EXHIBIT 4(k)
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THIRD AMENDED AND RESTATED
FISCAL AND PAYING AGENCY AGREEMENT
among
GENERAL ELECTRIC CAPITAL CORPORATION
GE CAPITAL AUSTRALIA FUNDING PTY. LTD. (A.C.N. 085 675 467)
GENERAL ELECTRIC CAPITAL CANADA INC.
GE CAPITAL CANADA FUNDING COMPANY
GE CARD SERVICES CANADA INC.
and
JPMORGAN CHASE BANK
and
X.X. XXXXXX BANK LUXEMBOURG S.A.
Euro Medium-Term Notes and Other Debt Securities Due
9 Months or More
from Date of Issue
Dated as of May 23, 2002
TABLE OF CONTENTS
Page
1. Appointment of Paying Agents. ................................................. 1
2. Notes Issuable in Series. ..................................................... 2
3. Execution and Authentication of Notes; Date and Denomination of Notes ......... 4
4. Exchange and Registration of Transfer of Notes ................................ 8
5. Payments of Principal, Premium and Interest; Paying Agents. ................... 10
6. Redemption; Sinking Funds; Repayment at the Option of the Holder. ............. 13
7. Mutilated, Destroyed, Stolen or Lost Notes. ................................... 17
8. Events of Default. ............................................................ 18
9. Additional Payments; Tax Redemption. .......................................... 21
10. Covenant of the Issuers and the Guarantor. .................................... 29
11. Obligations of the Fiscal and Paying Agent. ................................... 30
12. Maintenance and Resignation of Fiscal and Paying Agent ........................ 31
13. Paying Agency. ................................................................ 33
14. Merger, Consolidation, Sale or Conveyance. .................................... 33
15. Meetings of Holders of the Notes. ............................................. 34
16. Consent of Holders. ........................................................... 37
17. Stamp Taxes. .................................................................. 37
18. Modifications and Amendments. ................................................. 37
19. Accession of Additional Issuers. .............................................. 38
20. Notices to Parties. ........................................................... 39
21. Notices to and by Holders of the Notes. ....................................... 41
22. Business Day. ................................................................. 42
23. Central Bank Reporting Requirements. .......................................... 42
24. Governing Law. ................................................................ 42
25. Consent to Service. ........................................................... 42
26. Counterparts. ................................................................. 42
27. Inspection of Agreement. ...................................................... 43
28. Descriptive Headings. ......................................................... 43
29. Provisions Binding on Successors. ............................................. 43
30. Official Acts by Successor Corporation. ....................................... 43
31. Severability. ................................................................. 43
THIRD AMENDED AND RESTATED FISCAL AND PAYING AGENCY AGREEMENT, dated as of
May 23, 2002 between GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware
corporation ("GE Capital"), GE CAPITAL AUSTRALIA FUNDING PTY. LTD. (A.C.N. 085
675 467), a company incorporated under the laws of the Commonwealth of Australia
("GEC Australia Funding"), GENERAL ELECTRIC CAPITAL CANADA INC., a corporation
incorporated under the laws of Canada ("GEC Canada"), GE CAPITAL CANADA FUNDING
COMPANY, a company incorporated under the laws of the Province of Nova Scotia,
Canada ("GEC Canada Funding") and GE CARD SERVICES CANADA INC, a company
incorporated under the laws of the Province of Nova Scotia, Canada ("GEC Card
Canada ") (each of GEC Canada, GEC Canada Funding and GEC Card Canada, a
"Canadian Subsidiary Issuer", and together, the "Canadian Subsidiary Issuers",
and together with GEC Australia Funding and each Additional Issuer (as defined
herein) acceding hereto pursuant to Section 19 hereof, each an "Issuer" and
together the "Issuers") and JPMORGAN CHASE BANK, as Fiscal and principal Paying
Agent and X.X. XXXXXX BANK LUXEMBOURG S.A. as Paying Agent (such agreement, as
further amended and supplemented from time to time, the "Agreement").
Pursuant to the Third Amended and Restated Euro MTN Distribution Agreement,
dated May 23, 2002, among the Issuers (including GE Capital in its capacity as
guarantor (the "Guarantor") of Notes issued by an Issuer other than GE Capital)
and the agents named therein (the "Agents") (as further amended from time to
time, the "Distribution Agreement"), each Issuer has agreed to issue from time
to time its Euro Medium-Term Notes ("Medium Term Notes") and other debt
securities ("Other Debt Securities") having maturities from 9 months or more
from date of issue (collectively, Medium Term Notes and Other Debt Securities
are referred to herein as the "Notes"). The Guarantor has agreed to guarantee
Notes issued pursuant to this Agreement by each Issuer other than GE Capital in
the form of the guarantee attached hereto as Exhibit D-1 (the "Guarantee").
Administrative procedures, which have been agreed to by the Issuers (including
GE Capital in its capacity as Guarantor) and the Agents as of the date hereof,
are attached as Exhibit A hereto (such procedures, as amended from time to time
pursuant to the Distribution Agreement, are hereinafter referred to as the
"Administrative Procedures").
Pursuant to this Agreement, the Second Amended and Restated Fiscal and
Paying Agency Agreement dated March 31, 1999 (the "Prior Agency Agreement")
shall be amended and restated on the terms of this Agreement. Any Notes issued
on or after the date of this Agreement shall be issued pursuant to this
Agreement, but this shall not affect any Notes issued prior to the date of this
Agreement. Subject to such amendment and restatement, the Prior Agency Agreement
shall continue in full force and effect.
1. Appointment of Paying Agents. Each Issuer and (in the case of Notes
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issued by an Issuer other than GE Capital) the Guarantor hereby appoint JPMorgan
Chase Bank, acting through its London Branch located at Trinity Tower, 9 Xxxxxx
Xxxx Street, London E1W 1YT, England, as the fiscal agent and as the principal
paying agent (in such capacities and including any successor Fiscal and Paying
Agent appointed hereunder, the "Fiscal and Paying Agent") and X.X. Xxxxxx Bank
Luxembourg S.A. as paying agent (the "Luxembourg Paying Agent" and, together
with the Fiscal and Principal Paying Agent in its capacity as principal paying
agents, the "Paying Agent", in each case in respect of the Notes, upon the terms
and subject to the conditions stated herein and in the Notes certified from time
to time pursuant to Section 2 hereof. Each of the Fiscal and Paying Agent and
the Luxembourg Paying Agent hereby accepts such appointment and agrees, upon
such terms and subject to such conditions, to perform its respective obligations
under this Agreement, the Notes certified from time to time pursuant to Section
2 hereof and the Administrative Procedures. In addition, unless otherwise agreed
by the parties hereto, the Fiscal
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and Paying Agent agrees to appoint its local branch or affiliate located in the
jurisdiction of the country where any Notes are listed from time to time as an
additional paying agent, to the extent required by the rules and regulations of
the applicable exchange and to the extent the Fiscal and Paying Agent has a
branch or affiliate located in such jurisdiction.
2. Notes Issuable in Series.
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(a) Each Issuer may issue Notes hereunder in one or more series of Notes,
each series (a "Series") having identical terms but for authentication date and
public offering price; provided that a Series of Notes may comprise Notes in
bearer form ("Bearer Notes") and Notes in registered form ("Registered Notes").
Each such Series may contain one or more tranches of Notes, each such tranche (a
"Tranche") having identical terms, including authentication date and public
offering price; provided that a Tranche of Notes may comprise Bearer Notes and
Registered Notes.
(b) Notes issued hereunder shall be issued pursuant to authority granted
by the Board of Directors of the relevant Issuer and (in the case of Notes
issued by an Issuer other than GE Capital) the Guarantor or any duly authorized
committee thereof and shall be in such form as shall be certified to the Fiscal
and Paying Agent from time to time by any one authorized person, as specified in
Section 3(a) hereof.
(c) Prior to the issue of the first Tranche of Notes of a Series
hereunder, the relevant Issuer and (in the case of Notes issued by an Issuer
other than GE Capital) the Guarantor shall advise the Fiscal and Paying Agent in
writing of the following terms which shall be applicable to such Series of Notes
(each such set of written instructions shall be provided by such persons as are
designated by an Issuer Authorized Representative (as defined in Section 3(a))
from time to time in an incumbency certificate delivered to the Fiscal and
Paying Agent and shall hereinafter be referred to as a "Corporate Order"):
(1) the title of the Series (which shall distinguish the Notes of such
Series from all other Notes), including identifying whether such series
will be issued as Medium Term Notes or Other Debt Securities;
(2) any limit upon the aggregate principal amount of the Notes of such
Series which may be authenticated and delivered under this Agreement
(except for Notes authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Notes of the Series pursuant
to Sections 3, 4, 6 and 7);
(3) the date or dates on which the principal of and premium, if any,
on the Notes of the Series are payable;
(4) the rate or rates, or the method of determination thereof, at
which the Notes of the Series shall bear interest, if any, the date or
dates from which such interest shall accrue, the interest payment dates on
which such interest shall be payable and, in the case of any Registered
Note, if other than as set forth in Section 3, the record dates for the
determination of holders to whom interest is payable;
(5) the place or places where the principal of, and premium, if any,
and interest on Notes of the Series shall be payable;
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(6) the currency in which the Notes of such Series is denominated,
which may include U.S. dollars, any foreign currency or any composite of
two or more currencies (the "Specified Currency");
(7) the currency or currencies in which payments on the Notes of such
Series are payable, if other than the Specified Currency;
(8) the price or prices at which, the period or periods within which
and the terms and conditions upon which the Notes of such Series may be
redeemed, in whole or in part, at the option of the relevant Issuer,
pursuant to any sinking fund or otherwise;
(9) the obligation, if any, of the relevant Issuer or the Guarantor to
redeem, purchase or repay the Notes of such Series pursuant to any right to
do so contained in the Notes or pursuant to sinking fund or analogous
provisions or at the option of a holder thereof and the price or prices at
which and the period or periods within which and the terms and conditions
upon which the Notes of such Series shall be redeemed, purchase or repaid,
in whole or in part, pursuant to such obligation;
(10) the denominations in which the Notes of such Series shall be
issuable, if other than (a) in the case of Registered Notes, 10,000 units
of the Specified Currency and integral multiples of 1,000 units of the
Specified Currency in excess thereof, or (b) in the case of all Bearer
Notes in definitive form, 1,000, 10,000 and 100,000 units of the Specified
Currency, or (c) in the case of Bearer Notes in global form, any integral
multiple of 1,000 units of the Specified Currency;
(11) if other than the principal amount thereof, the portion of the
principal amount of the Notes of such Series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section 8;
(12) if the principal of, premium, if any, or interest on the Notes of
such Series are to be payable, at the election of the relevant Issuer or
the Guarantor or a holder thereof, in a currency other than the Specified
Currency, the period or periods within which, and the terms and conditions
upon which, such election may be made;
(13) if the amount of payments of principal of, premium, if any, and
interest on the Notes of such Series may be determined with reference to an
index based on currency other than the Specified Currency, the manner in
which such amounts shall be determined;
(14) if other than as provided in Sections 3, 4 and 5 hereof, whether
the Notes of such Series will be issuable as Registered Notes or Bearer
Notes (with or without coupons), or any combination of the foregoing, any
restriction applicable to the offer, sale or delivery of Bearer Notes or
the payment of interest thereon and the terms upon which Bearer Notes of
any Series may be exchanged for Registered Notes of such Series, except
that the Notes of such Series shall only be issuable as Bearer Notes unless
otherwise provided in such Corporate Order;
(15) any Events of Default with respect to the Notes of such Series,
if not set forth herein;
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(16) if other than those named herein, any other depositaries,
authenticating or paying agents, transfer agents or registrars or any other
agents with respect to such Series;
(17) the stock exchange, competent listing authority and/or quotation
system, if any, on or by which the Notes will be listed, quoted and/or
traded and related information;
(18) any applicable restrictions on the transfer of any of the Notes
of such Series; and
(19) any other terms of the Series (which terms shall not be
inconsistent with the provisions of this Agreement).
All Notes of any one Series and coupons, if any, appertaining thereto,
shall be substantially identical except as to denomination and except as may
otherwise be provided in or pursuant to such Corporate Order. The Notes and the
coupons, if any, appertaining thereto shall be in substantially such form as
shall be established pursuant to a resolution of the Board of Directors of the
relevant Issuer and the Guarantor, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Agreement, and may have such legends or endorsements placed
thereon as the officers executing the same may approve (execution thereof to be
conclusive evidence of such approval) and as are not inconsistent with the
provisions of this Agreement, or as may be required to comply with the
directions of Euroclear Bank S.A./N.V. as operator of the Euroclear System
("Euroclear "), Clearstream Banking, societe anonyme ("Clearstream, Luxembourg")
or any other clearance system specified for a particular Tranche or Series of
Notes, or any successors thereto, or with any law or with any rule or regulation
made pursuant thereto or with any rule or regulation of any stock exchange,
competent listing authority and/or quotation system on or by which such Notes
may be listed, quoted and/or traded, or to conform to usage.
(d) An additional Tranche of the same Series may be issued subsequent to
the original issue date of any Notes of such Series (hereinafter called
"Additional Notes") following the receipt by the Fiscal and Paying Agent of a
Corporate Order pertaining to such Tranche, which Corporate Order will identify
the Series to which such Tranche belongs and the issue date and aggregate
principal amount of the Notes of such Tranche. Any such Additional Notes shall
be issued initially as provided in Section 3. In the event Additional Notes are
issued prior to the Exchange Date (as hereinafter defined) for a temporary
global Bearer Note representing a prior Tranche of Notes of the same Series, the
Exchange Date for such prior Tranche of Notes may be extended to a date not less
than 40 days after the issue date of such Additional Notes; provided however, in
no event shall the Exchange Date for any Tranche of Notes be extended to a date
more than 160 days after their issue date. Additional Notes, together with each
prior and subsequent Tranche of Notes of the same Series, shall constitute one
and the same Series of Notes for all purposes under this Agreement.
3. Execution and Authentication of Notes; Date and Denomination of Notes
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(a) Execution, delivery and safekeeping of Notes. The Notes and, if
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applicable, coupons appertaining thereto in the form certified to the Fiscal and
Paying Agent pursuant to the provisions of Section 2(b) shall each be executed
(i) in the case of Notes issued by GE Capital, by GE Capital's Chairman and
Chief Executive Officer, its President and Chief Operating Officer,
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its Vice Chairman and Chief Financial Officer, its Senior Vice
President-Corporate Treasury and Global Funding Operation, or by a duly
authorized attorney-in-fact or (ii) in the case of Notes issued by an Issuer
other than GE Capital, by a duly authorized officer or a duly authorized
attorney-in-fact (each an "Issuer Authorized Representative"). Such signatures
may be the manual or facsimile signatures of any person who, at the time of such
execution, holds any such office or of a duly authorized attorney-in-fact. Any
signature in facsimile may be imprinted or otherwise reproduced on the Notes or
the coupons. Each definitive Note shall have imprinted thereon a facsimile of
the corporate seal of the relevant Issuer attested by the Secretary or any
Assistant Secretary of such Issuer. In case any authorized officer of such
Issuer or attorney-in-fact who shall have signed any Note or coupon shall cease
to hold such office or be such attorney-in-fact before the Note so signed (or
the Note to which the coupon so signed is attached) shall be authenticated and
delivered by the Fiscal and Paying Agent or disposed of by such Issuer, such
Note or coupon nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Note or coupon had not ceased to hold such
office or be such attorney-in-fact; and any Note or coupon may be signed on
behalf of such Issuer by any person who, as at the actual date of the execution
of such Note or coupon, shall hold such office or be an attorney-in-fact,
although at the date of the execution and delivery of this Agreement any such
person did not hold such office or was not an attorney-in-fact.
The relevant Issuer will furnish the Fiscal and Paying Agent with an
adequate supply of Notes having attached thereto appropriate coupons, if any, in
the forms approved in accordance with Section 2(b) of this Agreement, bearing
consecutive control numbers. Such Notes shall have been executed by an Issuer
Authorized Representative and attested by the Secretary or an Assistant
Secretary of such Issuer in accordance with this Section. The Fiscal and Paying
Agent or its designated agent will hold such blank Notes in safekeeping in
accordance with its customary practice and shall issue such Notes in the order
of the control numbers imprinted thereon. The Fiscal and Paying Agent will
permit the relevant Issuer and its agents, at all reasonable times and upon
reasonable notice, to examine the Notes and all books, records and other
materials and information of the Fiscal and Paying Agent relating thereto.
(b) Execution of Guarantee. The Guarantee endorsed on Notes issued by an
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Issuer other than GE Capital shall be executed on behalf of the Guarantor by any
one of its Chairman of the Board, its Chief Executive Officer, its President,
its Senior Vice President, Finance, its Senior Vice President-Corporate Treasury
and Global Funding Operation, or by a duly authorized attorney-in-fact. Such
signatures may be the manual or facsimile signatures of any person who, at the
time of such execution, holds any such office or of a duly authorized
attorney-in-fact. Any signature in facsimile may be imprinted or otherwise
reproduced on the Guarantee endorsed on such Notes. Each Guarantee endorsed on
each definitive Note shall have imprinted thereon a facsimile of the corporate
seal of the Guarantor. In case any authorized officer of the Guarantor or
attorney-in-fact who shall have signed any Guarantee shall cease to hold such
office or be such attorney-in-fact before the Note endorsed with the Guarantee
so signed shall be authenticated and delivered by the Fiscal and Paying Agent or
disposed of by the relevant Issuer, such Note or coupon nevertheless may be
authenticated and delivered or disposed of as though the person who signed such
Guarantee endorsed on such Note had not ceased to hold such office or be such
attorney-in-fact; and any Guarantee may be signed on behalf of the Guarantor by
any person who, as at the actual date of the execution of such Guarantee, shall
hold such office or be an attorney-in-fact, although at the date of the
execution and delivery of this Agreement any such person did not hold such
office or was not an attorney-in-fact.
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(c) Authentication of temporary global Notes. Unless otherwise specified
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in the applicable Corporate Order or by the relevant Agent or Agents, each
Tranche of Notes, including any Tranche of Additional Notes issued prior to the
Exchange Date for a prior Tranche of Notes of the same Series, shall initially
be issued in the form of a single temporary global Note in bearer form. The
temporary global Bearer Notes shall be authenticated by the Fiscal and Paying
Agent or by a duly authorized officer or attorney-in-fact of the Fiscal and
Paying Agent, upon the same conditions, in substantially the same manner and
with the same effect as the definitive Notes, and shall be deposited with a
common depositary (the "Common Depositary") for the accounts of Euroclear and
Clearstream, Luxembourg or any other recognized and agreed clearing system for
credit to the respective securities clearance accounts of the relevant Agents
(or to such other accounts as they may have directed) maintained with Euroclear,
Clearstream, Luxembourg or other recognized and agreed clearing system. For
purposes of this Agreement "Exchange Date" for any Series of Notes shall mean
the first Business Day that is at least 40 days after the issue date of such
Series; provided that in the event a Tranche of Additional Notes of the same
Series is issued prior to the Exchange Date of a prior Tranche of such Series
(as such Exchange Date may have been extended pursuant to this sentence), such
Exchange Date shall be extended (or further extended, as the case may be) to a
date not earlier than 40 days after the issue date of such subsequent Tranche;
provided however, in no event shall the Exchange Date for any Tranche of Notes
be extended to a date more than 160 days after their issue date. No such
exchange will be made on a day that is not a London Business Day, but shall
instead be made on the next succeeding day that is a London Business Day. For
the purposes of this Clause 3(c) "London Business Day" means a day upon which
banks are generally open for business (including dealings in foreign currency)
in London, England.
(d) Exchange of temporary global Notes; certification requirements. On or
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up to 10 days prior to the Exchange Date for any Series of Notes held in
temporary global form, the beneficial owners of such temporary global Note shall
deliver to Euroclear, Clearstream, Luxembourg or other recognized and agreed
clearance system, as the case may be, a certificate substantially in the form
set forth in Exhibit B-1 hereto, copies of which certificate shall be available
at the offices of Euroclear, Clearstream, Luxembourg or other clearance system,
the Fiscal and Paying Agent, in the case of Notes listed on the Luxembourg Stock
Exchange, the Luxembourg Paying Agent and each other paying agent of the
relevant Issuer and (in the case of Notes issued by an Issuer other than GE
Capital) the Guarantor. On or after the Exchange Date for any Series of Notes,
upon the request of the Common Depositary, acting on behalf of Euroclear,
Clearstream, Luxembourg or other clearance system, acting in turn on behalf of
such beneficial owners, the Fiscal and Paying Agent shall authenticate a
permanent global Note in bearer form or (if specified in the applicable
Corporate Order) definitive Bearer Notes and/or definitive Registered Notes in
the amounts requested in an aggregate principal amount equal to the aggregate
principal amount of the temporary global Note beneficially owned by such owners,
but only upon delivery by Euroclear, Clearstream, Luxembourg and/or other
clearance system, acting on behalf of such owners, to the Fiscal and Paying
Agent or its duly authorized attorney-in-fact of a certificate or certificates
substantially in the form set forth in Exhibit B-2 hereto. Such permanent global
Note, if any, shall be authenticated by the Fiscal and Paying Agent or by a duly
authorized officer or attorney-in-fact of the Fiscal and Paying Agent, upon the
same conditions, in substantially the same manner and with the same effect as
the definitive Notes, and shall be deposited with the Common Depositary for the
accounts of Euroclear, Clearstream, Luxembourg and/or other clearance system for
credit to the respective accounts of such beneficial owners.
Upon any such exchange of all or a portion of a temporary global Note for a
permanent global Note or definitive Notes, such temporary global Note shall be
endorsed by the Fiscal and
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Paying Agent or its duly authorized attorney-in-fact to reflect the reduction of
its principal amount by an amount equal to the aggregate principal amount of
such permanent global Note or definitive Notes as to which certification has
been provided as set forth in the preceding paragraph.
(c) Exchange of permanent global Note; certification requirements.
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Beneficial owners of Notes desiring to exchange their interests in any permanent
global Bearer Note for definitive Notes in bearer form or (if the relevant
Corporate Order so allows) for definitive Notes in registered form shall
instruct Euroclear, Clearstream, Luxembourg or other clearance system, as the
case may be, to request such exchange on their behalf and shall deliver to
Euroclear, Clearstream, Luxembourg or such other clearance system, as the case
may be, a certificate substantially in the form set forth in Exhibit C-1 hereto,
copies of which certificate shall be available at the offices of Euroclear,
Clearstream, Luxembourg or other clearance system, the Fiscal and Paying Agent
and each other paying agent of the relevant Issuer and (in the case of Notes
issued by an Issuer other than GE Capital) the Guarantor. Upon the request of
the Common Depositary, acting on behalf of Euroclear, Clearstream, Luxembourg
and/or other clearance system, acting in turn on behalf of such beneficial
owners, the Fiscal and Paying Agent shall, upon 30 days' written notice,
authenticate and deliver outside the United States and outside the jurisdiction
of incorporation or organization of the relevant Issuer (except in compliance
with the securities and other laws and regulations of such jurisdiction,
including any applicable laws and regulations of any political subdivision
thereof) to or for the account of such beneficial owners, definitive Notes in an
aggregate principal amount equal to the aggregate principal amount of such
permanent global Bearer Note, but only upon delivery by Euroclear, Clearstream,
Luxembourg and/or other clearance system, acting on behalf of such owners, to
the Fiscal and Paying Agent or its duly authorized attorney-in-fact of a
certificate or certificates substantially in the form set forth in Exhibit C-2
hereto. All expenses incurred as a result of any such exchange shall be paid by
the relevant Issuer or (in the case of Notes issued by an Issuer other than GE
Capital) the Guarantor. Notwithstanding anything to the contrary contained in
this subsection 3(e), the Fiscal Agent shall not be required to exchange the
entire aggregate principal amount of a permanent global Bearer Note for
definitive Bearer Notes in the event beneficial owners of less than the entire
aggregate principal amount of the permanent global Bearer Note have requested
definitive Bearer Notes, provided the operating rules and regulations of the
clearance system then in effect would permit less than the entire aggregate
principal amount of the permanent global Bearer Note to be so exchanged.
Each permanent global Note shall in all respects be entitled to the same
benefits under this Agreement as definitive Notes authenticated and delivered
hereunder.
