UNDER
THE SECURITIES ACT OF 1993
NEW YORK 13-1500700
(State of incorporation) (I.R.S. Employer Identification
Number)
PROPOSED
MAXIMUM
AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF OFFERING REGISTRATION
SECURITIES TO BE REGISTERED PRICE(1)(2)(3) FEE(4)
--------------------------------------------------------------------------------
Debt Securities, Debt Warrants, Preferred Stock.... $7.5 billion $2,212,500
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SUBJECT TO COMPLETION
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A + +REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE + +SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY + +OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT + +BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR + +THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE + +SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE + +UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF + +ANY SUCH STATE. + |
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ PROSPECTUS
GENERAL ELECTRIC CAPITAL CORPORATION
DEBT SECURITIES
WARRANTS TO PURCHASE DEBT SECURITIES
PREFERRED STOCK
General Electric Capital Corporation (the "Company") may offer from time to time its senior, unsecured debt securities ("Debt Securities"), warrants ("Warrants") to purchase any of the Debt Securities, variable cumulative preferred stock, par value $100 per share, and preferred stock, par value $.01 per share (the "Preferred Stock"), which may be issued in the form of depositary shares evidenced by depository receipts (the "Depositary Shares") (the Debt Securities, the Warrants, the Preferred Stock and the Depositary Shares being herein collectively called the "Securities"). The Debt Securities are hereinafter in this Prospectus referred to as the "Notes," although any series of Debt Securities to which the accompanying Prospectus Supplement relates may bear a different title. Collectively, the variable cumulative preferred stock and the preferred stock are referred to herein as the "Preferred Stock" and individually as the "Variable Cumulative Preferred Stock" and the "New Preferred Stock," respectively. The term "Prospectus Supplement" as used herein includes any Pricing Supplement that accompanies any Prospectus Supplement that accompanies this Prospectus.
The Securities will be offered on terms determined at the time of sale. The accompanying Prospectus Supplement sets forth specifically
(a) with regard to the Notes, if any, in respect of which this Prospectus is being delivered:
. the title of the Notes,
. the aggregate principal amount offered,
. the currency, currencies or currency units in which payments on the Notes are payable,
. the rate or method of calculation, and the dates of payment, of interest, if any,
. the date or dates from which such interest shall accrue,
. the method of determining holders to whom any such interest shall be payable,
. the authorized denominations, if other than as provided herein,
. the maturity,
. the offering price or terms,
. the terms of any sinking fund, purchase fund or mandatory redemption, and of any redemption at the option of the Company or repayment at the option of the holder,
. the Trustee acting under the Indenture pursuant to which the Notes are to be issued,
. the underwriter or underwriters or agent or agents, if any, for the Notes, their compensation or the basis of determining the same and the net proceeds to the Company, and
. the exchanges, if any, on which the Notes may be listed;
(b) with regard to the Warrants, if any, in respect of which this Prospectus is being delivered:
. the offering price or terms,
. a description of the Notes for which each Warrant is exercisable,
. the aggregate number, exercise price, exercise period and expiration date of the Warrants,
. the currency or currencies in which the exercise price is payable,
. the terms of any mandatory or optional call provisions,
. the price or prices, if any, at which the Warrants may be redeemed at the option of the holder or will be redeemed upon expiration,
. the Warrant Agent acting under the Warrant Agreement pursuant to which the Warrants are to be issued, and
. the exchanges, if any, on which the Warrants may be listed; and
(c) with regard to the Preferred Stock (or Depositary Shares) if any, in respect of which this Prospectus is being delivered:
. the title of the series of Preferred Stock
. the number of shares of Preferred Stock offered
. the rate or method of calculation, and the dates of payment, of dividends
. the date or dates from which dividends will accrue
. the offering price or terms
. terms of any mandatory redemption, any redemption at the option of the Company or repayment at the option of the holder
. the underwriter or underwriters or agent or agents, if any, for the Preferred Stock, their compensation or the basis of determining the same and the net proceeds to the Company, and
. the exchanges, if any, on which the Preferred Stock may be listed.
The Securities will be sold either through underwriters or dealers, through agents designated from time to time, or directly by the Company.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
July , 1998
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS AND THE ACCOMPANYING PROSPECTUS SUPPLEMENT IN CONNECTION WITH THE OFFER CONTAINED IN THIS PROSPECTUS AND THE ACCOMPANYING PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR BY ANY AGENT, UNDERWRITER OR DEALER. NEITHER THE DELIVERY OF THIS PROSPECTUS AND THE ACCOMPANYING PROSPECTUS SUPPLEMENT, NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATES AS OF WHICH INFORMATION IS GIVEN IN THIS PROSPECTUS AND IN THE ACCOMPANYING PROSPECTUS SUPPLEMENT. THIS PROSPECTUS AND THE ACCOMPANYING PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE IN ANY STATE IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities Exchange Act of 1934 (the "1934 Act") and in accordance therewith files reports and other information with the Securities and Exchange Commission. Such reports and other information can be inspected and copied at the public reference facilities maintained by the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549, as well as the Regional Offices of the Commission at 500 West Madison Street, Chicago, Illinois 60661 and 7 World Trade Center, New York, New York 10048 and copies can be obtained from the Public Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed rates. Information may be obtained on the operation of the Public Reference Room by calling the Commission at 1-800-SEC-0330. The Commission also maintains a Web site at http://www.sec.gov, which contains reports, proxy statements and other information regarding registrant's that file electronically with the Commission. Reports and other information concerning the Company can also be inspected at the offices of the New York Stock Exchange, 20 Broad Street, New York, New York 10005, on which certain of the Company's securities are listed.
