Exhibit 1(b)
GENERAL ELECTRIC CAPITAL CORPORATION
Global Medium-Term Notes
Due From 9 Months to 60 Years from Date of Issue
THIRD AMENDED AND RESTATED U.S. DISTRIBUTION AGREEMENT
as of March 29, 2006
CITIGROUP CAPITAL MARKETS INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
DEUTSCHE BANK SECURITIES INC.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
GE CAPITAL MARKETS, INC.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ BROTHERS INC.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
4 World Financial Center, Floor ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
UBS SECURITIES LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
Stamford, Connecticut 06901
Ladies and Gentlemen:
General Electric Capital Corporation, a Delaware corporation (the "COMPANY"),
and Citigroup Capital Markets Inc., Deutsche Bank Securities Inc., GE Capital
Markets, Inc., ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇▇▇▇▇▇ Brothers Inc., ▇▇▇▇▇▇▇ Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇.▇. ▇▇▇▇▇▇ Securities Inc. and UBS
Securities LLC are parties to a Second Amended and Restated U.S. Distribution
Agreement dated as of April 16, 2002, as amended (as amended, the "ORIGINAL
AGREEMENT"), with respect to the issue and sale by the Company of additional
Global Medium-Term Notes (the "NOTES"). The Company and Citibank Capital Markets
Inc., Deutsche Bank Securities Inc., GE Capital Markets, Inc., ▇▇▇▇▇▇▇, ▇▇▇▇▇ &
Co., ▇.▇. ▇▇▇▇▇▇ Securities Inc., ▇▇▇▇▇▇ Brothers Inc., ▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and UBS Securities LLC (the "AGENTS") hereby amend
and restate the Original Agreement as set forth below. This Third Amended and
Restated U.S. Distribution Agreement is referred to herein as "THIS AGREEMENT".
The Notes are to be issued pursuant to a Third Amended and Restated Indenture
dated as of February 27, 1997, between the Company and JPMorgan Chase Bank, N.A.
(formerly known as The Chase Manhattan Bank, as successor trustee (the
"TRUSTEE") as supplemented by the First Supplemental Indenture dated as of May
3, 1999, the Second Supplemental Indenture dated as of July 2, 2001 and the
Third Supplemental Indenture dated as of November 22, 2002 (as supplemented, the
"SENIOR INDENTURE") or an Amended and Restated Subordinated Indenture dated as
of July 15, 2005 between the Company and the Trustee (the "SUBORDINATED
INDENTURE"). The Senior Indenture and the Subordinated Indenture are
collectively referred to herein as the "INDENTURE". The Company has initially
appointed the Trustee, at its corporate trust office in The City of New York, as
the registrar (the "REGISTRAR") for the Notes. The Company has authorized the
issuance of Notes to and through the Agents pursuant to the terms of this
Agreement. The Notes will be issued in registered form. Each Note will be
represented by either a global security in registered form without coupons
delivered to the Trustee as agent for The Depository Trust Company ("DTC") and
recorded in the book-entry system maintained by DTC or by a certificate
delivered to the holder thereof or a person designated by such holder.
Subject to the terms and conditions stated herein and further subject to the
understanding that nothing in this Agreement shall impair the Company's right to
sell securities with terms similar or identical to any Note independently of the
continuous offering of Notes contemplated by this Agreement, the Company
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hereby (i) appoints the Agents as agents of the Company for the purpose of
soliciting purchases of the Notes from the Company by others pursuant to Section
2(a) hereof, (ii) agrees that whenever the Company determines from time to time
to sell Notes directly to one or more of the Agents as principal for resale to
others (such resale to be at fixed offering prices or at varying prices related
to prevailing market prices at the time of resale or otherwise as determined by
such Agent), it will enter into a Terms Agreement (as defined below) relating to
such sale in accordance with the provisions of Section 2(b) hereof, (iii)
reserves the right from time to time to sell Notes on its own behalf directly to
investors (other than broker-dealers) or through affiliates that are not Agents,
and (iv) reserves the right from time to time to appoint one or more additional
firms registered as broker/dealers under the Securities Exchange Act of 1934
(the "1934 ACT") either (A) to solicit purchases of Notes from the Company by
others or (B) to purchase Notes directly from the Company as principal for
resale to others; provided, however, that such sales will be made on terms
substantially the same as those contained in this Agreement. Any such additional
firm designated by the Company pursuant to clause (iv) above shall be considered
an Agent hereunder for all purposes with respect to each transaction with
respect to which such appointment is made. In the case of each purchaser whose
offer to purchase Notes from the Company has been solicited by an Agent as agent
and accepted by the Company, such Agent will make reasonable efforts to assist
the Company in obtaining performance by such purchaser, but no Agent shall have
any liability to the Company in the event any such purchase is not consummated
for any reason.
An automatic shelf registration statement as defined in Rule 405 under the
Securities Act of 1933 (the "1933 ACT") in respect of the Notes has been filed
on Form S-3 with the Securities and Exchange Commission (the "COMMISSION") not
earlier than three years prior to the date hereof. The registration statement
has become effective pursuant to the rules and regulations promulgated by the
Commission under the 1933 Act (the "1933 ACT REGULATIONS") and the Indenture was
filed as an exhibit to the Registration Statement and has been duly qualified
under the Trust Indenture Act of 1939, as amended (the "1939 ACT"). The Company
has filed pursuant to Rule 424 under the 1933 Act a prospectus supplement
specifically relating to the offering of the Notes under the global medium term
note program (the "PROSPECTUS SUPPLEMENT") and will file particular pricing
supplements for each particular offering of a tranche of Notes. The term
"REGISTRATION STATEMENT" as used with respect to a particular tranche of Notes,
means the registration statement, as deemed revised at the time of such
registration statement's effectiveness for purposes of Section 11 of the 1933
Act as such section applies to the Company and the Agents for such offering of a
tranche of Notes pursuant to Rule 430B(f)(1) and Rule 430B(f)(2) under the 1933
Act (the "EFFECTIVE TIME"), including (i) all documents then filed as a part
thereof or incorporated or deemed to be incorporated by reference therein and
(ii) any
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information contained or incorporated by reference in a prospectus filed with
the Commission pursuant to Rule 424(b) under the 1933 Act, to the extent such
information is deemed, pursuant to Rule 430B(f)(1) under the 1933 Act, to be
part of the Registration Statement at the Effective Time. The term "BASIC
PROSPECTUS" means the prospectus included in the Registration Statement
exclusive of any supplement filed pursuant to Rule 424. The Basic Prospectus, as
supplemented by the Prospectus Supplement, is referred to herein as the "PROGRAM
PROSPECTUS". Prior to the determination of the final terms of a particular
tranche of Notes the term "PROSPECTUS" means the Program Prospectus, and after
such determination, such document plus a supplement (the "PRICING SUPPLEMENT")
prepared for the sale of the particular tranche of Notes and including a
description of the final terms of such tranche of Notes and the terms of the
offering thereof. The term "PRELIMINARY PROSPECTUS" means a preliminary
prospectus supplement specifically relating to a tranche of Notes together with
the Program Prospectus applicable to the method of offering thereof. The term
"PERMITTED FREE WRITING PROSPECTUS" as used herein means the documents attached
as Schedule II to the applicable Terms Agreement for a tranche of Notes. The
"PRICING EFFECTIVE TIME" as used herein shall occur when either (i) a Permitted
Free Writing Prospectus with the final terms of the offering and either the
Program Prospectus or a Preliminary Prospectus, or (ii) the Pricing Supplement,
prepared by the Company, and the Program Prospectus, shall be made available to
the Agents for electronic delivery to purchasers (the documentation in (i) or
(ii), as applicable, in the aggregate, the "PRICING DISCLOSURE MATERIAL").
SECTION 1. REPRESENTATIONS AND WARRANTIES. (a) The Company represents and
warrants to each Agent as of the date of this Agreement (the "COMMENCEMENT
Date"), as of the date of each acceptance by the Company of an offer for the
purchase of Notes whether through an Agent as agent or to an Agent as principal
at the Pricing Effective Time as of the date of the closing of each sale of
Notes whether through an Agent as agent or to an Agent as principal (the date of
each such sale being referred to herein as a "SETTLEMENT DATE"), and as of the
times referred to in Section 6(a) hereof (each of the times referenced above
being referred to herein as a "REPRESENTATION DATE"), as follows:
(i) each document filed by the Company pursuant to the 1934 Act
which is incorporated by reference in the Prospectus or any Permitted
Free Writing Prospectus complied when so filed in all material respects
with the 1934 Act and the rules and regulations thereunder, and each
document, if any, hereafter filed and so incorporated by reference in the
Prospectus will comply when so filed in all material respects with the
1934 Act rules and regulations;
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(ii) the Registration Statement and the Prospectus comply, and
the Registration Statement and the Prospectus (and any amendments and
supplements thereto, other than amendments or supplements relating solely
to securities other than the Notes) will on the applicable Representation
Date comply, in all material respects, with the 1933 Act and the
applicable rules and regulations of the Commission thereunder;
(iii) at the Commencement Date, the Registration Statement did
not, and at the Effective Time the Registration Statement did not or will
not, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and the Prospectus on the Commencement
Date did not, and on the applicable Representation Date will not, contain
any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(iv) there has been no material adverse change in the condition
of the Company and its consolidated affiliates, taken as a whole, from
that set forth in the Registration Statement and the Prospectus
(excluding any amendments or supplements to the Prospectus since the
relevant Pricing Effective Time, if any);
(v) the aggregate principal amount of the Company's Global
Medium-Term Notes, Series A outstanding at any one time will not exceed
any limitation thereon which may then be in effect by action of the Board
of Directors of the Company;
(vi) no event exists which would constitute an event of default
under the Indenture;
(vii) at the time made available by the Company to the Agents for
electronic delivery with respect to a tranche of Notes, the "PRICING
DISCLOSURE MATERIAL", will not contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances in which they were
made, not misleading:
(viii) the Registration Statement constitutes an "AUTOMATIC SHELF
REGISTRATION STATEMENT" (as defined in Rule 405 of the 1933 Act) filed
within three years of the date hereof; no notice of objection of the
Commission with respect to the use of the Registration Statement pursuant
to Rule 401(g)(2) under the 1933 Act has been received by the Company;
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and the Company is a "well-known seasoned issuer" as defined in Rule 405,
including not being an "ineligible issuer", as defined in Rule 405 at the
"determination dates" relevant to the offering and sale of Notes under
the Registration Statement (as described in such definition); no stop
order suspending the effectiveness of the Registration Statement has been
issued and no proceeding, to the knowledge of the Company, for that
purpose or pursuant to Section 8A of the 1933 Act has been initiated or
threatened by the Commission; and
(ix) the Company has not used any free writing prospectus other
than a Permitted Free Writing Prospectus or used a Permitted Free Writing
Prospectus except in compliance with Rule 433 under the 1933 Act and
otherwise in compliance with the 1933 Act;
except that the representations and warranties set forth in paragraphs (i),
(ii), (iii) and (vii) of this Section 1(a) do not apply to statements or
omissions in the Registration Statement, the Prospectus or the Pricing
Disclosure Material based upon information furnished to the Company in writing
by any Agent expressly for use therein.
(b) ADDITIONAL CERTIFICATIONS. Any certificate signed by any officer
of the Company and delivered to the Agents or to counsel for the Agents in
connection with an offering of Notes shall be deemed a representation and
warranty by the Company to each Agent as to the matters covered thereby.
SECTION 2. SOLICITATIONS AS AGENT; PURCHASES AS PRINCIPAL. (a) SOLICITATIONS
AS AGENT. Except when the Agent has agreed to purchase as principal pursuant to
a Terms Agreement as described in Section 2(b) hereof, such Agent agrees to
undertake at the request of the Company and on the basis of the representations
and warranties herein contained to use its best efforts to solicit offers to
purchase the Notes, as agent of the Company, upon the terms and conditions set
forth in the Prospectus.
The Company reserves the right, in its sole discretion, to suspend such
solicitation by any one or more of the Agents of purchases of the Notes
commencing at any time for any period of time or permanently. Upon receipt of
instructions from the Company, each Agent will forthwith suspend solicitation of
purchases from the Company until such time as the Company has advised such Agent
or Agents that such solicitation may be resumed.
Each Agent shall have the right to suspend solicitations, commencing at any
time such Agent reasonably believes that there has occurred a material adverse
change in the condition of the Company and its consolidated affiliates, taken as
a whole, from that then set forth in the Registration Statement and the
Prospectus,
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and ending at the time such Agent has been reasonably satisfied that adequate
and full disclosure of such adverse change has been made (including, without
limitation, by means of any necessary amendments or supplements to the
Registration Statement and the Prospectus or the use of a Permitted Free Writing
Prospectus); provided, however, that any such Agent shall notify the Company of
its belief prior to or concurrently with any such suspension of solicitations.
The Company agrees to pay each Agent a commission, by means of a deduction
from the proceeds of a sale of Notes, equal to a percentage of the public
offering price of each Note sold by the Company as a result of a solicitation
made by such Agent as the Company and such Agent may agree. Unless otherwise
agreed upon by the Company and each Agent, such commission percentage shall
range from 0.05% to 0.60% of the public offering price of each Note. It is
understood that no commission will be payable with respect to any offer to
purchase Notes accepted by the Company in the event that the Company tenders
such Note and delivery of such Note is not accepted by the purchaser.
As agent, each Agent is authorized to solicit orders for the Notes at a
purchase price which shall be agreed upon by the Company and such Agent and set
forth in a supplement to the Prospectus and (except as may be otherwise provided
in an applicable Pricing Supplement) only in denominations of 100,000 units of
the currency in which the Notes are denominated (the "SPECIFIED CURRENCY") or
any integral multiple of l,000 units of such Specified Currency in excess
thereof (in the case of Certificated Notes) or in denominations of 1,000 units
of the Specified Currency (in the case of Book-Entry Notes). Each Agent shall
communicate to the Company, orally or in writing, each reasonable offer to
purchase Notes received by such Agent as agent. The Company shall have the sole
right to accept offers to purchase the Notes and may reject any such offer in
whole or in part. Each Agent shall have the right to reject any offer that is
not a reasonable offer to purchase the Notes received by it in whole or in part,
and any such rejection shall not be deemed a breach of such Agent's agreement
contained herein. "REASONABLE" with respect to an offer shall be determined by
such Agent by reference to then-prevailing interest rates and the interest rates
then posted by the Company with respect to offers to sell the Notes.