Any certification referred to in Section 3(c) or (d) above which is
delivered to the Fiscal and Paying Agent by Euroclear, Clearstream, Luxembourg
or other clearance system, as the case may be, may be relied upon by the Fiscal
and Paying Agent as conclusive evidence that the corresponding certification or
certifications of the beneficial owner or owners have been delivered to
Euroclear, Clearstream, Luxembourg or such other clearance system, as the case
may be, pursuant to the terms of this Agreement and the terms of the Notes.
(f) Authentication of Registered Notes. If so specified in the applicable
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Corporate Order, Notes of any Series may be issued in fully registered form.
Such Corporate Order will specify whether Registered Notes of such Series may be
issued in exchange for Bearer Notes of such Series and whether the Notes of such
Series may initially be issued in permanent global or definitive form.
Registered Notes shall be authenticated by the Fiscal and Paying Agent or by a
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duly authorized officer or attorney-in-fact of the Fiscal and Paying Agent and,
in the case of permanent global Registered Notes, registered in the name of a
nominee for and deposited with the Common Depositary for the accounts of
Euroclear, Clearstream, Luxembourg, and/or another recognized clearance system,
for credit to the respective securities clearance accounts of the relevant
Agents (or to such other accounts as they may have directed) maintained with
Euroclear, Clearstream, Luxembourg, another clearance system or The Depository
Trust Company in New York City for credit to the respective accounts of the
relevant Agents (or to such other accounts as they may have directed) maintained
with The Depository Trust Company or such other clearance and settlement
organization as is specified in the applicable Corporate Order.
4. Exchange and Registration of Transfer of Notes.
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(a) Exchange of Registered Notes. Registered Notes of any Series may be
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exchanged for a like aggregate principal amount of Registered Notes of the same
Series of other authorized denominations. Bearer Notes will not be issuable in
exchange for Registered Notes.
If so provided in the relevant Corporate Order, Bearer Notes of any Series
(with all unmatured coupons, if any, and all matured coupons, if any, then in
default, attached thereto) will be exchangeable (upon the terms, set forth in
Section 3) for Registered Notes of the same Series of any authorized
denominations and in an equal aggregate principal amount. Bearer Notes
surrendered in exchange for Registered Notes after the close of business on (i)
any record date with respect to any regular payment of interest and before the
opening of business at such office on the relevant interest payment date, or
(ii) any record date to be established for the payment of defaulted interest and
before the opening of business on the related proposed date for payment of
defaulted interest, shall be surrendered without the coupon relating to such
date for payment of interest.
Notes to be exchanged pursuant to the preceding two paragraphs shall
be surrendered, at the option of the holders thereof, either at the office or
agency designated and maintained by the relevant Issuer and (in the case of
Notes issued by an Issuer other than GE Capital) the Guarantor for such purpose
in accordance with the provisions of Section 5 or at any of such other offices
or agencies as may be designated and maintained by such Issuer and the Guarantor
for such purpose in accordance with the provisions of Section 5, and such Issuer
shall execute and register, the Guarantor shall cause the Guarantee to be
endorsed thereon and the Fiscal and Paying Agent shall authenticate and deliver
in exchange therefor the Note or Notes which the Noteholder making the exchange
shall be entitled to receive. The term "Noteholder," "holder of Notes," or other
similar terms, shall mean, (a) with respect to any Registered Note, the person
in whose name at the time such Registered Note is registered on the books of the
relevant Issuer kept for that purpose in accordance with the terms hereof, or
(b) with respect to any Bearer Note, the bearer thereof. Each person designated
by the relevant Issuer pursuant to the provisions of Section 5 as a person
authorized to register and register transfer of the Notes is sometimes herein
referred to as a "Registrar." In no event shall such Issuer designate more than
one Registrar for each Series of Registered Notes. No person shall at any time
be designated as or act as a Registrar unless such person is at such time
empowered under applicable law to act as such and duly registered to act as such
under and to the extent required by applicable law and regulations.
(b) Transfers of Registered Notes. Each Registrar shall keep, at each such
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office or agency, a register for each Series of Notes (for which it has been
appointed Registrar) issuable in registered form (the registers of all
Registrars being herein sometimes collectively referred to as the "Register") in
which, subject to such reasonable regulations as it may prescribe, the Xxxxxxxxx
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shall register Registered Notes and shall register the transfer of Registered
Notes as herein provided. The Register shall be in written form or in any other
form capable of being converted into written form within a reasonable time. At
all reasonable times the Register shall be open for inspection by the relevant
Issuer, the Guarantor, the Fiscal and Paying Agent and any Registrar. Upon due
presentment for registration of transfer of any Registered Note of any Series at
any designated office or agency, such Issuer shall execute, the Guarantor shall
(in the case of Notes issued by an Issuer other than GE Capital) cause the
Guarantee to be endorsed thereon, the Registrar shall register and the Fiscal
and Paying Agent shall authenticate and deliver in the name of the transferee or
transferees a new Registered Note or Registered Notes of the same Series for an
equal aggregate principal amount. Registration or registration of transfer of
any Registered Note by any Registrar in the Register maintained by such
Registrar, and delivery of such Registered Note, duly authenticated, shall be
deemed to complete the registration or registration of transfer of such
Registered Note.
All Registered Notes presented for registration of transfer or for
exchange, redemption, repayment or payment shall (i) be duly endorsed by, or be
accompanied by a written instrument or instruments of transfer or exchange in
form satisfactory to the Issuer, the Guarantor and the Registrar duly executed
by, the holder or his attorney duly authorized in writing, and (ii) be
accompanied by a duly completed Form W-8 or other applicable form required by
the United States Internal Revenue Code of 1986, as amended, of the transferee.
If so specified in the applicable Corporate Order, the transfer of some or
all of the Registered Notes of any Series may be subject to the restrictions set
forth therein. If so specified in such Corporate Order, the Registrar for such
Notes shall not register the transfer of any such Notes absent compliance with
such restrictions.
(c) Exchange and transfer of Bearer Notes. Bearer Notes in definitive form
-------------------------------------
of any Series will be exchangeable for Bearer Notes in definitive form of the
same Series in other authorized denominations, in an equal aggregate principal
amount. Bearer Notes to be so exchanged shall be surrendered, at the option of
the holders thereof, at the office of any Paying Agent appointed by the relevant
Issuer and (in the case of Notes issued by an Issuer other than GE Capital) the
Guarantor to perform such service in accordance with the provisions of Section
5, and such Issuer shall execute, the Guarantor shall cause the Guarantee to be
endorsed thereon and such Paying Agent shall authenticate and deliver in
exchange therefor the Bearer Note or Notes which the Noteholder making the
exchange shall be entitled to receive. Bearer Notes and any coupons appertaining
thereto will be transferable by delivery.
(d) Repository of master list of holders of Registered Notes. The relevant
--------------------------------------------------------
Issuer will at all times designate one person (who may be such Issuer and who
need not be the Registrar of any Series) to act as repository of a master list
of names and addresses of the holders of the Registered Notes. The Fiscal and
Paying Agent shall act as such repository unless and until some other person is,
by written notice from such Issuer to the Fiscal and Paying Agent and each
Registrar, designated by such Issuer to act as such. Such Issuer shall cause
each Registrar to furnish to such repository, on a current basis, such
information as to all registrations of transfer and exchanges effected by such
Registrar, as may be necessary to enable such repository to maintain such master
list on as current a basis as is practicable.
(e) Miscellaneous. Except as provided in Section 3(d), no service charge
-------------
shall be made for any exchange or registration of transfer of Notes, but the
relevant Issuer and (in the case of Notes issued by an Issuer other than GE
Capital) the Guarantor may require payment of a sum
9
sufficient to cover any transfer taxes or other governmental charge that may be
imposed in connection therewith.
The relevant Issuer shall not be required (i) to issue, register the
transfer of or exchange Notes to be redeemed for a period of fifteen calendar
days preceding the first publication of the relevant notice of redemption, or if
Registered Notes are outstanding and there is no publication, the mailing of the
relevant notice of redemption, or (ii) to register the transfer of or exchange
any Registered Notes selected for redemption, in whole or in part, except the
unredeemed portion of any such Registered Notes being redeemed in part, or (iii)
to exchange any Bearer Notes selected for redemption, except that such Bearer
Notes may be exchanged for Registered Notes of like tenor, provided that such
Registered Notes shall be simultaneously surrendered for redemption or (iv) to
register transfer of or exchange any Notes surrendered for optional repayment,
in whole or in part.
Notwithstanding anything herein or in the terms of any Notes to the
contrary, none of the relevant Issuer, the Fiscal and Paying Agent or any agent
of such Issuer or the Fiscal and Paying Agent shall be required to exchange any
Bearer Note for a Registered Note if such exchange would result in adverse
income tax consequences to such Issuer (such as, for example, the inability of
such Issuer to deduct from its income, as computed for income tax purposes, the
interest payable on the Bearer Notes) under (i) then applicable United States
Federal income tax laws, or (ii) in the case of an Issuer other than GE Capital,
then applicable income tax laws or regulations of the jurisdiction of
incorporation or organization of the Issuer or any political subdivision thereof
or therein.
5. Payments of Principal, Premium and Interest; Paying Agents.
----------------------------------------------------------
(a) Payment generally. In order to provide for the payment of the
-----------------
principal of, premium and interest on each Series of Notes as the same shall
become due and payable on any payment date, the relevant Issuer hereby agrees to
pay to the Fiscal and Paying Agent at the place and in the manner specified
below or to such account or at such offices of any paying agent outside of the
United States and, in the case of Notes issued by an Issuer other than GE
Capital, outside the jurisdiction of incorporation or organization of the
relevant Issuer, as the Fiscal and Paying Agent shall specify in writing to such
Issuer and (in the case of Notes issued by an Issuer other than GE Capital) the
Guarantor, such writing to be delivered not less than five calendar days prior
to the payment date, in such currency or currency units as shall be required to
make the payment due on such payment date, on each interest payment date and on
the maturity date of such Series of Notes or any date fixed for redemption or
acceleration of such Series of Notes (in each case determined in accordance with
the terms of such Notes), in immediately available funds available on such
interest payment, maturity, redemption or acceleration date, as the case may be,
in an aggregate amount which (together with any funds then held by the Fiscal
and Paying Agent and available for the purpose) shall be sufficient to pay the
entire amount of the principal of, premium and interest on such Series of Notes
(including Additional Amounts (as defined below), if any, becoming due on such
interest payment, maturity, redemption or acceleration date), and the Fiscal and
Paying Agent shall hold such amount in trust and apply it to the payment of any
such principal, premium or interest on such interest payment, maturity,
redemption or acceleration date. Nothing contained herein shall be construed to
require the Fiscal and Paying Agent or any other paying agent to make any
payment to the holder of a Note until funds have been received from the relevant
Issuer pursuant to this Section.
10
(b) Payments on temporary global Notes; certification requirements.
--------------------------------------------------------------
Beneficial owners of any temporary global Note may receive interest payments
prior to the Exchange Date of such temporary global Note; provided such
beneficial owners deliver a certificate or certificates to Euroclear,
Clearstream, Luxembourg or, if specified in the Corporate Order, other
recognized clearing system substantially in the form set forth in Exhibit B-1
and instruct Euroclear, Clearstream, Luxembourg or other clearance system, as
the case may be, to request such interest payment on their behalf. Upon the
request of the Depositary, acting on behalf of Euroclear, Clearstream,
Luxembourg or other clearance system, acting in turn on behalf of beneficial
owners of Notes, the Fiscal and Paying Agent shall make payments of interest to
the beneficial owners of interests in temporary global Notes, but only upon
delivery by Euroclear, Clearstream, Luxembourg, or other clearance system,
acting on behalf of such owners, to the Fiscal and Paying Agent or its duly
authorized attorney-in-fact of a certificate or certificates substantially in
the form set forth in Exhibit B-2 hereto.
In the event of redemption or acceleration of all or any part of any
temporary global Note prior to its Exchange Date, beneficial owners will be
entitled to receive payment on or after the date fixed for such redemption or on
which such acceleration occurs upon compliance by such beneficial owners and
Euroclear, Clearstream, Luxembourg or other clearance system, as applicable,
with the provisions of the preceding paragraph of this Section.
(c) Payments on Registered Notes. The person in whose name any Registered
----------------------------
Note of a particular Series is registered at the close of business or on any
Record Date (as hereinafter defined) with respect to any interest payment date
for such Series shall be entitled to receive the interest payable on such
interest payment date notwithstanding the cancellation of such Registered Note
upon any registration of transfer or exchange subsequent to the Record Date and
prior to such interest payment date; provided however, that (i) if and to the
extent that the relevant Issuer shall default in the payment of the interest on
such interest payment date, such defaulted interest shall be paid to the persons
in whose names outstanding Registered Notes of such Series are registered on a
subsequent Record Date established by notice given by mail by or on behalf of
such Issuer to the holders of such Registered Notes not less than 15 calendar
days preceding such subsequent Record Date, such Record Date to be not less than
five calendar days preceding the date or payment of such defaulted interest and
(ii) interest payable at maturity, redemption or repayment of such Registered
Note shall be payable to the person to whom principal shall be payable. The term
"Record Date" as used in this Section with respect to any regular interest
payment date, shall mean the fifteenth calendar day preceding such interest
payment date, whether or not such fifteenth calendar day shall be a Business Day
(as defined in Section 22).
Interest on Registered Notes may at the option of the relevant Issuer be
paid by check mailed to the persons entitled thereto at their respective
addresses as such appear in the Register, or, at the option of any holder of
$5,000,000 (or the equivalent thereof in one or more foreign or composite
currencies) or more aggregate principal amount of Registered Notes of any Series
and subject to applicable laws and regulations, be made by transfer to an
account denominated in the currency in which such payment is to be made,
maintained by such holder, if appropriate wire transfer instructions have been
received by such Issuer or its agent not less than 10 calendar days prior to the
applicable interest payment date.
(d) Payments on Bearer Notes. Payments on Bearer Notes or the coupons
------------------------
appertaining thereto will, upon presentation of such Notes or coupons at a
designated office outside of the United States, at the holder's option and
subject to applicable laws and regulations, be made by check or wire transfer to
an account denominated in the Specified Currency (unless
11
otherwise provided in the applicable Corporate Order) in which such payment is
to be made, maintained by such holder with a bank outside the United States and
(in the case of Notes issued by an Issuer other than GE Capital) outside the
jurisdiction of organization of the Issuer, if appropriate wire transfer
instructions have been received by the relevant Issuer or its agent not less
than 10 calendar days prior to the applicable interest payment date.
The relevant Issuer will maintain one or more offices or agencies in a city
or cities located outside the United States and (in the case of Notes issued by
an Issuer other than GE Capital) outside the country of incorporation or
organization of the relevant Issuer (including any city in which such an agency
is required to be maintained under the rules of any stock exchange on which any
of the Notes are listed) where any Bearer Notes issued hereunder and coupons, if
any, appertaining thereto may be presented for payment. No payment on any Bearer
Note or coupon will be made upon presentation of such Bearer Note or coupon at
an agency of the relevant Issuer or the Guarantor within the United States or
(in the case of Notes issued by an Issuer other than GE Capital) within the
country of incorporation or organization of the relevant Issuer nor will any
payment be made by transfer to an account in, or by check mailed to an address
in, the United States or (in the case of Notes issued by an Issuer other than GE
Capital) in the country of incorporation or organization of the relevant Issuer
unless pursuant to applicable United States law or the laws or regulations of
the country of incorporation or organization of the relevant Issuer or any
political subdivision thereof or therein (in the case of Notes issued by an
Issuer other than GE Capital) then in effect, such payment can be made without
adverse tax consequences to such Issuer. Notwithstanding the foregoing, (a)
payments in U.S. dollars on Bearer Notes and coupons appertaining thereto may be
made at an agency of such Issuer maintained in the Borough of Manhattan, The
City of New York if such payment in U.S. dollars at each agency maintained by
such Issuer outside the United States for payment on such Bearer Notes is
illegal or effectively precluded by exchange controls or other similar
restrictions, (b) payments in Canadian dollars on Bearer Notes and Coupons
appertaining thereto may be made at an agency of such Issuer maintained in the
City of Toronto if such payment in Canadian dollars at each agency maintained by
such Issuer outside Canada for payment on such Bearer Notes is illegal or
effectively precluded by exchange controls or similar restrictions, and (c) (in
the case of Notes issued by an Issuer other than GE Capital) payments in such
other currencies on Bearer Notes and Coupons appertaining thereto may be made at
such location within the country of incorporation or organization of the
relevant Issuer (other than the United States) as may be specified in the
applicable Corporate Order or otherwise as permitted by applicable laws and
regulations of such country or any political subdivision thereof or therein.
(e) Place of payment. As long as any Registered Notes remain outstanding
----------------
hereunder, the relevant Issuer will designate and maintain in London, England an
office or agency where such Registered Notes may be presented for payment, and
where such Notes may be presented for registration of transfer and for exchange
as in this Agreement provided.
The relevant Issuer may from time to time designate one or more additional
offices or agencies where Notes and any coupons appertaining thereto may be
presented for payment, where Notes may be presented for exchange as provided in
this Agreement and where Registered Notes may be presented for registration of
transfer as in this Agreement provided, and such Issuer may from time to time
rescind any such designation, as such Issuer may deem desirable or expedient;
provided, however, that no such designation or rescission shall in any manner
relieve such Issuer of its obligation to maintain the agencies provided for in
this Section. Such Issuer will give to the Fiscal and Paying Agent prompt
written notice of any such designation or rescission thereof.
12
The relevant Issuer will give to the Fiscal and Paying Agent written notice
of the location of each such office or agency and of any change of location
thereof. In case such Issuer shall fail to give such notice of the location or
of any change in the location thereof, presentations and demands may be made and
notices may be served at the principal office of the Fiscal and Paying Agent in
London, England.
The relevant Issuer and (in the case of Notes issued by an Issuer other
than GE Capital) the Guarantor hereby initially designates the offices of the
Fiscal and Paying Agent in London, England (or in the case of Registered Notes
that are listed on the Luxembourg Stock Exchange, the offices of the Luxembourg
Paying Agent in Luxembourg City) as the office or agency where Registered Notes
may be presented for payment, for registration of transfer and for exchange as
in this Agreement provided. Such principal office of the Fiscal and Paying Agent
is also designated as repository pursuant to Section 4 for the master list of
the names and addresses of the holders of Registered Notes.
(f) Payments by the Guarantor. If the relevant Issuer shall fail to
-------------------------
provide for the amounts payable on any Notes issued by an Issuer other than GE
Capital, or coupons appertaining thereto, if any, the Guarantor shall, subject
to its right to avail itself of defenses under all relevant laws for the
prescription of actions in respect of such Notes and coupons appertaining
thereto, forthwith upon receipt of notice of such failure from the Fiscal and
Paying Agent (who shall give such notice forthwith upon such failure) deliver or
cause to be delivered to the Fiscal and Paying Agent the amount thereof (to the
extent that the same has not then been delivered by the relevant Issuer), which
amount shall be held and applied in payment of such amounts by the Fiscal Agent
and Paying Agent in all respects as if received from the relevant Issuer under
this Agreement.
(g) Taxes; foreign exchange clearance. The Fiscal Agent hereby agrees to
---------------------------------
use its best efforts to obtain, prior to any payment date on the Notes, any tax
or foreign exchange clearance or other authorization required under the laws of
the United States or of the country of incorporation or organization of the
relevant Issuer (in the case of Notes issued by an Issuer other than GE Capital)
or any political subdivision thereof or therein or any applicable foreign
country or other authority with respect to the payment to be made on the Notes
on such date.
6. Redemption; Sinking Funds; Repayment at the Option of the Holder.
----------------------------------------------------------------
(a) The provisions of this Section shall be applicable, as the case may
be, (i) to any Notes which are redeemable or subject to repayment at the option
of the holder before their maturity and (ii) to any sinking fund for the
retirement of any Notes, in either case except as otherwise specified as
contemplated by Section 2 for any Series of Notes.
The minimum amount of any sinking fund payment provided for by the
terms of any Notes is herein referred to as a "mandatory sinking fund payment,"
and any payment in excess of such minimum amount provided for by the terms of
such Notes is herein referred to as an "optional sinking fund payment."
In case the relevant Issuer shall desire to exercise any right to
redeem all, or, as the case may be, any part of, the Notes of any Series in
accordance with their terms, it shall fix a date for redemption. Notice of
redemption to the holders of Registered Notes to be redeemed in whole or in part
at the option of such Issuer shall be given by mailing notice of such redemption
by first class mail, postage prepaid, at least 30 days and not more than 60 days
prior to the date fixed for redemption to such holders at their last addresses
as they shall appear in the Register.
13
Notice of redemption to holders of Bearer Notes shall be published in a leading
daily newspaper in the English language of general circulation in London,
England and, if the Series of Notes to be redeemed is listed on the Luxembourg
Stock Exchange and such Exchange so requires, in a daily newspaper of general
circulation in Luxembourg or, if publication in either London or Luxembourg is
not practical, elsewhere in Western Europe. Notice of redemption to holders of
Bearer Notes that have been listed on any other stock exchange shall be
published in accordance with the applicable rules and regulations promulgated by
such exchange. The term "daily newspaper" shall mean a newspaper customarily
published on each business day in morning editions, whether or not it shall be
published in Saturday, Sunday or holiday editions. Such notice is expected to be
published in the Financial Times and (if such Series of Notes is listed on the
Luxembourg Stock Exchange) the Luxemburger Wort and shall be published at least
once a week for three successive weeks prior to the date fixed for redemption,
the first such publication to be not less than 30 days nor more than 60 days
prior to the date fixed for redemption. If by reason of the temporary or
permanent suspension of publication of any newspaper or by reason of any other
cause, it shall be impossible to make publication of such notice in a daily
newspaper as herein provided, then such publication or other notice in lieu
thereof as shall be made by the Fiscal and Paying Agent shall constitute
sufficient publication of such notice, if such publication or other notice
shall, so far as may be possible, approximate the terms and conditions of the
publication in lieu of which it is given. The Fiscal and Paying Agent shall
promptly furnish to the relevant Issuer and to each other paying agent of such
Issuer a copy of each notice of redemption so published. Any notice if given in
the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the holder receives such notice. In any case, failure to
give notice or any defect in the notice to the holder of any Note of a Series
designated for redemption in whole or in part shall not affect the validity of
the proceedings for the redemption of any other Note of such Series.
Each such notice of redemption shall specify the date fixed for redemption,
the redemption price at which the Notes of such Series are to be redeemed, the
place or places of payment, that payment will be made upon presentation and
surrender of such Notes and, in the case of Notes issued with coupons, of all
coupons appertaining thereto maturing after the date fixed for redemption, that
any interest accrued to the date fixed for redemption will be paid as specified
in said notice, and that on and after said date any interest thereon or on the
portions thereof to be redeemed will cease to accrue. If less than all the Notes
of a Series are to be redeemed the notice of redemption shall specify the number
or numbers of the Notes to be redeemed. In case any Note is to be redeemed in
part only, the notice of redemption shall state the portion of the principal
amount thereof to be redeemed and shall state that on and after the date fixed
for redemption, upon surrender of such Note, a new Note or Notes of the same
Series in principal amount equal to the unredeemed portion thereof, together
with any unmatured coupons appertaining thereto, will be issued.
On or prior to the redemption date specified in the notice of redemption
given as provided in this Section, the relevant Issuer will deposit with the
Fiscal and Paying Agent or with one or more paying agents an amount of money
sufficient to redeem on the redemption date all the Notes or portions thereof so
called for redemption, together with accrued interest to the date fixed for
redemption. If less than all the Notes of a Series are to be redeemed such
Issuer will give the Fiscal and Paying Agent notice not less than 60 days prior
to the redemption date as to the aggregate principal amount of Notes of such
Series to be redeemed and the Fiscal and Paying Agent shall select or cause to
be selected, in such manner as in its sole discretion it shall deem appropriate
and fair, the Notes or portions thereof to be redeemed. Notes of a Series may be
redeemed in part only in multiples of the smallest authorized denomination of
that Series.