DOCUMENTS INCORPORATED BY REFERENCE
There is hereby incorporated in this Prospectus by reference the Company's Annual Report on Form 10-K for the year ended December 31, 1997 and the Company's Quarterly Report on Form 10-Q for the quarter ended March 28, 1998 filed with the Securities and Exchange Commission pursuant to the 1934 Act, to which reference is hereby made.
All documents filed by the Company pursuant to Sections 13(a), 13(e), 14 or 15(d) of the 1934 Act after the date of this Prospectus and prior to the termination of the offering of the Securities offered by the accompanying Prospectus Supplement shall be deemed to be incorporated in this Prospectus by reference and to be a part hereof from the date of filing of such documents.
The Company hereby undertakes to provide without charge to each person, including any beneficial owner, to whom a copy of this Prospectus has been delivered, on the written or oral request of such person, a copy of any or all of the documents referred to above which have been or may be incorporated in this Prospectus by reference, other than exhibits to such documents, unless such exhibits are specifically incorporated by reference into such documents. Requests for such copies should be directed to Bruce C. Bennett, Associate General Counsel--Treasury Operations and Assistant Secretary, General Electric Capital Corporation, 260 Long Ridge Road, Stamford, Connecticut 06927, Telephone No. (203) 357-4000.
THE COMPANY
General Electric Capital Corporation (herein together with its consolidated affiliates called the "Company" unless the context otherwise requires) was incorporated in 1943 in the State of New York, under the provisions of the New York Banking Law relating to investment companies , as successor to General Electric Contracts Corporation, which was formed in 1932. Until November 1987, the name of the Company was General Electric Credit Corporation. All outstanding common stock of the Company is owned by General Electric Capital Services, Inc. ("GE Capital Services") formerly General Electric Financial Services, Inc., the common stock of which is in turn wholly owned by General Electric Company ("GE Company"). The business of the Company originally related principally to financing the distribution and sale of consumer and other products of GE Company. Currently, however, the types and brands of products financed and the services offered are significantly more diversified. Very few of the products financed by the Company are manufactured by GE Company.
The Company operates in four finance industry segments and in a specialty insurance industry segment. The Company's financing activities include a full range of leasing, lending, equipment management sales and services and consumer savings and insurance services. The Company's specialty insurance activities include providing financial guarantee insurance, principally municipal bonds and structured finance issues, private mortgage insurance and creditor issuance covering international customer loan repayments. The Company is an equity investor in Montgomery Ward Holding Corp., a retail organization which filed a bankruptcy petition for reorganization in 1997, and certain other services and financial services organizations. The Company's operations are subject to a variety of regulations in their respective jurisdictions.
Services of the Company are offered primarily throughout the United States, Canada, Europe and the Pacific Basin. Computerized accounting and service centers, including those located in Connecticut, Ohio, Georgia and England, provide financing offices and other service locations with data processing, accounting, collection, reporting and other administrative support. The Company's principal executive offices are located at 260 Long Ridge Road, Stamford, Connecticut 06927 (telephone number (203) 357-4000). At December 31, 1997, the Company employed approximately 65,000 persons.
CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
YEAR ENDED DECEMBER 31,
-------------------------------------------------------------- THREE MONTHS ENDED
1993 1994 1995 1996 1997 MARCH 28, 1998
---- ---- ---- ---- ---- ------------------
1.62 1.63 1.51 1.53 1.48 1.54
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CONSOLIDATED RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK
DIVIDENDS
YEAR ENDED DECEMBER 31,
-------------------------------------------------------------- THREE MONTHS ENDED
1993 1994 1995 1996 1997 MARCH 28, 1998
---- ---- ---- ---- ---- ------------------
1.60 1.62 1.49 1.51 1.46 1.52
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For purposes of computing the consolidated ratios of earnings to fixed charges and earnings to combined fixed charges and preferred stock dividends, earnings consist of net earnings adjusted for the provision for income taxes, minority interest and fixed charges. Fixed charges consist of interest and discount on all indebtedness and one-third of rentals, which the Company believes is a responsible approximation of the interest factor of such rentals.
USE OF PROCEEDS
Except as may be otherwise set forth in the Prospectus Supplement accompanying this Prospectus, the net proceeds from the sale of the Securities to which such Prospectus Supplement relates will be added to the general funds of the Company and will be available for financing its operations. Additional short- and long-term financing, as required, will be undertaken at such times, and through such means, as may be appropriate.
PLAN OF DISTRIBUTION
The Company may sell any issue of the Securities in any one or more of the following ways: (i) through one or more underwriters or dealers; (ii) directly to one or more purchasers; or (iii) through one or more agents.
From time to time, the Company may receive, and may solicit, offers from underwriters to purchase all or a part of the Securities, to be reoffered to the public through underwriting syndicates led by one or more managing underwriters or through one or more underwriters acting alone or otherwise. The managing underwriter or underwriters, if any, with respect to the offer and sale of the Securities to which the Prospectus Supplement accompanying this Prospectus relates are set forth in such Prospectus Supplement and the members of the underwriting syndicate, if any, are named in such Prospectus Supplement. The Company will execute an underwriting agreement (the "Underwriting Agreement") with any such underwriters and the names of the underwriters and the terms of the transaction will be set forth in the Prospectus Supplement, which will be used by the underwriters to make resales of the Securities in respect of which this Prospectus is delivered to the public. Such Prospectus Supplement also states the discounts and commissions, if any, to be allowed or paid to the underwriters by the Company, and describes all other items, if any, constituting underwriting compensation and the discounts and commissions to be allowed or paid to dealers, if any. If underwriters or dealers are used in the sale, the Securities will be acquired by the underwriters or dealers for their own account and may be resold from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined by the underwriter or dealer at the time of sale. The relevant Underwriting Agreement will provide that the obligations of the underwriters are subject to certain conditions precedent, and the Company will agree, under the Underwriting Agreement, to indemnify the underwriters against certain civil liabilities, including liabilities under the Securities Act of 1933.