(b) PURCHASES AS PRINCIPAL. Each sale of Notes to one or more Agents
as principal shall be made in accordance with the terms of this Agreement and a
separate agreement which will provide for the sale of such Notes to, and the
purchase and reoffering thereof by, such Agent or Agents. Each such separate
agreement (which shall be substantially in the form of Exhibit A hereto and
which may take the form of an exchange of any standard form of written
telecommunication between such Agent or Agents and the Company or may be an oral
agreement confirmed by the relevant Agent in writing (including facsimile
transmission) and shall contain the information specified in Exhibit A hereto)
is
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herein referred to as a "TERMS AGREEMENT." The Terms Agreement shall not be
effective, and the Agents agree that no contracts of sale may be entered into by
the Agents in respect of a sale of Notes as described in this Section, until the
Company has made the Pricing Disclosure Material available to the Agents and the
Pricing Effective Time occurs. Any Agent's commitment to purchase Notes pursuant
to any Terms Agreement shall be deemed to have been made on the basis of the
representations and warranties of the Company herein contained and shall be
subject to the terms and conditions herein set forth. Each Agent shall notify
the Company promptly after its last sale of Notes purchased under a Terms
Agreement of its completion of the distribution thereof.
(c) ADMINISTRATIVE PROCEDURES. Administrative procedures respecting
the sale of Notes (the "ADMINISTRATIVE PROCEDURES") shall be agreed upon from
time to time by the Agents and the Company. The Agents and the Company agree to
perform the respective duties and obligations specifically provided to be
performed by them herein and in the Administrative Procedures. The
Administrative Procedures as in effect on the Commencement Date are attached as
Exhibit B hereto. The Administrative Procedures may be amended from time to time
only by written agreement of the Company and the Agents and, in the case of
amendments which affect the rights, duties or obligations of the Trustee and the
Registrar, with the written agreement of the Trustee and the Registrar. To the
extent the Administrative Procedures in effect from time to time conflict with
any provision of this Agreement, the provisions of this Agreement shall govern.
The Company will furnish a copy of the Administrative Procedures from time to
time in effect to the Trustee and the Registrar.
(d) INFORMATION. The Company authorizes the Agents, in connection with
their solicitation of purchases of the Notes, to use only information taken from
the Registration Statement, the Prospectus and any Permitted Free Writing
Prospectus, and the documents incorporated therein by reference, and each of the
Agents agrees that it has and will have sole responsibility for the completeness
and accuracy of all other information, written or oral, furnished by such Agent
and its agents and employees to purchasers and prospective purchasers of the
Notes, including any free writing prospectuses prepared by or on behalf of the
Agent and not required to be filed by the Company pursuant to Rule 433 under the
1933 Act.
(e) DELIVERY OF DOCUMENTS. The documents required to be delivered by
Section 5 hereof shall be delivered at the offices of the Agent (or, if more
than one Agent is participating in any such sale, the lead Agent), or at such
other location as shall be specified in the relevant Terms Agreement, on the
date required for such delivery set forth in Section 5 hereof.
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(f) REGISTERED BROKER-DEALERS. Each Agent represents that it is a
broker-dealer registered under the 1934 Act.
(g) OBLIGATIONS SEVERAL. The Company acknowledges that the obligations
of the Agents are several and, subject to the provisions of this Agreement
applicable thereto, each Agent shall have complete discretion as to the manner
in which it solicits purchasers for the Notes and as to the identity thereof.
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants with each Agent as
follows:
(a) NOTICE OF CERTAIN EVENTS. The Company will notify each Agent
promptly (i) of the filing and effectiveness of any amendment (other than any
amendment relating solely to securities other than the Notes) to the
Registration Statement (including any post-effective amendment), (ii) of the
mailing or the delivery to the Commission for filing of any supplement to the
Prospectus, other than prospectus supplements related to specific Note offerings
and filings relating solely to securities other than the Notes, (iii) of the
receipt of any comments from the Commission with respect to the Registration
Statement or the Prospectus, (iv) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus or for additional information (other than in each case amendments or
supplements or information relating solely to securities other than the Notes),
and (v) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any proceedings
for that purpose or pursuant to Section 8A of the 1933 Act. The Company will
make every reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
(b) COPIES OF REGISTRATION STATEMENT, PROSPECTUS. Upon request, the
Company will deliver to each Agent a conformed copy of the Registration
Statement (as originally filed) and of each amendment thereto relating to the
Notes (including exhibits filed therewith or incorporated by reference therein
and documents incorporated by reference in the Prospectus). The Company will
furnish to each Agent as many copies of any Permitted Free Writing Prospectus
and the Prospectus (as amended or supplemented) as such Agent shall reasonably
request so long as such Agent is required to deliver a Prospectus (or in lieu
thereof the notice referred to in Rule 173(a) under the 1933 Act) in connection
with sales or solicitations of offers to purchase the Notes.
(c) REVISIONS OF PROSPECTUS -- MATERIAL CHANGES. If, during such
period after the first date of the public offering of the Notes as in the
opinion of counsel to the Company a prospectus (or in lieu thereof the notice
referred to in Rule 173(a) under the 1933 Act) is required by law to be
delivered in connection
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with sales of the Notes solicited by an Agent as agent or sales of Notes by an
Agent as principal, any event shall occur as a result of which it is necessary
to amend or supplement the Prospectus or the Pricing Disclosure Material in
order that the Prospectus or Pricing Disclosure Material will not include an
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein not misleading in the light of the
circumstances under which they were made, and in order that timely information
is provided pursuant to Rule 159 of the 1933 Act, or if it shall be necessary at
any such time to amend or supplement the Registration Statement or the
Prospectus in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, prompt notice shall be given, and confirmed in writing, to each
Agent to cease the solicitation of offers to purchase the Notes in such Agent's
capacity as agent and to cease sales of any Notes such Agent may then own as
principal. If the Company shall determine that solicitation of purchases of the
Notes shall be resumed, or if on the date of the occurrence of the event
necessitating an amendment of or supplement to the Prospectus an Agent holds
Notes that were issued by the Company less than 90 days prior to such date,
then, prior to the Company's authorizing the Agents to resume solicitations of
purchases of the Notes or prior to sales of any such Notes, the Company will
promptly prepare and file with the Commission such amendment or supplement,
whether by filing documents pursuant to the 1934 Act, the 1933 Act or otherwise,
as may be necessary to correct such untrue statement or omission or to make the
Prospectus or Pricing Disclosure Material comply with such requirements.
(d) PROSPECTUS REVISIONS -- PERIODIC FINANCIAL INFORMATION. Promptly
after the filing with the Commission of the Company's quarterly reports on Form
10-Q with respect to each of the first three quarters of any fiscal year, the
Company, upon the reasonable request of any Agent, shall make available
electronically such reports to such Agent; provided, however, that if on the
date of such filing the Agents shall have suspended solicitation of purchases of
the Notes in their capacity as agents pursuant to a request from the Company,
and if no Agent shall then hold any Notes as principal purchased pursuant to a
Terms Agreement, the Company shall not be obligated to make available
electronically such reports until such time as the Company shall determine that
solicitation of purchases of the Notes should be resumed or shall subsequently
enter into a new Terms Agreement with one or more of the Agents.
(e) PROSPECTUS REVISIONS -- AUDITED FINANCIAL INFORMATION. Promptly
after the filing with the Commission of the Company's annual report on Form 10-K
including the audited financial statements of the Company for the preceding
fiscal year, the Company, upon the request of any Agent, shall make available
electronically such report to such Agent; provided, however, that if on the date
of such filing the Agents shall have suspended solicitation of purchases of
Notes in
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their capacity as agents pursuant to a request from the Company, and if no Agent
shall then hold any Notes as principal purchased pursuant to a Terms Agreement,
the Company shall not be obligated to make available electronically such reports
until such time as the Company shall determine that solicitation of purchases of
Notes should be resumed or shall subsequently enter into a new Terms Agreement
with one or more of the Agents.
(f) SECTION 11(A) EARNINGS STATEMENTS. The Company will make generally
available to its security holders, as soon as practicable, earnings statements,
which need not be audited, covering twelve month periods beginning after the
"EFFECTIVE DATE" (as defined in Rule 158(c) under the 1933 Act) of the
Registration Statement with respect to each sale of Notes that will satisfy
Section 11(a) of the 1933 Act and comply with the rules and regulations
thereunder.
(g) COPIES OF CURRENT REPORTS. The Company will make available
electronically to any Agent, upon request of such Agent, promptly after the
filing thereof with the Commission, its reports on Form 8-K.
(h) BLUE SKY QUALIFICATIONS. If required, the Company will endeavor,
in cooperation with the Agents, to qualify the Notes for offering and sale under
the applicable securities laws of such states and other jurisdictions of the
United States as the Agents may reasonably designate, and will maintain such
qualifications in effect for as long as may be required for the distribution of
the Notes; provided, however, that the Company shall not be obligated to file
any general or unlimited consent to service of process, to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified or to qualify
any Notes for offer and sale in any jurisdiction in which the Company shall have
notified the Agents prior to the distribution of such Notes that it is unable or
unwilling to comply with the disclosure or reporting requirements imposed by
such jurisdiction. The Company will file such statements and reports as may be
required by the laws of each jurisdiction in which the Notes have been qualified
as above provided.
(i) 1934 ACT FILINGS. The Company, during the period when the
Prospectus (or in lieu thereof the notice referred to in Rule 173(c) under the
1933 Act) is required to be delivered under the 1933 Act, will file timely all
documents required to be filed with the Commission pursuant to Sections 13(a),
13(c), 14 or 15(d) of the 1934 Act.
(j) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS.
The Company will (i) in respect of the Notes, promptly within the time periods
specified therein, effect the filings required of it pursuant to Rule 424 and/or
Rule 433 under the 1933 Act, and (ii) take such steps as it deems necessary to
ascertain
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promptly whether each Prospectus or Permitted Free Writing Prospectus
transmitted for filing under Rule 424 or Rule 433 of the 1933 Act, as
applicable, were received for filing by the Commission and, in the event that
any was not, it will promptly file the relevant Prospectus or Permitted Free
Writing Prospectus, as applicable.
(k) FILING FEES. The Company will pay the required Commission filing
fees related to the Notes within the time required by Rule 456(b)(1) under the
Act and otherwise in accordance with Rules 456(b) and 457(r) under the 1933 Act.
SECTION 4. PAYMENT OF EXPENSES. The Company will pay all expenses incident to
the performance of its obligations under this Agreement, including:
(i) The preparation and filing of the Registration Statement
and all amendments thereto and the Prospectus and any amendments or
supplements thereto and any Permitted Free Writing Prospectus;
(ii) The preparation, issuance and delivery of the Notes;
(iii) The fees and disbursements of the Company's independent
public accountants and of the Trustee and its counsel;
(iv) The reasonable fees and disbursements of ▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇▇, counsel for the Agents; provided, however, that in any sale of
Notes to one or more Agents acting as principal, the Company's
obligations, if any, to pay the reasonable fees and disbursements of
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ shall be as agreed upon by the Company and the
Agent(s) participating in such transaction and reflected in the
applicable Terms Agreement;
(v) The qualification of the Notes under securities laws in
accordance with the provisions of Section 3(h), including filing fees and
the reasonable fees and disbursements of counsel in connection therewith
and in connection with the preparation of any Blue Sky Survey;
(vi) The printing and delivery to the Agents, to the extent and
in the quantities required hereby, of copies of the Registration
Statement and any amendments thereto, the Pricing Disclosure Material and
of the Prospectus and any amendments or supplements thereto, and the
delivery by the Agents of the Prospectus and any amendments or
supplements thereto in connection with solicitations or confirmations of
sales of the Notes;
12
(vii) The printing and delivery to the Agents of copies of the
Indenture and any Blue Sky Survey;
(viii) Any fees charged by rating agencies for the rating of the
Notes;
(ix) The fees and expenses, if any, incurred with respect to any
filing with the National Association of Securities Dealers, Inc.; and
(x) Any advertising and other out-of-pocket expenses incurred
with the approval of the Company.
SECTION 5. CONDITIONS OF OBLIGATIONS. Each Agent's obligations to solicit
offers to purchase the Notes as agent of the Company, the obligation of any
purchaser to purchase Notes sold through an Agent as agent, and any Agent's
obligations to purchase Notes pursuant to any Terms Agreement will be subject at
all times to the accuracy of the representations and warranties on the part of
the Company herein and to the accuracy of the statements of the Company's
officers made in any certificate furnished pursuant to the provisions hereof, to
the performance and observance by the Company of all covenants and agreements
herein contained on its part to be performed and observed and to the following
additional conditions precedent:
(a) LEGAL OPINIONS. At the Commencement Date and at each Settlement
Date with respect to any applicable Terms Agreement, if called for by such Terms
Agreement, the Agents shall have received the following documents:
(i) OPINION OF COMPANY COUNSEL. The opinion of the General
Counsel, Corporate Treasury and Assistant Secretary of the Company, or
other counsel satisfactory to such Agent(s), dated as of such
Commencement Date or Settlement Date, in form and substance satisfactory
to the Agents and counsel for the Agents, to the effect that:
(A) The Company has been duly incorporated and is
validly existing under the laws of the State of Delaware.
(B) The Company is duly qualified to transact business
and is in good standing in the jurisdictions in which the conduct
of its business or the ownership of its property requires such
qualification.
(C) The Indenture has been duly authorized, executed and
delivered by the Company, is a valid and binding agreement of the
Company and has been qualified under the 1939 Act.
13
(D) [For Commencement Dates only: When authorized] [For
other dates: The Notes have been authorized], executed and
authenticated in accordance with the provisions of the Indenture
and delivered to and paid for by any purchaser of Notes sold
through an Agent as agent or any Agent as principal pursuant to
the applicable Terms Agreement, would be valid and binding
obligations of the Company enforceable against the Company in
accordance with their respective terms and would entitle the
holders thereof to the benefits of the Indenture.
(E) This Agreement (and, if the opinion is being given
pursuant to Section 6(c) hereof as a result of the Company's
having entered into a Terms Agreement requiring such opinion, the
applicable Terms Agreement) has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of
the Company enforceable against the Company in accordance with its
terms, except as rights to contribution and indemnity hereunder
(or thereunder) may be limited under applicable law.
(F) Neither the execution and delivery of this Agreement
nor the issuance and sale of the Notes by the Company as provided
herein will contravene the certificate of incorporation or by-laws
of the Company or result in any violation of any of the terms or
provisions of any law, rule or regulation (other than with respect
to applicable securities or Blue Sky laws, as to which such
counsel need not express any opinion) or of any indenture,
mortgage or other agreement or instrument known to such counsel by
which the Company or any of its subsidiaries is bound.
(G) The statements contained in the Prospectus under the
captions "Description of Notes", "Description of Debt Securities"
and "Plan of Distribution" fairly present the matters referred to
therein.
(H) Each document incorporated by reference in the
Prospectus which was filed pursuant to the 1934 Act (except for
the financial statements and schedules and other financial and
statistical material included therein or omitted therefrom, as to
which such counsel need not express any opinion) complied when so
filed as to form in all material respects with the 1934 Act and
the applicable rules and regulations of the Commission thereunder.
