EXECUTION VERSION
SECOND AMENDED AND RESTATED
FISCAL AND PAYING AGENCY AGREEMENT
among
GENERAL ELECTRIC CAPITAL CORPORATION
GE CAPITAL AUSTRALIA (A.C.N. 008 562 534)
GE CAPITAL AUSTRALIA FUNDING PTY. LTD. (A.C.N. 085 675 467)
GE CAPITAL FINANCE AUSTRALIA (A.C.N. 008 583 588)
GENERAL ELECTRIC CAPITAL CANADA INC.
GE CAPITAL CANADA FUNDING COMPANY
GE CAPITAL CANADA RETAILER FINANCIAL SERVICES COMPANY
and
THE CHASE MANHATTAN BANK, LONDON BRANCH
Euro Medium-Term Notes and Other Debt Securities Due
9 Months or More
from Date of Issue
Dated as of March 31, 1999
TABLE OF CONTENTS
Page
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1. Appointment of Fiscal and Paying Agent....................................1
2. Notes Issuable in Series..................................................1
3. Execution and Authentication of Notes; Date and
Denomination of Notes.....................................................5
4. Exchange and Registration of Transfer of Notes............................8
5. Payments of Principal, Premium and Interest; Paying
Agents...................................................................11
6. Redemption; Sinking Funds; Repayment at the Option of
the Holder...............................................................15
7. Mutilated, Destroyed, Stolen or Lost Notes...............................19
8. Events of Default........................................................20
9. Additional Payments; Tax Redemption......................................25
10. Covenant of the Issuers and the Guarantor................................34
11. Obligations of the Fiscal and Paying Agent...............................34
12. Maintenance and Resignation of Fiscal and Paying Agent...................36
13. Paying Agency............................................................36
14. Merger, Consolidation, Sale or Conveyance................................38
15. Meetings of Holders of the Notes.........................................39
16. Consent of Holders.......................................................42
17. Stamp Taxes..............................................................42
18. Modifications and Amendments.............................................43
19. Accession of Additional Issuers..........................................44
20. Notices to Parties.......................................................45
21. Notices to and by Holders of the Notes...................................47
22. Business Day.............................................................48
23. Central Bank Reporting Requirements......................................48
24. Governing Law............................................................48
25. Consent to Service.......................................................48
26. Counterparts.............................................................48
27. Inspection of Agreement..................................................49
28. Descriptive Headings.....................................................49
29. Provisions Binding on Successors.........................................49
30. Official Acts by Successor Corporation...................................49
31. Severability.............................................................49
SECOND AMENDED AND RESTATED FISCAL AND PAYING AGENCY AGREEMENT, dated as
of March 31, 1999, between GENERAL ELECTRIC CAPITAL CORPORATION, a New York
corporation ("GE Capital"), GE CAPITAL AUSTRALIA (A.C.N. 008 562 534), a company
organized under the laws of the Australian Capital Territory ("GEC Australia"),
GE CAPITAL AUSTRALIA FUNDING PTY. LTD. (A.C.N. 085 675 467), a company organized
under the corporations laws of Victoria, Australia ("GEC Australia Funding"), GE
CAPITAL FINANCE AUSTRALIA (A.C.N 008 583 588), a company organized under the
laws of the Australian Capital Territory ("GEC Finance") (each of GEC Australia,
GEC Australia Funding and GEC Finance, an "Australian Subsidiary Issuer", and
together, the "Australian Subsidiary Issuers"), 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 CAPITAL CANADA
RETAILER FINANCIAL SERVICES COMPANY, a company incorporated under the laws of
the Province of Nova Scotia, Canada ("GEC Canada RFS") (each of GEC Canada, GEC
Canada Funding and GEC Canada RFS, a "Canadian Subsidiary Issuer", and together,
the "Canadian Subsidiary Issuers", and together with the Australian Subsidiary
Issuers and each Additional Issuer (as defined herein) acceding hereto pursuant
to Section 19 hereof, each an "Issuer" and together the "Issuers") and THE CHASE
MANHATTAN BANK, LONDON BRANCH, as Fiscal and Paying Agent (such agreement, as
further amended and supplemented from time to time, the "Agreement").