14
(b) If notice of redemption has been given as provided in this Section,
the Notes or portions of Notes of the Series with respect to which such notice
has been given shall become due and payable on the date and at the place or
places stated in such notice at the applicable redemption price together with
any interest accrued to the date fixed for redemption, and on and after said
date (unless the relevant Issuer shall default in the payment of Notes or
portions of such Notes, together with any interest accrued to said date) any
interest on the Notes or portions of Notes of such Series so called for
redemption shall cease to accrue, and the unmatured coupons, if any,
appertaining thereto shall be void. On presentation and surrender of such Notes
at a place of payment in said notice specified, together with all coupons, if
any, appertaining thereto maturing after the date fixed for redemption, the said
Notes or the specified portions thereof shall be paid and redeemed by the
relevant Issuer at the applicable redemption price, together with any interest
accrued thereon to the date fixed for redemption; provided, however, that
payment of interest becoming due on the date fixed for redemption shall be
payable in the case of Notes with coupons attached thereto, to the holders of
the coupons for such interest upon surrender thereof, and in the case of
Registered Notes, to the persons to whom the principal thereof shall be payable.
If any Note issued with coupons is surrendered for redemption and is not
accompanied by all appurtenant coupons maturing after the date fixed for
redemption, the surrender of such missing coupon or coupons may be waived by the
relevant Issuer and the Fiscal and Paying Agent, if there be furnished to each
of them such security or indemnity as they may require to save each of them
harmless.
Upon presentation of any Note redeemed in part only, the relevant Issuer
shall execute and the Fiscal and Paying Agent shall authenticate and deliver to
the holder thereof, at the expense of such Issuer, a new Note or Notes of the
same Series, of authorized denominations, together with all unmatured coupons,
if any, appertaining thereto, in aggregate principal amount equal to the
unredeemed portion of the Note so presented.
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any Notes in cash the relevant Issuer may at its option (a)
deliver to the Fiscal and Paying Agent Notes, together with all unmatured
coupons, if any, appertaining thereto, of the same Series theretofore purchased
or otherwise acquired by such Issuer, or (b) receive credit for the principal
amount of Notes of the same Series which have been redeemed either at the
election of such Issuer pursuant to the terms of such Notes or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Notes; provided that such Notes have not previously been so credited. Such
Notes shall be received and credited for such purpose by the Fiscal and Paying
Agent at the redemption price specified in such Notes for redemption through
operation of the sinking fund and the amount of such mandatory sinking fund
payment shall be reduced accordingly.
Not less than 60 days prior to each sinking fund payment date for any
Notes, the relevant Issuer will deliver to the Fiscal and Paying Agent a
certificate signed by an Issuer Authorized Representative specifying the amount
of the next ensuing sinking fund payment for such Notes pursuant to the terms
thereof, the portion thereof, if any, which is to be satisfied by payment of
cash (which cash may be deposited with the Fiscal and Paying Agent or with one
or more paying agents) and the portion thereof, if any, which is to be satisfied
by delivering and crediting Notes of the same Series pursuant to this Section
(which Notes, if not theretofore delivered, will accompany such certificate) and
whether such Issuer intends to exercise its right to make a permitted optional
sinking fund payment with respect to such Notes. Such certificate shall also
state that no Event of Default (as defined in Section 8 below) has occurred and
is
15
continuing with respect to such Notes. Such certificate shall be irrevocable
and upon its delivery the relevant Issuer shall be obligated to make the cash
payment or payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. In the case of the failure of the relevant
Issuer to deliver such certificate (or to deliver the Notes specified in this
paragraph), the sinking fund payment due on the next succeeding sinking fund
payment date for such Notes shall be paid entirely in cash and shall be
sufficient to redeem the principal amount of such Notes subject to a mandatory
sinking fund payment without the option to deliver or credit Notes as provided
in this Section and without the right to make any optional sinking fund payment,
if any, with respect to such Notes.
Any sinking fund payment or payments (mandatory or optional) made in cash
plus any unused balance of any preceding sinking fund payments made in cash
which shall equal or exceed 100,000 units of the Specified Currency with respect
to the particular Series (or a lesser sum if the relevant Issuer shall so
request or determine) with respect to any Notes shall be applied by the Fiscal
and Paying Agent on the sinking fund payment date on which such payment is made
(or, if such payment is made before a sinking fund payment date, on the next
sinking fund payment date following the date of such payment) to the redemption
of such Notes at the redemption price specified in such Notes for operation of
the sinking fund together with accrued interest, if any, to the date fixed for
redemption. Any sinking fund moneys not so applied or allocated by the Fiscal
and Paying Agent to the redemption of Notes shall be added to the next cash
sinking fund payment received by the Fiscal and Paying Agent for such Notes and,
together with such payment (or such amount so segregated) shall be applied in
accordance with the provisions of this Section. Any and all sinking fund moneys
with respect to any Notes held by the Fiscal and Paying Agent on the last
sinking fund payment date with respect to such Notes and not held for the
payment or redemption of particular Notes of such Series shall be applied by the
Fiscal and Paying Agent, together with other moneys, if necessary, to be
deposited (or segregated) sufficient for the purpose, to the payment of the
principal of the Notes of that Series at maturity.
The Fiscal and Paying Agent shall select or cause to be selected the Notes
to be redeemed upon such sinking fund payment date in the manner specified in
the last paragraph of subsection (a) and the relevant Issuer shall cause notice
of the redemption thereof to be given in the manner provided in subsection (b)
except that the notice of redemption shall also state that the Notes are being
redeemed by operation of the sinking fund. Such notice having been duly given,
the redemption of such Notes shall be made upon any Series of Notes the terms
and in the manner stated in subsection (b).
On or before each sinking fund payment date, the relevant Issuer shall pay
to the Fiscal and Paying Agent in cash a sum equal to any interest accrued to
the date fixed for redemption of Notes or portions thereof to be redeemed on
such sinking fund payment date pursuant to this Section.
Neither the Fiscal and Paying Agent nor the relevant Issuer shall redeem
any Notes of any Series with sinking fund moneys or give any notice of
redemption of such Notes by operation of the sinking fund for such Series during
the continuance of a default in payment of interest, if any, on such Notes or of
any Event of Default (other than an Event of Default occurring as a consequence
of this paragraph) with respect to Notes of such Series, except that if the
notice of redemption of any such Notes shall theretofore have been given in
accordance with the provisions hereof, the Fiscal and Paying Agent shall redeem
such Notes if cash sufficient for that purpose shall be deposited with the
Fiscal and Paying Agent for that purpose in accordance with the terms of this
Section. Except as aforesaid, any moneys in the sinking fund for Notes of such
Series at
16
the time when any such default or Event of Default shall occur and any
moneys thereafter paid into such sinking fund shall, during the continuance of
such default or Event of Default, be held as security for the payment of such
Notes; provided, however, that in case such default or Event of Default shall
have been cured or waived as provided herein, such moneys shall thereafter be
applied on the next sinking fund payment date for Notes of such Series on which
such moneys may be applied pursuant to the provisions of this Section.
(c) Any Series of Notes may be made, by provision contained in or
established pursuant to a Corporate Order pursuant to Section 2(c) hereof,
subject to repayment, in whole or in part, at the option of the holder on a date
or dates specified prior to maturity, at a price equal to 100% of the principal
amount thereof, together with accrued interest to but excluding the date of
repayment, on such notice as may be required, provided, however, that the holder
of a Note of such Series may only elect partial repayment in an amount that will
result in the portion of such Note that will remain outstanding after such
repayment constituting an authorized denomination, or combination thereof, of
Notes of such Series.
7. Mutilated, Destroyed, Stolen or Lost Notes.
------------------------------------------
(a) The Fiscal and Paying Agent is hereby authorized to authenticate and
deliver from time to time Notes of any Series, with all unmatured coupons
attached, in exchange for or in lieu of Notes of such Series which become
mutilated, defaced, destroyed, stolen or lost or Notes of such Series to which
mutilated, defaced, destroyed, stolen or lost coupons appertain. In every case
the applicant for a substituted Note of such Series or coupon appertaining
thereto shall furnish to the relevant Issuer, the Guarantor (in the case of
Notes issued by an Issuer other than GE Capital) and to the Fiscal and Paying
Agent such security or indemnity as may be required by them to save each of them
harmless, and, in every case of destruction, loss or theft, the applicant shall
also furnish to such Issuer, the Guarantor and to the Fiscal and Paying Agent
evidence to their satisfaction of the destruction, loss or theft of such Note or
coupon and of the ownership thereof. Each Note authenticated and delivered in
exchange for or in lieu of any such Note shall carry all the rights to interest
accrued and unpaid and to accrue which were carried by such Note and shall have
attached thereto coupons such that neither gain nor loss in interest shall
result from such exchange or substitution.
Upon the issuance of any substituted Note or coupon, the relevant Issuer
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses connected therewith. In case any Note or coupon which has matured or is
about to mature shall become mutilated or be destroyed, lost or stolen, the
relevant Issuer may, instead of issuing a substituted Note, pay or authorized
the payment of the same (without surrender thereof except in the case of a
mutilated Note or coupon) if the applicant for such payment shall furnish to
such Issuer, the Guarantor and to the Fiscal and Paying Agent such security or
indemnity as may be required by them to save each of them harmless and, in case
of destruction, loss or theft, evidence satisfactory to such Issuer, the
Guarantor and the Fiscal and Paying Agent of the destruction, loss or theft of
such Note or coupon and the ownership thereof.
(b) All Notes and coupons surrendered for payment, redemption, repayment,
exchange or registration of transfer or for credit against any sinking fund
shall be delivered to, or to the order of, the Fiscal and Paying Agent for
cancellation. The Fiscal and Paying Agent shall cancel and destroy, or procure
the cancellation and destruction of, all such Notes and coupons and shall
deliver a certificate of destruction to the relevant Issuer and (in the case of
Notes issued by
17
an Issuer other than GE Capital) the Guarantor. In the case of any global Note
initially issued in temporary global form, which shall be destroyed by the
Fiscal and Paying Agent upon exchange in full, the certificate of destruction
shall state that a certification in the form required pursuant to the terms of
such global Note was received with respect to each portion thereof exchanged for
an interest in a Note in permanent global form or in definitive form.
8. Events of Default. The term "Events of Default" whenever used herein
-----------------
with respect to Notes of any Series means any one of the following events and
such other events as may be established with respect to the Notes of such Series
as contemplated by Section 2 hereof, continued for the period of time, if any,
and after the giving of notice, if any, designated in this Agreement or as may
be established with respect to such Notes as contemplated by Section 2 hereof,
as the case may be, unless it is either inapplicable or is specifically deleted
or modified in the applicable Corporate Order under which such Series of Notes
is issued, as the case may be, as contemplated by Section 2:
(i) default in the payment of any installment of interest (including
Additional Amounts) upon any Note of such Series as and when the same shall
become due and payable, and continuance of such default for a period of 30
days; or
(ii) default in the payment of the principal of, or premium, if any,
on any Note of such Series as and when the same shall become due and
payable whether at maturity, upon redemption, by declaration, repayment or
otherwise; or
(iii) default in the making or satisfaction of any sinking fund
payment or analogous obligation as and when the same shall become due and
payable by the terms of any Notes of such Series; or
(iv) failure on the part of the relevant Issuer and (in the case of
Notes issued by an Issuer other than GE Capital) the Guarantor duly to
observe or perform any other of the covenants or agreements on the part of
such Issuer or the Guarantor in respect of the Notes of such Series
contained in such Notes or this Agreement (other than a covenant or
agreement in respect of the Notes of such Series a default in whose
observance or performance is elsewhere in this Section specifically dealt
with) continued for a period of 60 days after the date on which written
notice of such failure, requiring such Issuer or the Guarantor to remedy
the same, shall have been given to such Issuer, the Guarantor and the
Fiscal and Paying Agent by the holders of at least twenty-five percent in
aggregate principal amount of the Notes of such Series at the time
outstanding; or
(v) an event of default with respect to any other Series of Notes
issued or hereafter issued pursuant to this Agreement or as defined in any
indenture or instrument evidencing or under which GE Capital has at the
date of this Agreement or shall hereafter have outstanding any indebtedness
for borrowed money shall happen and be continuing and such other Series of
Notes or such indebtedness, as the case may be, shall have been accelerated
so that the same shall be or become due and payable prior to the date on
which the same would otherwise have become due and payable, and such
acceleration shall not be rescinded or annulled within ten calendar days
after written notice thereof shall have been given to the relevant Issuer,
the Guarantor and the Fiscal and Paying Agent by the holders of at least
twenty-five percent in aggregate principal amount of the Notes of such
Series at the time outstanding; provided, however, that if
18
such event of default with respect to such other Series of Notes or under
such indenture or instrument, as the case may be, shall be remedied or
cured by GE Capital, or waived by the holders of such other Series of Notes
or of such indebtedness, as the case may be, then the Event of Default
hereunder by reason thereof shall be deemed likewise to have been thereupon
remedied, cured or waived without further action upon the part of either
the Fiscal and Paying Agent or any of the Noteholders of such Series; or
(vi) in the case of Notes issued by GEC Australia Funding, an event
of default with respect to any other Series of Notes issued or hereafter
issued GEC Australia Funding pursuant to this Agreement or as defined in
any indenture or instrument evidencing or under which GEC Australia Funding
has at the date of this Agreement or shall hereafter have outstanding any
indebtedness for borrowed money in the aggregate principal amount of at
least A$10,000,000 (or the equivalent thereof in one or more foreign or
composite currencies) shall happen and be continuing and such other Series
of Notes or such indebtedness, as the case may be, of GEC Australia Funding
shall have been accelerated so that the same shall be or become due and
payable prior to the date on which the same would otherwise have become due
and payable, and such acceleration shall not be rescinded or annulled
within ten calendar days after written notice thereof shall have been given
to GEC Australia Funding, as the case may be, the Guarantor and the Fiscal
and Paying Agent by the holders of at least twenty-five percent in
aggregate principal amount of the Notes of such Series at the time
outstanding; provided, however, that if such event of default with respect
to such other Series of Notes or under such indenture or instrument, as the
case may be, shall be remedied or cured by GEC Australia Funding or the
Guarantor, or waived by the holders of such other Series of Notes or of
such indebtedness, as the case may be, then the Event of Default hereunder
by reason thereof shall be deemed likewise to have been thereupon remedied,
cured or waived without further action upon the part of either the Fiscal
and Paying Agent or any of the Noteholders of such Series; or
(vii) in the case of Notes issued by a Canadian Subsidiary Issuer, an
event of default with respect to any other Series of Notes issued or
hereafter issued by the such Canadian Subsidiary Issuer pursuant to this
Agreement or as defined in any indenture or instrument evidencing or under
which such Canadian Subsidiary Issuer has at the date of this Agreement or
shall hereafter have outstanding any indebtedness for borrowed money in the
aggregate principal amount of at least Cdn.$10,000,000 (or the equivalent
thereof in one or more foreign or composite currencies) shall happen and be
continuing and such other Series of Notes or such indebtedness, as the case
may be, of such Canadian Subsidiary Issuer shall have been accelerated so
that the same shall be or become due and payable prior to the date on which
the same would otherwise have become due and payable, and such acceleration
shall not be rescinded or annulled within ten calendar days after written
notice thereof shall have been given to such Canadian Subsidiary Issuer, as
the case may be, the Guarantor and the Fiscal and Paying Agent by the
holders of at least twenty-five percent in aggregate principal amount of
the Notes of such Series at the time outstanding; provided, however, that
if such event of default with respect to such other Series of Notes or
under such indenture or instrument, as the case may be, shall be remedied
or cured by such Canadian Subsidiary Issuer or the Guarantor, or waived by
the holders of such other Series of Notes or of such indebtedness, as the
case may be, then the Event of Default hereunder by reason thereof shall be
deemed likewise to have been thereupon remedied, cured or waived without
19
further action upon the part of either the Fiscal and Paying Agent or any
of the Noteholders of such Series; or
(viii) a decree or order by a court having jurisdiction in the
premises shall have been entered adjudging GE Capital a bankrupt or
insolvent, or approving as properly filed a petition seeking reorganization
of GE Capital under the United States Federal Bankruptcy Code or any other
similar applicable United States Federal or State law, and such decree and
order shall have continued undischarged and unstayed for a period of 60
days; or a decree or order of a court having jurisdiction in the premises
for the appointment of a receiver or liquidator or trustee or assignee (or
other similar official) in bankruptcy or insolvency of GE Capital or of all
or substantially all of its property, or for the winding up or liquidation
of its affairs, shall have been entered, and such decree and order shall
have continued undischarged and unstayed for a period of 60 days; or
(ix) GE Capital shall institute proceedings to be adjudicated a
voluntary bankrupt, or shall consent to the filing of a bankruptcy
proceeding against it, or shall file a petition or answer or consent
seeking reorganization under the United States Federal Bankruptcy Code or
any other similar applicable United States Federal or State law, or shall
consent to the filing of any such petition, or shall consent to the
appointment of a receiver or liquidator or trustee or assignee (or other
similar official) in bankruptcy or insolvency of it or of its property, or
shall make an assignment for the benefit or creditors, or shall admit in
writing its inability to pays its debts generally as they become due; or
(x) in the case of Notes issued by GEC Australia Funding, GEC
Australia Funding shall be declared bankrupt, or a liquidator, a receiver,
manager, receiver and manager, administrator or any other officer with
similar powers shall be appointed with respect to GEC Australia Funding or
all or substantially all of the property of GEC Australia Funding, and, in
all such cases, continues both undischarged and unstayed for a period of 90
days; or
(xi) in the case of Notes issued by a Canadian Subsidiary Issuer,
any of the following events shall occur: (A) an order shall be made or an
effective resolution be passed for the winding-up or liquidation or
dissolution of such Canadian Subsidiary Issuer by operation of law, except
in the course of carrying out, or pursuant to, a reconstruction,
reorganization, consolidation, merger, amalgamation, transfer, sale,
conveyance, lease or other disposition contemplated in or permitted under
this Agreement; (B) such Canadian Subsidiary Issuer shall make a general
assignment for the benefit of its creditors or a proposal under applicable
bankruptcy legislation, or if an effective resolution be passed by such
Canadian Subsidiary Issuer to give effect to any of the foregoing; or (C)
such Canadian Subsidiary Issuer shall be declared bankrupt, or if a
custodian or sequestrator or a receiver and manager or any other officer
with similar powers shall be appointed of such Canadian Subsidiary Issuer
or of all or substantially all of the property of such Canadian Subsidiary
Issuer, and, in all such cases, such continues both undischarged and
unstayed for a period of 90 days; or
(xii) any other Event of Default provided in the applicable Corporate
Order under which such Series of Notes is issued as contemplated by Section
2(c); or
20
(xiii) with respect to each Additional Issuer acceding hereto pursuant
to Section 19 hereof, such Events of Default to the foregoing effect as are
provided in the form of Notes certified to the Fiscal and Paying Agent in
accordance with Section 2(b) hereof and any other Events of Default
provided in the applicable Corporate Order under which a Series of Notes is
issued by such Additional Issuer as contemplated by Section 2(c) hereof.
If an Event of Default with respect to Notes of any Series at the time
outstanding occurs and is continuing, then and in each and every case, unless
the principal of the Notes of such Series shall have already become due and
payable, each Note of such Series shall, at the option of and upon written
notice to the relevant Issuer, the Guarantor and the Fiscal and Paying Agent by
the then holder thereof, mature and become due and payable upon the date that
such written notice is received by such Issuer, the Guarantor and the Fiscal and
Paying Agent at a price equal to 100% of the principal amount thereof (or, if
such Note provides for an amount less than the principal amount thereof to be
due and payable upon redemption or a declaration of acceleration of the maturity
thereof pursuant to this Section (hereinafter an "Original Issue Discount
Note"), such portion of the principal amount as may be specified in the terms of
such Note), together with accrued interest to such date, upon presentation and
surrender of such Note and all coupons appertaining thereto maturing after such
date, unless prior to such date all Events of Default in respect of all such
Notes of such Series shall have been cured.
9. Additional Payments; Tax Redemption.
-----------------------------------
(a) U.S. Additional Amounts. The relevant Issuer or (in the case of Notes
-----------------------
issued by an Issuer other than GE Capital) the Guarantor will, subject to
certain exceptions and limitations set forth below, pay such additional amounts
(the "U.S. Additional Amounts" and, together with the Australian Additional
Amounts, the Canadian Additional Amounts and Other Additional Amounts (as such
terms are hereinafter defined), the "Additional Amounts") to the holder of any
Note of any Series or of any interest coupon appertaining thereto who is a
United States Alien (as defined below) as may be necessary in order that every
net payment of the principal of, premium and interest, including original issue
discount, on such Note and any other amounts payable on such Note, after
withholding for or on account of any present or future tax, assessment or other
governmental charge imposed upon or as a result of such payment by the United
States (or any political subdivision or taxing authority thereof or therein),
will not be less than the amount provided for in such Note or coupon to be then
due and payable. However, the relevant Issuer or the Guarantor, as the case may
be, will not be required to make any payment of U.S. Additional Amounts to any
such holder for or on account of:
(i) any such tax, assessment or other governmental charge which would
not have been so imposed but for (1) the existence of any present or former
connection between such holder (or between a fiduciary, settlor,
beneficiary, member or shareholder of such holder, if such holder is an
estate, a trust, a partnership or a corporation) and the United States,
including, without limitation, such holder (or such fiduciary, settlor,
beneficiary, member or shareholder) being or having been a citizen or
resident thereof or being or having been engaged in a trade or business or
present therein or having, or having had, a permanent establishment therein
or (2) the presentation by the holder of any such Note or coupon for
payment on a date more than 15 calendar days after the date on which such
payment became due and payable or the date on which payment thereof is duly
provided for, whichever occurs later;
21
(ii) any estate, inheritance, gift, sales, transfer or personal
property tax or any similar tax, assessment or governmental charge;
(iii) any tax, assessment or other governmental charge imposed by
reason of such holder's past or present status as a personal holding
company or foreign personal holding company or controlled foreign
corporation or passive foreign investment company with respect to the
United States or as a corporation which accumulates earnings to avoid
United States federal income tax or as a private foundation or other
tax-exempt organization;
(iv) any tax, assessment or other governmental charge which is payable
otherwise than by withholding from payments on or in respect of any Note;
(v) any tax, assessment or other governmental charge which would not
have been imposed but for the failure to comply with certification,
information or other reporting requirements concerning the nationality,
residence or identity of the holder or beneficial owner of such Note, if
such compliance is required by statute or by regulation of the United
States or of any political subdivision or taxing authority thereof or
therein as a precondition to relief or exemption from such tax, assessment
or other governmental charge;
(vi) any tax, assessment or other governmental charge imposed by
reason of such holder's past or present status as the actual or
constructive owner of 10% or more of the total combined voting power of all
classes of stock entitled to vote of the relevant Issuer or of the
Guarantor or as a direct or indirect subsidiary of the relevant Issuer or
of the Guarantor; or
(vii) any combination of any of items (i), (ii), (iii), (iv), (v) and
(vi);
nor shall U.S. Additional Amounts be paid with respect to any payment on
any such Note to a United States Alien who is a fiduciary or partnership or
other than the sole beneficial owner of such payment to the extent such payment
would be required by the laws of the United States (or any political subdivision
thereof) to be included in the income, for tax purposes, of a beneficiary or
settlor with respect to such fiduciary or a member of such partnership or a
beneficial owner who would not have been entitled to the U.S. Additional Amounts
had such beneficiary, settlor, member or beneficial owner been the holder of
such Note.
The term "United States Alien" means a beneficial owner of a Note that is
not, for United States federal income tax purposes, (i) a citizen or resident of
the United States, (ii) a corporation or partnership created or organized in or
under the laws of the United States, any state thereof or the District of
Columbia (unless, in the case of a partnership, Treasury regulations provide
otherwise), (iii) an estate whose income is subject to United States federal
income tax regardless of its source, or (iv) a trust if a court within the
United States is able to exercise primary supervision over the administration of
the trust and one or more United States persons have the authority to control
all substantial decisions of the trust. Notwithstanding the preceding sentence,
to the extent provided in Treasury regulations, certain trusts in existence on
August 20, 1996, and treated as United States person prior to such date, that
elect to continue to be treated as United States persons, will also not be a
United States Alien.
22
(b) Australian Additional Amounts. All payments of principal and interest
-----------------------------
in respect of Notes issued by GEC Australia Funding and any coupons relating
thereto will be made without withholding of or deduction for, or on account of,
any present or future taxes, duties, assessments or governmental charges of
whatever nature imposed or levied by or on behalf of the Commonwealth of
Australia or any political subdivision thereof or any authority or agency
therein or thereof having power to tax unless the withholding or deduction of
such taxes, duties, assessments or charges is required by law or the
application, administration or interpretation thereof. In that event, GEC
Australia Funding or the Guarantor (if the Guarantor is required to make
payments under the Guarantee) shall pay (subject to the right of redemption of
GEC Australia Funding referred to above in Section 6 - "Redemption; Sinking
Funds; Repayment at the Option of the Holder") such additional amounts (the
"Australian Additional Amounts") as may be necessary in order that the net
amounts received by the holders of such Notes or coupons after such withholding
or deduction shall equal the respective amounts of principal and interest which
otherwise would have been received by them in respect of the Notes or coupons,
as the case may be, in the absence of such withholding or deduction, except that
no Australian Additional Amounts shall be payable with respect to any Note or
coupon presented for payment:
(i) by or on behalf of a holder who is subject to such taxes, duties,
assessments or governmental charges by reason of his being resident or
deemed to be resident in Australia or otherwise than merely by the holding
or use or deemed holding or use outside Australia or ownership as a
non-resident of Australia of such Notes or coupons; or
(ii) by or on behalf of a holder who is a resident of Australia where
no additional amount would have been required to be paid had a tax file
number, Australian business number or other exemption details been quoted
to GEC Australia Funding in respect of the relevant Note before the due
date for payment in respect of the relevant Note ("resident", "tax file
number" and "Australian business number" having the same meaning for this
purpose as they have in the Income Tax Assessment Act 1936 (the "Australian
Tax Act"), Income Tax Assessment Xxx 0000 and the Taxation Xxxxxxxxxxxxxx
Xxx 0000 (each as amended) of Australia); or
(iii) by or on behalf of a holder who is subject to such taxes,
duties, assessments or government charges which would not have been so
imposed but for the presentation by the holder of any such Note or coupon
for payment on a date more than 15 days after the date on which such
payment became due and payable or the date on which payment thereof is duly
provided for, whichever occurs later; or
(iv) if the holder of such Note or coupon or any entity which directly
or indirectly has an interest in or right in respect of such Note or coupon
is a "resident of Australia" or a "non-resident" who is engaged in carrying
on business in Australia at or through a "permanent establishment" of that
non-resident in Australia (the expressions "resident of Australia",
"non-resident" and "permanent establishment" having the meanings given to
them by the Australian Tax Act) if, and to the extent that, Section 126 of
the Australian Tax Act (or any equivalent provision) requires GEC Australia
Funding to pay income tax in respect of interest payable on such Note or
coupon and the income tax would not be payable were the holder or such
entity not such a "resident of Australia" or "non-resident"; or
23
(v) by or on behalf of a holder who is an associate of GEC Australia
Funding within the meaning of Section 128F of the Australian Tax Act where
interest withholding tax is payable in respect of that payment by reason of
Section 128F(6) of that Act.
(c) Canadian Additional Amounts. All payments of principal and interest in
---------------------------
respect of Notes issued by a Canadian Subsidiary Issuer and any interest coupons
appertaining thereto will be made without withholding of or deduction for, or on
account of, any present or future taxes, duties, assessments or governmental
charges of whatever nature imposed or levied by or on behalf of the Government
of Canada or any province or territory or political subdivision thereof or any
authority or agency therein or thereof having power to tax unless the
withholding or deduction of such taxes, duties, assessments or charges is
required by law or the application, administration or interpretation thereof. In
the event that such withholding or deduction is so required, the Canadian
Subsidiary Issuer (in the case of Notes issued by such Canadian Subsidiary
Issuer) or the Guarantor (if the Guarantor is required to make payments under
the Guarantee) shall pay (subject to the right of redemption of such Canadian
Subsidiary Issuer referred to in paragraph (h) below such additional amounts
(the "Canadian Additional Amounts") as may be necessary in order that the net
amounts received by the holders of Notes and coupons appertaining thereto after
such withholding or deduction shall equal the respective amounts of principal
and interest which otherwise would have been received by them in respect of such
Notes or coupons, as the case may be, in the absence of such withholding or
deduction, except that no Canadian Additional Amounts shall be payable with
respect to any such Note or coupon presented for payment:
(i) by or on behalf of a holder who is subject to such taxes, duties,
assessments or charges otherwise than merely by the holding or use or
deemed holding or use outside Canada or ownership as a non-resident of
Canada of such Note or coupon; or
(ii) by or on behalf of a holder in respect of whom such taxes,
duties, assessments or charges are required to be withheld or deducted by
reason of the holder being a person with whom the relevant Canadian
Subsidiary Issuer is not dealing at arm's length (within the meaning of the
Income Tax Act (Canada)); or
(iii) more than 15 days after the Relevant Date (as defined below),
except to the extent that the holder thereof would have been entitled to
such Canadian Additional Amounts on presenting such Note or coupon for
payment on the last day of such period of 15 days.
The term "Relevant Date" means the later of (i) the date on which payment
in respect of the relevant Note or Coupon becomes due and payable; and (ii) if
the full amount of the moneys payable on such date has not been received by the
Fiscal and Paying Agent on or prior to such date, the date on which the full
amount of such moneys having been so received, notice of such receipt is duly
published in accordance with the terms set out under Section 20- "Notices to
Parties" below.
(d) European Union. The relevant Issuer or Guarantor, as the case may be,
--------------
will not be required to make any payment of Additional Amounts to any such
holder for or on the account of:
24
(i) any tax, assessment or other governmental charge required to be
withheld by any Paying Agent from any payment of principal of, or interest
on, any Note, if such payment can be made without such withholding by any
other Paying Agent in a member state of the European Union; or
(ii) any tax, assessment or other governmental charge required to be
withheld or deducted where such withholding or deduction is imposed on a
payment to an individual and is required to be made pursuant to any
European Union Directive on the taxation of savings implementing the
conclusions of the ECOFIN Council meeting of November 26-27, 2000 or any
law implementing or complying with, or introduced in order to conform to,
such Directive.
(e) Other Additional Amounts. In the case of Notes issued by an Additional
------------------------
Issuer acceding to this Agreement pursuant to Section 19 hereof, all payments of
principal and interest in respect of Notes issued by such Issuer and any
interest coupons appertaining thereto will be made without withholding of or
deduction for, or on account of, any present or future taxes, duties,
assessments or governmental charges of whatever nature imposed or levied by or
on behalf of the jurisdiction of organization of such Issuer or any political
subdivision thereof or any authority or agency therein or thereof having power
to tax unless the withholding or deduction of such taxes, duties, assessments or
charges is required by law or the application, administration or interpretation
thereof. In the event that such withholding or deduction is so required, such
Issuer or the Guarantor (if the Guarantor is required to make payments under the
Guarantee) shall pay such additional amounts (the "Other Additional Amounts") as
may be necessary in order that the net amounts received by the holders of Notes
and coupons appertaining thereto after such withholding or deduction shall equal
the respective amounts of principal and interest which otherwise would have been
received by them in respect of the Notes or coupons, as the case may be, in the
absence of such withholding or deduction, except that no Other Additional
Amounts shall be payable with respect to any Note or coupon as are provided in
the form of Notes certified to the Fiscal and Paying Agent in accordance with
Section 2(b) hereof or otherwise provided in such applicable Corporate Order
under which a Series of Notes is issued by such Additional Issuer as
contemplated by Section 2(c) hereof; provided, however, that the form of Notes
certified to the Fiscal and Paying Agent in accordance with Section 2(b) hereof
or the applicable Corporate Order under which a Series of Notes is issued by an
Additional Issuer as contemplated by Section 2(c) hereof may amend, modify or
replace these provisions, as necessary to conform such Issuer's obligation to
pay additional amounts on such Notes to applicable laws, rules or regulations of
the country of incorporation or organization of such Issuer or any political
subdivision thereof or any authority or agency therein or thereof having power
to tax, or to comply with any official position regarding the application or
interpretation of such laws, rules or regulations, including any guidance from
an official source.
(f) Tax Redemption - General. All Notes of the same Series may be redeemed
------------------------
in whole but not in part, at the option of the relevant Issuer at any time prior
to maturity, upon the giving of a notice of redemption, at a redemption price
(except as otherwise specified herein or in the applicable Corporate Order)
equal to 100% of the principal amount thereof, together with accrued interest to
the date fixed for redemption, or, in the case of Original Issue Discount Notes,
at 100% of the portion of the face amount thereof that has accreted to the date
of redemption, if the relevant Issuer or (in the case of Notes issued by an
Issuer other than GE Capital) the Guarantor determines that, as a result of any
change in or amendment to the laws (or any regulations or ruling promulgated
thereunder) of the United States or of any political subdivision or taxing
authority thereof or therein affecting taxation, or any change in official
position
25
regarding the application or interpretation of such laws, regulations or ruling,
which change or amendment becomes effective on or after the date of issuance of
the first Tranche of Notes of such Series (if sold on an agency basis) or the
date on which an Agent acting as principal agreed to purchase such Tranche of
Notes, the relevant Issuer or the Guarantor, as the case may be, has or will
become obligated to pay U.S. Additional Amounts with respect to such Notes as
described under Section 9(a) hereof. Prior to the giving of any notice of
redemption pursuant to this paragraph, the relevant Issuer shall deliver to the
Fiscal and Paying Agent, (i) a certificate stating that the relevant Issuer is
entitled to effect such redemption and setting forth a statement of facts
showing that the conditions precedent to the right of such Issuer to so redeem
have occurred (the date on which such certificate is delivered to the Fiscal and
Paying Agent is herein called the "Redemption Determination Date"), and (ii) an
opinion of counsel satisfactory to the Fiscal Agent to such effect based on such
statement of facts; provided that no such notice of redemption shall be given
earlier than 90 days prior to the earliest date on which the relevant Issuer or
the Guarantor, as the case may be, would be obligated to pay such U.S.
Additional Amounts if a payment in respect of such Notes were then due.
Notice of redemption will be given not less than 30 nor more than 60 days
prior to the date fixed for redemption, which date and the applicable redemption
price will be specified in the notice.
If any date fixed for redemption is a date prior to the Exchange Date for a
temporary global Bearer Note, payment on such redemption date will be made
subject to receipt of a certificate substantially in the form set forth in
Exhibit B-1, delivery of which is a condition to payment of such Notes.
(g) Tax Redemption: Notes Issued by GEC Australia Funding. All Notes of the
-----------------------------------------------------
same Series issued by GEC Australia Funding may be redeemed, at the option of
such GEC Australia Funding in whole but not in part, at any time prior to
maturity, upon the giving of a notice of redemption as described under Section
9(e) hereof, at a redemption price (except as otherwise specified herein or in
the applicable Corporate Order) equal to 100% of the principal amount thereof,
together with accrued interest to the date fixed for redemption, or, in the case
of Original Issue Discount Notes, at 100% of the portion of the face amount
thereof that has accreted to the date of redemption, if GEC Australia Funding or
the Guarantor, as the case may be, determines that, as a result of any change in
or amendment to the laws (or any regulations or rulings promulgated thereunder)
of Australia or of any political subdivision or taxing authority thereof or
therein affecting taxation, or any change in official position regarding the
application or interpretation of such laws, regulations or rulings, including
any change effected by guidance in any form from an official source, which
change or amendment becomes effective on or after the date of issuance of the
first Tranche of Notes of such Series (if sold on an agency basis) or the date
on which an Agent acting as principal agrees to purchase such Tranche of Notes
GEC Australia Funding or the Guarantor, as the case may be, has or will become
obligated to pay Australian Additional Amounts with respect to the Notes as
described under Section 9(b) hereof. Prior to the giving of any notice of
redemption pursuant to this paragraph GEC Australia Funding or the Guarantor, as
the case may be, shall deliver to the Fiscal Agent (i) a certificate stating
that GEC Australia Funding is entitled to effect redemption and setting forth a
statement of facts showing that the conditions precedent to the right of GEC
Australia Funding to so redeem have occurred and (ii) an opinion of counsel
satisfactory to the Fiscal Agent to such effect based on such statement of
facts; provided that no such notice of redemption shall be given earlier than 90
days prior to the earliest date on which GEC Australia Funding or the Guarantor,
as the
26
case may be, would be obligated to pay such Australian Additional Amounts
if a payment in respect of such Notes were then due.
(h) Tax Redemption: Notes Issued by a Canadian Subsidiary Issuer. All Notes
------------------------------------------------------------
of the same Series issued a Canadian Subsidiary Issuer may be redeemed, at the
option of such Canadian Subsidiary Issuer (in the case of Notes issued by such
Canadian Subsidiary Issuer) in whole but not in part, at any time prior to
maturity, upon the giving of a notice of redemption as described under Section
9(e) hereof, at a redemption price (except as otherwise specified herein or in
the applicable Corporate Order) equal to 100% of the principal amount thereof,
together with accrued interest to the date fixed for redemption, or, in the case
of Original Issue Discount Notes, at 100% of the portion of the face amount
thereof that has accreted to the date of redemption, if such Canadian Subsidiary
Issuer or the Guarantor, as the case may be, determines that, as a result of any
change in or amendment to the laws (or any regulations or rulings promulgated
thereunder) of Canada or of any province or territory or political subdivision
thereof or any authority or agency therein or thereof having power to tax, or
any change in official position regarding the application or interpretation of
such laws, regulations or rulings, including any change effected by guidance in
any form from an official source, which change or amendment becomes effective on
or after the date of issuance of the first Tranche of Notes of such Series (if
sold on an agency basis) or the date on which an Agent acting as principal
agreed to purchase such Tranche of Notes, such Canadian Subsidiary Issuer or the
Guarantor, as the case may be, has or will become obligated to pay Canadian
Additional Amounts with respect to the Notes as described under Section 9(c)
hereof. Prior to the giving of any notice of redemption pursuant to this
paragraph, the relevant Canadian Subsidiary Issuer or the Guarantor, as the case
may be, shall deliver to the Fiscal Agent (i) a certificate stating that such
Canadian Subsidiary Issuer is entitled to effect such redemption and setting
forth a statement of facts showing that the conditions precedent to the right of
such Canadian Subsidiary Issuer, to so redeem have occurred and (ii) an opinion
of counsel satisfactory to the Fiscal Agent to such effect based on such
statement of facts; provided that no such notice of redemption shall be given
earlier than 90 days prior to the earliest date on which such Canadian
Subsidiary Issuer or the Guarantor, as the case may be, would be obligated to
pay such Canadian Additional Amounts if a payment in respect of such Notes were
then due.
(i) Tax Redemption: Notes Issued by Additional Issuers. All Notes of the
--------------------------------------------------
same Series issued by an Additional Issuer acceding to this Agreement pursuant
to Section 19 hereof may be redeemed, at the option of such Issuer, in whole but
not in part, at any time prior to maturity, upon the giving of a notice of
redemption as described under Section 9(e) hereof, at a redemption price (except
as otherwise specified herein or in the applicable Corporate Order) equal to
100% of the principal amount thereof, together with accrued interest to the date
fixed for redemption, or, in the case of Original Issue Discount Notes, at 100%
of the portion of the face amount thereof that has accreted to the date of
redemption, if such Issuer or the Guarantor, as the case may be, determines
that, as a result of any change in or amendment to the laws (or any regulations
or rulings promulgated thereunder) of the jurisdiction of such Issuer's
organization or of any political subdivision thereof or any authority or agency
therein or thereof having power to tax, or any change in official position
regarding the application or interpretation of such laws, regulations or
rulings, including any change effected by guidance in any form from an official
source, which change or amendment becomes effective on or after the date of
issuance of the first Tranche of Notes of such Series (if sold on an agency
basis) or the date on which an Agent acting as principal agreed to purchase such
Tranche of Notes, such Issuer or the Guarantor, as the case may be, has or will
become obligated to pay Other Additional Amounts with respect to the Notes as
described under Section 9(d) hereof. Prior to the giving of any notice of
redemption pursuant
27
to this paragraph, such Issuer or the Guarantor, as the case may be, shall
deliver to the Fiscal Agent (i) a certificate stating that such Issuer is
entitled to effect such redemption and setting forth a statement of facts
showing that the conditions precedent to the right of such Issuer to so redeem
have occurred and (ii) an opinion of counsel satisfactory to the Fiscal Agent to
such effect based on such statement of facts; provided that no such notice of
redemption shall be given earlier than 90 days prior to the earliest date on
which such Issuer or the Guarantor, as the case may be, would be obligated to
pay such Other Additional Amounts if a payment in respect of such Notes were
then due; provided, however, that the form of Notes certified to the Fiscal and
Paying Agent in accordance with Section 2(b) hereof or the applicable Corporate
Order under which a Series of Notes is issued by such Additional Issuer as
contemplated by Section 2(c) hereof may amend, modify or replace these
provisions, as necessary to conform such Issuer's right to redeem the Notes to
applicable laws, rules or regulations of the country or organization of such
Issuer or any political subdivisions thereof or any authority or agency therein
or thereof having power to tax, or to comply with any official position
regarding the application or interpretation of such laws, rules or regulations,
including any guidance from an official source.
(j) Special Tax Redemption of Bearer Notes. If the relevant Issuer or (in
the case of Notes issued by an Issuer other than GE Capital) the Guarantor shall
determine that any payment made outside the United States by such Issuer, the
Guarantor (if the Guarantor is required to make payments under the relevant
Guarantee) or any Paying Agent of principal or interest, including original
discount, due in respect of any Bearer Notes of any Series would, under any
present or future laws or regulations of the United States, be subject to any
certification, identification or other information reporting requirement of any
kind, the effect of which requirement is the disclosure to such Issuer, the
Guarantor, any Paying Agent or any governmental authority of the nationality,
residence or identity of a beneficial owner of such Bearer Note or coupon who is
a United States Alien (other than such a requirement (a) which would not be
applicable to a payment made by such Issuer, the Guarantor or any Paying Agent
(i) directly to the beneficial owner or (ii) to a custodian, nominee or other
agent of the beneficial owner, or (b) which can be satisfied by such custodian,
nominee or other agent certifying to the effect that such beneficial owner is a
United States Alien, provided that in each case referred to in clauses (a)(ii)
and (b) payment by such custodian, nominee or agent to such beneficial owner is
not otherwise subject to any such requirement), the relevant Issuer shall (in
the case of Notes issued by an Issuer other than a Canadian Subsidiary Issuer)
or may (in the case of Notes issued by a Canadian Subsidiary Issuer) redeem the
Bearer Notes of such Series, in whole, at a redemption price equal to 100% of
the principal amount thereof, together with accrued interest to the date fixed
for redemption, or, in the case of Original Issue Discount Notes, at 100% of the
portion of the face amount thereof that has accreted to the date of redemption,
or, at the election of such Issuer or the Guarantor, if the conditions of the
next paragraph are satisfied, pay the additional amounts specified in such
paragraph. The relevant Issuer or the Guarantor, as the case may be, shall make
such determination and election as soon as practicable and publish prompt notice
thereof (the "Determination Notice") stating the effective date of such
certification, identification or other information reporting requirements,
whether such Issuer will redeem the Bearer Notes of such Series, or whether such
Issuer or the Guarantor, as the case may be, has elected to pay the U.S.
Additional Amounts specified in the next paragraph, and (if applicable) the last
date by which the redemption of the Bearer Notes of such Series must take place,
as provided in the next succeeding sentence. If the relevant Issuer redeems the
Bearer Notes of such Series, such redemption shall take place on such date, not
later than one year after the publication of the Determination Notice, as the
relevant Issuer or the Guarantor, as the case may be, shall elect by notice to
the Fiscal and Paying Agent at least 60 days prior to the date fixed for
redemption. Notice of such redemption of the Bearer Notes of such Series will be
given to the holders of such Bearer Notes not more than
28
60 nor less than 30 days prior to the date fixed for redemption. Such redemption
notice shall include a statement as to the last date by which the Bearer Notes
of such Series to be redeemed may be exchanged for Registered Notes.
Notwithstanding the foregoing, the relevant Issuer shall not so redeem such
Bearer Notes if such Issuer or the Guarantor shall subsequently determine, not
less than 30 days prior to the date fixed for redemption, that subsequent
payments would not be subject to any such requirement, in which case such Issuer
or the Guarantor shall publish prompt notice of such determination and any
earlier redemption notice shall be revoked and of no further effect. The right
of the holders of Bearer Notes called for redemption pursuant to this paragraph
to exchange such Bearer Notes for Registered Notes will terminate at the close
of business of the Principal Paying Agent on the fifteenth day prior to the date
fixed for redemption, and no further exchanges of such Series of Bearer Notes
for Registered Notes shall be permitted.
If and so long as the certification, identification or other information
reporting requirements referred to above in the preceding paragraph would be
fully satisfied by payment of a backup withholding tax or similar charge, the
relevant Issuer or the Guarantor, as the case may be, may elect to pay as U.S.
Additional Amounts such amounts as may be necessary so that every net payment
made outside the United States following the effective date of such requirements
by such Issuer, the Guarantor or any Paying Agent of principal or interest,
including original issue discount, due in respect of any Bearer Note or any
coupon of which the beneficial owner is a United States Alien (but without any
requirement that the nationality residence of identity of such beneficial owner
be disclosed to such Issuer, the Guarantor, any Paying Agent or any governmental
authority, with respect to the payment of such additional amounts), after
deduction or withholding for or on account of such backup withholding tax or
similar charge (other than a backup withholding tax or similar charge which (i)
would not be applicable in the circumstances referred to in the third
parenthetical clause of the first sentence of the preceding paragraph, or (ii)
is imposed as a result of presentation of such Bearer Note or coupon for payment
more than 15 days after the date on which such payment becomes due and payable
or on which payment thereof is duly provided for, whichever occurs later), will
not be less than the amount provided for in such Bearer Note or coupon to be
then due and payable. In the event the relevant Issuer or the Guarantor, as the
case may be, elects to pay any U.S. Additional Amounts pursuant to this
paragraph, such Issuer shall have the right to redeem the Bearer Notes of such
Series in whole at any time pursuant to the applicable provisions of the
preceding paragraph and the redemption price of such Bearer Notes shall not be
reduced for applicable withholding taxes. If such Issuer or the Guarantor, as
the case may be, elects to pay U.S. Additional Amounts pursuant to this
paragraph and the condition specified in the first sentence of this paragraph
should no longer be satisfied, then such Issuer shall (in the case of Notes
issued by an Issuer other than a Canadian Subsidiary Issuer) or may (in the case
of Notes issued by a Canadian Subsidiary Issuer) redeem the Bearer Notes of such
Series in whole, pursuant to the applicable provisions of the preceding
paragraph.
10. Covenant of the Issuers and the Guarantor.
-----------------------------------------
(a) Each Issuer and (in the case of Notes issued by an Issuer other than GE
Capital) the Guarantor covenant and agree for the benefit of holders of all
Notes issued hereunder that they will duly and punctually pay or cause to be
paid the principal of, premium, if any, and interest, if any, on all such Notes
(together with any Additional Amounts) at the places, at the respective times
and in the manner provided in such Notes, in the coupons, if any appertaining
thereto, and in this Agreement. The interest on Notes issued with coupons
(together with any Additional Amounts) shall be payable only upon presentation
and surrender of the several coupons for such interest installments as are
evidenced thereby as they severally mature. If any
29
temporary Bearer Note provides that interest thereon may be paid while such Note
is in temporary form, the interest on any such temporary Bearer Note (together
with any Additional Amounts) shall be paid, as to the installments of interest
only upon presentation and surrender thereof, and, as to the other installments
of interest, if any, only upon presentation of such Notes for notation thereon
of the payment of such interest, in each case subject to the restrictions set
forth in Section 5.
11. Obligations of the Fiscal and Paying Agent. The Fiscal and Paying Agent
accepts its obligations set forth herein and in the Notes upon the terms and
conditions hereof and thereof, including the following, to all of which each
Issuer and (in the case of Notes issued by an Issuer other than GE Capital) the
Guarantor agree and to all of which the rights of the holders from time to time
of the Notes of each Series shall be subject:
(a) The Fiscal and Paying Agent shall be entitled to the compensation to be
agreed upon with the relevant Issuer and the Guarantor for all services rendered
by it, and such Issuer and the Guarantor agree promptly to pay such compensation
and to reimburse the Fiscal and Paying Agent for its reasonable out-of-pocket
expenses (including fees and expenses of counsel) incurred by it in connection
with the services rendered by it hereunder. The relevant Issuer and the
Guarantor also agree to indemnify the Fiscal and Paying Agent and each paying
agent of such Issuer and the Guarantor for, and to hold each of them harmless
against, any loss, liability or expense incurred without negligence or bad faith
on their part arising out of or in connection with their acting as Fiscal and
Paying Agent or paying agent of such Issuer and the Guarantor hereunder. The
obligations of such Issuer and the Guarantor under this subsection (a) shall
survive the payment of the Notes and the resignation or removal of the Fiscal
and Paying Agent and each paying agent of such Issuer and the Guarantor, as the
case may be.
(b) In acting under this Agreement and in connection with the Notes, the
Fiscal and Paying Agent and each paying agent of the relevant Issuer and the
Guarantor are acting solely as agents of such Issuer and the Guarantor and do
not assume any obligation towards or relationship of agency or trust for or with
any of the beneficial owners or holders of the Notes except that all funds held
by the Fiscal and Paying Agent or any other paying agent of such Issuer and the
Guarantor for the payment of the principal of, premium and interest on (and
Additional Amounts, if any, with respect to) the Notes shall be held in trust by
them and applied as set forth herein and in the Notes, but need not be
segregated from other funds held by them, except as required by law; provided
that moneys paid by the relevant Issuer or the Guarantor to the Fiscal and
Paying Agent or any other paying agent of such Issuer or the Guarantor for the
payment of the principal of, premium and interest on (and Additional Amounts, if
any, with respect to) any of the Notes and remaining unclaimed at the end of
three years after the date on which such principal, premium or interest (or
Additional Amounts, if any) shall have become due and payable shall be repaid to
the relevant Issuer or the Guarantor, as the case may be, as provided and in the
manner set forth in Section 5, whereupon the aforesaid trust shall terminate and
all liability of the Fiscal and Paying Agent or any other paying agent of the
relevant Issuer and the Guarantor to such Issuer and the Guarantor with respect
to such moneys shall cease.
(c) The Fiscal and Paying Agent may consult with counsel and any advice or
written opinion of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be taken by it
hereunder in good faith and in accordance with such advice or opinion.
30
(d) The Fiscal and Paying Agent and each paying agent of the relevant
Issuer and the Guarantor shall be protected and shall incur no liability for or
in respect of any action taken or omitted to be taken or thing suffered by them
in reliance upon any Note, coupon, notice, direction, consent, certificate,
affidavit, statement or other paper or document reasonably believed by them to
be genuine and to have been presented or signed by the proper party or parties.
(e) The Fiscal and Paying Agent or any paying agent of the relevant Issuer
or the Guarantor may, in its individual capacity or any other capacity, become
the owner of, or acquire any interest in, any Notes or other obligations of such
Issuer or the Guarantor with the same rights that it would have if it were not
the Fiscal and Paying Agent or such paying agent of such Issuer or the
Guarantor, and may engage or be interested in any financial or other transaction
with such Issuer or the Guarantor and may act on, or as depositary, trustee or
agent for, any committee or body of beneficial owners or holders of Notes or
other obligations of such Issuer or the Guarantor as freely as if it were not
the Fiscal and Paying Agent or such paying agent of such Issuer or the
Guarantor.
(f) Neither the Fiscal and Paying Agent nor any other paying agent of the
relevant Issuer or the Guarantor shall be under any liability for interest on
any moneys received by it pursuant to any of the provisions of this Agreement or
the Notes.
(g) The recitals contained herein and in the Notes (except in the Fiscal
and Paying Agent's certificate of authentication) shall be taken as the
statements of the relevant Issuer and the Guarantor, and the Fiscal and Paying
Agent assumes no responsibility for the correctness of the same. The Fiscal and
Paying Agent does not make any representation as to the validity or sufficiency
of this Agreement or the Notes. Neither the Fiscal and Paying Agent nor any
paying agent of the relevant Issuer and the Guarantor shall be accountable for
the use or application by such Issuer of any of the Notes or the proceeds
thereof.
(h) The Fiscal and Paying Agent and each paying agent of the relevant
Issuer and the Guarantor shall be obligated to perform such duties and only such
duties as are herein and in the Notes specifically set forth, and no implied
duties or obligations shall be read into this Agreement or the Notes against the
Fiscal and Paying Agent or any such paying agent. The Fiscal and Paying Agent
shall not be under any obligation to take any action hereunder which may tend to
involve it in any expense or liability, the payment of which within a reasonable
time is not, in its reasonable opinion, assured to it.
(i) Unless otherwise specifically provided herein or in the Notes, any
order, certificate, notice, request, direction or other communication from the
relevant Issuer or the Guarantor made or given under any provision of this
Agreement shall be sufficient if signed by the President, the Chief Executive
Officer, any Senior Vice President or Vice President, the Secretary or any
Assistant Secretary or any duly authorized attorney-in-fact of the relevant
Issuer or the Guarantor, as the case may be.
12. Maintenance and Resignation of Fiscal and Paying Agent
(a) The relevant Issuer and (in the case of Notes issued by an Issuer other
than GE Capital) the Guarantor agree, for the benefit of the beneficial owners
from time to time of the Notes, that, until all of the Notes and coupons are no
longer outstanding or until moneys for the payment of all of the principal of,
premium and interest on all outstanding Notes (and Additional Amounts, if any)
shall have been made available at the principal office of the Fiscal and Paying
31
Agent, and shall have been returned to the relevant Issuer or (in the case of
Notes issued by an Issuer other than GE Capital) the Guarantor as provided in
Section 11(b), whichever occurs earlier, there shall at all times be a Fiscal
and Paying Agent hereunder. The Fiscal and Paying Agent shall at all times
maintain a place of business in, or in lieu thereof maintain an agent for
service of process located in, London, England.
(b) Each Issuer and the Guarantor further agrees that (i) so long as any
Notes are listed, quoted and/or traded on or by a stock exchange, competent
listing authority and/or quotation system, there will at all times be a Paying
Agent (or the Fiscal and Paying Agent) having a specified office in each
location required by the relevant rules of such stock exchange, competent
listing authority and/or quotation system; (ii) there will at all times be a
Paying Agent (or the Fiscal and Paying Agent) with a specified office in a city
in a member state of the European Union; and (iii) if any European Union
Directive on the taxation of savings implementing the conclusions of the ECOFIN
Council meeting on November 26-27, 2000 or any law implementing or complying
with, or introduced in order to conform to, such Directive is introduced, the
Company will ensure that to the extent practicable it maintains a Paying Agent
(or the Fiscal and Paying Agent) in a Member State of the European Union that
will not be obliged to withhold or deduct tax from payment in respect of the
Notes pursuant to any such Directive or law.
(c) The Fiscal and Paying Agent may at any time resign by giving written
notice of its resignation mailed to the relevant Issuer and the Guarantor
specifying the date on which its resignation shall become effective; provided
that such date shall be at least 90 days after the date on which such notice is
given unless such Issuer and the Guarantor agree to accept less notice. Upon
receiving such notice of resignation, the relevant Issuer and the Guarantor
shall promptly appoint a successor fiscal and paying agent, qualified as
aforesaid, by written instrument in duplicate signed on behalf of such Issuer
and the Guarantor, one copy of which shall be delivered to the resigning Fiscal
and Paying Agent and one copy to the successor fiscal and paying agent. Such
resignation shall become effective upon the earlier of (i) the effective date of
such resignation or (ii) the acceptance of appointment by the successor fiscal
and paying agent as provided in subsection (c). The relevant Issuer and the
Guarantor may, at any time and for any reason, and shall, upon any event set
forth in the next succeeding sentence, remove the Fiscal and Paying Agent and
appoint a successor fiscal and paying agent, qualified as aforesaid, by written
instrument in duplicate signed on behalf of such Issuer and the Guarantor, one
copy of which shall be delivered to the Fiscal and Paying Agent being removed
and one copy to the successor fiscal and paying agent. The Fiscal and Paying
Agent shall be removed as aforesaid if it shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or a receiver of the Fiscal and
Paying Agent or of its property shall be appointed, or any public officer shall
take charge or control of it or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation. Any removal of the Fiscal and
Paying Agent and any appointment of a successor fiscal and paying agent shall
become effective upon acceptance of appointment by the successor fiscal and
paying agent as provided in subsection (c). Upon its resignation or removal, the
Fiscal and Paying Agent shall be entitled to the payment by the relevant Issuer
or the Guarantor of its compensation for the services rendered hereunder and to
the reimbursement of all reasonable out-of-pocket expenses incurred in
connection with the services rendered by it hereunder (including any resignation
expenses of the Fiscal and Paying Agent and fees and expenses of counsel).
(d) Any successor fiscal and paying agent appointed as provided in
subsection (b) shall execute and deliver to its predecessor and to the relevant
Issuer and the Guarantor an instrument accepting such appointment hereunder, and
thereupon such successor fiscal and
32
paying agent, 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 Fiscal and Paying Agent
hereunder, and such predecessor, upon payment of its compensation and
out-of-pocket expenses then unpaid, shall pay over to such successor agent all
moneys or other property at the time held by it hereunder.
(e) Any corporation or bank into which the Fiscal and Paying Agent may be
merged or converted, or with which the Fiscal and Paying Agent may be
consolidated, or any corporation or bank resulting from any merger, conversion
or consolidation to which the Fiscal and Paying Agent shall be a party, or any
corporation or bank succeeding to the fiscal agency business of the Fiscal and
Paying Agent shall be the successor to the Fiscal and Paying Agent hereunder
(provided that such corporation or bank shall be qualified as aforesaid) without
the execution or filing of any paper or any further act on the part of any of
the parties hereto.
13. Paying Agency. Each Issuer and the Guarantor shall cause each Paying
Agent appointed by such Issuer and the Guarantor to execute and deliver to the
Fiscal and Paying Agent an instrument in which such agent shall agree with the
Fiscal and Paying Agent, subject to the provisions of this Section,
(1) that it will hold all sums held by it as such agent for the
payment of the principal of, premium, if any, or interest, if any, on such
Notes (whether such sums have been paid to it by the Issuer or the
Guarantor or by any other obligor on such Notes) in trust for the benefit
of the holders of such Notes, or the coupons appertaining thereto, if any;
(2) that it will give the Fiscal and Paying Agent notice of any
failure by any such Issuer or the Guarantor (or by any other obligor on
such Notes) to make any payment of the principal of, premium, if any, or
interest, if any, on such Notes when the same shall be due and payable; and
(3) that at any time during the continuance of any failure by any such
Issuer or the Guarantor (or by any other obligor on such Notes) specified
in the preceding paragraph (2), such paying agent will, upon the written
request of the Fiscal and Paying Agent, forthwith pay to the Fiscal and
Paying Agent all sums so held in trust by it.
The Fiscal and Paying Agent shall arrange with all such paying agencies for
the payment, from funds furnished by each Issuer and the Guarantor to the Fiscal
and Paying Agent pursuant to this Agreement, of the principal of, premium and
interest on the Notes (and Additional Amounts, if any, with respect to the
Notes).
14. Merger, Consolidation, Sale or Conveyance.
-----------------------------------------
(a) Each Issuer and (in the case of Notes issued by an Issuer other than GE
Capital) the Guarantor covenant that they will not merge or consolidate with any
other corporation or sell, convey, transfer or otherwise dispose of all or
substantially all of their respective assets to any corporation, unless (i)
either such Issuer or the Guarantor, as the case may be, shall be the continuing
corporation, or the successor corporation (if other than such Issuer or the
Guarantor) shall be (a) with respect to GE Capital, a corporation organized and
existing under the laws of the United States of America or a state thereof, (b)
with respect to GEC Australia Funding, a corporation incorporated under the laws
of Australia or any political subdivision thereof, (c) with
33
respect to any Canadian Subsidiary Issuer, a corporation incorporated under the
laws of Canada or any province of territory thereof, and (d) with respect to
each Additional Issuer, a corporation incorporated under the laws of the country
of incorporation or organization of such Issuer, and in each case such successor
corporation shall expressly assume the due and punctual payment of the principal
of, and premium, if any, and interest, if any, on all the Notes and coupons, if
any, according to their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of this Agreement and the
Notes to be performed by such Issuer or the Guarantor, as the case may be,
executed and delivered to the Fiscal and Paying Agent by such corporation, and
(ii) such Issuer or the Guarantor 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 covenants or conditions.
(b) 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 relevant Issuer or the Guarantor, as the case may be, with
the same effect as if it had been named herein as such Issuer or the Guarantor,
and such Issuer or the Guarantor shall be relieved of any further obligation
under this Agreement and under the Notes and coupons, if any, and may be
dissolved, wound up and liquidated at any time thereafter. Such successor
corporation thereupon may cause to be signed, and may issue either in its own
name or in the name of the relevant Issuer or the Guarantor, as the case may be,
any or all of the Notes issuable hereunder together with any coupons
appertaining thereto which theretofore shall not have been signed by such Issuer
or the Guarantor and delivered to the Fiscal and Paying Agent; and, upon the
order of such successor corporation, instead of such Issuer or the Guarantor and
subject to all the terms, conditions and limitations in this Agreement
prescribed, the Fiscal and Paying Agent shall authenticate and shall deliver any
Notes together with any coupons appertaining thereto which previously shall have
been signed and delivered to the Fiscal and Paying Agent for that purpose. All
Notes appertaining thereto shall in all respects have the same legal rank and
benefit under this Agreement as the Notes theretofore or thereafter issued in
accordance with the terms of this Agreement as though all or such Notes had been
issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, conveyance, transfer or
other disposition, such changes in phraseology and form (but not in substance)
may be made in the Notes and coupons thereafter to be issued as may be
appropriate.
15. Meetings of Holders of the Notes.
--------------------------------
(a) Each Issuer or (in the case of Notes issued by an Issuer other than GE
Capital) the Guarantor may at any time call a meeting of the holders of the
Notes of any or all Series, such meeting to be held at such time and at such
place as such Issuer or the Guarantor shall determine, for the purpose of
obtaining a waiver of or an amendment to any provision of this Agreement or the
Notes of any Series (to the extent permitted in Section 18 hereof). For purposes
of this Section, "holders of a global Bearer Note" shall be those persons shown
on the records of Euroclear, Clearstream, Luxembourg, or another clearance
system in which such Notes are held, as the case may be, as having interests in
such global Bearer Note credited to their respective securities clearance
accounts on the date on which notice of the meeting is given. Notice of any
meeting of Noteholders, setting forth the time and place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be (i) if
any Bearer Notes of a Series affected are then outstanding, published prior to
the date fixed for the meeting at least once a week for three successive weeks
in a daily newspaper in the English language of general circulation in
00
Xxxxxx, Xxxxxxx and if the Notes of such Series are listed on the Luxembourg
Stock Exchange and such Exchange so requires, in a daily newspaper (as defined
in Section 6(a) hereof) of general circulation in Luxembourg or, if publication
in either London or Luxembourg is not practical, elsewhere in Western Europe and
(ii) if any Registered Notes of a Series affected are then outstanding, mailed
to the holders of then outstanding Registered Notes of each Series affected at
their addresses as they shall appear on the books of the Registrar. The first
publication or mailing of notice, in the case of Registered Notes, shall be made
not less than 20 nor more than 180 days prior to the date fixed for such
meeting. Such publication is expected to be made in the Financial Times and (if
such Series of Notes is listed on the Luxembourg Stock Exchange) the Luxemburger
Wort. To be entitled to vote at any meeting of holders of Notes a person shall
be (i) a holder of one of more Notes of the relevant Series with respect to
which such meeting is being held or (ii) a person appointed by an instrument in
writing as proxy by the holder of one or more such Notes. The only persons who
shall be entitled to be present or to speak at any meeting of the holders of the
Notes of any Series shall be the persons entitled to vote at such meeting and
their counsel and any representatives of the relevant Issuer, the Guarantor and
their counsel.
(b) The persons entitled to vote a majority in principal amount of the
Notes of the relevant Series at the time outstanding shall constitute a quorum
for the purpose of obtaining any such waiver or amendment. No business shall be
transacted in the absence of a quorum, unless a quorum is present when the
meeting is called to order. In the absence of a quorum within 30 minutes of the
time appointed for any such meeting, the meeting shall be adjourned for a period
of not less than 10 calendar days as determined by the chairman of the meeting.
In the absence of a quorum within 30 minutes of the time appointed for any such
adjourned meeting, such adjourned meeting shall be further adjourned for a
period of not less than 10 calendar days as determined by the chairman of the
meeting. Notice of the reconvening of any adjourned meeting shall be given as
provided above except that such notice need be published only once, but must be
mailed or published not less than five days prior to the date on which the
meeting is scheduled to be reconvened. Subject to the foregoing, at the
reconvening of any meeting further adjourned for lack of a quorum, the persons
entitled to vote 25% in principal amount of the Notes of the relevant Series at
the time outstanding shall constitute a quorum for the taking of any action set
forth in the notice of the original meeting. Notice of the reconvening of an
adjourned meeting shall state expressly the percentage of the aggregate
principal amount of the outstanding Notes of the relevant Series which shall
constitute a quorum.
(c) At a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid, any resolution with respect to such waiver or
amendment shall be effectively passed and decided if passed and decided by the
favorable vote of persons entitled to vote the lesser of (i) a majority in the
principal amount of the Notes of the relevant Series then outstanding or (ii)
75% in principal amount of such Notes represented and voting at the meeting. Any
Noteholder who has executed an instrument in writing appointing a person as
proxy shall be deemed to be present for the purposes of determining a quorum and
be deemed to have voted; provided that such Noteholder shall be considered as
present and voting only with respect to the matters covered by such instrument
in writing (which may include authorization to vote on any other matters as may
come before the meeting). Any resolution passed or decision taken at any meeting
of Noteholders duly held in accordance with this Section shall be conclusive and
binding on all the Noteholders of the relevant Series whether or not present or
represented at the meeting.
(d) The holding of definitive Bearer Notes of the relevant Series for
purposes of this Section shall be proved by the production of such Notes or by a
certificate executed by any trust company, bank, banker or recognized securities
dealer satisfactory to the relevant Issuer and the
35
Guarantor, wherever situated, if such certificate shall be deemed by such Issuer
and the Guarantor to be satisfactory. Each such certificate shall be dated and
shall state that on the date thereof a Note of the relevant Series bearing a
specified identifying number was deposited with or exhibited to such trust
company, bank, banker or recognized securities dealer by the person named in
such certificate. Any such certificate may be issued in respect of one or more
such Bearer Notes specified therein. The holding of an interest in any global
Bearer Note of the relevant Series shall be proved by a certificate of
Euroclear, Clearstream, Luxembourg or another clearance system in which such
Notes are held, as the case may be. The holding by the person named in any such
certificate of any such Bearer Note or interest in a global Bearer Note
specified therein shall be presumed to continue for a period of one year from
the date of such certificate unless at the time of any determination of such
holding (i) another certificate bearing a later date issued in respect of the
same Bearer Note or interest in a global Bearer Note shall be produced, (ii)
such Bearer Note specified in such certificate shall be produced by some other
person or (iii) such Bearer Note specified in such certificate shall have ceased
to be outstanding. The appointment of any proxy shall be proved by having the
signature of the person executing the proxy witnessed or guaranteed by any bank,
banker, trust company or New York Stock Exchange member firm satisfactory to the
relevant Issuer and the Guarantor.
(e) Each Issuer and the Guarantor shall appoint a temporary chairman of the
meeting. A permanent chairman and a permanent secretary of the meeting shall be
elected by vote of the holders of a majority in principal amount of the Notes of
the relevant Series represented at the meeting. At any meeting each Noteholder
of the relevant Series or proxy shall be entitled to one vote for each 1,000
U.S. dollars (or the equivalent thereof in any foreign or composite currency) of
principal amount (in the case of Original Issue Discount Notes of the relevant
Series, such principal amount thereof that would be due and payable as of the
date of such meeting upon a declaration of acceleration of the maturity thereof
pursuant to Section 8) of such Notes held or represented by such Noteholder or
proxy; provided, however, that no vote shall be cast or counted at any meeting
in respect of any Note of the relevant Series 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 except as a Noteholder or proxy. Any meeting
of Noteholders duly called at which a quorum is present may be adjourned from
time to time, and the meeting may be held as so adjourned without further
notice.
(f) The vote upon any resolution submitted to any meeting of Noteholders
shall be by written ballot on which shall be subscribed the signatures of such
Noteholders or proxies and on which shall be inscribed the principal amount (in
the case of Original Issue Discount Notes of the relevant Series, such principal
amount thereof that would be due and payable as of the date of such vote upon a
declaration of acceleration of the maturity thereof pursuant to Section 8) and
the identifying number or numbers of the Notes of such Series 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 Noteholders 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 published as provided above. The record will show the principal
amount of the Notes (in the case of Original Issue Discount Notes, such
principal amount thereof that would be due and payable as of the date of such
vote upon a declaration of acceleration of the maturity thereof pursuant to
Section 8) voting in favor of or against any resolution. The record shall be
signed and verified by
36
the permanent chairman and secretary of the meeting and one of the duplicates
shall be delivered to the relevant Issuer or the Guarantor and the other to the
Fiscal and Paying Agent to be preserved by the Fiscal and Paying Agent, 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.
16. Consent of Holders.
(a) Any authorization, direction, notice, consent, waiver, amendment or
other action provided by the provisions of this Agreement or the Notes of any
Series to be given or taken by holders (which term as used in this Section shall
mean with respect to any global Bearer Note those persons shown on the records
of Euroclear, Clearstream, Luxembourg and/or another clearance system, as the
case may be, as having interests in such global Bearer Note credited to their
respective securities clearance accounts) of Notes of such Series may be
embodied in and evidenced by one or more instruments of substantially similar
tenor, listing the serial number of the Note or Notes of such Series in respect
of which each such instrument is submitted, signed by the requisite number of
such holders in person or by their agent duly appointed in writing; and, except
as herein or therein expressly provided, any such instrument shall become
irrevocable when delivered, and such action shall become effective when such
instrument signed by such holders is delivered to the Fiscal and Paying Agent or
other paying agency of the relevant Issuer and (in the case of Notes issued by
an Issuer other than GE Capital) the Guarantor. Proof of execution of any such
instrument or of a writing appointing any such agent by the holder of any such
Note shall be sufficient for any such purpose of this Agreement or such Notes
and conclusive in favor of (i) the Fiscal and Paying Agent or other paying
agency of such Issuer and the Guarantor and (ii) such Issuer and the Guarantor
if made in the manner provided in this Section.
(b) The fact and date of execution of any such instrument and the fact that
any person is the holder of the Note or Notes of any Series of which the serial
numbers are listed in such instrument may be proved by the certificate of a
financial institution of recognized standing to such effect, or in any other
manner which the relevant Issuer and the Guarantor deem sufficient.
(c) Any authorization, direction, notice, consent, waiver or other action
by the holder of any Note shall bind every future holder of such Note in respect
of anything done, omitted or suffered to be done in reliance thereon, whether or
not notation of such action is made upon such Note.
17. Stamp Taxes. The relevant Issuer or the Guarantor will pay all
stamp or other documentary taxes or duties, if any, to which the
execution or delivery of this Agreement or the issuance of the
Notes of any Series or any coupons appertaining thereto may be
subject.