14
(I) The Registration Statement is effective under the
1933 Act and, to the best of such counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statement
has been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission.
(J) The Registration Statement and the Prospectus and
any supplements and amendments thereto (except for the financial
statements and schedules and other financial and statistical
material included therein or omitted therefrom and except for
supplements and amendments relating only to securities other than
the Notes, as to which such counsel need express no opinion)
comply as to form in all material respects with the 1933 Act and
the applicable rules and regulations of the Commission thereunder.
(K) Such counsel believes that (except for the financial
statements and schedules and other financial and statistical
material included therein or omitted therefrom, as to which
counsel need not express any belief) each part of the Registration
Statement at the time it became effective, and if an amendment to
the Registration Statement has been filed by the Company with the
Commission subsequent to such date, at the time of the most recent
such filing, at the time of issuance of this opinion, did not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading, [For Settlement Dates only:
the Pricing Disclosure Material did not contain as of the Pricing
Effective Time for the Notes to be sold pursuant to the applicable
Terms Agreement], and the Prospectus did not contain, as of the
Commencement Date [For Settlement Dates only: and the date of the
Pricing Supplement relating to the Notes to be sold pursuant to
the applicable Terms Agreement], as the case may be, and does not
contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
(ii) OPINION OF TAX COUNSEL TO THE COMPANY. The opinion of Tax
Counsel of the Company, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP or other tax
counsel satisfactory to such Agent(s) dated as of such Commencement Date
or Settlement Date, confirming the accuracy of the opinion of such
counsel set forth under the caption "United States Taxation" in the
Prospectus.
15
(iii) OPINION OF COUNSEL TO THE AGENTS. The opinion of ▇▇▇▇▇ ▇▇▇▇
& ▇▇▇▇▇▇▇▇, counsel to the Agents, dated as of such Commencement Date or
Settlement Date, covering the matters referred to in subparagraph (i)
under the subheadings (A), (C), (D), (E), (G) and (I) above and to the
following effect (with appropriate modifications to reflect whether an
opinion is given at the Commencement Date or the Settlement Date) (x) the
Registration Statement and the Prospectus and any supplements and
amendments thereto (except for the financial statements and schedules and
other financial and statistical material included therein or omitted
therefrom and except for supplements and amendments relating only to
securities other than the Notes, as to which such counsel need express no
opinion) appear on their face to be appropriately responsive in all
material respects to the requirements of the 1933 Act and the applicable
rules and regulations of the Commission thereunder, and (y) nothing has
come to the attention of such counsel that causes such counsel to believe
that insofar as relevant to the offering of the Notes, (except for the
financial statements and schedules and other financial and statistical
material included therein or omitted therefrom, as to which counsel need
not express any belief) any part of the Registration Statement at the
time it became effective, and if an amendment to the Registration
Statement has been filed by the Company with the Commission subsequent to
such date, at the time of the most recent such filing, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading, the Pricing Disclosure Material contained as of the
Pricing Effective Time for the Notes to be sold pursuant to the
applicable Terms Agreement, and the Prospectus contained, as of the
Commencement Date and the date of the Pricing Supplement relating to the
Notes to be sold pursuant to the applicable Terms Agreement, as the case
may be, or contains any untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
(iv) In rendering the opinion referred to in subparagraph (i)
above, such counsel may state that with respect to (J) and (K) of
subparagraph (i), such counsel's opinion and belief are based upon his
participation in the preparation of the Registration Statement, the
Pricing Disclosure Material and the Prospectus and any amendments and
supplements thereto (including documents incorporated by reference) and
review and discussion of the contents thereof, but are without
independent check or verification except as stated therein. In rendering
the opinion referred to in subparagraph (iii) above, such counsel may
state that with
16
respect to (x) and (y) of subparagraph (iii) above, such counsel's
opinion and belief are based upon their participation in the preparation
of the Registration Statement, the Pricing Disclosure Material and the
Prospectus and any amendments and supplements thereto (other than
documents incorporated by reference) and upon their review and discussion
of the contents thereof (including documents incorporated by reference),
but are without independent check or verification except as stated
therein. In rendering the opinions referred to in subparagraphs (i) and
(iii) above, such counsel may state that with respect to (D) and (E) of
subparagraph (i) above, such counsels' opinions, insofar as such opinions
relate to enforceability, are subject to the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally and to the effect of general
equitable principles (regardless of whether the issue of enforceability
is considered in a proceeding in equity or at law).
(b) OFFICER'S CERTIFICATE. At the Commencement Date and at each
Settlement Date with respect to any Terms Agreement, no stop order suspending
the effectiveness of the Registration Statement shall be in effect, and no
proceedings for such purpose shall be pending before or threatened by the
Commission, and there shall have been no material adverse change in the
condition of the Company and its consolidated affiliates, taken as a whole, from
that set forth in the Registration Statement and the Prospectus (excluding any
amendments or supplements to the Prospectus since the relevant Pricing Effective
Time, if any); and the Agents shall have received on the Commencement Date and,
if called for by the applicable Terms Agreement, at each Settlement Date a
certificate in the form of Exhibit D hereto, dated the Commencement Date or such
Settlement Date and signed by an executive officer of the Company, to the
foregoing effect. The officer making such certificate may rely upon the best of
his knowledge as to proceedings pending or threatened.
(c) COMFORT LETTER. The Agents shall have received at the Commencement
Date and at each Settlement Date with respect to any Terms Agreement, if called
for by such Terms Agreement, a letter from KPMG LLP, independent public
accountants, dated as of the Commencement Date or such Settlement Date, in form
and substance satisfactory to the Agents, containing statements and information
of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Registration
Statement and the Prospectus.
(d) OTHER DOCUMENTS. On the Commencement Date and at each Settlement
Date with respect to any applicable Terms Agreement, counsel to the
17
Agents shall have been furnished with such documents and opinions as such
counsel may reasonably require for the purpose of enabling such counsel to pass
upon the issuance and sale of Notes as herein contemplated and related
proceedings, or in order to evidence the accuracy and completeness of any of the
representations and warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection with
the issuance and sale of Notes as herein contemplated shall be satisfactory in
form and substance to the Agents and to counsel to the Agents.
If any condition specified in this Section shall not have been fulfilled as
of the relevant date required, this Agreement and any Terms Agreement may be
terminated as to any Agent by notice by such Agent to the Company at any time at
or prior to the Commencement Date or the applicable Settlement Date, and such
termination shall be without liability of any party to any other party, except
that the covenants set forth in Section 3(f) hereof, the provisions of Section 4
hereof, the indemnity and contribution agreements set forth in Sections 8 and 9
hereof, and the provisions of Sections 10 and 14 hereof shall remain in effect.
SECTION 6. ADDITIONAL COVENANTS OF THE COMPANY. The Company covenants and
agrees that:
(a) REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. Each acceptance
by it of an offer for the purchase of Notes, and each sale of Notes to any Agent
pursuant to a Terms Agreement, shall be deemed to be an affirmation that the
representations and warranties of the Company contained in this Agreement and in
any certificate theretofore delivered to the Agents pursuant hereto are true and
correct at the time of such acceptance or sale, as the case may be, and an
undertaking that such representations and warranties will be true and correct at
the time of delivery to the purchaser or his agent, or to the Agents, of the
Note or Notes relating to such acceptance or sale, as the case may be, as though
made at and as of each such time (and it is understood that such representations
and warranties shall relate to the Registration Statement and the Prospectus as
amended and supplemented to each such time);
(b) SUBSEQUENT DELIVERY OF CERTIFICATES. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented
(except for an amendment or supplement limited to information as to the offering
or sale of a particular tranche of Notes) or a new Registration Statement is
used by the Company with respect to the Notes, and (ii) there is filed with the
Commission any annual report on Form 10-K, quarterly report on Form 10-Q or
periodic report on Form 8-K incorporated by reference into the Prospectus and
any Agent reasonably requests, the Company shall furnish or cause to be
furnished to the Agents (in the case of clause (i)), or the requesting Agent(s)
(in the case of clause
18
(ii)) promptly a certificate in form satisfactory to such Agent(s) to the effect
that the statements contained in the certificates referred to in Section 5(b)
hereof which were last furnished to the Agents are true and correct at the time
of such amendment or supplement or filing or sale, as the case may be, as though
made at and as of such time (except that such statements shall be deemed to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such time or the new Registration Statement, as the case may be)
or, in lieu of such certificate, certificates of the same tenor as the
certificates referred to in said Section 5(b), modified as necessary to relate
to the Registration Statement and the Prospectus as amended and supplemented to
the time of delivery of such certificates or the new Registration Statement, as
the case may be; provided, however, that the Company shall not be required to
furnish any certificates to any Agents pursuant to this paragraph at a time when
the Agents shall have suspended solicitation of purchases of Notes in their
capacity as agents pursuant to instructions of the Company, if no Agent shall
then hold any Notes as principal purchased under a Terms Agreement;
(c) SUBSEQUENT DELIVERY OF LEGAL OPINIONS. Each time that the
Registration Statement or the Prospectus shall be amended or supplemented
(except for an amendment or supplement limited to information as to the offering
or sale of a particular tranche of Notes) or a new Registration Statement is
used by the Company with respect to the Notes, the Company shall furnish or
cause to be furnished promptly to the Agents a written opinion of the General
Counsel, Corporate Treasury and Assistant Secretary of the Company or other
counsel satisfactory to the Agents, dated the date of delivery of such opinion,
in form satisfactory to the Agents, of the same tenor as the opinion referred to
in Section 5(a) hereof but modified, as necessary, to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of delivery
of such opinion or the new Registration Statement, as the case may be, or, in
lieu of such opinion, counsel last furnishing such opinion to the Agents shall
furnish the Agents with a letter to the effect that the Agents may rely on such
last opinion to the same extent as though it were dated the date of such letter
authorizing reliance (except that statements in such last opinion shall be
deemed to relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such letter authorizing reliance or the
new Registration Statement, as the case may be); and
(d) SUBSEQUENT DELIVERY OF COMFORT LETTERS. Each time that the
Registration Statement or the Prospectus shall be amended or supplemented to
include additional financial information or a new Registration Statement is used
by the Company with respect to the Notes or there is filed with the Commission
any document incorporated by reference into the Prospectus which contains
additional financial information, the Company shall cause KPMG LLP promptly to
furnish the Agents a letter, dated the date of filing of such amendment,
supplement or document with the Commission or the date of effectiveness of such
new Registration Statement, or the date of such sale, as the case may be, in
form
19
satisfactory to the Agents, of the same tenor as the letter referred to in
Section 5(c) hereof; provided, however, that if the Registration Statement or
the Prospectus is amended or supplemented solely to include financial
information as of and for a fiscal quarter, KPMG LLP may limit the scope of such
letter to the unaudited financial statements included in such amendment or
supplement unless any other information included therein of an accounting,
financial or statistical nature is of such a nature that, in the Agents'
reasonable judgment, such letter should cover such other information.
SECTION 7. ADDITIONAL COVENANTS OF THE AGENTS. Each Agent agrees that:
(a) CALCULATION AGENT. If requested by the Company and agreed by such
Agent with respect to any Notes offered through such Agent as agent or to such
Agent as principal, such Agent will act as Calculation Agent with respect to
such Notes for all purposes. Unless otherwise agreed by the Company and the
relevant Agent, the rights and obligations of the Company and such Agent shall,
with respect to each instance in which such Agent is requested to so act, be
governed by the Master Calculation Agent Agreement dated as of April 16, 2002
set forth as Exhibit C hereto.
(b) DISCRETIONARY ACCOUNTS. It will not confirm sales of any Notes to
accounts over which it exercises discretionary authority.
(c) FREE WRITING PROSPECTUS USE. Except as otherwise agreed by the
Company and specified in a Terms Agreement with respect to a particular offering
of a tranche of Notes, it has not made and will not make any offer relating to
the Notes that would constitute a free writing prospectus, as defined in Rule
405 under the 1933 Act, other than a Permitted Free Writing Prospectus or a free
writing prospectus which is not required to be filed by the Company pursuant to
Rule 433 under the 1933 Act; provided, that, if so specified in the Terms
Agreement or the Company shall otherwise so notify the Agents in writing, the
Agent will make no offer relating to the Notes that will constitute a free
writing prospectus as defined in Rule 405 under the 1933 Act, other than a
Permitted Free Writing Prospectus, without the prior consent of the Company. Any
such material prepared by or on behalf of such Agent will only be used if it
complies in all material respects with the requirement of the 1933 Act and the
1933 Act Regulations.
(e) SELLING RESTRICTIONS COMPLIANCE. (i) Each Agent hereby certifies
that such Agent has anti-money laundering policies and procedures in place in
accordance with the requirements imposed by the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism (USA PATRIOT Act) Act of 2001, Pub. L, 107-56, 115 Stat. 380 (October
26, 2001), or any rules or regulations promulgated thereunder, and will comply
with legal measures administered by the Office of Foreign Assets Control of the
United States Department of the Treasury. Each Agent also certifies that
20
such Agent has implemented an anti-money laundering compliance program pursuant
to NASD Rule 3011; and (ii) Each Agent will comply with all applicable laws and
regulations in each country or jurisdiction outside of the United States in or
from which it purchases, offers, sells or delivers Notes or has in its
possession or distributes the Prospectus for such Notes or any other offering
material and will obtain any consent, approval or permission required by it for
the purchase, offer or sale by it of the Notes under the laws and regulations in
force in any jurisdiction to which it is subject or in which it makes such
purchases, offers or sales and the Company shall have no responsibility
therefor.
SECTION 8. INDEMNIFICATION. (a) INDEMNIFICATION OF THE AGENTS. The Company
agrees to indemnify and hold harmless each Agent and each person, if any, who
controls any Agent within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act from and against any and all losses, claims, damages and
liabilities caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, any Preliminary
Prospectus, any Permitted Free Writing Prospectus, the Pricing Disclosure
Material or the Prospectus (if used within the period set forth in Section 3(c)
and as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
furnished in writing to the Company by any Agent expressly for use therein;
provided, however, that the foregoing indemnity agreement with respect to any
Preliminary Prospectus (including, without limitation, any preliminary
prospectus supplement or preliminary pricing supplement), any Permitted Free
Writing Prospectus, the Pricing Disclosure Material, or any Prospectus shall not
inure to the benefit of any Agent from whom the person asserting any such
losses, claims, damages or liabilities purchased Notes, or any person
controlling such Agent, if a copy of the Pricing Disclosure Material or the
Prospectus (as then amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) was provided (with notice that it
contains additional or different material information) to such Agent by the
Company sufficiently far enough in advance of the time of sale in order to
enable such Agent to convey to the purchaser of the Notes and was not conveyed
by or on behalf of such Agent to such person at or prior to the entry into the
contract of sale of the Notes to such person pursuant to Rule 159 of the 1933
Act, and if the Pricing Disclosure Material or the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such loss, claim,
damage or liability.