Pursuant to the Second Amended and Restated Euro MTN Distribution
Agreement, dated March 31, 1999, 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").
1. Appointment of Fiscal and Paying Agent. Each Issuer and (in the case of Notes
issued by an Issuer other than GE Capital) the Guarantor hereby appoint The
Chase Manhattan Bank, acting through its London Branch located at Trinity Tower,
9 ▇▇▇▇▇▇ ▇▇▇▇ Street, London E1 9YT, 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") 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. The Fiscal and Paying Agent hereby accepts such
appointment and agrees, upon such terms and subject to such conditions, to
perform its 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 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.
(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;
(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 other than the Specified Currency, the coin or currency in which
payment of the principal of, premium, if any, or interest on the Notes of
such Series shall be payable;
(13) 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 coin or currency other than the
Specified Currency, the period or periods within which, and the terms and
conditions upon which, such election
may be made;
(14) 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 a coin or currency other than the Specified Currency,
the manner in which such amounts shall be determined;
(15) 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;
(16) any Events of Default with respect to the Notes of such Series, if
not set forth herein;
(17) 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;
(18) the stock exchanges, if any, on which the Notes will be listed and
related information;
(19) any applicable restrictions on the transfer of any of the Notes of
such Series; and
(20) 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 ▇▇▇▇▇▇ Guaranty Trust Company of New York, Brussels Office, as
operator of the Euroclear System (the "Euroclear Operator"), Cedelbank, 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 on which
such Notes may be listed, 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
(a) Execution, delivery and safekeeping of Notes. The Notes and, if 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 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 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 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.
(c) Authentication of temporary global Notes. Unless otherwise specified 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 "Depositary") for the accounts of the Euroclear Operator and Cedelbank 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 the Euroclear Operator, Cedelbank 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 business day in the city of London, England, but shall instead be made on
the next succeeding day that is a business day in the city of London, England.
(d) Exchange of temporary global Notes; certification requirements. On or 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 the Euroclear Operator, Cedelbank 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 the Euroclear Operator, Cedelbank 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.
On or after the Exchange Date for any Series of Notes, upon the request of the
Depositary, acting on behalf of the Euroclear Operator, Cedelbank 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 the Euroclear
Operator, Cedelbank 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 Depositary for the accounts of the Euroclear Operator, Cedelbank 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 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.
(e) Exchange of permanent global Note; certification requirements. 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 the
Euroclear Operator, Cedelbank, or other clearance system, as the case may be, to
request such exchange on their behalf and shall deliver to the Euroclear
Operator, Cedelbank 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 the Euroclear Operator,
Cedelbank 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 Depositary, acting on behalf of
the Euroclear Operator, Cedelbank 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 the Euroclear
Operator, Cedelbank 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 the Euroclear Operator, Cedelbank 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 the
Euroclear Operator, Cedelbank 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
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
duly authorized officer or attorney-in-fact of the Fiscal and Paying Agent and,
in the case of permanent global Registered Notes, deposited with the Depositary
for the accounts of the Euroclear Operator, Cedelbank, 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 the Euroclear Operator, Cedelbank, 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.
(a) Exchange of Registered Notes. Registered Notes of any Series may be
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
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 Registrar 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 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.
(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 the Euroclear Operator, Cedelbank or,
if specified in the Corporate Order, other recognized clearing system
substantially in the form set forth in Exhibit B-1 and instruct the Euroclear
Operator, Cedelbank 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 the Euroclear Operator, Cedelbank 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 the Euroclear Operator,
Cedelbank, 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 the
Euroclear Operator, Cedelbank 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 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.
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
Chase Manhattan Bank, London Branch 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 and where notices and demands to or upon
such Issuer and the Guarantor in respect of the Bearer Notes or of this
Agreement may be served. Such principal office 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. 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.