Any agent involved in the offer or sale of the Securities in respect of which this Prospectus is delivered will be named, and any commissions payable by the Company to such agent will be set forth, in the Prospectus Supplement accompanying this Prospectus. Unless otherwise indicated in the Prospectus Supplement, any such agent will be acting on a best efforts basis for the period of its appointment. Agents and dealers may be entitled under agreements entered into with the Company to indemnification by the Company against certain civil liabilities, including liabilities under the Securities Act of 1933.
If so indicated in the Prospectus Supplement accompanying this Prospectus, the Company will authorize agents, underwriters or dealers to solicit offers by certain institutions to purchase Securities from the Company at the offering price set forth in the Prospectus Supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. The Company anticipates that delayed delivery contracts would be used to facilitate the marketing of the Securities by accommodating institutions that wish to invest in the Securities but will not have funds available for the purchase until some date following the anticipated closing date.
GE Capital Services, which owns all of the outstanding common stock of the Company, currently owns through subsidiaries (including the Company) approximately 22% of the issued and outstanding common stock of PaineWebber Group Inc. ("PaineWebber") and the Company owns Redeemable Preferred Stock of PaineWebber. As a result, any offering of Securities is required to be made in compliance with the applicable provisions of Rule 2720 to the Conduct Rules of the National Association of Securities Dealers, Inc. ("NASD"), which Rule applies to offerings of securities of issuers affiliated with NASD members. In accordance therewith, no underwriter or dealer may confirm sales of Securities to accounts over which they exercise discretionary authority.
For further information with respect to the terms of the offering of Securities in respect of which this Prospectus is being delivered, see the Prospectus Supplement accompanying this Prospectus.
DESCRIPTION OF NOTES
GENERAL
The Notes are to be issued under one or more separate Indentures (each an "Indenture"), in each case between the Company and a banking institution organized under the laws of the United States or one of the states thereof (each a "Trustee"). None of the Indentures limits the amount of Notes or other unsecured, senior debt which may be issued thereunder or limits the amount of other debt, secured or unsecured, which may be issued by the Company.
The statements under this heading are subject to the detailed provisions of each Indenture, a copy of each of which is filed as an exhibit to the Registration Statement. Wherever particular provisions of the Indentures or terms defined therein are referred to, such provisions or definitions are incorporated by reference as a part of the statements made and the statements are qualified in their entirety by such reference.
Reference is made to the Prospectus Supplement accompanying this Prospectus for the terms specified by the Company pursuant to the Indenture of, and other information with respect to, the Notes being offered thereby, including: (1) the designation, the aggregate principal amount and, if other than as provided herein, the authorized denominations of such Notes; (2) the percentage of their principal amount at which such Notes will be issued; (3) the date or dates on which such Notes will mature; (4) the currency, currencies or currency units in which the payments on such Notes will be payable; (5) the rate or rates at which such Notes will bear interest, if any, or the method of determination of such rate or rates; (6) the date or dates from which such interest, if any, shall accrue, the dates on which such interest, if any, will be payable and the method of determining holders to whom any such interest shall be payable; (7) the prices, if any, at which, and the dates at or after which, such Notes must or may be repaid, repurchased or redeemed; (8) the exchanges, if any, on which the Notes may be listed; and (9) the Trustee under the Indenture pursuant to which the Notes are to be issued. (Sections 2.02 and 2.02A.) Interest, if any, is to be payable to the persons, and in the manner, specified in the Prospectus Supplement accompanying this Prospectus and, unless otherwise specified in such Prospectus Supplement, will be computed on the basis of a 360-day year consisting of twelve 30-day months. (Section 2.10.)
The Notes will be unsecured and will rank pari passu (equally and ratably) with all other unsecured and unsubordinated indebtedness of the Company.
Some of the Notes may be issued as discounted Notes to be sold at a substantial discount below their stated principal amount. Federal income tax consequences and other special considerations applicable to any such discounted Notes will be described in the Prospectus Supplement with respect to any such Notes.
The Indentures do not contain any provisions that limit the ability of the Company to incur indebtedness or that afford holders Securities protection in the event GE Company, as sole indirect stockholder of the Company, causes the Company to engage in a highly leveraged transaction, reorganization, restructuring, merger or similar transaction.
GLOBAL NOTES, DELIVERY AND FORM
Except as otherwise set forth in the Prospectus Supplement accompanying this Prospectus, the Notes will be issued in the form of one or more fully registered Global Notes that will be deposited with, or on behalf of, The Depository Trust Company, New York, New York (the "Depository") and registered in the name of the Depository's nominee. The Depository currently limits the maximum denomination of any single Global Note to $200,000,000. For purposes of this Prospectus, "Global Note" refers to the Global Note or Global Notes representing an entire issue of Notes.
Except as set forth below, a Global Note may be transferred, in whole and not in part, only to another nominee of the Depository or to a successor of the Depository or its nominee.
The Depository has advised as follows: it is a limited-purpose trust company which was created to hold securities for its participating organizations (the "Participants") and to facilitate the clearance and settlement of securities transactions in such securities between Participants through electronic book- entry charges in accounts of its Participants. Participants include securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations. Access to the Depository's system is also available to others such as banks, brokers, dealers and trust companies that clear through or maintain a custodial relationship with a Participant, either directly or indirectly ("indirect participants"). Persons who are not Participants may beneficially own securities held by the Depository only through Participants or indirect participants.