(b) INDEMNIFICATION OF COMPANY. Each Agent agrees, severally and not
jointly, to indemnify and hold harmless the Company, its directors, its officers
who sign the Registration Statement and any person controlling the Company to
the same extent as the foregoing indemnity from the Company to each Agent, (i)
with reference to information relating to such Agent furnished in writing by
such
21
Agent expressly for use in the Registration Statement, any Permitted Free
Writing Prospectus, the Pricing Disclosure Material or the Prospectus or any
amendments or supplements thereto and (ii) arising from any other free writing
prospectus prepared by or on behalf of such Agent, except to the extent arising
from the information furnished in writing by the Company expressly for use
therein.
(c) GENERAL. In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to Section 8(a) or 8(b) hereof, such person
(the "INDEMNIFIED PARTY") shall promptly notify the person against whom such
indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the reasonable fees and expenses of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm (in addition to local counsel) for all
such indemnified parties and that all such fees and expenses shall be reimbursed
as they are incurred. Such firm shall be designated in writing by the Agents in
the case of parties indemnified pursuant to Section 8(a) and by the Company in
the case of parties indemnified pursuant to Section 8(b). The indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent but if settled with such consent or if there be a final judgment
for the plaintiff, the indemnifying party agrees to indemnify the indemnified
party from and against any loss or liability by reason of such settlement or
judgment.
SECTION 9. CONTRIBUTION. If the indemnification provided for in Section 8 is
unavailable to an indemnified party in respect of any losses, claims, damages or
liabilities referred to therein, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (i) if the indemnifying party is the Company, in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Agents on the other from the issue and sale of the Notes, (ii)
if the indemnifying party is an Agent, in such proportion as is appropriate to
reflect the relative fault of such Agent on the one hand and the Company on the
other hand in connection with the statements or omissions which resulted in such
losses,
22
claims, damages or liabilities, or (iii) if the allocation provided by clause
(i) or clause (ii) above, as the case may be, is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above or the relative fault referred to in
clause (ii) above, as the case may be, but also such relative fault (in cases
covered by clause (i)) or such relative benefits (in cases covered by clause
(ii)) as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Agents on the other
hand shall be deemed to be in the same proportion as the total sales price
received by the Company from the sale of Notes that are the subject of the claim
for indemnification (before deducting expenses) bears to the total underwriting
discounts and commissions received by the Agents from sales of Notes that are
the subject of the claim for indemnification. The relative fault of the Company
on the one hand and of the Agents on the other shall be determined by reference
to, among other things, whether the untrue statement of a fact or the omission
to state a fact relates to information supplied by the Company or statements
made or furnished by the Agents and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
23
The Company and the Agents agree that it would not be just and equitable if
contribution pursuant to this Section 9 were determined by pro rata allocation
(even if the Agents were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
provided for, in the respective cases, in clauses (i), (ii) and (iii) of the
immediately preceding paragraph. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages and liabilities referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 9, no Agent
shall be required to contribute any amount in excess of the amount by which the
sum of (i) the total price at which any Notes, the purchase of which is the
subject of the claim for indemnification and which was solicited by such Agent,
were sold by the Company and (ii) the total price at which any Notes, the
purchase of which is the subject of the claim for indemnification and which such
Agent purchased as principal and distributed to the public, were offered to the
public, exceeds the amount of any damages which such Agent has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. The
Agents' obligations to contribute pursuant to this Section 9 are several, in
proportion to the respective amounts of Notes solicited or purchased by each of
such Agents, and not joint.
SECTION 10. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this Agreement or
any Terms Agreement, or contained in certificates of officers of the Company
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Agents or any
controlling person of any Agent, or by or on behalf of the Company or any
controlling person of the Company, and shall survive each delivery of and
payment for any of the Notes.
SECTION 11. TERMINATION. (a) TERMINATION OF THIS AGREEMENT. This Agreement
may be terminated as to a party for any reason, at any time by any party hereto
upon the giving of 30 days' written notice of such termination to each other
party hereto; provided, however, that an Agent's termination of this Agreement
shall terminate the Agreement only between itself and the Company.
(b) TERMINATION OF A TERMS AGREEMENT. The Agent or, in the case of a
syndication issue, the majority in interest of the Agents, may terminate any
Terms Agreement, immediately upon notice to the Company, at any time prior to
the Settlement Date relating thereto if (i) trading in securities generally on
the New York Stock Exchange shall have been suspended or materially limited;
(ii) a general moratorium on commercial banking activities in the State of New
York or
24
the United States shall have been declared by Federal authorities; or (iii)
there shall have occurred any material outbreak, or material escalation, of
hostilities or other national or international calamity or crisis, of such
magnitude and severity in its effect on the financial markets of the United
States, in the reasonable judgment of such Agent or a majority in interest of
the Agents, as to prevent or materially impair the marketing, or enforcement of
contracts for sale, of the Notes.
(c) GENERAL. In the event of any such termination, no party will have
any liability to the other parties hereto or to the other parties to any Terms
Agreement so terminated, except that (i) the Agents shall be entitled to any
commissions earned in accordance with the fourth paragraph of Section 2(a)
hereof, (ii) if at the time of termination (a) any Agent shall own any Notes
purchased pursuant to a Terms Agreement with the intention of reselling them or
(b) an offer to purchase any of the Notes has been accepted by the Company but
the time of delivery to the purchaser or his agent of the Note or Notes relating
thereto has not occurred, the covenants set forth in Sections 3 and 6 hereof
shall remain in effect until such Notes are so resold or delivered, as the case
may be, and (iii) the covenant set forth in Section 3(f) hereof (except that the
Company shall no longer be required to comply with the provisions of Section
3(f) after it has made generally available to its security holders an earnings
statement (which need not be audited) covering a twelve-month period beginning
after the date of the last sale of Notes hereunder (including sales to an Agent
under a Terms Agreement) which shall satisfy the provisions of Section 11(a) of
the 1933 Act and the rules and regulations thereunder), the provisions of
Section 4 hereof, the agreements of the Agents pursuant to Section 7 hereof, the
indemnity and contribution agreements set forth in Sections 8 and 9 hereof, and
the provisions of Sections 10 and 14 hereof shall remain in effect.
SECTION 12. NOTICES. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given if mailed or transmitted
to the address or telefax number set forth below:
Citigroup Capital Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Deutsche Bank Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇
25
General Electric Capital Corporation
GE Capital Markets, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Senior Vice President-Corporate Treasury
and Global Funding Operation
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Registration Department
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇ Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Transaction Execution Group
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Fixed Income Syndicate/MTN Desk
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇
& ▇▇▇▇▇ Incorporated
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Global Transaction Management Group
UBS Securities LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
Stamford, CT 06901
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Debt Capital Markets
SECTION 12. PARTIES. This Agreement and any Terms Agreement shall inure to
the benefit of and be binding upon the Agents and the Company and their
respective successors. Nothing expressed or mentioned in this Agreement or any
26
Terms Agreement is intended or shall be construed to give any person, firm or
corporation, other than the parties hereto and their respective successors and
the controlling persons and officers and directors referred to in Sections 8 and
9 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any Terms Agreement or
any provision herein or therein contained. This Agreement and any Terms
Agreement and all conditions and provisions hereof and thereof are intended to
be for the sole and exclusive benefit of the parties hereto and their respective
successors and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation, except that purchasers of Notes sold by any Agent as agent shall be
entitled to the benefits of Section 5 hereof. No purchaser of Notes shall be
deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
Section 14. RELATIONSHIP. The Company and the Agents acknowledge and agree
that in connection with all aspects of each transaction contemplated by this
Agreement, the Company and the Underwriters have an arms-length business
relationship that creates no fiduciary duty on the part of either party and each
expressly disclaims any fiduciary relationship.
27
If the foregoing is in accordance with your understanding of our amended and
restated agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument along with all counterparts will become a binding
agreement between the Agents and the Company in accordance with its terms.
Very truly yours,
GENERAL ELECTRIC CAPITAL
CORPORATION
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President Corporate
Treasury & Global Funding Operation
CONFIRMED AND ACCEPTED,
as of the date first above written:
CITIGROUP CAPITAL MARKETS INC.
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Managing Director
DEUTSCHE BANK SECURITIES INC.
By /s/ ▇▇▇▇ ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇
Title: Director
By /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
GE CAPITAL MARKETS, INC.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
By /s/ ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
--------------------------------------
Name:
Title:
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ BROTHERS INC.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ LYNCH, ▇▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇ INCORPORATED
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Authorized Signatory
UBS SECURITIES LLC
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
EXHIBIT A
[AGGREGATE PRINCIPAL AMOUNT OF NOTES]
GENERAL ELECTRIC CAPITAL CORPORATION
GLOBAL MEDIUM-TERM NOTES
TERMS AGREEMENT
---------------
[DATE]
GENERAL ELECTRIC CAPITAL CORPORATION
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Senior Vice President - Corporate Treasury and
Global Funding Operation
Re: THIRD AMENDED AND RESTATED U.S. DISTRIBUTION AGREEMENT ("U.S.
DISTRIBUTION AGREEMENT") DATED AS OF MARCH 29, 2006
The undersigned agrees to purchase Global Medium-Term Notes, Series [ ] (Trade
No. ____) having the following terms:
Maturity Date:
Principal Amount:
Issue Price:
Settlement Date:
Place of Delivery: The City of New York, New York
Issue Date:
Specified Currency:
Interest Rate:
Interest Payments:
Redemption at the option of the Company: None
Repayment at the option of the holder: None
Discount/Commissions:
A-1
[TERMS USED BUT NOT DEFINED HEREIN SHALL HAVE THE MEANING ASSIGNED TO THEM IN
THE U.S. DISTRIBUTION AGREEMENT.
SOLELY WITH RESPECT TO THE DISTRIBUTION OF THE NOTES, THE UNDERWRITER IS ▇▇▇▇▇▇
APPOINTED AS AN AGENT UNDER THE U.S. DISTRIBUTION AGREEMENT AND SHALL BE
ENTITLED TO THE BENEFITS, AND SUBJECT TO THE OBLIGATIONS, OF AN AGENT PURCHASING
NOTES AS PRINCIPAL PURSUANT TO SECTION 2(B) THEREUNDER.(1)]
TO THE EXTENT THAT ANY OF THE UNDERWRITERS LISTED ON SCHEDULE I ARE NOT NAMED AS
AGENTS IN THE SECOND AMENDED AND RESTATED U.S. DISTRIBUTION AGREEMENT, SUCH
ENTITIES ARE HEREBY APPOINTED AGENTS THEREUNDER WITH RESPECT TO THIS
TRANSACTION.
The certificate referred to in Section 5(b) of the U.S. Distribution Agreement,
the opinion referred to in Section 5(a)(i) of the U.S. Distribution Agreement
[AND THE ACCOUNTANTS' LETTER REFERRED TO IN SECTION 5(C) OF THE U.S.
DISTRIBUTION AGREEMENT] will be required.
[[LEAD MANAGER] WILL ACT AS CALCULATION AGENT AS REFERRED TO IN SECTION 7(B) OF
THE U.S. DISTRIBUTION AGREEMENT.](2)
[LEAD MANAGER]
BY:
--------------------------------------
Title:
ACCEPTED:
GENERAL ELECTRIC CAPITAL CORPORATION
By:
------------------------------------------
Senior Vice President - Corporate Treasury
and Global Funding Operation
----------
(1) To be included if the Underwriter is not a party to the U.S. Distribution
Agreement.
(2) To be included if it is a floating rate transaction unless a party other
than the dealer acts as Calculation Agent.
A-2
SCHEDULE II
Attached Permitted Free Writing Prospectus
Number [ ] [Date]
A-3
EXHIBIT B
GENERAL ELECTRIC CAPITAL CORPORATION
GLOBAL MEDIUM-TERM NOTES, SERIES A
ADMINISTRATIVE PROCEDURES
------------------------------------
The Global Medium-Term Notes, Series A (the "Notes"), are to be offered on
a continuous basis by General Electric Capital Corporation (the "Company"). Each
of Citibank Capital Markets Inc., Deutsche Bank Securities Inc., GE Capital
Markets, Inc., ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇.▇. ▇▇▇▇▇▇ Securities Inc., ▇▇▇▇▇▇
Brothers Inc., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and UBS
Securities LLC (each an "Agent") has agreed to solicit offers to purchase the
Notes in registered form. The Notes are being sold pursuant to a Third Amended
and Restated U.S. Distribution Agreement dated as of March 16, 2006 (the
"Agreement") between the Company and the Agents. In the Agreement, each Agent
has agreed to use its best efforts to solicit purchases of the Notes. Each
Agent, as principal, may purchase Notes for its own account and if it does so,
the Company and such Agent will enter into a terms agreement, as contemplated by
the Agreement.
The Notes are to be issued pursuant to a Third Amended and Restated
Indenture dated as of February 27, 1997, between the Company and JPMorgan Chase
Bank, N.A. (formerly known as The Chase Manhattan Bank), as successor trustee
(the "Trustee") as supplemented by the First Supplemental Indenture dated as of
May 3, 1999, the Second Supplemental Indenture dated as of July 2, 2001 and the
Third Supplemental Indenture dated as of November 22, 2002 (the Third Amended
and Restated Indenture, as supplemented, the "Indenture"). Subject to the terms
and conditions of the Indenture, and unless otherwise provided, all Securities
of the same series having identical terms but for authentication date and public
offering price (a "Tranche") need not be issued at the same time. Unless
otherwise provided, and subject to the terms and conditions of the Indenture, a
Tranche may be reopened for issuance of additional Securities in such Tranche.
The Company has initially appointed the Trustee, at its corporate trust office
in The City of New York, as the registrar (the "Registrar") for the Notes. The
Company has authorized the issuance of Notes to and through the Agents pursuant
B-1
to the terms of this Agreement. The Notes will be issued in registered form.