(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 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 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 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 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 an Australian Subsidiary
Issuer, an event of default with respect to any other Series
of Notes issued or hereafter issued by such Australian
Subsidiary Issuer pursuant to this Agreement
or as defined in any indenture or instrument evidencing or
under which such respective Australian 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 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
such Australian 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 Australian 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 Australian 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 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 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 an Australian Subsidiary
Issuer, such Australian Subsidiary Issuer 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 such Australian
Subsidiary Issuer or all or substantially all of the property
of such Australian Subsidiary Issuer, 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
(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;
(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 required to
be withheld by any paying agent from any payment of principal
of, premium or interest on, any Note, if such payment can be
made without such withholding by any other paying agent in a
city in Western Europe;
(vi) 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;
(vii) 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
(viii) any combination of any of items (i), (ii), (iii), (iv), (v),
(vi) and (vii);
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.
(b) Australian Additional Amounts. All payments of principal and interest in
respect of Notes issued by an Australian 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
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
the event that such withholding or deduction is so required, the Australian
Subsidiary Issuer (in the case of Notes issued by such Australian 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 Australian
Subsidiary Issuer 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 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 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 been quoted to the relevant Australian
Subsidiary Issuer in respect of the relevant Note before the
due date for payment in respect of the relevant Note
("resident" and "tax file number" having the same meaning for
this purpose as they have in the Income Tax Assessment Act
1936 (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) by or on behalf of a holder who is an associate of the Company
within the meaning of section 128F of the Australian Income
Tax Assessment ▇▇▇ ▇▇▇▇ where interest witholding 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 above in Section 6 - "Redemption;
Sinking Funds; Repayment at the Option of the Holder") 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) 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
(subject to the right of redemption of such Issuer referred to above in Section
6 - "Redemption; Sinking Funds; Repayment at the Option of the Holder") 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.
(e) 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 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.
(f) Tax Redemption: Notes Issued by an Australian Subsidiary Issuer. All Notes
of the same Series issued by an Australian Subsidiary Issuer may be redeemed, at
the option of such Australian Subsidiary Issuer (in the case of Notes issued by
such Australian 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 Australian
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 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, such Australian Subsidiary Issuer 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 the relevant Australian Subsidiary Issuer or the Guarantor, as the
case may be, shall deliver to the Fiscal Agent (i) a certificate stating that
such Australian 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 Australian 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 Australian
Subsidiary Issuer or the Guarantor, as the case may be, would be obligated to
pay such Australian Additional Amounts if a payment in respect of such Notes
were then due.
(g) 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.
(h) 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 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.
(i) 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 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 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 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.
(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
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) 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).
(c) 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 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.
(d) 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 (in the case of Notes issued by an Issuer
other than GE Capital) the Guarantor hereby initially appoints Chase Manhattan
Bank Luxembourg S.A. as its paying agent for the Notes outside the United States
(a "Paying Agent"). 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 any Australian Subsidiary Issuer, a corporation incorporated
under the laws of Australia or any political subdivision thereof, (c) with
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 the Euroclear Operator, Cedelbank, 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 London,
England 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 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 the Euroclear Operator, Cedelbank 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 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 the
Euroclear Operator, Cedelbank 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 the Euroclear Operator,
Cedelbank 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 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 the Fiscal Agency Agreement prevents the Issuers,
the Guarantor and the Fiscal Agent from amending the Fiscal Agency 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.
(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
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇.▇.▇.