The Depository advises that pursuant to procedures established by it (i) upon issuance of a Global Note by the Company in connection with the sale thereof to an underwriter or underwriters, the Depository will credit the accounts of Participants designated by such underwriter or underwriters with the principal amount of the Notes purchased by such underwriter or underwriters, and (ii) ownership of beneficial interests in a Global Note will be shown on, and the transfer of that ownership will be effected only through, records maintained by the Depository (with respect to Participants), by the Participants (with respect to indirect participants and certain beneficial owners) and by the indirect participants (with respect to all other beneficial owners). The laws of some states require that certain persons take physical delivery in definitive form of securities which they own. Consequently, the ability to transfer beneficial interests in a Global Note is limited to such extent.
So long as a nominee of the Depository is the registered owner of a Global Note, such nominee for all purposes will be considered the sole owner or holder of such Notes under the Indenture. Except as provided below, owners of beneficial interests in a Global Note will not be entitled to have Notes registered in their names, will not receive or be entitled to receive physical delivery of Notes in definitive form, and will not be considered the owners or holders thereof under the Indenture.
Neither the Company, the Trustee, any paying agent nor any registrar of the Notes will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests in a Global Note, or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
Payments of principal and interest, if any, on the Notes registered in the name of the Depository's nominee will be made by or on behalf of the Company in immediately available funds to the Depository's nominee as the registered owner of the Global Note. Under the terms of the Indenture, the Company and the Trustee will treat the persons in whose names the Notes are registered as the owners of such Notes for the purpose of receiving payment of principal and interest, if any, on such Notes and for all other purposes whatsoever. Therefore, neither the Company, the Trustee nor any paying agent has any direct responsibility or liability for the payment of principal or interest, if any, on the Notes to owners of beneficial interests in a Global Note. The Depository has advised the Company and the Trustee that its current practice is, upon receipt of any payment of principal or interest, to immediately credit the amounts of the Participants with such payment in amounts proportionate to their respective holdings in principal amount of beneficial interests in a Global Note as shown in the records of the Depository. The Depository's current practice is to credit such accounts, as to interest, in next-day funds and, as to principal, in same-day funds. Payments by Participants and indirect participants to owners of beneficial interests in a Global Note will be governed by standing instructions and customary practices, as is now the case with securities held for the accounts of customers in bearer form or registered in "street name," and will be the responsibility of the Participants or indirect participants.
If the Depository is at any time unwilling or unable to continue as depository and a successor depository is not appointed by the Company within 90 days, the Company will issue Notes in definitive form in exchange for a Global Note. In addition, the Company may at any time determine not to have the Notes represented by a Global Note and, in such event, will issue Notes in definitive form in exchange for a Global Note. In
either instance, an owner of a beneficial interest in a Global Note will be entitled to have Notes equal in principal amount to such beneficial interest registered in its name and will be entitled to physical delivery of such Notes in definitive form. Notes so issued in definitive form will be issued in denominations of $1,000 and integral multiples thereof and will be issued in registered form only, without coupons, and the Company will maintain in the Borough of Manhattan, The City of New York, one or more offices or agencies where such Notes may be presented for payment and may be transferred or exchanged. No service charge will be made for any transfer or exchange of such Notes, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
SAME-DAY SETTLEMENT IN RESPECT OF GLOBAL NOTES
Secondary trading in definitive long-term notes and debentures of corporate issuers is generally settled in clearing-house or next-day funds. In contrast, Global Notes held by the Depository will trade in the Depository's Same-Day Funds Settlement System until maturity, and secondary market trading activity in the Notes will therefore be required by the Depository to settle in immediately available funds. No assurance can be given as to the effect, if any, of settlement in immediately available funds on trading activity in the Notes.
MODIFICATION OF THE INDENTURES
Each Indenture permits the Company and the Trustee thereunder, with the
consent of the holders of not less than 66 2/3% in aggregate principal amount
of the Notes of each series affected outstanding, to add any provisions to or
change in any manner or eliminate any of the provisions of such Indenture or
modify in any manner the rights of the holders of Notes of each such series,
provided that no such addition or modification shall (i) among other things,
extend the fixed maturity of any Notes or reduce the principal amount thereof
(including in the case of a discounted Note the amount payable upon
acceleration of the maturity thereof), reduce the redemption premium thereon or
reduce the rate or extend the time of payment of interest, if any, thereon, or
(ii) reduce the aforesaid percentage of principal amount of such Notes of any
series, the consent of the holders of which is required for any addition or
modification, without in each case the consent of the holder of each such Note
so affected. (Section 10.02.)
EVENTS OF DEFAULT
An Event of Default with respect to any series of Notes is defined in each Indenture as being: (a) default in any payment of principal or premium, if any, on any Note of such series; (b) default for 30 days in payment of any interest on any Note of such series; (c) default in the making or satisfaction of any sinking fund payment or analogous obligation on the Notes of such series; (d) default for 60 days after written notice to the Company in performance of any other covenant in respect of the Notes of such series contained in such Indenture; (e) a default, as defined, with respect to any other series of Notes outstanding under the relevant Indenture or as defined in any other indenture or instrument evidencing or under which the Company has outstanding any indebtedness for borrowed money, as a result of which such other series or such other indebtedness of the Company shall have been accelerated and such acceleration shall not have been annulled within 10 days after written notice thereof (provided, that the resulting Event of Default with respect to such series of Notes may be remedied, cured or waived by the remedying, curing or waiving of such other default under such other series or such other indebtedness); or (f) certain events in bankruptcy, insolvency or reorganization. (Section 6.01.) Each Indenture requires the Company to deliver to the Trustee annually a written statement as to the presence or absence of certain defaults under the terms thereof. (Section 4.06.) No Event of Default with respect to a particular series of Notes under any Indenture necessarily constitutes an Event of Default with respect to any other series of Notes issued thereunder. Each Indenture provides that the Trustee may withhold notice to the holders of any series of Notes issued thereunder of any default (except in the payment of principal, premium, if any, or interest, if any, on any of the Notes of such series or in the making of any sinking fund instalment or analogous obligation with respect to such series) if the Trustee considers it in the interest of such Noteholders to do so. (Section 6.08.)