Notes will bear interest at a fixed rate (the "Fixed Rate Notes"), which may be
zero in the case of certain original issue discount notes (the "OID Notes"), or
at floating rates (the "Floating Rate Notes"). Fixed Rate Notes may (i) pay a
level amount in respect of both interest and principal amortized over the life
of the Notes (the "Amortizing Notes"), (ii) pay an amount in respect of
principal determined by the relationship between (x) the currency base rate of a
unit of the face amount currency per unit of the Indexed Currency specified on
the face of such Note and (y) the spot rate (as derived in accordance with such
Note) expressed in terms of a unit of the face amount currency per unit of such
Indexed Currency for an amount of such Indexed Currency equal to the face amount
of such Note on the Index Determination Date specified on the face of such Note
("Indexed Notes") and (iii) provide for payment of both principal and interest
to be made, at the election of the Company, in the Optional Payment Currency
specified on the face of such Note at the Designated Exchange rate specified on
the face thereof with certain adjustments to the payment of principal if such
Note is redeemed prior to the Maturity Date or if payment thereon is accelerated
("Dual Currency Notes"). The Notes will be issued in U.S. dollars or other
currencies (the "Specified Currency"). Each Note will be represented by either a
Global Security (as defined below), beneficial interests in which will be
recorded in book-entry systems maintained by one or more of The Depository Trust
Company ("DTC"), Clearstream Banking, Societe Anonyme ("Clearstream,
Luxembourg") or Euroclear Bank S.A./N.V., as operator of the Euroclear System
("Euroclear"), (a "Book-Entry Note") or a certificate delivered to the holder
thereof or a person designated by such holder (a "Certificated Note"). Each
Global Security will be delivered either to the Trustee, as agent for DTC, or to
a common depositary (the "Common Depositary") for Clearstream, Luxembourg and/or
Euroclear. Except in limited circumstances, an owner of a Book-Entry Note will
not be entitled to receive a Certificated Note.
The Company will provide information with respect to each tranche of Notes
that is listed on the Official List of the U.K. Listing Authority (the "UKLA")
and admitted to trading by the London Stock Exchange plc (the "London Stock
Exchange"). Notes may be issued that will be listed, quoted and/or traded on or
by other European stock exchanges, competent listing authorities and/or
quotation systems (such Notes, along with Notes listed on the UKLA and admitted
to trading by the London Stock Exchange, "Listed Notes") in each case in
accordance with the listing rules (as the same may be amended from time to time)
of such stock exchange, competent listing authority and/or quotation system (the
"Listing Rules"). Notes may also be issued that will not be listed quoted and/or
traded on or by any stock exchange, competent listing authority and/or quotation
system.
B-2
Book-Entry Notes will be issued in accordance with the administrative
procedures set forth in Part I hereof, as they may subsequently be modified as
the result of changes in the operating procedures of DTC, Clearstream,
Luxembourg and Euroclear, as the case may be, and Certificated Notes will be
issued in accordance with the administrative procedures set forth in Part II
hereof. Indexed Notes and Dual Currency Notes will only be issued as
Certificated Notes. Unless otherwise defined herein, terms defined in the
Indenture or the Notes shall be used herein as therein defined.
In case of any conflict between these Administrative Procedures and the
Agreement or the Indenture, the terms of the Agreement or the Indenture,
respectively, shall govern.
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry systems maintained by DTC, Clearstream, Luxembourg
and Euroclear, the Trustee will perform the custodial, document control and
administrative functions described below, including, (1) in the case of
Book-Entry Notes held through DTC ("DTC Book-Entry Notes"), in accordance with
its respective obligations under a Letter of Representations from the Company
and the Trustee to DTC, dated as of May 3, 1999 (the "Letter of
Representations"), and its obligations as a participant in DTC, including DTC's
Same-Day Funds Settlement System ("SDS") and (2) in the case of Notes held
through Clearstream, Luxembourg and/or Euroclear, in its capacity as Common
Depositary.
Issuance: On any date of settlement (as defined under "Settlement"
below) for one or more Book-Entry Notes, the Company will
issue a single global security in fully registered form
without coupons (a "Global Security") representing all such
Notes that have the same Purchase Price, Settlement Date,
Maturity Date, redemption or repayment provisions, Interest
Payment Dates, Original Issue Date, original issue discount
provisions (if any), and, in the case of Fixed Rate Notes,
Interest Rate, modified payment upon acceleration (if any),
amortization schedule (if any) or, in the case of Floating
Rate Notes, Initial Interest Rate, Interest Payment Dates,
Interest Payment Period, Calculation Agent, Base Rate, Index
Maturity, Interest Reset Period, Interest Reset Dates,
Spread or Spread Multiplier (if any), Alternative Rate Event
Spread (if any), Minimum Interest Rate (if any)and Maximum
Interest Rate (if
B-3
any)and, in each case, any other relevant terms
(collectively "Terms"). If DTC Book-Entry Notes having an
aggregate principal amount in excess of U.S. $500,000,000
would, but for the preceding sentence, be represented by a
single Global Security, then one Global Security will be
issued to represent each U.S. $500,000,000 aggregate
principal amount of such DTC Book-Entry Notes and an
additional Global Security will be issued to represent any
remaining principal amount of such DTC Book-Entry Notes.
Each Global Security will be dated and issued as of the date
of its authentication by the Trustee. Each Global Security
will bear an "Interest Accrual Date," which will be (i) with
respect to an original Global Security (or any portion
thereof), its original issuance date and (ii) with respect
to any Global Security (or any portion thereof) issued
subsequently upon exchange of a Global Security, or in lieu
of a destroyed, lost or stolen Global Security, the most
recent Interest Payment Date to which interest has been paid
or duly provided for on the predecessor Global Security or
Securities (or if no such payment or provision has been
made, the original issuance date of the predecessor Global
Security), regardless of the date of authentication of such
subsequently issued Global Security. No Global Security will
represent any Certificated Note.
Identification
Numbers: DTC BOOK-ENTRY NOTES. The Company has arranged with the
CUSIP Service Bureau of Standard & Poor's Corporation (the
"CUSIP Service Bureau") for the reservation of a series of
approximately 900 CUSIP numbers (including tranche numbers)
for assignment to the Global Securities representing the DTC
Book-Entry Notes. The Company has obtained from the CUSIP
Service Bureau a written list of each series of reserved
CUSIP numbers and has delivered to the Trustee and DTC the
written list of 900 CUSIP numbers of such series. The
Trustee will assign CUSIP numbers to Global Securities as
described below under Settlement Procedure "B". DTC will
notify the CUSIP Service Bureau periodically of the CUSIP
numbers that the Trustee has assigned to Global Securities.
At anytime
B-4
when fewer than 100 of the reserved CUSIP numbers of either
series remain unassigned to Global Securities, the Trustee
shall so advise the Company and, if it deems necessary, the
Company will reserve additional CUSIP numbers for assignment
to Global Securities representing DTC Book-Entry Notes. Upon
obtaining such additional CUSIP numbers, the Company shall
deliver a list of such additional CUSIP numbers to the
Trustee and DTC.
OTHER BOOK-ENTRY NOTES. The Trustee will telephone each of
Clearstream, Luxembourg and Euroclear with a request for an
ISIN number and Common Code for the Book-Entry Notes
represented by each Global Security deposited with the
Common Depositary in accordance with Settlement Procedure
"B" below.
Registration: Each Global Security will be registered either, in the case
of Notes to be held through DTC, in the name of Cede & Co.,
as nominee for DTC, or, in the case of Notes to be held
through Clearstream, Luxembourg and/or Euroclear, in the
name of Chase Nominees Limited, as nominee for the Common
Depositary, in each case on the security register maintained
under the Indenture. The beneficial owner of a Book-Entry
Note (or one or more indirect participants in the relevant
clearing system designated by such owner) will designate one
or more participants in DTC, Clearstream, Luxembourg or
Euroclear, as the case may be (the "Participants"), to act
as agent or agents for such owner with respect to such Note
in connection with the book-entry system maintained by such
clearing system, and such clearing system will record in
book-entry form, in accordance with instructions provided by
each such Participant, a credit balance with respect to such
beneficial owner in such Note in the account of such
Participants. The ownership interest of such beneficial
owner in such Note will be recorded through the records of
such Participants or through the separate records of such
Participants and one or more indirect participants in such
clearing system.
B-5
Transfers: Transfers of a Book-Entry Note will be accompanied by book
entries made by the relevant clearing system and, in turn,
by Participants (and in certain cases, one or more indirect
participants) acting on behalf of beneficial transferors and
transferees of such Note.
Exchanges: The Trustee may deliver to the relevant clearing system and,
in the case of DTC Book-Entry Notes, the CUSIP Service
Bureau at any time a written notice of consolidation
specifying (i) the CUSIP numbers, ISIN numbers and Common
Codes of two or more Outstanding Global Securities that
represent Book-Entry Notes having the same Terms and for
which interest has been paid to the same date, (ii) a date,
occurring at least thirty days after such written notice is
delivered and at least thirty days before the next Interest
Payment Date for such Book-Entry Notes, on which such Global
Securities shall be exchanged for a single replacement
Global Security and (iii) a new CUSIP number and/or ISIN
number or Common Code to be assigned to such replacement
Global Security. Upon receipt of such a notice, each
relevant clearing system will send to its Participants
(including the Trustee) a written reorganization notice to
the effect that such exchange will occur on such date. Prior
to the specified exchange date, in the case of DTC
Book-Entry Notes, the Trustee will deliver to the CUSIP
Service Bureau a written notice setting forth such exchange
date and the new CUSIP number and stating that, as of such
exchange date, the CUSIP numbers of the Global Securities to
be exchanged will no longer be valid. On the specified
exchange date, the Trustee will exchange such Global
Securities for a single Global Security bearing the new
CUSIP number and/or ISIN number or Common Code and a new
Interest Accrual Date, and the CUSIP numbers, if any, of the
exchanged Global Securities will, in accordance with CUSIP
Service Bureau procedures, be cancelled and not immediately
reassigned. Notwithstanding the foregoing, in the case of
Global Securities registered in the name of Cede & Co., if
the Global Securities to be exchanged exceed U.S.
$500,000,000 in aggregate principal amount, one Global
Security will be authenticated and issued to
B-6
represent each U.S. $500,000,000 principal amount of the
exchanged Global Security and an additional Global Security
will be authenticated and issued to represent any remaining
principal amount of such Global Securities (see
"Denominations" below).
Maturities: Each Book-Entry Note will mature on a date from nine months
to 60 years from its date of issue.
Notice of
Redemption and
Repayment Dates: The Trustee will give notice prior to each redemption date
or repayment date (as specified in the Note), if any, (1) in
the case of Notes held through DTC, to DTC at the time and
in the manner set forth in the Letter of Representations;
(2) in the case of Notes held through Clearstream,
Luxembourg and/or Euroclear, to Clearstream, Luxembourg
and/or Euroclear through the Common Depositary at the time
and in the manner specified by such clearing systems from
time to time; and (3) in the case of Listed Notes, at the
time and in the manner specified in the relevant Listing
Rules.
Denominations: Book-Entry Notes will be issued in principal amounts of U.S.
$1,000 or an integral multiple of U.S. $1,000 in excess
thereof, unless otherwise specified in the applicable
Pricing Supplement. Global Securities representing DTC
Book-Entry Notes will be issued in principal amounts not in
excess of U.S. $500,000,000. If DTC Book-Entry Notes having
an aggregate principal amount in excess of U.S. $500,000,000
would, but for the preceding sentence, be represented by a
single Global Security, then one Global Security will be
issued to represent each U.S. $500,000,000 principal amount
of such DTC Book-Entry Note or Notes and an additional
Global Security will be issued to represent any remaining
principal amount of such DTC Book-Entry Note or Notes. In
such a case, each of the Global Securities representing such
DTC Book-Entry Note or Notes shall be assigned the same
CUSIP number.
Interest: GENERAL. Interest on each Book-Entry Note will accrue from
the Interest Accrual Date of the Global Security
B-7
representing such Note. Each payment of interest on a
Book-Entry Note will include interest accrued to but
excluding the Interest Payment Date; provided that in the
case of Floating Rate Notes that reset daily or weekly,
interest payments will include interest accrued to and
including the Record Date immediately preceding the Interest
Payment Date, except that at maturity or earlier redemption
or repayment, the interest payable will include interest
accrued to, but excluding, the maturity date or the date of
redemption or repayment, as the case may be. Interest
payable at the maturity or upon redemption or repayment of a
Book-Entry Note will be payable to the person to whom the
principal of such Note is payable. In the case of DTC
Book-Entry Notes, Standard & Poor's Corporation will use the
information received in the pending deposit message
described under Settlement Procedure "C" below in order to
include the amount of any interest payable and certain other
information regarding the related Global Security in the
appropriate weekly bond report published by Standard &
Poor's Corporation.
RECORD DATES. Unless otherwise specified in the applicable
Pricing Supplement, the Record Date with respect to any
Interest Payment Date shall be the close of business on the
fifteenth calendar day (whether or not a Business Day)
immediately preceding such Interest Payment Date.
FIXED RATE BOOK-ENTRY NOTES. Unless otherwise specified in
the applicable Pricing Supplement, interest payments on
Fixed Rate Book-Entry Notes, other than Amortizing Notes,
will be made semiannually on March 15 and September 15 of
each year, (or, if so indicated in such Note, annually on
September 15 of each year) and at maturity or upon any
earlier redemption or repayment and Book Entry Amortizing
Notes will pay principal and interest semiannually each
March 15 and September 15, or quarterly each March 15, June
15, September 15, and December 15, and at maturity (or any
redemption or repayment date); PROVIDED, HOWEVER, that in
the case of a Fixed Rate Book-Entry Note issued
B-8
between a Record Date and an Interest Payment Date, the
first interest payment will be made on the Interest Payment
Date following the next succeeding Record Date.
FLOATING RATE BOOK-ENTRY NOTES. Interest payments will be
made on Floating Rate Book-Entry Notes monthly, quarterly,
semiannually or annually. Unless otherwise agreed upon,
interest will be payable, in the case of Floating Rate
Book-Entry Notes with a daily, weekly or monthly Interest
Reset Date, on the third Wednesday of each month or on the
third Wednesday of March, June, September and December, as
specified pursuant to Settlement Procedure "A" below; in the
case of Notes with a quarterly Interest Reset Date, on the
third Wednesday of March, June, September and December of
each year; in the case of Notes with a semi-annual Interest
Reset Date, on the third Wednesday of the two months
specified pursuant to Settlement Procedure "A" below; and in
the case of Notes with an annual Interest Reset Date, on the
third Wednesday of the month specified pursuant to
Settlement Procedure "A" below; PROVIDED HOWEVER, that if an
Interest Payment Date for Floating Rate Book-Entry Notes
would otherwise be a day that is not a Business Day with
respect to such Floating Rate Book-Entry Notes, such
Interest Payment Date will be the next succeeding Business
Day with respect to such Floating Rate Book-Entry Notes,
except in the case of a LIBOR Note if such Business Day is
in the next succeeding calendar month, such Interest Payment
Date will be the immediately preceding Business Day; and
PROVIDED, FURTHER, that in the case of a Floating Rate
Book-Entry Note issued between a Record Date and an Interest
Payment Date, the first interest payment will be made on the
Interest Payment Date following the next succeeding Record
Date.
NOTICE OF INTEREST PAYMENT AND RECORD Dates. On the first
Business Day of January, April, July and October of each
year, the Trustee will deliver to the Company and DTC a
written list of Record Dates and Interest Payment Dates that
will occur with respect to DTC
B-9
Book-Entry Notes during the six-month period beginning on
such first Business Day.