18. Modifications and Amendments.
----------------------------
(a) This Agreement may be amended by the parties hereto, without the
consent of the holder (which term as used in this Section shall mean with
respect to any global Bearer Note those persons shown on the records of
Euroclear, Clearstream, Luxembourg or another clearance system, as the case may
be, as having interests in such global Bearer Note credited to their respective
securities clearance accounts) of any Note, for the purposes of (i) providing
for the
37
issuance of Notes pursuant to Section 2 hereof; (ii) curing any ambiguity or
correcting or supplementing any provision contained herein which may be
defective or inconsistent with any other provision contained herein; (iii)
adding to the covenants of the relevant Issuer or (in the case of Notes issued
by an Issuer other than GE Capital) the Guarantor for the protection of the
holders of all or any Series of the Notes; (iv) effecting any assumption of the
relevant Issuer's or the Guarantor's obligations hereunder and under the Notes
or the Guarantee by a successor corporation pursuant to Section 14(a) of this
Agreement; (v) evidencing and providing for the acceptance of appointment
hereunder by a successor Fiscal and Paying Agent with respect to the Notes of
one or more Series; or (vi) amending this Agreement in any other manner which
the parties may mutually deem necessary or desirable and which shall not
adversely affect the interests of the holders of the Notes of any Series
outstanding on the date of such amendment. Nothing in this Agreement prevents
the Issuers, the Guarantor and the Fiscal and Paying Agent from amending this
Agreement in such a manner as to only have a prospective effect on Notes issued
on or after the date of such amendment.
(b) Modifications and amendments to this Agreement or the Notes of any
Series or the Guarantee may also be made, and future compliance therewith or
past Event of Default by the relevant Issuer or the Guarantor may be waived, by
holders of not less than a majority in aggregate principal amount of the Notes
of such Series (or, in each case, such lesser amount as shall have acted at a
meeting of holders of such Notes, pursuant to Section 15 of this Agreement);
provided, however, that no such modification or amendment to this Agreement or
the Notes may, without the consent of the holders of each such Note of such
Series affected thereby, (i) change the stated maturity of the principal of any
such Note of such Series or extend the time for payment of interest thereon;
(ii) change the amount of the principal of an Original Issue Discount Note of
such Series that would be due and payable upon an acceleration of the maturity
thereof; (iii) reduce the amount of interest payable thereon or the amount
payable thereon in the event of redemption or acceleration; (iv) change the
currency of payment of principal of or any other amounts payable on any such
Note; (v) impair the right to institute suit for the enforcement of any such
payment on or with respect to any such Note or the Guarantee; (vi) reduce the
above-stated percentage of the principal amount of Notes of such Series the
consent of whose holders is necessary to modify or amend this Agreement or the
Notes of such Series or reduce the percentage of Note of such Series required
for the taking of action or the quorum required at any such meeting of holders
of Notes of such Series; or (vii) modify the foregoing requirements to reduce
the percentage of outstanding Notes of such Series necessary to waive any future
compliance or past default.
(c) Any such modification or amendments will be conclusive and binding on
all holders of Notes of the relevant Series and on all future holders of such
Notes, whether or not they have consented to such modifications or amendments
and whether or not notation of such modifications or amendments is made upon the
Notes of such Series.
19. Accession of Additional Issuers. Each of the Issuers, the
Guarantor and the Fiscal and Paying Agent acknowledge and agree
that one or more additional Issuers (each, an "Additional
Issuer") may from time to time accede to this Agreement upon the
terms and conditions set forth below. On and after the Accession
Date (as defined below) with respect to an Additional Issuer,
such Additional Issuer shall be bound by the terms of this
Agreement and shall be entitled to all rights and benefits, and
subject to all duties and obligations, of an Issuer hereunder.
38
(a) Requirements as to Additional Issuers. Each Additional Issuer shall (i)
be a Subsidiary (as hereinafter defined) of GE Capital and (ii) only issue Notes
which are unconditionally and irrevocably guaranteed by GE Capital. As used
herein, "Subsidiary" shall have the meaning as set forth in Rule 1-02(x) of
Regulation S-X under the U.S. Securities Act of 1933, as amended.
(b) Conditions Precedent to Accession. On or prior to the date on which an
Additional Issuer shall accede as a party to this Agreement (the "Accession
Date"), each of the following conditions precedents must be fulfilled:
(i) such Additional Issuer, the Guarantor and the Fiscal and Paying
Agent shall have executed and delivered an Issuer Accession Letter,
substantially in the form attached hereto as Exhibit E (each, an "Issuer
Accession Letter"), together with the attachments described therein;
(ii) such Additional Issuer and the Guarantor shall certify to the
Fiscal and Paying Agent the form of Notes to be executed and authenticated
from time to time for each Series of Notes issued by such Additional Issuer
as provided in Section 2(b) hereof, including the form of the Guarantee to
appear thereon which shall be substantially in the form of Exhibit D-1
hereto, modified as appropriate to refer to such Additional Issuer;
(iii) such Additional Issuer shall confirm that the Notes are being
issued pursuant to authority granted by its Board of Directors or similar
governing body, including any duly authorized committee thereof, and
certify the persons who are Issuer Authorized Representatives of such
Additional Issuer as provided in Section 3(a) hereof; and
(iv) such Additional Issuer shall confirm that it has sent to each
Agent under the Euro MTN Distribution Agreement an Issuer Accession Notice
(as defined in the Euro MTN Distribution Agreement) and provide a copy of
such Issuer Accession Notice to the Fiscal and Paying Agent together with
such attachments as are described therein.
20. Notices to Parties. All notices hereunder to the parties hereto
shall be deemed to have been given when sent by certified or
registered mail, postage prepaid, or by facsimile transmission,
addressed to any party hereto as follows:
Address
GE Capital:
General Electric Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000 X.X.X.
Attention: Senior Vice
President-Corporate Treasury
and Global Funding Operation
Facsimile: 0-000-000-0000
39
Telephone: 0-000-000-0000
GEC Australia Funding:
GE Capital Australia Funding Pty. Ltd. (A.C.N. 085 675 467)
000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 0000
Xxxxxxxxx
Attention: Xxxxx Xxxxx
Facsimile: 000-0000-0000
Telephone: 000-0000-0000
in each case with a copy to GE Capital in its capacity as
Guarantor delivered in accordance with this Section 20;
GEC Canada:
General Electric Capital Canada Inc.
0000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxx
Xxxxxx X0X 0X0
Attention: Vice President and General Counsel
Facsimile: 0-000-000-0000
Telephone: 0-000-000-0000
in each case with a copy to GE Capital in its capacity as
Guarantor delivered in accordance with this Section 20;
GEC Canada Funding:
GE Capital Canada Funding Company
c/o General Electric Capital Canada Inc.
0000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxx
Xxxxxx X0X 0X0
Attention: Xxxxx Xxxxxxx, Secretary
Facsimile: 0-000-000-0000
Telephone: 0-000-000-0000
in each case with a copy to GE Capital in its capacity as
Guarantor delivered in accordance with this Section 20;
40
GEC Canada RFS:
GE Card Services Canada Inc.
c/o General Electric Capital Canada Inc.
0000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxx
Xxxxxx X0X 0X0
Attention: Xxxxx Xxxxxxx, Secretary
Facsimile: 0-000-000-0000
Telephone: 0-000-000-0000
in each case with a copy to GE Capital in its capacity as
Guarantor delivered in accordance with this Section 20;
Fiscal and Paying Agent:
JPMorgan Chase Bank, London Branch,
Trinity Tower
9 Xxxxxx Xxxx Street
London E1W 1YT, England
Attention: Manager, Institutional Trust Services
Facsimile: 00-000-000-0000
Telephone: 00-000-000-0000
or at any other address of which either of the foregoing shall have notified the
other in writing.
Any notice, direction, request or demand by any holder of Notes or coupons
to or upon the Fiscal and Paying Agent shall be deemed to have been sufficiently
given or made, for all purposes, if given or made in writing at the principal
London office of the Fiscal and Paying Agent, addressed to the attention of its
corporate trust office.
21. Notices to and by Holders of the Notes. Each Issuer and (in the
case of Notes issued by an Issuer other than GE Capital) the
Guarantor will give notice promptly to the holders of the Notes
of the termination of appointment of any paying agent of such
Issuer and the Guarantor. Such notice shall be published in a
daily newspaper in the English language of general circulation in
London, England, and if the Series of Notes is listed on the
Luxembourg Stock Exchange and such Exchange so requires, in a
daily newspaper of general circulation in Luxembourg or, if
publication in either London or Luxembourg is not practical,
elsewhere in Western Europe. Such publication is expected to be
made in the Financial Times and (if such Series is listed on the
Luxembourg Stock Exchange) the Luxemburger Wort. Any notice to
the holders of Notes by publication shall be deemed to have been
given on the date of such publication, or if published in
newspapers on different dates, on the date of the first such
publication.
41
So long as no definitive Notes are in issue in respect of a particular
Series, there may, so long as the global Note(s) for such Series is or are held
in its or their entirety on behalf of Euroclear, Clearstream, Luxembourg and/or
another clearance system, as the case may be, and the Notes for such Series are
not listed on the Luxembourg Stock Exchange (or if so listed, for as long as the
Luxembourg Stock Exchange so permits), be substituted for such publication in
such newspaper(s) the delivery of the relevant notice to Euroclear, Clearstream,
Luxembourg and/or such other clearance system for communication by them to the
holders of the Notes. Any such notice shall be deemed to have been given to the
holders of the Notes on the seventh day after the day on which the said notice
was given to Euroclear, Clearstream, Luxembourg and/or such other clearance
system.
Notices to be given by a Noteholder shall be in writing and given by
lodging the same, together with the relative Note or Notes, with the Agent.
Whilst any Notes are represented by a global Note, such notice may be given by a
Noteholder to the Fiscal and Paying Agent via Euroclear, Clearstream, Luxembourg
and/or another clearance system, as the case may be, in such manner as the Agent
and Euroclear, Clearstream, Luxembourg and/or such other clearance system may
approve for this purpose.
22. Business Day. For the purposes of this Agreement, "Business Day"
shall mean, unless otherwise specified in the form of Notes
certified to the Fiscal and Paying Agent pursuant to Section 2(b)
hereof or contained in the Corporate Order delivered pursuant to
Section 2(c) hereof with respect to a particular Series of Notes,
any day other than a Saturday or Sunday or any other day on which
banking institutions are generally authorized or obligated by law
or regulation to close in (i) the principal financial center of
the country of the currency in which the Notes are denominated,
(ii) the place at which payment on such Note or coupon is to be
made and (iii) London, England; provided, however, that with
respect to Notes denominated in Euro, such day is a day on which
the Trans-European Automated Real-Time Gross Settlement Express
Transfer (TARGET) System is open. For purposes of this
definition, the principal financial center of the United States
is New York, the principal financial center of Australia is
Sydney and the principal financial center of Canada is Toronto,
Ontario.
23. Central Bank Reporting Requirements. In addition to its other
duties set forth in this Agreement, the Fiscal and Paying Agent
is hereby designated as the relevant Issuer's and (in the case of
Notes issued by an Issuer other than GE Capital) the Guarantor's
agent for the purpose of complying with notification, reporting
or other applicable requirements of the various central banks or
similar monetary authorities regulating Notes issued in Specified
Currencies other than U.S. dollars. Without limiting the
generality of the foregoing, at the date hereof such duties shall
include the information reporting requirements of the Bank of
England with respect to any Series of Notes where the Specified
Currency is Pounds Sterling.
24. Governing Law. THIS AGREEMENT, THE NOTES AND ANY COUPONS
APPERTAINING THERETO SHALL BE CONSTRUED IN
42
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK, U.S.A.
25. Consent to Service. Each Issuer and (in the case of Notes issued
by an Issuer other than GE Capital) the Guarantor has designated
the Senior Vice President-Corporate Treasury and Global Funding
Operation of each Issuer and the Guarantor as authorized agent
for service of process in any legal action or proceeding arising
out of or relating this Agreement, the Notes or the Guarantees
brought in any federal or state court in the Borough of
Manhattan, the City of New York, State of New York and
irrevocably submit to the non-exclusive jurisdiction of such
courts for such purposes (and only for such purposes) as long as
there are any outstanding Notes.
26. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same
instrument. Such counterparts shall together constitute but one
and the same instrument.
27. Inspection of Agreement. A copy of this Agreement shall be made
available by the Fiscal and Paying Agent for inspection at all
reasonable times at its office as stated in Section 20 and at the
offices of the paying agents specified in the Notes.
28. Descriptive Headings. The descriptive headings in this Agreement
are for convenience of reference only and shall not define or
limit the provisions of this Agreement.
29. Provisions Binding on Successors. All the covenants,
stipulations, promises and agreements in this Agreement contained
by the relevant Issuer and (in the case of Notes issued by an
Issuer other than GE Capital) the Guarantor shall bind its
successors and assigns whether so expressed or not.
30. Official Acts by Successor Corporation. Any act or proceeding by
any provision of this Agreement authorized or required to be done
or performed by any board, committee or officer of the relevant
Issuer or (in the case of Notes issued by an Issuer other than GE
Capital) the Guarantor 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 such Issuer or the Guarantor.
31. Severability. In case any provision in this Agreement or in the
Notes shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provision shall not
in any way be affected or impaired thereby.
43
IN WITNESS WHEREOF, the parties hereto, including GE Capital
in its capacity both as Issuer and as Guarantor of Notes to be issued by Issuers
other than GE Capital, have caused this Second Amended and Restated Fiscal and
Paying Agency Agreement to be duly executed as of the day and year first above
written.
GENERAL ELECTRIC CAPITAL CORPORATION
GENERAL ELECTRIC CAPITAL CANADA INC.
GE CARD SERVICES CANADA INC.
By: ________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
Corporate Treasury and Global
Funding Operation
GE CAPITAL AUSTRALIA FUNDING PTY. LTD
By: ________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Signatory
GE CAPITAL CANADA FUNDING COMPANY
By:_________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: President
JPMORGAN CHASE BANK
as Fiscal and Paying Agent
By:_________________________________
Name:
Title:
X.X. XXXXXX BANK LUXEMBOURG S.A.
By:_________________________________
Name:
Title:
46
EXHIBIT A
GENERAL ELECTRIC CAPITAL CORPORATION
AND AFFILIATES
EURO MEDIUM-TERM NOTES AND OTHER DEBT SECURITIES
ADMINISTRATIVE PROCEDURES
May 23, 2002
Reference is made to Section 2(c) of the Third Amended and Restated Euro
Medium-Term Note Distribution Agreement, dated May 23, 2002 (as the same may be
further amended or supplemented from time to time, the "Euro MTN Distribution
Agreement") pursuant to which Euro Medium-Term Notes and other debt securities
(the "Notes") are to be offered on a continuous basis by General Electric
Capital Corporation ("GE Capital"), and each of the other Issuers named therein
or made a party thereto from time to time (together with GE Capital, each an
"Issuer"). Notes issued by each Issuer other than GE Capital will be
unconditionally and irrevocably guaranteed by GE Capital (the "Guarantor"). Each
of the Agents named in the Euro MTN Distribution Agreement (each an "Agent") has
agreed to use it best efforts to solicit offers to purchase the Notes. Each
Agent, as principal, may also purchase Notes for its own account and if it does
so, the relevant Issuer, the Guarantor and such Agent will enter into a terms
agreement, as contemplated by the Euro MTN Distribution Agreement. Each Issuer
and the Guarantor has reserved the right in the Euro MTN Distribution Agreement
from time to time to appoint one or more additional firms either to solicit
purchases of Notes from the relevant Issuer by others or to purchase Notes
directly from the relevant Issuer as principal for resale to others, and any
reference herein to "Agent" shall include each such additional firm.
The Notes will be issued under a third amended and restated Fiscal and
Paying Agency Agreement dated as of May 23, 2002, between each Issuer (including
GE Capital in its capacity as Guarantor of Notes issued by an Issuer other than
GE Capital), JPMorgan Chase Bank, as fiscal agent (in such capacity, the "Fiscal
Agent") and principal paying agent (in such capacity, the "Principal Paying
Agent"), and X.X. Xxxxxx Bank Luxembourg S.A., as paying agent, as further
amended or supplemented from time to time (the "Fiscal Agency Agreement").
Unless otherwise specified with respect to a particular series of Notes,
JPMorgan Chase Bank, will also act as the authenticating agent (the
"Authenticating Agent") for the Notes and will be the Registrar for the
Registered Notes (as defined below) and will perform the duties specified herein
and in the Fiscal Agency Agreement. XX Xxxxxx Xxxxx Bank, will also act as
Calculation Agent with respect to the Notes unless a different Calculation Agent
is appointed by an Issuer or the Guarantor with respect to a specific series of
Notes. If the relevant Issuer issues any Notes denominated in Hong Kong dollars,
the Principal Paying Agent will act through one of its branches or agencies
located outside of Hong Kong and will request of Euroclear and Clearstream,
Luxembourg (each as defined below) that the common depositary act through an
office outside of Hong Kong, or as may otherwise be required by applicable laws
or regulations.
Each Issuer has appointed Kredietbank S.A. Luxembourgeoise in Luxembourg as
listing agent (the "Listing Agent") for each series of Notes that is listed on
the Luxembourg Stock Exchange. Series of Notes may be issued that will not be
listed on any stock exchange. As used
A-1-1
herein, the term "series of Notes" shall refer to all Notes having identical
terms but for authentication date and public offering price, and the term
"tranche of Notes" shall refer to all Notes having identical terms, including
authentication date and public offering price.
Notes will bear interest at a fixed rate (the "Fixed Rate Notes"), which
may be zero in the case of certain original issue discount notes (the "OID
Notes"), or at floating rates (the "Floating Rate Notes"). The Notes will be
issued in U.S. dollars or other currencies (the "Specified Currency"). The Notes
may be issued in registered form without coupons ("Registered Notes"), in bearer
form with or without coupons ("Bearer Notes"), or in any combination of any such
registered or bearer forms. Each Bearer Note initially will be represented by a
temporary global Note (each, a "Temporary Global Note") delivered to a common
depositary located outside the United States (the "Common Depositary") for
Euroclear Bank S.A./N.V., as operator of the Euroclear System ("Euroclear") and
Clearstream Banking, societe anonyme ("Clearstream, Luxembourg") and
subsequently by a permanent global Note (each, a "Permanent Global Note") and/or
one or more definitive Bearer Notes (each, a "Definitive Bearer Note") or, under
certain circumstances, for definitive Registered Notes. If so specified in the
applicable Pricing Supplement (as defined below), a tranche or series of Notes
may also be held in alternative clearance systems.
The Notes are described in an Offering Circular prepared by each Issuer
(including GE Capital in its capacity as Guarantor of Notes issued by an Issuer
other than GE Capital) which may be amended from time to time (the "Offering
Circular"). The terms of each tranche of Notes issued under the Fiscal Agency
Agreement will be described in a supplement to the Offering Circular (each such
supplement hereinafter referred to as a "Pricing Supplement"). The term
"Offering Circular" is used herein to describe the Offering Circular together
with the applicable Pricing Supplement unless the context otherwise required.
In case of any conflict between these Administrative Procedures and either
the Euro MTN Distribution Agreement or the Fiscal Agency Agreement, the terms of
the Euro MTN Distribution Agreement or the Fiscal Agency Agreement,
respectively, shall govern. Capitalized terms used but not defined herein shall
have the meanings assigned to such terms in the Euro MTN Distribution Agreement.
A-1-2
ADMINISTRATIVE PROCEDURES
Issuance:
Bearer Notes. Each Bearer Note will be dated and issued as of the
date of authentication by the Fiscal Agent. Each Note will bear
an original issue date, which will be (i) with respect to a
Temporary Global Note (or any portion thereof), the date of its
original issue as specified in such Temporary Global Note or (ii)
with respect to any Permanent Global Note or Definitive Bearer
Note (or portion thereof) issued subsequently upon transfer or
exchange of a Bearer Note or in lieu of a destroyed, lost or
stolen Bearer Note, the original issue date of the predecessor
Bearer Note, regardless of the date of authentication of such
subsequently issued Bearer Note.
Registered Notes. Except as described below, each Registered Note
will be dated and issued as of the date of its authentication by
the Authenticating Agent. Each Registered Note will bear an
original issue date, which will be (i) with respect to an
original Registered Note (or any portion thereof), its original
issuance date (which will be the settlement date), (ii) with
respect to any Registered Note (or portion thereof) issued
subsequently upon transfer or exchange of a Registered Note or in
lieu of a destroyed, lost or stolen Registered Note, the original
issuance date of the predecessor Registered Note, regardless of
the date of authentication of such subsequently issued Registered
Note and (iii) with respect to any Registered Note (or portion
thereof) issued in exchange for an interest in a Permanent Global
Note, the last date on which interest was paid on such Permanent
Global Note or any predecessor Note.
Registration:
Registered Notes will be issued only in fully registered form
without coupons.
Guarantee:
Each Note issued by an Issuer other than GE Capital will have the
Guarantee of the Guarantor endorsed thereon.
Transfers and
Exchanges:
Bearer Notes. Transfers of interests in a Temporary or Permanent
Global Note will be made by Euroclear or Clearstream, Luxembourg
in accordance with its customary operating procedures. Title to
definitive Bearer Notes and coupons will pass by physical
delivery. The bearer of each coupon, whether or not attached to a
definitive Bearer Note, shall be subject to and bound by all the
provisions contained in the definitive Bearer Note to which such
coupon relates. The bearer of any definitive Bearer Note and any
coupon may, to the fullest extent permitted by applicable law, be
treated at all times, by all persons and for all purposes as the
absolute owner of such
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definitive Bearer Note or coupon, as the case may be, regardless
of any notice of ownership, theft or loss or of any writing
thereon. Bearer Notes may be exchanged, if so provided in the
applicable Pricing Supplement, for Registered Notes.
Registered Notes. A Registered Note may be presented for transfer
or exchange at the corporate trust office of the Registrar or any
Transfer Agent appointed under the Fiscal Agency Agreement.
Registered Notes will be exchangeable for other Registered Notes
having identical terms but different denominations without
service charge. Registered Notes will not be exchangeable for
Bearer Notes.
Maturities:
Each Note will mature on a date from nine months or more from its
date of issue; provided, however, Notes denominated in Specified
Currencies other than US dollars may be subject to restrictions
on maturities as provided for in the Euro MTN Distribution
Agreement or as otherwise may be required by regulations of the
applicable central bank or similar monetary authority of the
country issuing the Specified Currency.
Specified Currency:
The currency denomination with respect to any Note and the
payment of interest and the repayment of principal with respect
to any such Note shall be as set forth therein and in the
applicable Pricing Supplement.
Denominations:
Unless otherwise provided in the applicable Pricing Supplement,
the following denominations shall apply:
(a) Definitive Bearer Notes. Definitive Bearer Notes will be
issued in denominations of 100,000 units, 10,000 units or
1,000 units of the Specified Currency indicated on the face
of such Note;
(b) Global Bearer Notes. Global Bearer Notes will be issued
in denominations of 1,000 units of the Specified Currency
indicated on the face thereof and integral multiples
thereof;
(c) Registered Notes. Registered Notes will be issued in
denominations of 10,000 units of the Specified Currency
indicated on the face of such Note or an integral multiple
of 1,000 units of such Specified Currency in excess thereof;
provided, however, Notes denominated in Specified Currencies
other than US Dollars may be subject to denomination
restrictions as set forth in the Euro MTN Distribution
Agreement or as otherwise may be required by regulations of
the applicable central bank or similar
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monetary authority of the country issuing the Specified
Currency.
Global Notes and Definitive
Bearer and Registered Notes:
Until the 40th day following the date of issuance of any
tranche of Bearer Notes or such other date as may be
required to comply with the terms of Regulation S
("Regulation S") under the U.S. Securities Act of 1933, as
amended, as described in the Euro MTN Distribution Agreement
(the "Exchange Date"), and until Final Certification (as
defined below) in accordance with TEFRA D as described in
the Euro MTN Distribution Agreement, such tranche of Bearer
Notes will be represented by one or more Temporary Global
Notes in bearer form without interest coupons. The relevant
Issuer shall execute, and upon the instructions of the
relevant Issuer the Authenticating Agent shall complete and
authenticate, such Temporary Global Note upon the same
conditions and in substantially the same manner, and with
the same effect, as an individual definitive Bearer Note. On
or prior to the settlement date (which will normally be the
original issue date) with respect to such Notes, the
Authenticating Agent shall deposit the Temporary Global Note
with the Common Depositary in the manner specified below
under "Settlement Procedures; Bearer Notes". The interest of
each beneficial owner of Bearer Notes represented by such
Temporary Global Note will be credited to the appropriate
account with Euroclear or Clearstream, Luxembourg, as
specified below under "Interest -- General; Bearer Notes".