Each Indenture provides that during the continuance of an Event of Default with respect to any series of Notes, either the Trustee thereunder or the holders of 25% in aggregate principal amount of the outstanding Notes of such series may declare the principal, or in the case of discounted Notes, such portion thereof as may be described in the Prospectus Supplement accompanying this Prospectus, of all such Notes to be due and payable immediately, but under certain conditions such declaration may be annulled by the holders of a majority in principal amount of such Notes then outstanding. Each Indenture provides that past defaults with respect to a particular series of Notes (except, unless theretofore cured, a default in payment of principal of, premium, if any, or interest, if any, on any of the Notes of such series, or the payment of any sinking fund instalment or analogous obligation on the Notes of such series) may be waived on behalf of the holders of all Notes of such series by the holders of a majority in principal amount of such Notes then outstanding. (Sections 6.01 and 6.07.)
Subject to the provisions of each Indenture relating to the duties of the Trustee thereunder in case an Event of Default with respect to any series of Notes shall occur and be continuing, such Trustee shall be under no obligation to exercise any of its rights or powers under such Indenture at the request, order or direction of any holders of Notes of any series issued thereunder unless such holders shall have offered to the Trustee reasonable indemnity. (Sections 7.01 and 7.02.) Subject to such indemnification provision, each Indenture provides that the holders of a majority in principal amount of the Notes of any series issued thereunder at the time outstanding shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee thereunder, or exercising any trust or power conferred on such Trustee with respect to the Notes of such series, provided that such Trustee may decline to follow any such direction if it has not been offered reasonable indemnity therefor or if it determines that the proceedings so directed would be illegal or involve it in any personal liability. (Section 6.07.)
CONCERNING THE TRUSTEE
The Chase Manhattan Bank, as successor to The Bank of New York, acts as trustee under (i) an Amended and Restated Indenture with the Company dated as of February 27, 1997, (ii) an Amended and Restated Indenture with the Company dated as of February 28, 1997, and (iii) an Indenture with the Company dated as of October 1, 1991, as amended and supplemented. The Chase Manhattan Bank also acts as trustee under certain other indentures with the Company. A number of series of senior, unsecured notes of the Company are presently outstanding under each of such indentures, and any of the Notes may be issued under either of the indentures referred to in clauses (i) and (ii) above.
Any material business and other relationships (including additional trusteeships), other than the present and prospective trusteeships referred to in the foregoing paragraph, between, on the one hand, the Company, GE Company and other affiliates of GE Company and, on the other hand, each Trustee under any Indenture pursuant to which any of the Notes to which the Prospectus Supplement accompanying this Prospectus relates are to be issued, are described in such Prospectus Supplement.
DESCRIPTION OF WARRANTS
GENERAL
The following statements with respect to the Warrants are summaries of the detailed provisions of one or more separate Warrant Agreements (each a "Warrant Agreement") between the Company and a banking institution organized under the laws of the United States or one of the states thereof (each a "Warrant Agent"), a form of which is filed as an exhibit to the Registration Statement. Wherever particular provisions of the Warrant Agreement or terms defined therein are referred to, such provisions or definitions are incorporated by reference as a part of the statements made, and the statements are qualified in their entirety by such reference.
The Warrants will be evidenced by Warrant Certificates (the "Warrant Certificates") and, except as otherwise specified in the Prospectus Supplement accompanying this Prospectus, may be traded separately from any Notes with which they may be issued. Warrant Certificates may be exchanged for new Warrant Certificates of different denominations at the office of the Warrant Agent. The holder of a Warrant does not have any of the rights of a Noteholder in respect of, and is not entitled to any payments on, any Note issuable (but not yet issued) upon exercise of the Warrants.
The Warrants may be issued in one or more series, and reference is made to the Prospectus Supplement accompanying this Prospectus relating to the particular series of Warrants, if any, offered thereby for the terms of, and other information with respect to, such Warrants, including: (1) the title and the aggregate number of Warrants; (2) the Notes for which each Warrant is exercisable; (3) the date or dates on which such Warrants will expire; (4) the price or prices at which such Warrants are exercisable; (5) the currency or currencies in which such Warrants are exercisable; (6) the periods during which and places at which such Warrants are exercisable; (7) the terms of any mandatory or optional call provisions; (8) the price or prices, if any, at which the Warrants may be redeemed at the option of the holder or will be redeemed upon expiration; (9) the identity of the Warrant Agent; and (10) the exchanges, if any, on which such Warrants may be listed.
EXERCISE OF WARRANTS
Warrants may be exercised by payment to the Warrant Agent of the exercise price, in each case in such currency or currencies as are specified in the Warrant, and communicating the identity of the Warrantholder and the number of Warrants to be exercised. Upon receipt of payment and the Warrant Certificate property completed and duly executed, at the office of the Warrant Agent, the Warrant Agent will, as soon as practicable, forward Notes in authorized denominations. If less than all of the Warrants evidenced by the Warrant Certificate are exercised, a new Warrant Certificate will be issued for the remaining amount of Warrants.
DESCRIPTION OF THE PREFERRED STOCK
GENERAL
The Board of Directors of the Company has authorized the issuance of the Shares of Preferred Stock, in Series with such voting powers, full or limited but not to exceed one vote per share, or without voting powers, and with such designations, preferences and relative, participating, optional or other special rights, and qualifications, limitations or restrictions thereof, as shall be stated and expressed in the resolution or resolutions providing for the issue thereof adopted by the Board of Directors (or any duly authorized committee thereof) of the Company and as are not stated and expressed in the Company's Restated Organization Certificate, as amended (the "Organization Certificate"). The Shares of Preferred Stock, when issued and sold, will be fully paid and non-assessable and will have no pre-emptive rights.