Calculation
of Interest: FIXED RATE BOOK-ENTRY NOTES. Interest on Fixed Rate
Book-Entry Notes (including interest for partial periods)
will be calculated on the basis of a year of twelve
thirty-day months.
FLOATING RATE BOOK-ENTRY NOTES. Interest rates on Floating
Rate Book-Entry Notes will be determined as set forth in the
form of Notes. Interest on Floating Rate Book-Entry Notes
will be calculated on the basis of actual days elapsed and a
year of 360 days except that in the case of Treasury Rate
Notes, interest will be calculated on the basis of the
actual number of days in the year.
Payments of
Principal and
Interest: PAYMENTS OF INTEREST. Not later than three days prior to the
Interest Payment Date, the Trustee or the Common Depositary,
as applicable, will deliver to the Company and the relevant
clearing systems a written notice specifying by CUSIP number
and/or ISIN number or Common Code the amount of interest to
be paid on each Global Security other than an Amortizing
Note on the following Interest Payment Date (other than an
Interest Payment Date coinciding with maturity or any
earlier redemption or repayment date) and the total of such
amounts. In the case of DTC Book-Entry Notes, DTC will
confirm the amount payable on each such Global Security on
such Interest Payment Date by reference to the daily bond
reports published by Standard & Poor's Corporation. In the
case of Amortizing Notes that are DTC Book-Entry Notes, the
Trustee will provide separate written notice to DTC prior to
each Interest Payment Date at the time and in the manner set
forth in the Letter of Representations. The Company will pay
to the Trustee, as paying agent, the total amount of
interest due on such Interest Payment Date (and, in the case
of an Amortizing Note, principal and interest) (other than
at maturity), and the Trustee will pay the appropriate
amounts to DTC and to, or to the order of, the Common
Depositary based on
B-10
their respective holdings of the related Global Securities
at the times and in the manner set forth below under "Manner
of Payment." If any Interest Payment Date for a Fixed Rate
Book-Entry Note is not a Business Day, the payment due on
such day shall be made on the next succeeding Business Day
and no interest shall accrue on such payment for the period
from and after such Interest Payment Date.
PAYMENTS AT MATURITY OR UPON REDEMPTION OR REPAYMENT. On or
about the first Business Day of each month, the Trustee will
deliver to the Company and the relevant clearing systems a
written list of principal and interest to be paid on each
Global Security other than an Amortizing Note maturing
either at maturity or on a redemption or repayment date in
the following month. The Company and, in the case of DTC
Book-Entry Notes, DTC, will confirm the amounts of such
principal and interest payments with respect to each such
Global Security on or about the fifth Business Day preceding
the Maturity Date or redemption or repayment date of such
Global Security. In the case of Amortizing Notes that are
DTC Book-Entry Notes, the Trustee will provide separate
written notice to DTC prior to the Maturity Date and any
redemption or repayment date, as the case may be, at the
times and in the manner set forth in the Letter of
Representations. The Company will pay to the Trustee, as the
paying agent, the principal amount of such Global Security,
together with interest due at such Maturity Date or
redemption or repayment date. The Trustee will pay the
appropriate amounts to DTC and to, or to the order of, the
Common Depositary based on their respective holdings of the
related Global Securities at the times and in the manner set
forth below under "Manner of Payment." If any Maturity Date
or redemption or repayment date of a Global Security
representing Book-Entry Notes is not a Business Day, the
payment due on such day shall be made on the next succeeding
Business Day with respect to such Note, except that, in the
case of Book-Entry LIBOR Note, if such Business Day is in
the next succeeding calendar month, such Interest Payment
Date or redemption or repayment date shall be the
immediately preceding day
B-11
that is a Business Day with respect to such Book-Entry LIBOR
Note. Promptly after payment to DTC or to, or to the order
of, the Common Depositary, as the case may be, of the
principal and interest due on the Maturity Date or
redemption or repayment date of such Global Security, the
Trustee will cancel such Global Security in accordance with
the terms of the Indenture and deliver it to the Company
with a certificate of cancellation.
MANNER OF PAYMENT. The total amount of any principal and
interest due on Global Securities on any Interest Payment
Date or at maturity or upon redemption or repayment shall be
paid by the Company to the Trustee in funds available for
immediate use by the Trustee not later than 9:30 A.M. (local
time) on such date. Payment shall be made prior to 10:00
A.M. (local time) or as soon thereafter as practicable, on
each Maturity Date or redemption or repayment date or, if
either such date is not a Business Day, as soon as possible
thereafter, and the Trustee will pay by separate wire
transfer to, or to the order of, the Common Depositary or to
DTC, as the case may be (in the case of payments to DTC,
using Fed wire message entry instructions in a form
previously specified by DTC to an account at the Federal
Reserve Bank of New York previously specified by DTC), in
funds available for immediate use by the Common Depositary
or DTC, as the case may be, each payment of principal
(together with interest thereon) due on Global Securities on
any Maturity Date or redemption or repayment date. On each
Interest Payment Date or, if any such date is not a Business
Day, as soon as possible thereafter, interest payments and,
in the case of Amortizing Notes, interest and principal
payments shall be made to, or to the order of, the Common
Depositary or to DTC, as the case may be, in same day funds
in accordance with existing arrangements between the
Trustee, the Common Depositary and DTC. Thereafter, on each
such date (i) the Common Depositary will credit, or procure
the credit to, the accounts of Clearstream, Luxembourg and
Euroclear, in accordance with their respective operating
procedures then in effect, the proportionate amounts in
funds available for immediate use attributable to the
respective holdings of
B-12
their Participants of the Book-Entry Notes represented by
such Global Securities and (ii) DTC will pay, in accordance
with its SDS operating procedures then in effect, such
amounts in funds available for immediate use to the
respective Participants in whose names the DTC Book-Entry
Notes represented by such Global Securities are recorded in
the book-entry system maintained by DTC. Neither the Company
nor the Trustee shall have any responsibility or liability
for the payment by the Common Depositary (or the Trustee
acting on its behalf) or DTC to such Participants of the
principal of and interest on the Book-Entry Notes.
WITHHOLDING TAXES. The amount of any taxes required under
applicable law to be withheld from any interest payment on a
Book-Entry Note will be determined and withheld by the
Participant, indirect participant in DTC, Clearstream,
Luxembourg or Euroclear, as the case may be, or other person
responsible for forwarding payments directly to the
beneficial owner of such Note.
Preparation of
Pricing Supplement: If any order to purchase a Book-Entry Note is accepted by or
on behalf of the Company, the Company will prepare a pricing
supplement or final terms (hereinafter, each a "Pricing
Supplement") reflecting the terms of such Note and will
arrange to file such Pricing Supplement with the Commission
in accordance with the applicable paragraph of Rule 424
under the Act, and, (i) in the case of Notes to be listed on
the UKLA and admitted to trading by the London Stock
Exchange, will file such Pricing Supplement with the London
Stock Exchange or (ii) in the case of other Listed Notes, in
accordance with the relevant Listing Rules, will deliver the
number of copies of such Pricing Supplement to the relevant
Agent as such Agent shall request by the close of business
on the following Business Day. The relevant Agent will cause
such Pricing Supplement to be delivered to the purchaser of
the Note. In each instance that a Pricing Supplement is
prepared, the Agents receiving such Pricing Supplement will
affix the Pricing Supplement to Prospectuses prior to their
use. Outdated Pricing Supplements, and the
B-13
Prospectuses to which they are attached (other than those
retained for files), will be destroyed.
Settlement: The receipt by the Company of immediately available funds in
payment for a Book-Entry Note and the authentication and
issuance of the Global Security representing such Note shall
constitute "settlement" with respect to such Note. All
orders accepted by the Company will be settled on the fifth
Business Day pursuant to the timetable for settlement set
forth below unless the Company and the purchaser agree to
settlement on another day, which shall be no earlier than
the next Business Day.
Settlement
Procedures: Settlement Procedures with regard to each Book-Entry Note
sold by the Company to or through an Agent shall be as
follows:
A. The relevant Agent will advise the Company by telephone
that such Note is a Book-Entry Note and of the
following settlement information:
1. Principal amount and Specified Currency.
2. Maturity Date.
3. In the case of a Fixed Rate Book-Entry Note, the
Interest Rate, the applicability of Annual
Interest Payments and whether such Note is an
Amortizing Note and, if so, the amortization
schedule, or, in the case of a Floating Rate
Book-Entry Note, the Initial Interest Rate (if
known at such time), Interest Payment Dates,
Interest Payment Period, Calculation Agent, Base
Rate, Index Maturity, Interest Reset Period,
Initial Interest Reset Date, Interest Reset Dates,
Spread or Spread Multiplier (if any), Minimum
Interest Rate (if any), Maximum Interest Rate (if
any) and the Alternate Rate Event Spread (if any).
4. Redemption or repayment provisions, if any.
B-14
5. Settlement date and time.
6. Price.
7. Agent's commission, if any, determined as provided
in the Agreement.
8. Whether the Note is an OID Note, and if it is an
OID Note, the total amount of OID, the yield to
maturity, the initial accrual period OID and the
applicability of Modified Payment upon
Acceleration (and, if so, the Issue Price).
9. Whether such Note is to be a Listed Note and, if
so, the stock exchange, competent listing
authority and/or quotation system on or by which
it is to be listed, quoted and/or traded.
10. Whether such Book-Entry Note is to be registered
in the name of a nominee of DTC or a nominee of
the Common Depositary.
11. Whether the Notes are senior notes or subordinated
notes.
12. Any other applicable Terms.
B. The Company will advise the Trustee by telephone or
electronic transmission (confirmed in writing at any
time on the same date) of the information set forth in
Settlement Procedure "A" above. In the case of DTC
Book-Entry Notes, the Trustee will assign a CUSIP
number to the Global Security representing such Note
and will notify the Company and the Agent of such CUSIP
number by telephone as soon as practicable. In the case
of other Book-Entry Notes, the Trustee will telephone
each of Clearstream, Luxembourg and Euroclear with a
request for an ISIN number and Common Code for the
Book-Entry Notes
B-15
represented by each Global Security deposited with the
Common Depositary and will notify the Company and the
Agent of such ISIN number and Common Code by telephone
as soon as practicable.
C. If such Note is a DTC Book-Entry Note, the Trustee will
enter a pending deposit message through DTC's
Participant Terminal System, providing the following
settlement information to DTC, the relevant Agent and
Standard & Poor's Corporation:
1. The information set forth in Settlement Procedure
"A".
2. The Initial Interest Payment Date for such Note,
the number of days by which such date succeeds the
related DTC Record Date (which in the case of
Floating Rate Notes which reset daily or weekly,
shall be the date five calendar days immediately
preceding the applicable Interest Payment Date
and, in the case of all other Notes, shall be the
Record Date as defined in the Note) and, if known,
amount of interest payable on such Initial
Interest Payment Date.
3. The CUSIP number of the Global Security
representing such Note.
4. Whether such Global Security will represent any
other Book-Entry Note (to the extent known at such
time).
5. Whether such Note is an Amortizing Note (by an
appropriate notation in the comments field of
DTC's Participant Terminal System).
6. The number of Participant accounts to be
maintained by DTC on behalf of the Agents and the
Trustee.
B-16
D. The Trustee will complete and authenticate the Global
Security representing such Note.
E. DTC BOOK-ENTRY NOTES. DTC will credit such Note to the
Trustee's participant account at DTC.
OTHER BOOK-ENTRY NOTES. The Trustee will give
instructions to Clearstream, Luxembourg and Euroclear
to credit the respective amounts of Notes represented
by such Global Security and held initially by such
clearing system to the distribution account of the
Trustee in each clearing system.
F. DTC BOOK-ENTRY NOTES. The Trustee will enter an SDS
deliver order through DTC's Participant Terminal System
instructing DTC to (i) debit such Note to the Trustee's
participant account and credit such Note to the
relevant Agent's participant account and (ii) debit
such Agent's settlement account and credit the
Trustee's settlement account for an amount equal to the
price of such Note less such Agent's commission, if
any. The entry of such a deliver order shall constitute
a representation and warranty by the Trustee to DTC
that the Global Security representing such DTC
Book-Entry Note has been issued and authenticated.
OTHER BOOK-ENTRY NOTES. At settlement, the Trustee will
instruct Clearstream, Luxembourg and Euroclear to
debit, on the settlement date, from the distribution
account of the Trustee in such clearing system, the
principal amount of Notes with respect to which the
Agent has solicited an offer to purchase and to credit,
on the settlement date, such principal amount to the
account of the Agent with the relevant clearing system
against payment of the purchase price of such Notes.
B-17
G. In the case of DTC Book-Entry Notes, unless the
relevant Agent purchased such Note as principal, such
Agent will enter an SDS deliver order through DTC's
Participant Terminal System instructing DTC (i) to
debit such Note to such Agent's participant account and
credit such Note to the participant accounts of the
Participants with respect to such Note and (ii) to
debit the settlement accounts of such Participants and
credit the settlement account of such Agent for an
amount equal to the price of such Note.
H. In the case of DTC Book-Entry Notes, transfers of funds
in accordance with SDS deliver orders described in
Settlement Procedures "F" and "G" will be settled in
accordance with SDS operating procedures in effect on
the settlement date.
I. The Trustee will credit to the account of the Company
maintained in the Specified Currency and notified to
the Trustee from time to time in writing, in funds
available for immediate use, the amount transferred to
the Trustee in accordance with Settlement Procedure
"F".
J. Unless the relevant Agent purchased such Note as
principal, such Agent will confirm the purchase of such
Note to the purchaser either by transmitting to the
Participants with respect to such Note a confirmation
order or orders through DTC's institutional delivery
system or by mailing a written confirmation to such
purchaser.
K. Monthly, the Trustee will send to the Company a
statement setting forth the principal amount of Notes
outstanding as of that date under the Indenture and
setting forth a brief description of any sales of which
the Company has advised the Trustee but which have not
yet been settled.
B-18
Settlement
Procedures
Timetable: For sales by the Company of Book-Entry Notes to or through
an Agent for settlement on the first Business Day after the
sale date, Settlement Procedures "A" through "J" set forth
above shall be completed as soon as possible but not later
than the respective times (New York City time in the case of
DTC Book-Entry Notes; local time in the case of any other
Book-Entry Notes) set forth below:
Settlement
Procedure Time
--------- ----
A. 11:00 A.M. on the sale date
B. 12:00 Noon on the sale date
C. 2:00 P.M. on the sale date
D. 9:00 A.M. on settlement date
E. 10:00 A.M. on settlement date
F. 2:00 P.M. on settlement date
G. 2:00 P.M. on settlement date
H. 4:45 P.M. on settlement date
I-J 5:00 P.M. on settlement date
If a sale is to be settled more than one Business Day after
the sale date, Settlement Procedures "A", "B" and "C" shall
be completed as soon as practicable but no later than 11:00
A.M., 12 Noon and 2:00 P.M., respectively, on the first
Business Day after the sale date. If the Initial Interest
Rate for a Floating Rate Book-Entry Note has not been
determined at the time that Settlement Procedure "A" is
completed, Settlement Procedure "B" and "C" shall be
completed as soon as such rate has been determined but no
later than 12 Noon and 2:00 P.M., respectively, on the
second Business Day before the settlement date. In the case
of Book-Entry Notes other than DTC Book-Entry Notes,
Settlement Procedure "D", "E" and "F" shall be completed at
the corresponding times on the Business Day before the
settlement date. Settlement Procedure "H" is subject to
extension in accordance with any extension of Fed wire
closing deadlines and in the other events specified in the
SDS operating procedures in effect on the settlement date.