Attention: Senior Vice President-Corporate Treasury
and Global Funding Operation
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
GEC Australia:
GE Capital Australia (A.C.N. 008 562 534)
▇▇▇▇▇ ▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇▇-▇▇▇▇
in each case with a copy to GE Capital in its capacity as
Guarantor delivered in accordance with this Section 20;
GEC Australia Funding:
GE Capital Australia Funding Pty. Ltd. (A.C.N. 085 675 467)
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇▇-▇▇▇▇
in each case with a copy to GE Capital in its capacity as
Guarantor delivered in accordance with this Section 20;
GEC Finance:
GE Capital Finance Australia (A.C.N. 008 583 588)
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇▇-▇▇▇▇
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.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Vice President and Counsel
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
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.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Assistant Secretary
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
in each case with a copy to GE Capital in its capacity as
Guarantor delivered in accordance with this Section 20;
GEC Canada RFS:
GE Capital Canada Retailer Financial Services Company
c/o General Electric Capital Canada Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Assistant Secretary
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
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:
The Chase Manhattan Bank,
London Branch
Trinity Tower
9 ▇▇▇▇▇▇ ▇▇▇▇ Street
London E1 9YT, England
Attention: Manager, Global Trust Services Operations
Facsimile: 011-44-1202-347-438
Telephone: ▇▇▇-▇▇-▇▇▇▇-▇▇▇-▇▇▇
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.
Notice to holders of any Notes that are listed on the Paris Bourse will be
given by publication in a French language daily newspaper of general circulation
in Paris (which is expected to be La Tribune ▇▇▇▇▇▇▇▇▇) and such notice will
comply with the applicable rules of the Paris Bourse.
Notice to holders of any Notes that are listed on the Amsterdam Stock
Exchange will be given by publication in a leading daily newspaper in the
English language of general circulation in Amsterdam and London. So long as such
Notes are listed on the Amsterdam Stock Exchange and the rules of such Exchange
so require, such notice shall also be published in the Official Price List
("Officiele Prijscourant"). If publication in London or Amsterdam, as the case
may be, is not practical, such publication shall be made elsewhere in Western
Europe. Such publication is expected to be made in the Financial Times in London
and the Het Financieele Dagblad in Amsterdam. Such notices will be deemed to
have been given on the date of such publication or if published in such
newspapers on different dates, on the date of the first such publication.
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, Cedelbank 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 the Paris Bourse, as the case may be,
(or if so listed, for as long as the Luxembourg Stock Exchange or the Paris
Bourse, as the case may be, so permits), be substituted for such publication in
such newspaper(s) the delivery of the relevant notice to Euroclear, Cedelbank
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, Cedelbank 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 Agent via Euroclear, Cedelbank and/or another clearance
system, as the case may be, in such manner as the Agent and Euroclear, Cedelbank
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 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 to the Fiscal Agency 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.
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
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President-Corporate
Treasury and Global Funding Operation
GE CAPITAL AUSTRALIA
GE CAPITAL AUSTRALIA FUNDING PTY. LTD.
GE CAPITAL FINANCE AUSTRALIA
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Authorized Signatory for each of the
foregoing
GENERAL ELECTRIC CAPITAL CANADA INC.
GE CAPITAL CANADA RETAILER FINANCIAL
SERVICES COMPANY
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President-Corporate
Treasury and Global Funding Operation
of each of the foregoing
GE CAPITAL CANADA FUNDING
COMPANY
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
THE CHASE MANHATTAN BANK,
LONDON BRANCH,
as Fiscal and Paying Agent
By:
-------------------------------
Title:
EXHIBIT A
[COPY FROM EURO MTN DISTRIBUTION AGREEMENT]
EXHIBIT B-1
[FORM OF CERTIFICATE TO BE GIVEN BY AN ACCOUNT
HOLDER OF THE EUROCLEAR OPERATOR AND CEDELBANK]
CERTIFICATE
[General Electric Capital Corporation]
[GE Capital Australia (A.C.N. 008 562 534)]
[GE Capital Australia Funding Pty. Ltd. (A.C.N. 085 675 467)]
[GE Capital Finance Australia (A.C.N. 008 583 588)]
[General Electric Capital Canada Inc.]
[GE Capital Canada Funding Company]
[GE Capital Canada Retailer Financial Services Company]
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)(v)) ("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.
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:
EXHIBIT B-2
[FORM OF CERTIFICATE TO BE GIVEN BY
THE EUROCLEAR OPERATOR AND CEDELBANK]
CERTIFICATE
[General Electric Capital Corporation]
[GE Capital Australia (A.C.N. 008 562 534)]
[GE Capital Australia Funding Pty. Ltd. (A.C.N. 085 675 467)]
[GE Capital Finance Australia (A.C.N. 008 583 588)]
[General Electric Capital Canada Inc.]
