geccex10a110708.htm


    


    ELIGIBLE ENTITY DESIGNATION
AGREEMENT

    


    This
ELIGIBLE ENTITY DESIGNATION AGREEMENT (as the same may be amended or modified,
this “Agreement”) is made and entered into as of the __ day of November,
2008 (the “Effective Date”) by and among FEDERAL DEPOSIT INSURANCE CORPORATION
(the “FDIC”), GENERAL ELECTRIC CAPITAL CORPORATION (“GECC”), and GENERAL
ELECTRIC COMPANY (“GE”).

    


    RECITALS

    


    WHEREAS,
the FDIC has issued an Interim Rule effective October 23, 2008, 12 C.F.R. Part
370 (together with all updates, amendments and other modifications, including by
adoption of any final or subsequent rule and FDIC guidance and interpretive
materials regarding such Part 370, the “Rule”), establishing the Temporary
Liquidity Guarantee Program (the “Program”); and

    


    WHEREAS,
pursuant to the Rule, the FDIC will guarantee the payment of certain
newly-issued “senior unsecured debt” (as defined in the Rule, hereinafter
“Senior Unsecured Debt”) issued by Insured Depository Institutions, U.S. Bank
Holding Companies, certain U.S. Savings and Loan Holding Companies, and
affiliates of Insured Depository Institutions designated by the FDIC as
“eligible entities” (as defined in and for purposes of the Rule, hereinafter
“Eligible Entities”); and

    


    WHEREAS,
GECC is a wholly-owned subsidiary of GE; and

    


    WHEREAS,
GECC is a savings and loan holding company by virtue of its indirect 100%
ownership of GE Money Bank, a federally-chartered thrift, and is supervised by
the Office of Thrift Supervision; and

    


    WHEREAS,
GECC is a Delaware corporation; and

    


    WHEREAS,
GECC is the primary operating vehicle through which GE engages in financial
services, providing financing to businesses and consumers; and

    


    WHEREAS,
GECC has requested that the FDIC guarantee under the Program Senior Unsecured
Debt issued by GECC; and

    


    WHEREAS,
GECC is an affiliate of an Insured Depository Institution for purposes of the
Rule;

    


    NOW,
THEREFORE, in consideration of the premises and the representations, warranties,
covenants and agreements hereinafter contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:

    



    
      
        
        

      

      
        (1)

        
          

        

      

      
         


      

    


    1.           Definitions.  Capitalized
terms used and not otherwise defined in this Agreement have the meanings given
such terms in the Rule.

    


    2.           Designation
of GECC as Eligible Entity.  On the terms and subject to the
conditions set forth in this Agreement, GECC shall constitute an Eligible Entity
under the Rule.

    


    3.           Commitments
by GE and GECC.

    


    (a)           GECC
shall not issue Senior Unsecured Debt that is identified as “guaranteed by the
FDIC,” unless such debt meets all of the criteria of “newly issued senior
unsecured debt” (as defined in the Rule) and satisfies all of the requirements
and conditions necessary to qualify as FDIC-guaranteed debt under the
Rule.

    


    (b)           In
the event the FDIC does pay any claims pursuant to and in accordance with its
guarantee of GECC debt under the Program, GECC shall reimburse the FDIC for any
and all such amounts as are paid by the FDIC upon demand for payment of the same
by the FDIC.  In the event the FDIC does pay any claims pursuant to
and in accordance with its guarantee of GECC debt under the Program, GE shall
reimburse the FDIC for any and all such amounts as are paid by the FDIC upon
demand for payment of the same by the FDIC; provided, however, that to the
extent of such reimbursement, GE shall be subrogated to the rights of the FDIC
against GECC as such rights relate to the FDIC’s payment of any claims under the
FDIC guarantee of GECC debt.  Upon the reasonable request of GE,
accompanied by GE’s undertaking to reimburse the FDIC for all costs (including
reasonable attorneys’ fees and costs) incurred by the FDIC in connection with
the FDIC’s compliance with such request, the FDIC will provide GE with
reasonable cooperation in pursuing GE’s subrogation rights under this
Agreement.

    


    (c)           GECC
shall indemnify and hold harmless the FDIC from and against any and all losses,
liabilities, damages, costs and expenses (including reasonable attorneys’ fees
and costs) incurred by the FDIC and arising out of or in connection with any of
(i) the issuance by GECC of any Senior Unsecured Debt, other than any Senior
Unsecured Debt which is not guaranteed by the FDIC as contemplated by Section
370.3(f) of the Rule, (ii) the failure of GECC to comply with any of the
covenants or other provisions of this Agreement, and (iii) any inaccuracy or
breach of any representation or warranty made by GECC in this Agreement (for
purposes of determining any such inaccuracy or breach and any resulting
liability under this indemnification provision, such representation or warranty
shall be read as if it were not qualified by and did not contain any concept of
“material,” “materiality,” “material adverse effect” or similar
qualification).

    


    (d)           GE
shall indemnify and hold harmless the FDIC from and against any and all losses,
liabilities, damages, costs and expenses (including reasonable attorneys’ fees
and costs) incurred by the FDIC and arising out of or in connection with any of
(i) the failure of GECC to comply with any of the covenants or other provisions
of


    
      
         


      

      
        (2)

        
          

        

      

      
         


      

    


    this
Agreement (including GECC’s indemnification obligation contained in Section
3(c)), (ii) the failure of GE to comply with any of the covenants or other
provisions of this Agreement, and (iii) any inaccuracy or breach of any
representation or warranty made by GE in this Agreement (for purposes of
determining any such inaccuracy or breach and any resulting liability under this
indemnification provision, such representation or warranty shall be read as if
it were not qualified by and did not contain any concept of “material,”
“materiality,” material adverse effect” or similar qualification).

    


    (e)           Prior
to making any claim against GE under Section 3(d)(i), the FDIC shall give GECC
written notice of GECC’s failure that gives rise to such claim against GE (but
shall not otherwise be required to pursue or exhaust any remedies against
GECC).

    


    (f)           Unless
the FDIC otherwise consents in writing, the representations and warranties
contained in Section 4(d) shall remain true and correct in all
respects.

    


    (g)           Until
June 30, 2012, each of GE and GECC shall make a good faith effort to inform the
FDIC promptly of any material change in the information communicated in writing
to the FDIC in connection with GECC’s request to designate GECC an Eligible
Entity.

    


    4.           Representations
and Warranties.  Each of GE and GECC hereby represent and
warrant to the FDIC as follows:

    


    (a)           It
is duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization and has all requisite power
and authority (corporate or other) to own, lease and operate its assets and
properties and to carry on its business as presently conducted.

    


    (b)           It
has all requisite power and authority (corporate or other) to execute, deliver
and perform its obligations under this Agreement and to consummate the
transactions contemplated hereby.  The execution and delivery by it
of, and the performance by it of its obligations under, this Agreement have been
duly and validly authorized by all requisite action on the part of it, and this
Agreement constitutes a valid and binding obligation of it enforceable against
it in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other laws relating to or affecting the rights and remedies of
creditors generally and to general principles of equity (regardless of whether
in equity or at law).

    


    (c)           The
execution and delivery by it of this Agreement, the performance by it of its
obligations hereunder and the consummation by it of the transactions
contemplated hereby do not and will not:  (i) violate any provision of
its certificate or articles of incorporation or bylaws; (ii) require on the part
of it any notice or filing with, or any permits, licenses, authorizations,
registrations, franchises, approvals, consents, certificates, variances and
similar rights obtained, or required to be obtained,


    
      
         


      

      
        (3)

        
          

        

      

      
         


      

    


    from any
federal, state, municipal or other governmental department, branch, commission,
board, bureau, agency or instrumentality, or other authorization of, or any
exemption by, any federal, state, municipal or other governmental department,
branch, commission, board, bureau, agency or instrumentality, in each case
except as would not, individually or in the aggregate, have a material adverse
effect on it or its ability to perform any obligation under this Agreement;
(iii) in any material respect, result in a violation or breach of, constitute a
default under, result in the acceleration of, give rise to any right to
accelerate, terminate, modify or cancel, or require any notice, consent,
authorization, approval or waiver under, or result in any other adverse
consequence under, any material contract to which it is a party or by which it
or any of its assets or properties is bound; (iv) violate or breach the terms of
or cause any default under any law applicable to it or any of its properties or
assets, except as would not, individually or in the aggregate, have a material
adverse effect on it or its ability to perform any obligation under this
Agreement; or (v) with the passage of time, the giving of notice or both, have
any of the effects described in clauses (i) through (iv) of this
Section.

    


    (d)           GECC
is (i) a corporation organized and existing under the laws of the state of
Delaware or another state within the United States, (ii) an affiliate of GE,
(iii) an affiliate of an Insured Depository Institution for purposes of the
Rule, and (iv) together with its subsidiaries, the primary operating vehicle
through which GE engages in financial services and provides financing to
businesses and consumers.

    


    (e)           The
representations and warranties made by GE and GECC in this Agreement, and the
information provided by GE and GECC to the FDIC in connection with GECC’s
request to designate GECC an Eligible Entity (including the information set
forth in the Recitals hereto), are true and correct in all material respects and
do not omit any material facts necessary in order to make the statements made
not misleading.

    


    (f)           GE
and GECC each hereby acknowledge that (i) the FDIC may be in possession of
information relating to GE or GECC which information was not provided to the
FDIC in connection with the request to designate GECC as an Eligible Entity
(“Non-Qualifying Information”), and (ii) neither the representations and
warranties of GE and GECC nor any obligations that may arise as a breach thereof
shall be limited or otherwise affected by reason of the fact that the FDIC is or
was at any time in possession of Non-Qualifying Information.

    


    5.           Oversight
and Reports.  Without limiting the application of the Rule
generally to any FDIC guarantee provided pursuant to the Program with respect to
GECC Senior Unsecured Debt, and without limiting the oversight or other
authority to which GE or GECC may be subject by any other regulator, each of GE
and GECC agree that (i) it shall be subject to the oversight of the FDIC
pursuant to the provisions of Section 370.10 of the Rule (regardless of whether
it is a “participating entity” for purposes of the Rule), and (ii) it shall
notify the FDIC in writing within three (3) business days after the occurrence
of any event that would reasonably be expected to result in any failure by GE or
GECC to comply in any material respect with any of the covenants or other
provisions of Section 3 of this Agreement.  Without limiting the
rights the FDIC may have under the


    
      
         


      

      
        (4)

        
          

        

      

      
         


      

    


    Rule or
otherwise under this Agreement, GE and GECC acknowledge and agree that the FDIC
may terminate this Agreement (but any FDIC guarantee shall be terminated in a
manner consistent with Section 370.11 of the Rule) if either GE or GECC breaches
any obligation or covenant contained, or there exists any inaccuracy in any
representation or warranty made by GE or GECC, in this Agreement, and the same
is not cured after notice and a reasonable opportunity to cure the same is
provided by the FDIC (with such notice to specify such reasonable cure
period).  No provision of this Agreement shall be construed to affect
the FDIC’s authority to terminate GECC’s status as an Eligible Entity pursuant
to Section 370.11 of the Rule.

    


    6.           Survival.  All
representations, warranties, covenants and agreements contained in this
Agreement shall survive (and not be affected in any respect by) the consummation
of the transactions contemplated hereby.

    


    7.           Notices.  All
notices, requests, demands, and other communications required or permitted to be
given or delivered under or by reason of the provisions of this Agreement shall
be in writing and shall be given by certified or registered mail, postage
prepaid, or, delivered by hand or by nationally recognized air courier service,
directed to the address of such person set forth below:

    


    If to
GE:

    


    General
Electric Company

    3135
Easton Turnpike

    Fairfield,
CT  06828

    Attention:  General
Counsel

    


    


    If to
GECC:

    


    General
Electric Capital Corporation

    901 Main
Street

    Suite
800

    Norwalk,
CT  06851

    Attention:  General
Counsel

    


    


    If to
FDIC:

    


    Federal
Deposit Insurance Corporation

    550
17th
Street, N.W.

    Washington,
D.C.  20429

    Attention:  Donald
Hamm, Division of Supervision and Consumer Protection

    Facsimile
No.:  202-898-6676

    



    
      
         


      

      
        (5)

        
          

        

      

      
         


      

    


    With a
copy to:

    


    Federal
Deposit Insurance Corporation

    550
17th
Street, N.W.