In the case of Book-Entry Notes, other than DTC Book-Entry
Notes, in a
B-19
Specified Currency other than U.S. dollars where same day
settlement is ordinarily not possible, Settlement Procedure
"I" shall be completed at the corresponding time on the
Business Day before the settlement date. In the case of DTC
Book-Entry Notes, if settlement of a Book-Entry Note is
rescheduled or cancelled, the Trustee, after receiving
notice from the Company or the Agent, will deliver to DTC,
through DTC's Participant Terminal System, a cancellation
message to such effect by no later than 2:00 P.M. on the
Business Day immediately preceding the scheduled settlement
date.
Failure to Settle: DTC BOOK-ENTRY NOTES. If the Trustee fails to enter an SDS
deliver order with respect to a Book-Entry Note pursuant to
Settlement Procedure "F", the Trustee may deliver to DTC,
through DTC's Participant Terminal System, as soon as
practicable a withdrawal message instructing DTC to debit
such Note to the Trustee's participant account, provided
that the Trustee's participant account contains a principal
amount of the Global Security representing such Note that is
at least equal to the principal amount to be debited. If a
withdrawal message is processed with respect to all the
Book-Entry Notes represented by a Global Security, the
Trustee will mark such Global Security "cancelled," make
appropriate entries in the Trustee's records and send such
cancelled Global Security to the Company. The CUSIP number
assigned to such Global Security shall, in accordance with
CUSIP Service Bureau procedures, be cancelled and not
immediately reassigned. If a withdrawal message is processed
with respect to one or more, but not all, of the Book-Entry
Notes represented by a Global Security, the Trustee will
exchange such Global Security for two Global Securities, one
of which shall represent such Book-Entry Note or Notes and
shall be cancelled immediately after issuance and the other
of which shall represent the remaining Book-Entry Notes
previously represented by the surrendered Global Security
and shall bear the CUSIP number of the surrendered Global
Security.
B-20
If the purchase price for any Book-Entry Note is not timely
paid to the Participants with respect to such Note by the
beneficial purchaser thereof (or a person, including an
indirect participant in DTC, acting on behalf of such
purchaser), such Participants and, in turn, the relevant
Agent may enter SDS deliver orders through DTC's Participant
Terminal System reversing the orders entered pursuant to
Settlement Procedures "F" and "G", respectively. Thereafter,
the Trustee will deliver the withdrawal message and take the
related actions described in the preceding paragraph.
Notwithstanding the foregoing, upon any failure to settle
with respect to a Book-Entry Note, DTC may take any actions
in accordance with its SDS operating procedures then in
effect.
In the event of a failure to settle with respect to one or
more, but not all, of the Book-Entry Notes to have been
represented by a Global Security, the Trustee will provide,
in accordance with Settlement Procedures "D" and "F", for
the authentication and issuance of a Global Security
representing the Book-Entry Notes to be represented by such
Global Security and will make appropriate entries in its
records.
OTHER BOOK-ENTRY NOTES. If the Agent shall have advanced its
own funds for payment against subsequent receipt of funds
from a purchaser and such purchaser shall fail to make
payment for a Note, the Agent will promptly notify the
Company, the Trustee, the Common Depositary, Clearstream,
Luxembourg and Euroclear, in each case by telephone,
promptly confirmed in writing (but no later than the next
Business Day). In such event, the Company shall promptly
instruct the Trustee to cancel such purchaser's interest in
the Global Security representing such Note. Upon
confirmation from the Trustee in writing (which may be given
by telex or telecopy) that the Trustee has cancelled such
purchaser's interest in the Global Security and confirmation
from the Agent in writing (which may be given by telex or
telecopy) that the Agent has not received payment from such
purchaser for the Note, the
B-21
Company will promptly pay to the Agent an amount in
immediately available funds equal to the amount previously
paid by the Agent in respect of such Note. Such payment will
be made on the settlement date, if possible, and in any
event not later than 12:00 Noon (local time) on the Business
Day following the settlement date. The Trustee, Common
Depositary, Clearstream, Luxembourg and Euroclear will make
or cause to be made such revisions or notations to the
Global Security and their other records as are necessary to
reflect the cancellation of such portion of the Global
Security.
Notice of Issuance
to the London
Stock Exchange: The Company will provide information with respect to each
tranche of Notes to be listed on the UKLA and admitted to
trading by the London Stock Exchange to such Exchange and
will advise the Trustee in writing as to the effectiveness
of the listing of such Notes by the close of business on the
related settlement date. To the extent required by the
London Stock Exchange, the Agent will provide the Company
with secondary market information regarding any tranche of
Notes listed on the UKLA and admitted to trading by the
London Stock Exchange and the Company will provide such
information to the London Stock Exchange.
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
The Trustee will serve as registrar in connection with the Certificated
Notes.
Issuance: Each Certificated Note will be dated and issued as of the
date of its authentication by the Trustee. Each Certificated
Note will bear an Original Issue Date, which will be (i)
with respect to an original Certificated Note (or any
portion thereof), its original issuance date (which will be
the settlement date) and (ii) with respect to any
Certificated Note (or portion thereof) issued subsequently
upon transfer or exchange of a Certificated Note or in lieu
of a destroyed, lost or stolen Certificated Note, the
original issuance date of the
B-22
predecessor Certificated Note, regardless of the date of
authentication of such subsequently issued Certificated
Note.
Registration: Certificated Notes will be issued only in fully registered
form without coupons.
Transfers and
Exchanges: A Certificated Note may be presented for transfer or
exchange at the corporate trust office of the Trustee.
Certificated Notes will be exchangeable for other
Certificated Notes having identical terms but different
denominations without service charge. Certificated Notes
will not be exchangeable for Book-Entry Notes.
Maturities: Each Certificated Note will mature on a date from nine
months to 60 years from its date of issue.
Currency: The currency denomination with respect to any Certificated
Note and the payment of interest and the repayment of
principal with respect to any such Certificated Note shall
be as set forth therein and in the applicable Pricing
Supplement.
Denominations: The denomination of any Certificated Note will be a minimum
of 100,000 units of the Specified Currency or an integral
multiple of 1,000 units of such Specified Currency in excess
thereof, unless otherwise specified in the applicable
Pricing Supplement.
Interest: GENERAL. Interest on each Certificated Note will accrue from
the Original Issue Date of such Note for the first interest
period and from the most recent date to which interest has
been paid for all subsequent interest periods. Each payment
of interest on a Certificated Note will include interest
accrued to but excluding the Interest Payment Date; provided
that in the case of Floating Rate Notes which reset daily or
weekly, interest payments will include interest accrued to
and including the Record Date immediately preceding the
Interest Payment Date, except that at maturity or earlier
redemption or repayment, the interest payable will include
interest accrued to, but excluding, the Maturity
B-23
Date or the date of redemption or repayment, as the case may
be.
FIXED RATE CERTIFICATED NOTES. Unless otherwise specified
pursuant to Settlement Procedure "A" below, interest
payments on Fixed Rate Certificated Notes, other than
Amortizing Notes, will be made semiannually on March 15 and
September 15 of each year (or, if so indicated in such Note,
annually on September 15 of each year) and at maturity or
upon any earlier redemption or repayment and Certified
Amortizing Notes will pay principal and interest
semiannually each March 15 and September 15, or quarterly
each March 15, June 15, September 15, and December 15, and
at maturity or upon any earlier redemption or repayment;
PROVIDED, HOWEVER, that in the case of Certificated Fixed
Rate Notes issued between a Record Date and an Interest
Payment Date, the first interest payment will be made on the
Interest Payment Date following the next succeeding Record
Date.
FLOATING RATE CERTIFICATED NOTES. Interest payments will be
made on Floating Rate Certificated Notes monthly, quarterly,
semiannually or annually. Interest will be payable, in the
case of Floating Rate Certificated Notes with a daily,
weekly or monthly Interest Reset Date, on the third
Wednesday of each month or on the third Wednesday of March,
June, September and December, as specified pursuant to
settlement procedure "A" below; in the case of Notes with a
quarterly interest Payment Reset Date, on the third
Wednesday of March, June, September and December of each
year; in the case of Notes with a semi-annual Interest Reset
Date, on the third Wednesday of the two months specified
pursuant to Settlement Procedure "A" below; and in the case
of Notes with an annual Interest Reset Date, on the third
Wednesday of the month specified pursuant to Settlement
Procedure "A" below; PROVIDED, HOWEVER, that if an Interest
Payment Date for Floating Rate Certificated Notes would
otherwise be a day that is not a Business Day with respect
to such Floating Rate Certificated Notes, such Interest
Payment
B-24
Date will be the next succeeding Business Day with respect
to such Floating Rate Certificated Notes, except that in the
case of a LIBOR Note if such Business Day is in the next
succeeding calendar month, such Interest Payment Date will
be the immediately preceding Business Day; and PROVIDED,
FURTHER, that in the case of a Floating Rate Certificated
Note issued between a Record Date and an Interest Payment
Date, the first interest payment will be made on the
Interest Payment Date following the next succeeding Record
Date.
Calculation
of Interest: FIXED RATE CERTIFICATED NOTES. Interest on Fixed Rate
Certificated Notes (including interest for partial periods)
will be calculated on the basis of a year of twelve
thirty-day months.
FLOATING RATE CERTIFICATED NOTES. Interest rates on Floating
Rate Certificated Notes will be determined as set forth in
the form of such Notes. Interest on Floating Rate
Certificated Notes will be calculated on the basis of actual
days elapsed and a year of 360 days except that in the case
of Treasury Rate Notes, interest will be calculated on the
basis of the actual number of days in the year.
B-25
Payments of
Principal and
Interest: The Trustee will pay the principal amount of each
Certificated Note at maturity or upon redemption or
repayment upon presentation and surrender of such Note to
the Trustee. Such payment, together with payment of interest
due at maturity or upon redemption or repayment of such
Note, will be made in funds available for immediate use by
the Trustee and in turn by the holder of such Note.
Certificated Notes presented for payment to the Trustee at
maturity or upon redemption or repayment will be cancelled
by the Trustee and delivered to the Company with a
certificate of cancellation. All interest payments on a
Certificated Note (other than interest due at maturity or
upon redemption or repayment) will be made by check drawn on
the Trustee (or another person appointed by the Trustee) and
mailed by the Trustee to the person entitled thereto as
provided in such Note and the Indenture; PROVIDED, HOWEVER,
that the holder of $5,000,000 or more of Notes having the
same Interest Payment Date will be entitled to receive
payment by wire transfer of immediately available funds.
Following each Record Date, the Trustee will furnish the
Company with a list of interest payments to be made on the
following Interest Payment Date for each Certificated Note
and in total for all Certificated Notes. Interest at
maturity or upon redemption or repayment will be payable to
the person to whom the payment of principal is payable. The
Trustee will provide monthly to the Company lists of
principal and interest, to the extent ascertainable, to be
paid on Certificated Notes maturing or to be redeemed in the
next month. The Trustee will be responsible for withholding
taxes on interest paid on Certificated Notes as required by
applicable law.
If any Interest Payment Date or the Maturity Date or
redemption or repayment date of a Fixed Rate Certificated
Note is not a Business Day, the payment due on such day
shall be made on the next succeeding Business Day and no
interest on such payment for the
B-26
period from and after such Interest Payment Date, Maturity
Date or redemption or repayment date, as the case may be. If
any Interest Payment Date or the Maturity Date or redemption
or repayment date for any Certificated Floating Rate Note
would fall on a day that is not a Business Day with respect
to such Note, such Interest Payment Date, Maturity Date or
redemption or repayment date will be the following day that
is a Business Day with respect to such Note, except that, in
the case of a Certificated LIBOR Note, if such Business Day
is in the next succeeding calendar month, such Interest
Payment Date shall be the immediately preceding day that is
a Business Day with respect to such Certificated LIBOR Note.
Preparation of
Pricing Supplement: If any order to purchase a Certificated Note is accepted by
or on behalf of the Company, the Company will prepare a
pricing supplement (a "Pricing Supplement") reflecting the
terms of such Note and will arrange to file such Pricing
Supplement with the Commission in accordance with the
applicable paragraph of Rule 424 under the Act, and, (i) in
the case of Notes to be listed on the UKLA and admitted to
trading by the London Stock Exchange, will file such Pricing
Supplement with the London Stock Exchange or (ii) in the
case of other Listed Notes, in accordance with the relevant
Listing Rules, will deliver the number of copies of such
Pricing Supplement to the relevant Agent as such Agent shall
request by the close of business on the following Business
Day. The relevant Agent will cause such Pricing Supplement
to be delivered to the purchaser of the Note.
In each instance that a Pricing Supplement is prepared, the
Agents receiving such Pricing Supplement will affix the
Pricing Supplement to Prospectuses prior to their use.
Outdated Pricing Supplements, and the Prospectuses to which
they are attached (other than those retained for files),
will be destroyed.
B-27
Settlement: The receipt by the Company of immediately available funds in
exchange for an authenticated Certificated Note delivered to
the relevant Agent and such Agent's delivery of such Note
against receipt of immediately available funds shall
constitute "settlement" with respect to such Note. All
offers accepted by the Company will be settled on or before
the fifth Business Day next succeeding the date of
acceptance pursuant to the timetable for settlement set
forth below, unless the Company and the purchaser agree to
settlement on another date.
Settlement
Procedures: Settlement Procedures with regard to each Certificated Note
sold by the Company to or through an Agent shall be as
follows:
A. The relevant Agent will advise the Company by telephone
that such Note is a Certificated Note and of the
following settlement information:
1. Name in which such Note is to be registered
("Registered Owner").
2. Address of the Registered Owner and address for
payment of principal and interest.
3. Taxpayer identification number of the Registered
Owner (if available).
4. Principal amount.
5. Maturity Date.
6. In the case of a Fixed Rate Certificated Note, the
Interest Rate, the applicability of Annual
Interest Payments and whether such Note is an
Amortizing Note and, if so, the amortization
schedule, or, in the case of a Floating Rate
Certificated Note, the Initial Interest Rate (if
known at such time), Interest Payment
B-28
Dates, Interest Payment Period, Calculation Agent, Base
Rate, Index Maturity, Interest Reset Period, Interest Reset
Dates, Spread or Spread Multiplier (if any), Minimum
Interest Rate (if any), Maximum Interest Rate (if any), and
the Alternate Rate Event Spread (if any).