[GE Capital Canada Funding Company]
[GE Capital Canada Retailer Financial Services Company]
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 Second 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)(v) ("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
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]]
[▇▇▇▇▇▇ GUARANTY TRUST
COMPANY OF NEW YORK,
BRUSSELS OFFICE,
as Operator of the Euroclear System]
[CEDELBANK]
[OTHER CLEARANCE SYSTEM]
By:
------------------------------------
EXHIBIT C-1
[FORM OF CERTIFICATE TO BE GIVEN BY AN ACCOUNT
HOLDER OF THE EUROCLEAR OPERATOR AND CEDELBANK]
CERTIFICATE
[General Electric Capital Corporation]
[GE Capital Australia (A.C.N. 008 562 534)]
[GE Capital Australia Funding Pty. Ltd. (A.C.N. 085 675 467)]
[GE Capital Finance Australia (A.C.N. 008 583 588)]
[General Electric Capital Canada Inc.]
[GE Capital Canada Funding Company]
[GE Capital Canada Retailer Financial Services Company]
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:
EXHIBIT C-2
[FORM OF CERTIFICATE TO BE GIVEN BY
THE EUROCLEAR OPERATOR AND CEDELBANK]
CERTIFICATE
[General Electric Capital Corporation]
[GE Capital Australia (A.C.N. 008 562 534)]
[GE Capital Australia Funding Pty. Ltd. (A.C.N. 085 675 467)]
[GE Capital Finance Australia (A.C.N. 008 583 588)]
[General Electric Capital Canada Inc.]
[GE Capital Canada Funding Company]
[GE Capital Canada Retailer Financial Services Company]
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 Second 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: __________________
[▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK, BRUSSELS OFFICE,
as Operator of the Euroclear System]
[CEDELBANK]
[OTHER CLEARANCE SYSTEM]
By:
---------------------------------
EXHIBIT D-1
[FORM OF GUARANTEE TO BE ENDORSED ON NOTES]
1. FOR VALUE RECEIVED, GENERAL ELECTRIC CAPITAL CORPORATION, a New York
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 Second Amended and Restated Fiscal and Paying Agency
Agreement dated as of March 31, 1999, as it may be further amended or
supplemented from time to time, among General Electric Capital Corporation, GE
Capital Australia, GE Capital Australia Funding Pty. Ltd., GE Capital Finance
Australia, General Electric Capital Canada Inc., GE Capital Canada Funding
Company, GE Capital Canada Retailer Financial Services Company and The Chase
Manhattan Bank, London Branch, (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] [GE Capital Australia
Funding Pty. Ltd.] [GE Capital Finance Australia] [General Electric Capital
Canada Inc.] [GE Capital Canada Funding Company] [GE Capital Canada Retailer
Financial Services Company] [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 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:
-------------------------------
EXHIBIT E
[FORM OF ISSUER ACCESSION LETTER]
ISSUER ACCESSION LETTER
[DATE]
GENERAL ELECTRIC CAPITAL CORPORATION
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Senior Vice President - Corporate Treasury
and Global Funding Operation
[Name of Additional Issuer]
[Address]
Attention:_________________________
THE CHASE MANHATTAN BANK, LONDON BRANCH
Trinity Tower
9 ▇▇▇▇▇▇ ▇▇▇▇ Street
London E1 9YT
England
Attention: Manager, Global Trust Services Operations
Ladies and Gentlemen:
Reference is hereby made to the Second Amended and Restated Fiscal and Paying
Agency Agreement dated as of March 31, 1999 (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 The Chase Manhattan Bank, London Branch, as
fiscal and 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") and the Fiscal and 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
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:
Accepted and Agreed:
THE CHASE MANHATTAN BANK,
LONDON BRANCH
By
-------------------------------
Title: