
Form T-1 Statement. File No. 22-13958 filed in
conjunction with Registration No. 2-98443).
T-3 Authorization of the trustee to exercise corporate
trust powers (incorporated by reference to Exhibit 3 to
Form T-1 Statement. File No. 22-13958 filed in
conjunction with Registration No. 2-98443).
T-4 Bylaws of the trustee, as now in effect.
T-5 Not Applicable.
T-6 The consent of the trustee required by Section 321(b)
of the Trust Indenture Act of 1939.
T-7 A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the
ascertainment by the trustee of all facts on which to base
responsive answers to Items 2, 5, 6, 7, 8, 9, 10 and 11, the
answers to those Items are based upon incomplete information.
Items 2, 5, 6, 7, 8, 9, 10, and 11 may, however, be considered
correct unless amended by an amendment to this Form T-1.
In answering any items in this statement of eligibility and
qualification which relate to matters peculiarly within the
knowledge of the obligor, or its directors or officers, or an
underwriter for the obligor, the trustee has relied and will rely
upon information furnished to it by the obligor and the
underwriter.
-5-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Reform
Act of 1990, Mercantile-Safe Deposit and Trust Company, a
corporation organized and existing under the laws of the State of
Maryland, has duly caused this statement of eligibility and
qualification to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of Baltimore, Maryland
on the __ day of March , 1994.
Mercantile-Safe Deposit and Trust Company
By:__________________________________
Robert D. Brown
Corporate Trust Officer
<PAGE>
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust
Indenture Reform Act of 1990, we hereby consent that reports of
examinations of the trustee by Federal, State, Territorial, or
District authorities may be furnished by such authorities to the
Securities and Exchange Commission upon request therefor.
Mercantile-Safe Deposit And Trust Company
By: ____________________________________
Robert D. Brown
Corporate Trust Officer
Dated: March , 1994
-6-
<PAGE>
GENERAL ELECTRIC CAPITAL CORPORATION NOTES EXHIBIT I
8.375% Notes due 03/01/01
8.7% Notes due 02/15/03
7.875% Notes due 11/22/04
8.85% Notes due 04/01/05
8.75 Notes due 05/21/07
Remarket Reset Notes due 12/15/07
8.625% Notes 06/15/08
8.50% Notes 07/24/08
8.3% Notes 09/20/09
Reset Notes due 03/15/18
Remarket Reset Notes due 05/01/18
Floating Rate Notes due 09/01/48
Floating Rate Notes due 01/01/49
Floating Rate Notes due 08/01/49
Floating Rate Notes due 11/01/49
Floating Rate Notes due 02/01/50
Floating Rate Notes due 04/01/50
Floating Rate Notes due 04/01/50
Floating Rate Notes due 05/01/50
Floating Rate Notes due 11/01/50
Floating Rate Notes due 05/01/51
Floating Rate Notes due 12/01/51
8.6% Notes due 11/15/94
8.25% Notes due 01/14/95
5.625% Notes due 01/15/95
5.85% Notes due 02/15/95
10.75% Australian $ Notes due 05/22/95
5.25% Notes due 11/15/95
10.25% FIM Notes due 06/12/95
8.75% Notes due 11/26/96
8% Notes due 02/01/97
6.20% Amortizing Notes due 03/15/97
9.50% Notes due 02/01/99
Variable Denomination Floating Rate Notes