7. Redemption or repayment provisions, if any.
8. Settlement date and time.
9. Price.
10. Agent's commission, if any, determined as provided
in the Agreement.
11. Denominations.
12. Specified Currency.
13. Whether the Note is an OID Note, and if it is an
OID Note, the total amount of OID, the yield to
maturity, the initial accrual period OID and the
applicability of Modified Payment upon
Acceleration (and, if so, the Issue Price).
14. Whether the Note is an Indexed Note, and if it is
an Indexed Note, the Indexed Currency, the
Currency Base Rate and the Determination Agent.
15. Whether the Note is a Dual Currency Note, and if
it is a Dual Currency Note, the Face Amount
Currency, the Optional Payment Currency, the
Designated Exchange Rate, the Option Election
Dates and the Option Value Calculation Agent.
16. Whether such Notes is to be a Listed Note and, if
so, the stock exchange, competent listing
authority and/or quotation system on or
B-29
by which it is to be listed, quoted and/or traded.
17. Whether the Notes are senior notes or subordinated
notes.
18. Any other applicable terms.
B. The Company will advise the Trustee by telephone or
electronic transmission (confirmed in writing at any
time on the sale date) of the information set forth in
Settlement Procedure "A" above.
C. The Company will have delivered to the Trustee a
pre-printed four ply packet for such Note, which packet
will contain the following documents in forms that have
been approved by the Company, the relevant Agent and
the Trustee:
1. Note with customer confirmation.
2. Stub One - For the Trustee.
3. Stub Two - For the relevant Agent.
4. Stub Three - For the Company.
D. The Trustee will complete such Note and authenticate
such Note and deliver it (with the confirmation) and
Stubs One and Two to the relevant Agent, and such Agent
will acknowledge receipt of the Note by stamping or
otherwise marking Stub One and returning it to the
Trustee. Such delivery will be made only against such
acknowledgment of receipt and evidence that
instructions have been given by such Agent for payment
to the U.S. dollar account of the Company maintained at
the Trustee, New York, New York (or, with respect to
Notes payable in a Specified Currency other than U.S.
dollars, to an account maintained at a Trustee selected
by the
B-30
Company notified to the relevant Agent from time to
time in writing,) in funds available for immediate use,
of an amount equal to the price of such Note less such
Agent's commission, if any. In the event that the
instructions given by such Agent for payment to the
account of the Company are revoked, the Company will as
promptly as possible wire transfer to the account of
such Agent an amount of immediately available funds
equal to the amount of such payment made.
E. Unless the relevant Agent purchased such Note as
principal, such Agent will deliver such Note (with
confirmation) to the customer against payment in
immediately payable funds. Such Agent will obtain the
acknowledgment of receipt of such Note by retaining
Stub Two.
F. The Trustee will send Stub Three to the Company by
first-class mail. Periodically, the Trustee will also
send to the Company a statement setting forth the
principal amount of the Notes Outstanding as of that
date under the Indenture and setting forth a brief
description of any sales of which the Company has
advised the Trustee but which have not yet been
settled.
Settlement
Procedures
Timetable: For sales by the Company of Certificated Notes to or through
an Agent, Settlement Procedures "A" through "F" set forth
above shall be completed on or before the respective times
(New York City time) set forth below:
Settlement
Procedure Time
--------- ----
A. 2:00 P.M. on day before settlement date
B. 3:00 P.M. on day before settlement date
C-D 2:15 P.M. on settlement date
E 3:00 P.M. on settlement date
F 5:00 P.M. on settlement date
B-31
Failure to Settle: If a purchaser fails to accept delivery of and make payment
for any Certificated Note, the relevant Agent will notify
the Company and the Trustee by telephone and return such
Note to the Trustee. Upon receipt of such notice, the
Company will immediately wire transfer to the account of
such Agent an amount equal to the amount previously credited
thereto in respect of such Note. Such wire transfer will be
made on the settlement date, if possible, and in any event
not later than the Business Day following the settlement
date. If the failure shall have occurred for any reason
other than a default by such Agent in the performance of its
obligations hereunder and under the Distribution Agreement
with the Company, then the Company will reimburse such Agent
or the Trustee, as appropriate, on an equitable basis for
its loss of the use of the funds during the period when they
were credited to the account of the Company. Immediately
upon receipt of the Certificated Note in respect of which
such failure occurred, the Trustee will mark such Note
"cancelled," make appropriate entries in the Trustee's
records and send such Note to the Company.
Notice of Issuance
to the London
Stock Exchange: The Company will provide information with respect to each
tranche of Notes to be listed on the UKLA and admitted to
trading by the London Stock Exchange to such Exchange and
will advise the Trustee in writing as to the effectiveness
of the listing of such Notes by the close of business on the
related settlement date. To the extent required by the
London Stock Exchange, the Agent will provide the Company
with secondary market information regarding any tranche of
Notes listed on the UKLA and admitted to trading on London
Stock Exchange and the Company will provide such information
to the London Stock Exchange.
B-32
EXHIBIT C
GENERAL ELECTRIC CAPITAL CORPORATION
Global Medium-Term Notes
MASTER CALCULATION AGENT AGREEMENT
WHEREAS, General Electric Capital Corporation (the "ISSUER") has authorized
the issuance of Global Medium-Term Notes(the "NOTES"), due from nine months to
60 years from the date of issue, which may bear interest at either a fixed or
variable rate; and
WHEREAS, the Notes will be offered on a continuous basis inside the United
States by the Issuer through certain agents named in the U.S. Distribution
Agreement referred to below relating to the Notes (the "AGENTS"); and
WHEREAS, the Notes are to be issued under a Third Amended and Restated
Indenture, dated as of February 27, 1997, as supplemented by the First
Supplemental Indenture dated as of May 3, 1999, the Second Supplemental
Indenture dated as of July 2, 2001 and the Third Supplemental Indenture dated as
of November 22, 2002, between the Issuer and JPMorgan Chase Bank, N.A. (formerly
known as The Chase Manhattan Bank), as successor trustee (the "TRUSTEE") (as
supplemented, the "INDENTURE"); and
WHEREAS, the Notes are to be distributed pursuant to the terms of a Third
Amended and Restated U.S. Distribution Agreement, dated as of March 29, 2006
(the "U.S. DISTRIBUTION AGREEMENT"), between the Issuer and the Agents.
NOW IT IS HEREBY AGREED that:
1. APPOINTMENT OF AGENT. The Issuer hereby appoints any Agent requested
to so act by the Issuer with respect to any Notes offered and sold by such
Agent, and such Agent hereby accepts such appointment, as the Issuer's agent for
the purpose of calculating the applicable interest rate (the "INTEREST RATE") as
set forth in the Prospectus dated March 29, 2006, the Prospectus Supplement
dated March 29, 2006 (together the "PROSPECTUS"), and the Pricing Supplement
relating to the particular tranche of Notes, dated ________, as applicable, upon
the terms and subject to the conditions hereinafter set forth (the "CALCULATION
AGENT").
C-1
2. OBLIGATIONS OF CALCULATION AGENT. The Calculation Agent shall
calculate the Interest Rate in the manner and at the times provided in the
Notes, the Prospectus and the applicable Pricing Supplement. The Calculation
Agent shall exercise due care to calculate such Interest Rate and shall promptly
communicate the same, in writing, to the Issuer, the Trustee and the Paying
Agent. The Calculation Agent shall, upon the request of any holder of any Note,
provide such Interest Rate as then in effect and, if determined, as it will
become effective as a result of calculations made on the most recent Interest
Determination Date with respect to such Note. The Calculation Agent's
determination of any interest rate will, absent manifest error, be binding on
the Issuer and the holders of the Notes.
3. TERMS AND CONDITIONS. The Calculation Agent accepts its obligations
set forth herein, upon the terms and subject to the conditions hereof, including
the following, to all of which the Issuer agrees:
(a) The Issuer agrees to indemnify the Calculation Agent for, and to hold
it harmless against, any loss, liability or expense (including the costs and
expenses of defending against any claim of liability) incurred by the
Calculation Agent which arises out of or in connection with its acting as
Calculation Agent hereunder, except such as may result from the negligence,
willful misconduct or bad faith of the Calculation Agent or any of its officers
or employees. The Calculation Agent shall incur no liability and shall be
indemnified and held harmless by the Issuer for, or in respect of, any actions
taken, omitted to be taken or suffered to be taken in good faith by the
Calculation Agent in reliance upon (i) the written opinion of counsel or (ii)
written instructions from the Issuer.
(b) In acting under this Agreement and in connection with the Notes, the
Calculation Agent is acting solely as agent of the Issuer and does not assume
any obligation or relationship of agency or trust for or with any of the owners
or holders of the Notes.
(c) The Calculation Agent shall be protected and shall incur no liability
for or in respect of any action taken or omitted to be taken or anything
suffered by it in reliance upon any notice, direction, certificate, affidavit,
statement or other paper, documents of communication reasonably believed by it
to be genuine and to have been approved or signed by the proper party or
parties.
(d) The Calculation Agent and any of its affiliates, or any of their
respective officers, managing directors, employees and shareholders, may become
the owner of, or acquire an interest in, any Notes, with the same rights that it
or they would have if it were not the Calculation Agent, and may engage or be
interested in any financial or other transaction with the Issuer as freely as if
it were not the Calculation Agent.
C-2
(e) The Calculation Agent shall be obligated to perform such duties and
only such duties as are herein specifically set forth, and no implied duties or
obligations shall be read into this Agreement against the Calculation Agent.
(f) Unless herein otherwise specifically provided, any order, certificate,
notice, request, direction or other communication from the Issuer made or given
by it under any provision of this Agreement shall be sufficient if signed by any
authorized representatives of the Issuer.
4. RESIGNATION; REMOVAL; SUCCESSOR. (a) The Calculation Agent may at any
time resign as Calculation Agent by giving written notice to the Issuer of such
intention on its part, specifying the date on which its desired resignation
shall become effective; provided, however, that such date shall never be earlier
than 120 days after the receipt of such notice by the Issuer, unless the Issuer
agrees to accept less notice. The Calculation Agent may be removed at any time
by the filing with it of any instrument in writing signed by an authorized
officer of the Issuer and specifying such removal and the date when it is
intended to become effective. Such resignation or removal shall take effect upon
the date of the appointment by the Issuer, as hereinafter provided, of a
successor Calculation Agent and the acceptance of such appointment by such
successor Calculation Agent. A successor Calculation Agent shall be appointed by
the Issuer by an instrument in writing signed on behalf of the Issuer and filed
with the entity designated as the successor Calculation Agent. Upon the
appointment of a successor Calculation Agent and acceptance by it of such
appointment, the Calculation Agent so superseded shall cease to be such
Calculation Agent hereunder. Upon its resignation or removal, the Calculation
Agent shall be entitled to the reimbursement of all reasonable out-of-pocket
expenses (including reasonable counsel fees) incurred in connection with the
services rendered by it hereunder, in either case to the effective date of such
resignation or removal.
(b) Any successor Calculation Agent appointed hereunder shall execute and
deliver to its predecessor and to the Issuer an instrument accepting such
appointment hereunder, and thereupon such successor Calculation Agent, without
any further act, deed or conveyance, shall become vested with all the authority,
rights, powers, trusts, immunities, duties and obligations of such predecessor
with like effect as if originally named as such Calculation Agent hereunder, and
such predecessor, upon payment of its charges and disbursements then unpaid,
shall thereupon become obligated to transfer and deliver, and such successor
Calculation Agent shall be entitled to receive, copies of any relevant records
maintained by such predecessor Calculation Agent.
(c) Any corporation into which the Calculation Agent may be merged, or any
corporation other than the Calculation Agent resulting from a merger or
consolidation to which the Calculation Agent shall be party, or any corporation
to which the Calculation Agent shall sell or otherwise transfer all or
substantially all
C-3
of its assets and business shall, to the extent permitted by applicable law, be
the successor Calculation Agent under this Agreement without the execution or
filing of any paper or any further act on the part of any of the parties hereto.
Notice of any such merger, consolidation or sale shall forthwith be given to the
Issuer and the Paying Agent.
5. NOTICES. Any notice required to be given hereunder shall be delivered
in person, sent by letter or telecopy or communicated by telephone (subject, in
the case of communication by telephone, to confirmation dispatched within two
Business Days by letter or telecopy): (a) in the case of the Issuer, to ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (Attention: Senior Vice President -
Corporate Treasury and Global Funding Operation), Telephone No. ▇▇▇-▇▇▇-▇▇▇▇,
Fax No. ▇▇▇-▇▇▇-▇▇▇▇; (b) in the case of the Trustee and the Paying Agent, to
JPMorgan Chase Bank, N.A., Worldwide Securities Services, ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Telephone No. ▇▇▇-▇▇▇-▇▇▇▇, Fax No. ▇▇▇-▇▇▇-▇▇▇▇; or,
in any case, to any other address to which the party receiving notice shall have
notified the party giving such notice in writing. Any notice hereunder given by
telecopy or letter shall be deemed to be served when, in the ordinary course of
transmission or post, as the case may be, it would be received.
6. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
7. TERMS. Terms used but not defined herein shall have the meanings
assigned to them in the applicable Prospectus Supplement.
C-4
EXHIBIT D
GENERAL ELECTRIC CAPITAL CORPORATION
Executive Officer's Certificate
I, ____________________________, ____________________ of General Electric
Capital Corporation, a Delaware corporation, (the "COMPANY"), DO HEREBY CERTIFY
pursuant to Section 5(b) of the Third Amended and Restated U.S. Distribution
Agreement dated as of March 29, 2006 (the "Distribution Agreement"), among the
Company and the Agents named therein, relating to the Global Medium Term Notes,
Series [ ] and the related Terms Agreement dated as of [ ] between the Company
and [Name of Agent] that:
The representations and warranties of the Company contained in
the Distribution Agreement are true and correct on and as of the date
hereof, as if made on and as of such date and the Company has complied
with all agreements and satisfied all conditions on its part to be
performed or satisfied under the Distribution Agreement at or prior to
the date hereof; and
No stop order suspending the effectiveness of the Registration
Statement is in effect, and, to the best of my knowledge, no
proceedings for such purpose are pending before or threatened by the
Securities and Exchange Commission; and there has been no material
adverse change in the condition of the Company and its subsidiaries,
taken as a whole, from that set forth in the Registration Statement,
the Prospectus and the Pricing Disclosure Material.
Capitalized terms used in this certificate have the meanings
ascribed to them in the Distribution Agreement.
IN WITNESS WHEREOF, I have signed this certificate as of this __ day of [
], 20___.
----------------------------------------
[NAME]
[TITLE]
D-1