    Washington,
D.C.  20429

    Attention:  Michael
B. Phillips, Counsel

    Facsimile
No.:  202-898-3581

    


    Any such
notice shall become effective when received (or receipt is refused) by the
addressee, provided that any notice or communication that is received (or
refused) other than during regular business hours of the recipient shall be
deemed to have been given at the opening of business on the next business day of
the recipient.  From time to time, any person may designate a new
address for purposes of notice hereunder by notice to such effect to the other
persons identified above.

    


    8.           Assignment.  This
Agreement and all of the provisions hereof shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and permitted
assigns; provided, however, that neither
GE nor GECC may assign this Agreement or any of its rights, interests or
obligations hereunder.  Any purported assignment or delegation in
violation of this Agreement shall be null and void ab initio.

    


    9.           Entire
Agreement.  This Agreement embodies the entire agreement and
understanding of the parties with respect to the transactions contemplated
hereby and merges in, supersedes and cancels all prior written or oral
commitments, arrangements or understandings with respect thereto.

    


    10.           Modifications,
Amendments and Waivers.  This Agreement may not be modified or
amended except by an instrument or instruments in writing signed by the FDIC, GE
and GECC.  Any party hereto may, only by an instrument in writing,
waive compliance by any other party or parties hereto with any term or provision
hereof on the part of such other party or parties hereto to be performed or
complied with.  No failure or delay of any party in exercising any
right or remedy hereunder shall operate as a waiver thereof, nor will any single
or partial exercise of any right or power, or any abandonment or discontinuance
of steps to enforce such right or power, preclude any other or further exercise
thereof or the exercise of any other right or power.  The waiver by
any party hereto of a breach of any term or provision hereof shall not be
construed as a waiver of any subsequent breach.  The rights and
remedies of the parties hereunder are cumulative and are not exclusive of any
rights or remedies that they would otherwise have hereunder.

    


    11.           Counterparts;
Facsimile Signatures.  This Agreement may be executed in any
number of counterparts, each of which shall be an original and all of which
shall together constitute one and the same instrument.  It shall not
be necessary for any counterpart to bear the signature of all parties
hereto.  This Agreement and any amendments hereto, to the extent
signed and delivered by means of a facsimile machine, shall be treated in all
manner and respects as an original agreement and shall be considered to have the
same binding legal effect as if it were the original signed
version


    
      
         


      

      
        (6)

        
          

        

      

      
         


      

    


    thereof
delivered in person.  No signatory to this Agreement shall raise the
use of a facsimile machine to deliver a signature or the fact that any signature
or agreement was transmitted or communicated through the use of a facsimile
machine as a defense to the formation or enforceability of a contract and each
such person forever waives any such defense.

    


    12.           Governing
Law.  THIS AGREEMENT IS GOVERNED BY AND SHALL BE CONSTRUED IN
ACCORDANCE WITH FEDERAL LAW, BUT TO THE EXTENT FEDERAL LAW DOES NOT PROVIDE A
RULE OF DECISION, THIS AGREEMENT IS GOVERNED BY AND SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK, EXCLUDING ANY CONFLICT-OF-LAWS
RULE OR PRINCIPLE THAT MIGHT REFER THE GOVERNANCE OR THE CONSTRUCTION OF THIS
AGREEMENT TO THE LAW OF ANOTHER JURISDICTION.

     

    13.           Submission
to Jurisdiction; Waiver of Jury
Trial.  Each of GE and GECC, for itself and its affiliates,
hereby irrevocably and unconditionally:

     

    (a)           (i)
agrees that any suit, action or proceeding instituted against it by any other
party with respect to this Agreement may be instituted, and that any suit,
action or proceeding by it against any other party with respect to this
Agreement shall be instituted, only in the Supreme Court of the State of New
York, County of New York, or the United States District Court for the Southern
District of New York or the United States District Court for the District of
Columbia or the United States Court of Federal Claims (and appellate courts from
any of the foregoing) as the party instituting such suit, action or proceeding
may in his, her or its sole discretion elect, (ii) consents and submits, for
itself and its property, to the jurisdiction of such courts for the purpose of
any such suit, action or proceeding instituted against it by any other party and
(iii) agrees that a final judgment in any such suit, action or proceeding shall
be conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law;

     

    (b)           agrees
that service of all writs, process and summonses in any suit, action or
proceeding pursuant to Section 13(a) may be effected by the mailing of copies
hereof by registered or certified mail, postage prepaid, to the person being
served at its address for notices pursuant to Section 7 (with copies to such
other persons as specified therein); provided, however, that nothing
contained in this Section 13 shall affect the ability of any party to be served
process in any other manner permitted by law; and

     

    (c)           (i)
waives any objection that it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement
brought in any court specified in Section 13(a), (ii) waives any claim that any
such suit, action or proceeding brought in any such court has been brought in an
inconvenient forum and (iii) agrees not to plead or claim either of the
foregoing.

     

    14.           WAIVER OF
JURY TRIAL.  EACH OF GE, FOR ITSELF AND ITS AFFILIATES, GECC,
FOR ITSELF AND ITS AFFILIATES, AND THE FDIC


    
      
         


      

      
        (7)

        
          

        

      

      
         


      

    


     

    HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY
OF ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT AND AGREES THAT ANY
SUCH DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY.

    


    15.           Severability.  Each
party hereto agrees that any provision of this Agreement which is rendered or
held invalid, illegal or unenforceable in any respect in any jurisdiction shall
be ineffective, but such ineffectiveness shall be limited as
follows:  (a) if such provision is rendered or held invalid, illegal
or unenforceable in such jurisdiction only as to a particular person or persons
or under any particular circumstance or circumstances, such provision shall be
ineffective, but only in such jurisdiction and only with respect to such
particular person or persons or under such particular circumstance or
circumstances, as the case may be; (b) without limitation of clause (a), such
provision shall in any event be ineffective only as to such jurisdiction and
only to the extent of such invalidity, illegality or unenforceability, and such
invalidity, illegality or unenforceability in such jurisdiction shall not render
invalid, illegal or unenforceable such provision in any other jurisdiction; and
(c) without limitation of clause (a) or (b), such ineffectiveness shall not
render invalid, illegal or unenforceable this Agreement or any of the remaining
provisions hereof.  In the event any provision of this Agreement is
rendered or held invalid, illegal or unenforceable in any respect, the parties
shall negotiate in good faith to amend this Agreement to cure such invalidity,
illegality or unenforceability in a way that reflects the parties’ original
intent hereunder.

    


    16.           No
Presumption.  With regard to each and every term and condition
of this Agreement, each party hereto understands and agrees that the same have
or has been mutually negotiated, prepared and drafted by the FDIC, on the one
hand, and GE and GECC, on the other hand, and if at any time any such term or
condition is desired or required to be interpreted or construed, no
consideration shall be given to the issue of who actually prepared, drafted or
requested any term or condition of this Agreement or any agreement or instrument
subject hereto.

    


    17.           Third
Party Beneficiaries.  This Agreement is for the benefit of each
of the parties hereto and their respective permitted successors and assigns, and
no other person; provided, however, that the
holders of GECC Senior Unsecured Debt guaranteed by the FDIC pursuant to this
Agreement and the Rule shall be entitled to make a claim against the FDIC to
receive payment of any such debt in accordance with this Agreement and the
Rule.

    


    18.           General
Applicability of Rule.  No provision of this Agreement shall be
construed to modify or amend the Rule.

     

    


    [The next
page is the signature page]

    



    
      
         


      

      
        (8)

        
          

        

      

      
         


      

    


    IN
WITNESS WHEREOF, each of the undersigned parties has caused this Agreement to be
executed by its respective officer or agent thereunto duly authorized on the
date first above written.

    


     

    FEDERAL
DEPOSIT INSURANCE CORPORATION

     

    By:                                                                                         
                                                                          

    Name:

    Title:

     

    GENERAL
ELECTRIC COMPANY

     

     By:                                                                                                                                                         

    Name:

    Title:

     

    GENERAL
ELECTRIC CAPITAL CORPORATION

     

    By:                                                                                          
                                                                          

    Name:

    Title:

     

    



    
      
         


      

      
        (9)