On or after the Exchange Date and provided that Final
Certification (as described below) has occurred, the
interest of the beneficial owners of the Notes represented
by the Temporary Global Note shall be cancelled and such
interests shall thereafter be represented by a Permanent
Global Note or Definitive Bearer Notes or, if provided in
the applicable Pricing Supplement, by definitive Registered
Notes. The interest of each beneficial owner of Bearer Notes
represented by a Permanent Global Note will be credited to
the appropriate account with Euroclear or Clearstream,
Luxembourg.
The beneficial owner of an interest in a Permanent Global
Note may, at any time, upon 30 days' written notice to the
Fiscal Agent as provided in the Fiscal Agency Agreement
given by such beneficial owner through either Euroclear or
Clearstream, Luxembourg, as the case may be, exchange its
beneficial interest in
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such Permanent Global Note for one or more Definitive Bearer
Notes (or, if provided in the applicable Pricing Supplement,
a Registered Note) equal in aggregate principal amount to
such beneficial interest. Upon receipt by the Fiscal Agent
of an initial request to exchange an interest in a Permanent
Global Note for a Definitive Bearer Note or Notes, all other
interests in such Permanent Global Note shall, so long as
Euroclear or Clearstream, Luxembourg shall so require, be
exchanged for Definitive Bearer Notes. Such exchange shall
occur at no expense to the beneficial owners as soon as
practicable after the receipt of the initial request for
Definitive Bearer Notes. After such exchange has occurred,
all remaining interests in the temporary global Bearer Note
will be exchangeable only for definitive Bearer Notes or (if
so provided in the applicable Pricing Supplement) for
definitive Registered Notes.
In all events, Bearer Notes will be delivered by the Fiscal
Agent only outside the United States to non-US persons.
Final Certification:
Final Certification with respect to a Temporary Global Note
shall mean the delivery by Euroclear or Clearstream,
Luxembourg, as the case may be, to the Fiscal Agent of a
signed certificate (a "Clearance System Certificate") in
substantially the form set forth in Exhibit B-1 to the
Fiscal Agency Agreement with respect to the Notes being
exchanged, dated no earlier than the Exchange Date for such
Notes, to the effect that Euroclear or Clearstream,
Luxembourg, as the case may be, has received certificates
("Certificates of Non-U.S. Beneficial Ownership") in the
form substantially set forth in Exhibit B-2 to the Fiscal
Agency Agreement with respect to each of such Notes, which
Certificates of Non-U.S. Beneficial Ownership shall be dated
no earlier than ten days before the Exchange Date and shall
be delivered by the account holders appearing on its records
as entitled to such Notes.
Interest:
The following is a summary of terms of the Notes with
respect to interest and is for informational purposes only;
the terms of each Note as described in the Pricing
Supplement and the Offering Circular shall govern in the
case of any conflict with the provisions set forth below.
Terms used but not defined herein shall have the meanings
assigned to them in the Offering Circular.
General: Bearer Notes. Interest on each Bearer Note will
accrue from and including the original issue date of such
Note for the first interest period and from and including
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the most recent date to which interest has been paid for all
subsequent interest periods. Each payment of interest on a
Bearer Note will include interest accrued from and including
the next preceding Interest Payment Date in respect of which
interest has been paid (or from and including the date of
issue, if no interest has been paid) to but excluding the
Interest Payment Date; provided, however, that in the case
of Floating Rate Notes on which the interest rate is reset
daily or weekly, each interest payment will include interest
accrued from and including the date of issue or from but
excluding the fifteenth calendar day preceding the next
preceding Interest Payment Date (whether or not such
fifteenth calendar day is a Business Day), unless otherwise
specified in the applicable Pricing Supplement; and
provided, further, that interest in respect of any Interest
Payment Date on any interest in a Temporary Global Note for
which Final Certification has not been made shall not be
paid until the occurrence of the earlier of (1) Final
Certification with respect to such interest in such
Temporary Global Note and (2) in the case of an Interest
Payment Date occurring between the original issue date and
the Exchange Date, delivery by Euroclear or Clearstream,
Luxembourg, as the case may be, to the Fiscal Agent of a
Clearing System Certificate dated no earlier than such
Interest Payment Date to the effect that Euroclear or
Clearstream, Luxembourg, as the case may be, has received
Certificates of Non-U.S. Beneficial Ownership with respect
to such interests in the Temporary Global Note, which
Certificates of Non-U.S. Beneficial Ownership shall have
been dated no earlier than ten days before such Interest
Payment Date and shall be signed by the account holders
appearing on its records as entitled to such Notes.
Fixed Rate Bearer Notes. Unless otherwise specified in the
applicable Pricing Supplement, interest payments on Fixed
Rate Bearer Notes will be made semi-annually on March 15 and
September 15 of each year and at maturity or upon any
earlier redemption or repayment.
Floating Rate Bearer Notes. Interest payments will be made
on Floating Rate Bearer Notes monthly, quarterly,
semi-annually or annually. Except as provided below or as
specified in the applicable Pricing Supplement, interest
will be payable, in the case of Floating Rate Bearer Notes
with a daily, weekly or monthly Interest Reset Date, on the
third Wednesday of each month or on the third Wednesday of
March, June, September and December, as specified pursuant
to Settlement Procedure "A" below; in the case of Notes with
a quarterly Interest Reset Date, on
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the third Wednesday of March, June, September and December
of each year; in the case of Notes with a semi-annual
Interest Reset Date, on the third Wednesday of the two
months specified pursuant to Settlement Procedure "A" below
and in the case of Notes with an annual Interest Reset Date,
on the third Wednesday of the month specified pursuant to
Settlement Procedure "A" below and, in each case, on the
Maturity Date. If any such Interest Payment Date is not a
Business Day, the provisions set forth under "Payments of
Principal and Interest -- Bearer Notes" shall apply.
General: Registered Notes. Interest on each Registered Note
will accrue from and including the original issue date of
such Note for the first interest period and from and
including the most recent date to which interest has been
paid for all subsequent interest periods. Each payment of
interest on a Registered Note will include interest accrued
from and including the next preceding Interest Payment Date
in respect of which interest has been paid (or from and
including the date of issue, if no interest has been paid)
to but excluding the Interest Payment Date, provided,
however, that in the case of Floating Rate Notes which reset
daily or weekly, interest payments will include interest
from and including the date of issue or from but excluding
the last Regular Record Date to which interest has been
paid, as the case may be, through and including the Regular
Record Date next preceding the Interest Payment Date, unless
otherwise specified in the applicable Pricing Supplement;
and provided, further, that at the Maturity Date, the
interest payable will include interest accrued to but
excluding the Maturity Date.
Fixed Rate Registered Notes. Unless otherwise specified in
the applicable Pricing Supplement, interest payments on
Fixed Rate Registered Notes will be made semi-annually on
March 15 and September 15 of each year and at the Maturity
Date; provided, however, that in the case of Registered
Fixed Rate Notes issued between a Regular Record Date and an
Interest Payment Date, the first interest payment will be
made on the Interest Payment Date following the next
succeeding Regular Record Date.
Floating Rate Registered Notes. Interest payments will be
made on Floating Rate Registered Notes monthly, quarterly,
semiannually or annually. Except as provided below or as
specified in the applicable Pricing Supplement, interest
will be payable, in the case of Floating Rate Registered
Notes with a daily, weekly or
A-1-8
monthly Interest Reset Date, on the third Wednesday of each
month or on the third Wednesday of March, June, September
and December, as specified pursuant to settlement procedure
"AA" below; in the case of Notes with a quarterly Interest
Reset Date, on the third Wednesday of March, June, September
and December of each year; in the case of Notes with a
semi-annual Interest Reset Date, on the third Wednesday of
the two months specified pursuant to Settlement Procedure
"AA" below; and in the case of Notes with an annual Interest
Reset Date, on the third Wednesday of the month specified
pursuant to Settlement Procedure "AA" below and, in each
case, on the Maturity Date; provided, however, that in the
case of Registered Floating Rate Notes issued between a
Regular Record Date and an Interest Payment Date, the first
interest payment will be made on the Interest Payment Date
following the next succeeding Record Date. If any such
Interest Payment Date is not a Business Day, the provisions
set forth under "Payments of Principal and Interest --
Registered Notes" shall apply.
Disclosure under Interest
Act (Canada):
In the case of Notes issued by GEC Canada, GEC Canada
Funding or GEC Card Canada whenever it is necessary to
compute any amount of interest in respect of the Notes for a
period of less than a full year, such interest shall be
calculated on the basis of a 360-day year consisting of 12
months of 30 days each. For purposes only of disclosure
under the Interest Act (Canada), the yearly rate of interest
to which interest so calculated is equivalent is the
interest rate set forth herein multiplied by a fraction the
numerator of which is the number of days in the calendar
year in which the same is to be ascertained and the
denominator of which is 360.
Calculation of Interest:
The following is a summary of terms of the Notes with
respect to the calculation of interest and is for
informational purposes only; the terms of each Note as
described in the Pricing Supplement and the Offering
Circular shall govern in the case of any conflict with the
provisions set forth below. Terms used but not defined
herein shall have the meanings assigned to them in the
Offering Circular.
Fixed Rate Notes. Interest will be calculated as specified
in the Offering Circular or as modified in the applicable
Pricing Supplement.
A-1-9
Floating-Rate Notes. Interest will be
calculated as specified in the Offering
Circular or as modified in the applicable
Pricing Supplement.
Payments of Principal
and Interest:
The following is a summary of terms of the
Notes with respect to the payment of
principal and interest and is for
informational purposes only; the terms of
each Note (as described in the Pricing
Supplement and the Offering Circular) and
the Fiscal Agency Agreement shall govern in
the case of any conflict with the provisions
set forth below. Terms used but not defined
herein shall have the meanings assigned to
them in the Fiscal Agency Agreement.
Bearer Notes. Except as otherwise provided
in the Bearer Notes, payment of the
principal amount of each Bearer Note at the
Maturity Date thereof will be made only upon
presentation and surrender of such Bearer
Note to the Principal Paying Agent or any
Paying Agent outside the United States. Such
payment, together with payment of interest
due at the Maturity Date of such Note, will
be made in funds available for immediate use
by the Principal Paying Agent or such Paying
Agent and in turn by the holder of such
Note. Bearer Notes presented to the
Principal Paying Agent or a Paying Agent at
the Maturity Date for payment will be
cancelled or destroyed by such paying agent
and delivered to the relevant Issuer with a
certificate of cancellation or destruction,
as applicable. All interest payments on a
Bearer Note (other than interest due at the
Maturity Date) will be made by check drawn
on the Principal Paying Agent (or another
person appointed by the Principal Paying
Agent) and delivered to an address outside
the United States by the Principal Paying
Agent to the person entitled thereto or by
wire transfer of immediately available to an
account maintained by the payee with a bank
located outside the United States.
Except as specified in "Interest -- General;
Bearer Notes" above, interest on a Temporary
Global Note or Permanent Global Note shall
be payable to the beneficial owner thereof
through credit to the account of such owner
or of the custodian bank of such owner with
Euroclear or Clearstream, Luxembourg. Except
as otherwise provided in the Bearer Notes,
interest on a definitive Bearer Note shall
be payable to the holder of the appropriate
coupon appertaining thereto only upon
presentation and surrender of such coupon at
the office of the Principal Paying Agent or
any other Paying Agent outside the United
States.
A-1-10
If any Interest Payment Date or the Maturity
Date or redemption or repayment date of a
Fixed Rate Bearer Note is not a Business
Day, the payment due on such day shall be
made on the next succeeding Business Day and
no interest shall accrue on such payment for
the period from and after such Interest
Payment Date or Maturity Date, as the case
may be. If any Interest Payment Date (other
than the Maturity Date) for any Floating
Rate Bearer Note would fall on a day that is
not a Business Day with respect to such
Note, such Interest Payment Date will be the
following day that is a Business Day with
respect to such Note at which time the
Issuer will pay additional interest that has
accrued up to but excluding such following
Business Day, except that, in the case of a
Bearer LIBOR Note, if such Business Day is
in the next succeeding calendar month, such
Interest Payment Date shall be the
immediately preceding day that is a Business
Day with respect to such Bearer LIBOR Note.
If the Maturity Date for any Floating Rate
Bearer Note would fall on a day that is not
a Business Day with respect to such Note,
the payment of principal, premium, if any,
and interest, if any, will be made on the
following day that is a Business Day with
respect to such Note, and no interest shall
accrue for the period from and after such
Maturity Date.
Registered Notes. Except as otherwise
provided in a Registered Note, the Principal
Paying Agent will pay the principal amount
of each Registered Note at the Maturity Date
upon presentation and surrender of such Note
to its offices. Such payment, together with
payment of interest due at the Maturity Date
of such Note, will be made in funds
available for immediate use by the Principal
Paying Agent and in turn by the holder of
such Note. Registered Notes presented to the
Principal Paying Agent at the Maturity Date
for payment will be cancelled or destroyed
and delivered to the relevant Issuer with a
certificate of cancellation or destruction,
as applicable. All interest payments on a
Registered Note (other than interest due at
the Maturity Date) will be made by check
drawn on the Principal Paying Agent (or
another person appointed by the Principal
Paying Agent) and mailed by the Principal
Paying Agent to the person entitled thereto
as provided in such Note and the Fiscal
Agency Agreement or by wire transfer of
immediately available funds. Following each
Regular Record Date, the Principal Paying
Agent will furnish the relevant Issuer with
a list of interest payments to be made on
the following Interest Payment Date for each
Registered Note and in total for all
Registered Notes. Interest at the Maturity
Date will be payable to the person to whom
the
A-1-11
payment of principal is payable. The
Principal Paying Agent will provide monthly
to the relevant Issuer lists of principal
and interest, to the extent ascertainable,
to be paid on Registered Notes maturing or
to be redeemed in the next month. The
Principal Paying Agent will be responsible
for withholding taxes on interest paid on
Registered Notes as required by applicable
law.
If any Interest Payment Date or the Maturity
Date of a Fixed Rate Registered Note is not
a Business Day, the payment due on such day
shall be made on the next succeeding
Business Day and no interest shall accrue on
such payment for the period from and after
such Interest Payment Date or Maturity Date,
as the case may be. If any Interest Payment
Date (other than the Maturity Date) for any
Floating Rate Registered Note would fall on
a day that is not a Business Day with
respect to such Note, such Interest Payment
Date will be the following day that is a
Business Day with respect to such Note at
which time the Issuer will pay additional
interest that has accrued up to but
excluding such following Business Day,
except that, in the case of a Registered
LIBOR Note, if such Business Day is in the
next succeeding calendar month, such
Interest Payment Date shall be the
immediately preceding day that is a Business
Day with respect to such Registered LIBOR
Note. If the Maturity Date for any Floating
Rate Registered Note would fall on a day
that is not a Business Day with respect to
such Note, the payment of principal,
premium, if any, and interest, if any, will
be made on the following day that is a
Business Day with respect to such Note, and
no interest shall accrue for the period from
and after such Maturity Date.
Preparation of If any offer to purchase a tranche of Notes
Pricing Supplement: is accepted by or on behalf of the relevant
Issuer, the relevant Issuer and (in the case
of Notes issued by an Issuer other than GE
Capital) the Guarantor will prepare a
pricing supplement (a "Pricing Supplement")
reflecting the terms of such tranche of Note
and will deliver a copy of such Pricing
Supplement to the relevant Agent as such
Agent shall request as soon as practicable,
but in no event later than 5 Business Days
following the date such offer to purchase
Notes is accepted. The relevant Agent will
cause such Pricing Supplement together with
the Offering Circular to be delivered to
each purchaser of such tranche of Note. In
addition, the relevant Issuer shall forward
the Pricing Supplement to the Fiscal Agent
as soon as it becomes available but in no
event later than the issue date.
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In each instance that a Pricing Supplement
is prepared, the Agents receiving such
Pricing Supplement will affix the Pricing
Supplement to the Offering Circular prior to
their use. Outdated Pricing Supplements, and
the Offering Circular to which they are
attached (other than those retained for
files), will be destroyed.
Settlement: The receipt by the relevant Issuer of
immediately available funds in exchange for
the delivery of an authenticated Temporary
Global Note to the Common Depositary in the
manner described in "Settlement Procedures;
Bearer Notes" below or an authenticated
Registered Note delivered to the relevant
Agent and such Agent's delivery of such Note
against receipt of immediately available
funds shall constitute "settlement" with
respect to such Note. All orders accepted by
the relevant Issuer will be settled on such
date as the relevant Issuer and the
purchaser shall agree upon.
Settlement Procedures; Settlement Procedures with regard to each
Bearer Notes: Bearer Note sold by each Issuer to or
through an Agent shall be as follows:
A. The relevant Agent will advise the
relevant Issuer by telephone that such
Note is initially a Bearer Note and of
the following settlement information:
1. Principal amount.
2. Maturity Date.
3. In the case of a Fixed Rate Bearer
Note, the Interest Rate, the
frequency of interest payments, and
whether such Note is an Amortizing
Note and, if so, the amortization
schedule, or, in the case of a
Floating Rate Bearer Note, the
Initial Interest Rate (if known at
such time), Interest Payment Dates,
Interest Payment Period,
Calculation Agent, Base Rate, Index
Maturity, Interest Reset Period,
Interest Reset Dates, Spread or
Spread Multiplier (if any), Minimum
Interest Rate (if any), Maximum
Interest Rate (if any) and the
Alternate Rate Event Spread (if
any).
4. Redemption or repayment provisions,
if any.
A-1-13
5. Settlement date and time.
6. Issue Price.
7. Denominations.
8. Specified Currency.
9. Agent's commission, if any,
determined as provided in the Euro
MTN Distribution Agreement.
10. Agent's account number at Cedelbank
or the Euroclear Operator.
11. Whether the Note is an Indexed
Note, and if it is an Indexed Note,
the Indexed Currency, the Currency
Base Rate and the Determination
Agent.
12. Whether the Note is a Dual Currency
Note, and if it is a Dual Currency
Note, the Face Amount Currency,
the Optional Payment Currency,
the Designated Exchange Rate, the
Option Election Dates and the
Option Value Calculation Agent.
13. If applicable, wire transfer
instructions including name of
banking institution where transfer
is to be made and account number.
14. Whether such Note is to be listed
on the Luxembourg Stock Exchange,
Euronext Amsterdam N.V., the
Singapore Exchange Securities
Trading Limited or on or by any
other exchange competent listing
authority and/or quotation system.
15. Any other applicable terms.
B. The relevant Issuer will advise the
Fiscal Agent by telephone or electronic
transmission confirmed in writing at any
time on the sale date of the information
set forth in Settlement Procedure A
above. The Fiscal Agent will forward such
information to the Listing Agent if such
series of Notes is listed on the
Luxembourg Stock Exchange. The relevant
Issuer will also
A-1-14
give the Fiscal Agent written instructions
regarding the transfer of funds. The
relevant Issuer will send a copy of such
instructions to the relevant Agent or
Agents.
The Fiscal Agent shall telephone each of
Euroclear or Clearstream, Luxembourg with a
request for a security code for each tranche
agreed to be issued, which security code or
codes will be notified by the Fiscal Agent
to the relevant Issuer and the relevant
Agent or Agents.
The relevant Issuer and (in the case of
Notes issued by an Issuer other than GE
Capital) the Guarantor shall prepare and
cause to be delivered to the Fiscal Agent a
Pricing Supplement to the Offering Circular
describing the terms of the particular
tranche of Notes.
C. In accordance with the written instructions
and the applicable Pricing Supplement, the
Fiscal Agent shall prepare and authenticate
a Temporary Global Note for each tranche
which the relevant Issuer has agreed to
sell, the settlement for which tranche is to
occur on the settlement date. The Temporary
Global Note will then be delivered to the
Common Depositary. The Fiscal Agent will
also give instructions to Euroclear or
Clearstream, Luxembourg to credit the Notes
represented by such Temporary Global Notes
delivered to such Common Depositary to the
Fiscal Agent's distribution account at
Euroclear or Clearstream, Luxembourg, as the
case may be. The Fiscal Agent will instruct
Euroclear or Clearstream, Luxembourg to
debit, on the settlement date, from the
distribution account of the Fiscal Agent the
number of Notes of each Tranche with respect
to which the relevant Agent has solicited an
offer to purchase and to credit, on the
settlement date, such Notes to the account
of such Agent with Euroclear or Clearstream,
Luxembourg against payment of the issue
price of such Notes. Each relevant Agent
shall give corresponding instructions to
Euroclear or Clearstream, Luxembourg.
D. Euroclear and Clearstream, Luxembourg shall
debit and credit accounts in accordance with
instructions received by them. The Fiscal
Agent shall pay the relevant Issuer the
aggregate net
A-1-15
proceeds received by it in immediately
available funds via a transfer of funds to
the account of the relevant Issuer with a
bank selected by such Issuer notified to the
Fiscal Agent from time to time in writing.
Settlement Procedures For sales by each Issuer of Bearer Notes
Timetable; Bearer Notes: to or through an Agent, Bearer Settlement
Procedures "A" through "D" above shall be
completed on or before the respective times
set forth below:
Settlement Procedure Bearer Notes
Time
A 12:00 P.M. (NYC time) three days
before settlement date
B 9:00 A.M. (London time) two days
before settlement date
C 3:45 P.M. (London time) on day before
settlement date
D 5:00 P.M. (NYC time) on settlement
date
Settlement Procedures; Settlement Procedures with regard to each
Registered Notes: Registered Note sold by each Issuer to or through
an Agent shall be as follows:
AA. The relevant Agent will advise the relevant
Issuer by telephone that such Note is a
Registered Note and of the following
settlement information:
1. Name in which such Note is to be registered
("Registered Owner").
2. Address of the Registered Owner and address
for payment of principal and interest.
3. Taxpayer identification number of the
Registered Owner (if available); the Agent
shall request that the purchasers of the
Notes prepare a Form W-8 or other applicable
form required by the United States Internal
Revenue Code of 1986, as amended (the
"Code") and cause such form to be delivered
to the Fiscal and Paying Agent on or prior
to the settlement date.
A-1-16
4. Principal amount.
5. Maturity Date.
6. In the case of a Fixed Rate Registered Note,
the Interest Rate, the frequency of interest
payments and whether such Note is an
Amortizing Note and, if so, the amortization
schedule, or, in the case of a Floating Rate
Registered Note, the Initial Interest Rate
(if known at such time), Interest Payment
Dates, Interest Payment Period, Calculation
Agent, Base Rate, Index Maturity, Interest
Reset Period, Interest Reset Dates, Spread
or Spread Multiplier (if any), Minimum
Interest Rate (if any), Maximum Interest
Rate (if any) and the Alternate Rate Event
Spread (if any).
7. Redemption or repayment provisions, if any.
8. Settlement date and time.
9. Issue Price.
10. Denominations.
11. Specified Currency.
12. Agent's commission, if any, determined as
provided in the Euro MTN Distribution
Agreement.
13. Whether the Note is issued with more than a
de minimis amount of discount.
14. Whether the Note is an Indexed Note, and if
it is an Indexed Note, the Indexed
Currency, the Currency Base Rate and the
Determination Agent.
15. Whether the Note is a Dual Currency Note,
and if it is a Dual Currency Note, the Face
Amount Currency, the Optional Payment
Currency, the Designated Exchange Rate, the
Option Election Dates and the Option Value
Calculation Agent.
16. If applicable, wire transfer instructions,
including name of banking institution
where transfer is to be made and account
number.
A-1-17
17. Whether such Note is to be listed on the
Luxembourg Stock Exchange, Euronext
Amsterdam N.V., Singapore Exchange
Securities Trading Limited or on or by any
other exchange competent listing authority
and/or quotation system.
18. Any other applicable terms.
BB. The relevant Issuer will advise the Fiscal
Agent by telephone or electronic
transmission (confirmed in writing at any
time on the sale date) of the information
set forth in Settlement Procedure "AA"
above.
CC. The relevant Issuer will have delivered to
the Authenticating Agent an executed Note.
The Authenticating Agent will complete such
Note and authenticate such Note and deliver
it through the Fiscal Agent (with the
confirmation) to the relevant Agent, and
such Agent will acknowledge receipt of the
Note. Such delivery will be made only
against such acknowledgment of receipt and
evidence that instructions have been given
by such Agent for payment to the account of
the relevant Issuer, in funds available for
immediate use, of an amount equal to the
price of such Note less such Agent's
commission, if any; provided however, the
relevant Issuer and the Fiscal Agent may
agree on different delivery procedures for
definitive Registered Notes denominated in
Specified Currencies other than U.S.
dollars. In the event that the instructions
given by such Agent for payment to the
account of such Issuer are revoked, such
Issuer will as promptly as possible wire
transfer to the account of such Agent an
amount of immediately available funds equal
to the amount of such payment made.
The Principal Paying Agent shall pay the
relevant Issuer the aggregate net proceeds
received by it in immediately available
funds via a transfer of funds to the account
of the relevant Issuer maintained at a bank
selected by such Issuer notified to the
Principal Paying Agent from time to time in
writing.
DD. Unless the relevant Agent purchased such
Note for its own account, such Agent will
deliver such Note (with confirmation) to the
customer
A-1-18
against payment in immediately payable
funds. Such Agent will obtain the
acknowledgment of receipt of such Note. If
the relevant Agent purchased such Note for
its own account, such Agent will accept
delivery of such Note against payment in
immediately available funds, and will
deliver an acknowledgement of receipt of
such Note.
EE. Periodically, the Fiscal Agent will send to
the relevant Issuer a statement setting
forth the principal amount of the Registered
Notes outstanding as of that date under the
Fiscal Agency Agreement and setting forth a
brief description of any sales of which such
Issuer has advised the Fiscal Agent but
which have not yet been settled.
Settlement Procedures For sales by the relevant Issuer of
Timetable; Registered Registered Notes to or through an Agent,
Notes: Procedures "AA" through "DD" set forth above
shall be completed on or before the
respective times (London Time) set forth
below:
Settlement
Procedure;
Registered
Notes Time
AA 2:00 P.M. on day before settlement
date
BB 3:00 P.M. on day before settlement
date
CC 2:15 P.M. on settlement date
DD 3:00 P.M. on settlement date
Failure to Settle: Bearer Notes. If any Agent shall have advanced its
own funds for payment against subsequent receipt
of funds from the purchaser and if a purchaser
shall fail to make payment for a Note, such Agent
will promptly notify the relevant Issuer, the
Fiscal Agent, the Principal Paying Agent, the
Common Depositary and Euroclear and Clearstream,
Luxembourg by telephone, promptly confirmed in
writing (but no later than the next Business Day).
In such event, the relevant Issuer shall promptly
instruct the Fiscal Agent to cancel the
purchaser's interest in the appropriate Temporary
Global Note representing
A-1-19
such Note. Upon (i) confirmation from the Fiscal
Agent in writing (which may be given by telex or
telecopy) that the Fiscal Agent has cancelled such
purchaser's interest in such Temporary Global Note
and upon (ii) confirmation from such Agent in
writing (which may be given by telex or telecopy)
that such Agent has not received payment from the
purchaser, the relevant Issuer will promptly pay
to such Agent an amount in immediately available
funds equal to the amount previously paid by such
Agent in respect of such Bearer Note. Such payment
will be made on the settlement date, if possible,
and in any event not later than 12:00 noon (New
York City time) on the Business Day following the
settlement date. The Fiscal Agent and the Common
Depositary will make or cause to be made such
revisions to such Temporary Global Note as are
necessary to reflect the cancellation of such
portion of such Temporary Global Note.
If a purchaser shall fail to make payment for the
Note for any reason other than the failure of such
Agent to provide the necessary information to the
relevant Issuer as described above for settlement
or to provide a confirmation to the purchaser
within a reasonable period of time as described
above, and if such Agent shall have otherwise
complied with its obligations hereunder and in the
Euro MTN Distribution Agreement, the relevant
Issuer will reimburse such Agent on an equitable
basis for such Agent's loss of the use of funds
during the period when they were credited to
account of such Issuer or the Fiscal Agent.
Immediately upon such cancellation, the Fiscal
Agent will make appropriate entries in its records
to reflect the fact that a settlement did not
occur with respect to such Note.
Registered Notes. If a purchaser fails to accept
delivery of and make payment for any Registered
Note, the relevant Agent will notify the relevant
Issuer and the Fiscal Agent by telephone and
return such Note to the Fiscal Agent. Upon receipt
of such notice, the relevant Issuer will
immediately wire transfer to the account of such
Agent an amount equal to the amount previously
credited thereto in respect of such Note. Such
wire transfer will be made on the settlement date,
if possible, and in any event not later than the
Business Day following the settlement date. If a
purchaser shall fail to make payment for the Note
for any reason other than the failure of such
Agent to provide the necessary information to the
relevant Issuer as described above for
A-1-20
settlement or to provide a confirmation to the
purchaser within a reasonable period of time as
described above, and if such Agent shall have
otherwise complied with its obligations hereunder
and in the Euro MTN Distribution Agreement, then
the relevant Issuer will reimburse such Agent or
the Principal Paying Agent, as appropriate, on an
equitable basis for its loss of the use of the
funds during the period when they were credited to
the account of such Issuer. Immediately upon
receipt of the Registered Note in respect of which
such failure occurred, the Principal Paying Agent
will xxxx such Note "cancelled," make appropriate
entries in the Principal Paying Agent's records
and send such Note to the relevant Issuer.
Notice of Issuance to The Listing Agent will provide information
Luxembourg Stock with respect to each tranche of Notes to
Exchange: be listed on the Luxembourg Stock Exchange to such
Exchange and will advise the relevant Issuer and
the relevant Agent in writing as to the
effectiveness of the listing of such Notes by the
close of business on the related settlement date.
To the extent required by the Luxembourg Stock
Exchange, the Agents will provide the Listing
Agent with secondary market information regarding
any tranche of Notes listed on the Luxembourg
Stock Exchange and the Listing Agent will provide
such information to the Luxembourg Stock Exchange.
Listing: The Listing Agent will, on a regular basis,
provide the Luxembourg Stock Exchange with such
information as such Exchange may require regarding
any tranches of Notes that are listed on such
Exchange and are issued and outstanding.
X-0-00
XXXXXXX X-0
[FORM OF CERTIFICATE TO BE GIVEN BY AN ACCOUNT
HOLDER OF EUROCLEAR, CLEARSTREAM, LUXEMBOURG]
CERTIFICATE
[General Electric Capital Corporation]
[GE Capital Australia Funding Pty. Ltd. (A.C.N. 085 675 467)]
[General Electric Capital Canada Inc.]
[GE Capital Canada Funding Company]
[GE Card Services Canada Inc.]
Euro Medium-Term Notes or Other Debt Securities
[Unconditionally Guaranteed by
General Electric Capital Corporation]
Represented by Temporary Global Note No. __.
This is to certify that as of the date hereof, and except as set forth below,
the above-captioned Notes held by you for our account [(A) are beneficially
owned by persons that are not residents of Canada, except residents of Canada to
whom the principal amount of Notes so beneficially owned has been sold and who
acquired the same in compliance with the securities laws of Canada or of the
applicable province or territory thereof; and (B)] (i) are owned by person(s)
that are not citizens or residents of the United States, corporations or
partnerships created or organized in or under the laws of the United States, any
state thereof or the District of Columbia (unless, in the case of a partnership,
Treasury regulations provide otherwise), estates whose income is subject to
United States federal income tax regardless of its source, or trusts if a court
within the United States is able to exercise primary supervision over the
administration of the trust and one or more United States persons have the
authority to control all substantial decisions of the trust (including certain
trusts in existence on August 20, 1996, and treated as United States person
prior to such date, that elect to continue to be treated as United States
persons) ("United States person(s)"), (ii) are owned by United States person(s)
that (a) are foreign branches of United States financial institutions (as
defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(iv)) ("financial
institutions") purchasing for their own account or for resale, or (b) acquired
the Notes through foreign branches of United States financial institutions and
who hold the Notes through such United States financial institutions on the date
hereof (and in either case (a) or (b), each such United States financial
institution hereby agrees, on its own behalf or through its agent, that you may
advise the Issuer or the Issuer's agent that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder), or (iii) are owned by United
States or foreign financial institution(s) for purposes of resale during the
restricted period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and in addition if the owner of the Notes is a United
States or foreign financial institution described in clause (iii) above (whether
or not also described in clause (i) or (ii)) such financial institution has not
acquired the Notes for purposes of resale directly or indirectly to a United
States person or to a person within the United States or its possessions.
B-1-22
As used herein, "United States" means the United States of America (including
the States and the District of Columbia) and its "possessions" including Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the date on
which you intend to submit your certification relating to the Notes held by you
for our account in accordance with your Operating Procedures if any applicable
statement herein is not correct on such date, and in the absence of any such
notification it may be assumed that this certification applies as of such date.
This certification excepts and does not relate to $ of such interest
in the above Notes in respect of which we are not able to certify and as to
which we understand exchange and delivery of definitive Notes (or, if relevant,
exercise of any rights or collection of any interest) cannot be made until we do
so certify.
We understand that this certification is required in connection with [certain
securities laws of Canada and] certain tax laws and, if applicable, certain
securities laws of the United States. In connection therewith, if administrative
or legal proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorize you to produce
this certification to any interested party in such proceedings.
Dated:
---------------
[To be dated no earlier than the 10th day before
[insert date of Interest Payment Date prior to Exchange Date]
[insert date of redemption or acceleration prior to Exchange Date]
[insert Exchange Date]]
[Name of Account Holder]
By:
(Authorized Signatory)
Name:
Title:
X-0-00
XXXXXXX X-0
[FORM OF CERTIFICATE TO BE GIVEN BY
EUROCLEAR, CLEARSTREAM, LUXEMBOURG]
CERTIFICATE
[General Electric Capital Corporation]
[GE Capital Australia Funding Pty. Ltd. (A.C.N. 085 675 467)]
[General Electric Capital Canada Inc.]
[GE Capital Canada Funding Company]
[GE Card Services Canada Inc.]
Euro Medium-Term Notes or Other Debt Securities
[Unconditionally Guaranteed by
General Electric Capital Corporation]
Represented by Temporary Global Note No. ____.
This is to certify that, based solely on certifications we have received in
writing, by tested telex or by electronic transmission from member organizations
appearing in our records as persons being entitled to a portion of the principal
amount set forth below (our "Member Organizations") substantially to the effect
set forth in Exhibit B-1 to the Third Amended and Restated Fiscal and Paying
Agency Agreement, as of the date hereof, _____ principal amount of the above-
captioned Notes [(A) is beneficially owned by persons that are not residents of
Canada, except residents of Canada to whom the principal amount of Notes so
beneficially owned has been sold and who acquired the same in compliance with
the securities laws of Canada or of the applicable province or territory
thereof; and (B)](i) is owned by persons that are not citizens or residents of
the United States, corporations or partnerships created or organized in or under
the laws of the United States, any state thereof or the District of Columbia
(unless, in the case of a partnership, Treasury regulations provide otherwise),
estates whose income is subject to United States federal income tax regardless
of its source, or trusts if a court within the United States is able to exercise
primary supervision over the administration of the trust and one or more United
States persons have the authority to control all substantial decisions of the
trust (including certain trusts in existence on August 20, 1996, and treated as
United States person prior to such date, that elect to continue to be treated as
United States persons) ("United States persons"), (ii) is owned by United States
persons that (a) are foreign branches of United States financial institutions
(as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(iv) ("financial
institutions") purchasing for their own account or for resale, or (b) acquired
the Notes through foreign branches of United States financial institutions and
who hold the Notes through such United States financial institutions on the date
hereof (and in either case (a) or (b), each such United States financial
institution has agreed, on its own behalf or through its agent, that we may
advise the Issuer or the Issuer's agent that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder), or (iii) is owned by United
States or foreign financial institutions for purposes of resale during the
restricted period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7), and to the further effect that United States or foreign
financial institutions described in clause (iii) above (whether or not
B-2-1
also described in clause (i) or (ii)) have certified that they have not acquired
the Notes for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions. As used
herein, "United States" means the United States of America (including the States
and the District of Columbia) and its "possessions" including Puerto Rico, the
U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana
Islands.
We further certify (i) that we are not making available herewith for exchange
any portion of the temporary global Note excepted as set forth herein and (ii)
that as of the date hereof we have not received any notification from any of our
Member Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith are no
longer true and cannot be relied upon as the date hereof.
We understand that this certification is required in connection with [certain
securities laws of Canada and] certain tax laws and, if applicable, certain
securities laws of the United States. In connection therewith, if administrative
or legal proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorize you to produce
this certification to any interested party in such proceedings.
Dated:
---------------
[To be dated no earlier than
[insert date of Interest Payment Date prior to Exchange Date]
[insert date of redemption or acceleration prior to Exchange Date]
[insert Exchange Date]]
[EUROCLEAR BANK S.A./N.V.
as Operator of the Euroclear System]
[CLEARSTREAM BANKING, societe anonyme]
[OTHER CLEARANCE SYSTEM]
By:
B-2-2
EXHIBIT C-1-1
[FORM OF CERTIFICATE TO BE GIVEN BY AN ACCOUNT
HOLDER OF EUROCLEAR AND CLEARSTREAM, LUXEMBOURG ]
CERTIFICATE
[General Electric Capital Corporation]
[GE Capital Australia Funding Pty. Ltd. (A.C.N. 085 675 467)]
[General Electric Capital Canada Inc.]
[GE Capital Canada Funding Company]
[GE Card Services Canada Inc.]
Euro Medium-Term Notes or Other Debt Securities
[Unconditionally guaranteed by
General Electric Capital Corporation]
Represented by Permanent Global Note No. __.
This is to certify that as of the date hereof, and except as set forth below,
the above-captioned Notes held by you for our account (i) are owned by person(s)
requesting definitive [Registered/Bearer] Notes in exchange for their interests
in the above-referenced permanent Global Note and (ii) such persons desire to
exchange _____ principal amount of the above-captioned Notes for definitive
[Registered/Bearer] Notes.
We undertake to advise you promptly by tested telex on or prior to the date on
which you intend to submit your certification relating to the Notes held by you
for our account in accordance with your Operating Procedures if any applicable
statement herein is not correct on such date, and in the absence of any such
notification it may be assumed that this certification applies as of such date.
This certification excepts and does not relate to $ of such interest
in the above Notes in respect of which we do not desire to exchange for
definitive Notes.
Dated: _______
[Name of Account Holder]
By:
Name:
Title:
C-1-1
EXHIBIT C-2
[FORM OF CERTIFICATE TO BE GIVEN BY
EUROCLEAR AND CLEARSTREAM, LUXEMBOURG]
CERTIFICATE
[General Electric Capital Corporation]
[GE Capital Australia Funding Pty. Ltd. (A.C.N. 085 675 467)]
[General Electric Capital Canada Inc.]
[GE Capital Canada Funding Company]
[GE Card Services Canada Inc.]
Euro Medium-Term Notes or Other Debt Securities
[Unconditionally Guaranteed by
General Electric Capital Corporation]
Represented by Permanent Global Note No. ____.
This is to certify that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion
of the principal amount set forth below (our "Member Organizations")
substantially to the effect set forth in Exhibit C-1 to the Third Amended and
Restated Fiscal and Paying Agency Agreement relating to such Notes, as of the
date hereof, principal amount of the above-captioned Notes (i) is owned by
person(s) requesting definitive [Registered/Bearer] Notes in exchange for their
interests in the above-referenced permanent Global Note and (ii) such persons
desire to exchange ______ principal amount of the above-captioned Notes for
definitive [Registered/Bearer] Notes.
We further certify (i) that we are making available herewith for
exchange all interests in the permanent global Note and (ii) that as of
the date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the permanent global Note
submitted herewith are no longer true and cannot be relied upon as the date
hereof.
Dated: __________________
[EUROCLEAR BANK S.A./N.V.
as Operator of the Euroclear System]
[CLEARSTREAM BANKING, societe
anonyme]
[OTHER CLEARANCE SYSTEM]
X-0-0
XXXXXXX X-0
[FORM OF GUARANTEE TO BE ENDORSED ON NOTES]
1. FOR VALUE RECEIVED, GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware
corporation (the "Guarantor"), hereby unconditionally and irrevocably guarantees
to the holder of the Note upon which this guarantee is endorsed the due and
punctual payment of any and all amounts required to be paid upon said Note
according to its terms, when, where and as the same shall become due and
payable, whether on an interest payment date, at maturity, upon redemption or
purchase or otherwise, in accordance with the terms thereof. Terms and
expressions defined in the Third Amended and Restated Fiscal and Paying Agency
Agreement dated as of May 23, 2002, as it may be further amended or supplemented
from time to time, among General Electric Capital Corporation, GE Capital
Australia Funding Pty. Ltd., General Electric Capital Canada Inc., GE Capital
Canada Funding Company, GE Card Services Canada Inc. and JPMorgan Chase Bank(the
"Fiscal Agency Agreement"), and the Notes shall have the same meanings herein,
except as otherwise defined herein or unless there is something in the subject
matter or context inconsistent therewith.
2. (a) In case of failure by [GE Capital Australia Funding Pty. Ltd.]
[General Electric Capital Canada Inc.] [GE Capital Canada Funding Company] [Card
Services Canada Inc.] [Name of Additional Issuer acceding to the Fiscal Agency
Agreement pursuant to Section 19 thereof] or its successors or assigns (the
"Issuer") punctually to pay any such amount, the Guarantor hereby agrees to
cause such payment to be made punctually when, where and as the same shall
become due and payable, whether at maturity, upon redemption or otherwise, and
as if such payment were made by the Issuer. The Guarantor hereby agrees that its
obligations hereunder shall be unconditional, irrespective of the validity,
legality or enforceability of the Note, the absence of any action to enforce the
same, the waiver or consent by the holder of the Note with respect to any
provisions thereof, the recovery of any judgment against the Issuer or any
action to enforce the same or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a guarantor.
(b) The Guarantor shall be subrogated to all rights of the holder of
the Note against the Issuer in respect of any amounts paid by the Guarantor
pursuant to the provisions of this Guarantee; provided that the Guarantor shall
not be entitled to enforce or receive any payment arising out of, or based upon,
such right of subrogation until all amounts due on or to become due on or in
respect of all of the Notes shall have been paid in full or duly provided for.
(c) The Guarantor hereby waives notice of acceptance of this
Guarantee and also waives notice of nonpayment of any and all amounts payable or
in respect of said Note or any part thereof.
(d) This Guarantee is unsecured and ranks equally with all other
unsecured and unsubordinated obligations of the Guarantor.
3. (a) The Guarantor will not merge or consolidate with any other
corporation or sell, convey, transfer or otherwise dispose of all or
substantially all of its properties to any other corporation, unless (i) either
the Guarantor shall be the continuing corporation or the successor corporation
(if other than the Guarantor) (the "successor corporation") shall be a
corporation organized under the laws of the United States of America or of a
state thereof and such successor corporation shall expressly assume the
D-1-1
due and punctual payments of all amounts due under this Guarantee and the due
and punctual performance of all of the covenants and obligations of the
Guarantor under this Guarantee endorsed on all the Notes, by supplemental
agreement satisfactory to the Fiscal and Paying Agent executed and delivered to
such Fiscal and Paying Agent by the successor corporation and the Guarantor and
(ii) the Guarantor 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 obligation.
(b) Upon any such merger or consolidation, sale, conveyance, transfer
or other disposition, such successor corporation shall succeed to and be
substituted for, and may exercise every right and power of and shall be subject
to all the obligations of, the Guarantor under this Guarantee, with the same
effect as if such successor corporation had been named as the Guarantor herein,
and the Guarantor shall be released from its liability as Guarantor under this
Guarantee and under the Fiscal Agency Agreement.
4. The Guarantor hereby certifies and warrants that all acts, conditions
and things required to be done and performed and to have happened precedent to
the creation and issuance of this Guarantee, and to constitute the same the
legal, valid and binding obligation of the Guarantor enforceable in accordance
with its terms, except that enforcement may be limited by bankruptcy,
insolvency, liquidation, reorganization and other laws of general application
relating to or affecting the rights of creditors or by general principles of
equity, including the limitation that specific performance, being an equitable
remedy, is discretionary and may not be ordered, have been done and performed
and have happened in due and strict compliance with all applicable laws.
5. This Guarantee shall be construed in accordance with and governed by
the laws of the State of New York, United States of America.
6. This Guarantee is dated the date of the Note upon which it is endorsed.
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be duly executed.
GENERAL ELECTRIC CAPITAL
CORPORATION
By:______________________
D-1-2
EXHIBIT E
[FORM OF ISSUER ACCESSION LETTER]
ISSUER ACCESSION LETTER
[DATE]
GENERAL ELECTRIC CAPITAL CORPORATION
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Senior Vice President - Corporate Treasury
and Global Funding Operation
[Name of Additional Issuer]
[Address]
Attention:_________________________
JPMORGAN CHASE BANK
Trinity Tower
9 Xxxxxx Xxxx Street
Xxxxxx X0X 0XX
Xxxxxx Xxxxxxx
Attention: Manager, Institutional Trust Services
Ladies and Gentlemen:
Reference is hereby made to the Third Amended and Restated Fiscal and Paying
Agency Agreement dated as of May 23, 2002 (the "Fiscal Agency Agreement") among
General Electric Capital Corporation, as an issuer and as guarantor ("GE
Capital"), the other issuers named therein or acceded thereto (together with GE
Capital, each an "Issuer"), and JPMorgan Chase Bank, as fiscal and paying agent
and X.X. Xxxxxx Bank Luxembourg S.A. as paying agent (the "Fiscal and Paying
Agent") pursuant to which Euro Medium-Term Notes and Other Debt Securities of
each such Issuer are distributed from time to time. Capitalized terms used but
not defined herein have the meanings assigned to such terms in the Fiscal Agency
Agreement.
1. Pursuant to Section 19(b)(i) of the Fiscal Agency Agreement, this Issuer
Accession Letter is being entered into by GE Capital, [Name of Additional
Issuer] (the "Company"), the Fiscal and Paying Agent and the Paying Agent
to provide for the accession of the Company as an Additional Issuer party
to the Fiscal Agency Agreement as of the date hereof (the "Accession
Date").
2. In accordance with Section 19(a) of the Fiscal Agency Agreement, GE
Capital and the Company hereby confirm that the Company is a Subsidiary
of GE Capital and that each Note issued by the Company shall be
irrevocably and unconditionally guaranteed by GE Capital.
3. In accordance with Section 19(b)(ii) and 19(b)(iii) of the Fiscal Agency
Agreement, GE Capital and the Company hereby certify to the Fiscal and
Paying Agent that each of the persons signing this Issuer Accession
Letter on behalf of the GE Capital and the Company is an Issuer
Authorized
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Representative as defined in Section 3(a) of the Fiscal Agency Agreement and
that each of the forms of Notes, including the form of the Guarantee appearing
thereon, attached hereto as Annex A-1 through A-[__] has been approved pursuant
to the authority delegated to such Issuer Authorized Representative by the Board
of Directors of each of GE Capital and the Company. In addition to the above,
the following persons are Issuer Authorized Representatives of the Company:
[List each Additional Issuer Authorized Representative, if any.]
4. In accordance with Section 19(b)(iv) of the Fiscal Agency Agreement, the
Company and the Guarantor hereby confirm that an Issuer Accession Notice
has been sent to each of the Agents party to the Euro MTN Distribution
Agreement, a copy of which is attached hereto as Annex B.
5. All notices to the Company under Section 20 of the Fiscal Agency
Agreement shall be deemed to have been given when sent by certified or
registered mail, postage prepaid, or by facsimile transmission to the
Company as follows (in each case with a copy to GE Capital at the address
or facsimile number appearing in Section 20 of the Fiscal Agency
Agreement):
[Company Name]
[Address]
Attention:___________________
Phone:_____________________
Fax:_______________________
Please countersign where indicated below to indicate your acceptance and
agreement to the foregoing, whereupon this Issuer Accession Letter shall become
a valid and binding agreement of the parties as of the date first above written.
Very truly yours,
GENERAL ELECTRIC CAPITAL
CORPORATION
By__________________________
Name:
Title:
[NAME OF ADDITIONAL ISSUER]
By__________________________
Name:
Title:
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Accepted and Agreed:
JPMORGAN CHASE BANK
By________________________________
Name:
Title:
X.X. XXXXXX BANK LUXEMBOURG S.A.
By________________________________
Name:
Title:
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