As of the date of this Prospectus, the capital stock of the Company as authorized by its sole common stockholder consists of 3,866,000 shares of Common Stock, par value of $200 per share (the "Common Stock"), 28,000 Shares of Variable Cumulative Preferred Stock, par value $100 per share (the "Variable Cumulative Preferred Stock"), and 750,000 shares of Preferred Stock, par value $.01 per share (the "New Preferred Stock"). The Preferred Stock is issuable from time to time in Series. There are presently outstanding 3,837,825 shares of Common Stock and 23,000 shares of Variable Cumulative Preferred Stock. Each Series of Variable Cumulative Preferred Stock ranks equally with each other Series of Variable Cumulative Preferred Stock as to dividend and liquidation preference.
The following description of Preferred Stock sets forth certain general terms and provisions of the Series of Preferred Stock to which any Prospectus Supplement may relate.
The following is a brief summary of certain provisions contained in the
Company's Organization Certificate. Certain other terms of any particular
Series of Preferred Stock will be described in the Prospectus Supplement
relating to such Series of Preferred Stock including: (i) the designation,
number of shares and stated value per share; (ii) the amount of liquidation
preference; (iii) the initial public offering price at which shares of such
Series of Preferred Stock will be sold; (iv) the dividend rate or rates (or
method of ascertaining the same); (v) the dates on which dividends shall be
payable, the date from which dividends shall accrue and the record dates for
determining the holders entitled to such dividends; (vi) any redemption or
sinking fund provisions; (vii) any conversion or exchange provisions; and
(viii) any additional dividend, redemption, liquidation or other preferences or
rights and qualifications, limitations or restrictions thereof. If so indicated
in the Prospectus Supplement relating thereto, the terms of any such Series of
Preferred Stock may differ from the terms set forth below. The description of
Preferred Stock set forth below and the description of the terms of a
particular Series of Preferred Stock set forth in the Prospectus Supplement
relating thereto do not purport to be complete and are qualified in their
entirety by reference to the Company's Organization Certificate. Such summary
does not purport to be complete and is qualified in its entirety by reference
to such document, a copy of which is filed as an exhibit to the Registration
Statement of which this Prospectus is a part.
The transfer agent, registrar, dividend disbursing agent and redemption agent for shares of each Series of Preferred Stock will be specified in the Prospectus Supplement relating thereto.
DIVIDEND RIGHTS
The holders of shares of each Series of Preferred Stock shall be entitled to receive, when and as declared by the Board of Directors of the Company, out of funds legally available therefor, cumulative or non-cumulative cash or other dividends on such dates and at such rate or rates as are set forth in, or as are determined by the method described in, the Prospectus Supplement relating to such Series of Preferred Stock. Dividends on the shares of each Series of Preferred Stock will accrue from the date on which the Company
initially issues shares of such Series or as otherwise set forth in the Prospectus Supplement relating to such Series of Preferred Stock. Each dividend will be payable to holders of record as they appear on the stock register of the Company on the record dates fixed by the Board of Directors of the Company, as specified in the Prospectus Supplement relating to such Series of Preferred Stock. Each day on which dividends are payable on Shares of Preferred Stock is referred to herein as a "Dividend Payment Date." The Prospectus Supplement relating to a Series of Preferred Stock will describe any adjustments to be made, if any, to the dividend rate in the event of certain amendments to the Internal Revenue Code of 1986, as amended, with respect to the dividends- received deduction.
In particular, the Dividend Payment Dates on the Variable Cumulative Preferred Stock will be the last day of each Dividend Period, regardless of its length, and, in the case of Dividend Periods of more than 99 days, on the following additional dates: (a) if such Dividend Period is from 100 to 190 days, on the 91st day; (b) if such Dividend Period is from 191 to 281 days, on the 91st and 182nd days; (c) if such Dividend Period is from 282 to 364 days, on the 91st, 182nd and 273rd days; and (d) if such Dividend Period is from two to 30 years, on January 15, April 15, July 15 and October 15 of each year; provided, however, that in all such cases, if such date is not a business day, the Dividend Payment Date shall be the business day next succeeding such date. After the initial Dividend Period, each Dividend Period will begin on a Dividend Payment Date and will end 49 days thereafter; provided, however, that, subject to the limitations set forth in the Prospectus Supplement relating to such Series of Variable Cumulative Preferred Stock, the Company may determine the duration of any subsequent Dividend Period for shares of Variable Cumulative Preferred Stock of a Series by a notice sent by the Company to all record holders of shares of Variable Cumulative Preferred Stock of such Series. After the initial Dividend Period, the dividend rates on the Variable Cumulative Preferred Stock will be determined pursuant to an auction method, subject to any maximum or minimum interest rate, which will be described in the Prospectus Supplement relating to such Series of Variable Cumulative Preferred Stock.
The Dividend Payment Dates and the Dividend Periods with respect to New Preferred Stock will be described in the Prospectus Supplement relating to such Series of New Preferred Stock.
So long as the shares of any Series of Preferred Stock shall be outstanding, unless (i), when applicable, full cumulative dividends shall have been paid or declared and set apart for payment on all outstanding shares of Preferred Stock and other classes and series of preferred stock of the Company and (ii) the Company shall not be in default or in arrears with respect to any sinking or other analogous fund or other agreement for the purchase, redemption or other retirement of any shares of preferred stock of the Company, the Company may not declare any dividends on any shares of Common Stock, or make any payment on account of, or set apart money for, a sinking or other analogous fund for the purchase, redemption or other retirement of any shares of Common Stock or make any distribution in respect thereof, whether in cash or property or in obligations or stock of the Company, other than Common Stock. In the event that there shall be outstanding shares of any other series of preferred stock of the Company (including any other Series of Preferred Stock) ranking on a parity as to dividends with any Series of Preferred Stock and dividends on shares of such Series of Preferred Stock or such other series of preferred stock of the Company are in arrears, the Company, in making any dividend payment on account of such arrears, is required to make payments ratably on all outstanding shares of such Series of Preferred Stock and such other series of preferred stock of the Company in proportion to the respective amounts of dividends in arrears on all such outstanding shares of such Series of Preferred Stock and such other series of preferred stock of the Company to the date of such dividend payment. Holders of shares of any Series of Preferred Stock shall not be entitled to any dividend, whether payable in cash, property or stock, in excess of full cumulative dividends on shares of such Series of Preferred Stock. No interest, or sum of money in lieu of interest, shall be payable in respect of any dividend payment or payments which may be in arrears.
LIQUIDATION RIGHTS
Upon the involuntary or voluntary liquidation, dissolution or winding up of the Company, the holders of Shares of each Series of Preferred Stock will have preference and priority over the Common Stock or any
other class of stock of the Company ranking on liquidation junior to the Shares of Preferred Stock, for payment out of the assets of the Company or proceeds thereof, available for distribution to stockholders, whether from capital or surplus, of the amount per Share described in the Prospectus Supplement relating to each Series of Preferred Stock plus all dividends accumulated and unpaid thereon. If, in the case of any such liquidation, dissolution or winding up of the Company, the assets of the Company or proceeds thereof shall be insufficient to make the full respective preferential liquidation payment per share as so stated in the applicable Prospectus Supplement plus all accumulated and unpaid dividends on the Preferred Stock, then those assets and proceeds will be distributed among the holders of the Preferred Stock ratably in accordance with the respective amounts which would be payable on such Preferred Stock if all amounts thereon were paid in full.
After payment to the holders of shares of such Series of Preferred Stock of the full preferential amounts to which they are entitled, the holders of shares of such Series of Preferred Stock will not be entitled to any further participation in any distribution of assets by the Company, unless otherwise provided in the Prospectus Supplement. The consolidation or merger of the Company with or into any other corporation, or the sale of substantially all the assets of the Company in consideration for the issuance of equity securities of another corporation, shall not be regarded as a liquidation, dissolution or winding up of the Company, if the voting power, preferences or special rights of the holders of shares of such Series of Preferred Stock are not impaired thereby.
VOTING RIGHTS
Holders of Common Stock are entitled to one vote per share on all matters which arise at any meeting of shareholders of the Company. Holders of shares of Preferred Stock will have no voting rights, except as set forth below, in a Prospectus Supplement relating to a Series of Preferred Stock or as otherwise required by law.
The holders of Variable Cumulative Preferred Stock have no voting rights except as required by law or as set forth in a Prospectus Supplement and except that the Company may not alter any of the preferences, privileges, voting powers or other restrictions or qualifications of a Series of Variable Cumulative Preferred Stock in a manner substantially prejudicial to the holders thereof without the consent of the holders of at least two-thirds of the total number of Shares of such Series.
With respect to the New Preferred Stock, in the event that six quarterly dividends (whether or not consecutive) payable on any share or shares of any Series of New Preferred Stock of the Company shall be in arrears, the holders of shares of each Series of New Preferred Stock, voting separately as a class with the holders of shares of any one or more other Series of Preferred Stock of the Company upon which like voting rights have been conferred, shall be entitled at the Company's next annual meeting of stockholders (and at each subsequent annual meeting of stockholders), unless all dividends in arrears have been paid or declared and set apart for payment prior thereto, to vote for the election of two directors of the Company, with the remaining directors of the Company to be elected by the holders of shares of any other class or classes or series of stock entitled to vote therefor. Until the arrears in payments of all dividends which permitted the election of such directors shall cease to exist, any director who has been so elected pursuant to the preceding sentence may be removed at any time, either with or without cause, only by the affirmative vote of the holders of the shares at the time entitled to cast a majority of the votes entitled to be cast for the election of any such director at a special meeting of such holders called for that purpose, and any vacancy thereby created may be filled by the vote of such holders. If and when such arrears shall cease to exist, the holders of shares of such Series of New Preferred Stock shall be divested of the foregoing special voting rights, subject to revesting in the event of each and every subsequent like arrears in payments of dividends. Upon the termination of each such special voting right, the terms of office of all persons who may have been elected directors by vote of the holders of such shares of New Preferred Stock of the Company pursuant to such special voting right shall immediately terminate.
With respect to the New Preferred Stock, without the consent of the holders of shares entitled to cast at least two-thirds of the votes entitled to be cast by the holders of the total number of shares of New Preferred Stock of the Company then outstanding, voting as a class without regard to series, with the holders of shares of each Series of New Preferred Stock being entitled to vote, the Company may not: (a) create any class or Series of stock which shall have preference as to dividends or distributions of assets over any outstanding Series of New Preferred Stock of the Company (other than a series which has no right to object to such creation) or (b) alter or change the provisions of the Organization Certificate so as to adversely affect the voting power, preferences or special rights of the holders of shares of New Preferred Stock of the Company; provided, however, that if such creation or such alteration or change would adversely affect the voting power, preferences or special rights of one or more, but not all, Series of New Preferred Stock of the Company at the time outstanding, consent of the holders of shares entitled to cast at least two-thirds of the votes entitled to be cast by the holders of all of the shares of all such series so affected, voting as a class, shall be required in lieu of the consent of the holders of shares entitled to cast at least two- thirds of the votes entitled to be cast by the holders of the total number of shares of New Preferred Stock of the Company at the time outstanding.
The Prospectus Supplement relating to a Series of Preferred Stock will further describe the voting rights, if any, of the Preferred Stock including the number of or proportional votes per share.
REDEMPTION
The shares of any Series of Preferred Stock may be redeemable at the option of the Company and may be subject to mandatory redemption pursuant to a sinking fund or otherwise, in each case upon the terms, at the times and at the redemption prices set forth in the Prospectus Supplement relating to such Series.
If any dividends on shares of any Series of Preferred Stock are in arrears, no shares of such Series shall be redeemed unless all outstanding shares of such Series are simultaneously redeemed, and the Company shall not purchase or otherwise acquire any shares of such Series; provided, however, that the foregoing shall not prevent the purchase or acquisition of shares of such Series pursuant to a purchase or exchange offer made on the same terms to holders of all outstanding shares of such Series.
With respect to the Variable Cumulative Preferred Stock, at the option of the Company, the shares of any Series of Variable Cumulative Preferred Stock may be redeemed out of legally available funds therefore, as a whole or from time to time in part, (i) on the last day of any Dividend Period at a redemption price of $100,000 per Share, plus accumulated and unpaid dividends to the date fixed for redemption and (ii) in the case of shares of Variable Cumulative Preferred Stock with a Dividend Period equal to or more than two years, on any Dividend Payment Date for such shares at redemption prices (but not less than $100,000 per share) determined by the Company prior to the commencement of such Dividend Period plus accumulated and unpaid dividends to the date set forth for redemption.
CONVERSION RIGHTS
No Series of Preferred Stock will be convertible into Common Stock.
LEGAL OPINIONS
Except as may be otherwise specified in the Prospectus Supplement accompanying this Prospectus, the legality of the Securities will be passed upon for the Company by one of Nancy E. Barton, a director and Senior Vice President, General Counsel and Secretary of the Company or Bruce C. Bennett, Associate General Counsel--Treasury Operations and Assistant Secretary of the Company, and for the underwriters, agents or dealers by Davis Polk & Wardwell, 450 Lexington Avenue, New York, New York 10017. Ms. Barton and Mr. Bennett, together with members of their families, own, have options to purchase and have other interests in shares of common stock of GE Company.
EXPERTS
The financial statements and schedule of General Electric Capital Corporation and consolidated affiliates as of December 31, 1997 and 1996 and for each of the years in the three-year period ended December 31, 1997, appearing in the Company's Annual Report on Form 10-K for the year ended December 31, 1997, have been incorporated by reference herein in reliance upon the report of KPMG Peat Marwick LLP, independent certified public accountants, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses in connection with the issuance and distribution of the securities being registered, other than underwriting compensation, are:
Filing Fee for Registration Statement........................... $2,212,500
Accounting Fees and Expenses.................................... 53,000*
NASD Rule 2720 filing and counsel fees.......................... 40,000
Trustees' and Warrant Agents' Fees and Expenses (including
counsel fees).................................................. 15,000*
Blue Sky filing and counsel fees................................ 45,000*
Printing and Engraving Fees..................................... 150,000*
Rating Agency Fees.............................................. 550,000*
Miscellaneous................................................... 1,500*
----------
Total....................................................... $3,067,000
==========
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ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Sections 7018-7022 of the New York Banking Law the Company may or shall, subject to various exceptions and limitations, indemnify its directors or officers as follows:
a. If a director or officer is made or threatened to be a party to an action by or in the right of the Company to procure a judgment in its favor, by reason of the fact that he is or was a director or officer of the Company or is or was serving at the request of the Company as a director or officer of some other enterprise (including an employee benefit plan), the Company may indemnify him against amounts paid in settlement and reasonable expenses, including attorney's fees, incurred in the defense or settlement of such action or an appeal therein, if such director or officer acted, in good faith, for a purpose which he reasonably believed to be in (or, in the case of service for any other enterprise, not opposed to) the best interests of the Company, except that no indemnification is available under such statutory provisions in respect of a threatened action or a pending action which is settled or otherwise disposed of, or any claim or issue or matter as to which such person is found liable to the Company, unless in each such case a court determines that such person is fairly and reasonably entitled to indemnity for such amount as the court deems proper.
b. With respect to any action or proceeding other than one by or in the right of the Company to procure a judgement in its favor, if a director or officer is made or threatened to be made a party by reason of the fact that he was a director or officer of the Company, or served some other enterprise (including an employee benefit plan) at the request of the Company, the Company may indemnify him against judgments, fines, amounts paid in settlement and reasonable expenses, including attorney's fees incurred as a result of such action or proceeding, or an appeal therein, if he acted in good faith for a purpose which he reasonably believed to be in (or, in the case of service for any other enterprise, not opposed to) the best interests of the Company and, in criminal actions or proceedings, in addition, had no reasonable cause to believe that his conduct was unlawful.
c. A director or officer who has been wholly successful, on the merits or otherwise, in the defense of a civil or criminal action or proceeding of the character described in paragraphs a or b above, shall be entitled to indemnification as authorized in such paragraphs.
The foregoing statement is subject to the detailed provisions of Sections 7018- 7022 of the New York Banking Law.
The indemnification and advancement of expenses granted pursuant to the New York Banking Law, as summarized in the foregoing paragraph, are not exclusive of any other rights to indemnification or
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advancement of expenses to which a director or officer may be entitled, provided that no indemnification may be made if a judgment adverse to the director or officer establishes that his acts were committed in bad faith or were the result of active and deliberate dishonesty and were material to the cause so adjudicated, or that he personally gained a financial profit or other advantage to which he was not legally entitled. The By-Laws of the Company provide that directors and officers of the Company shall be indemnified to the fullest extent permitted by law in connection with any actual or threatened action or proceeding (including civil, criminal, administrative or investigative proceedings) arising out of their service to the Company or to another organization at the Company's request. Persons who are not directors or officers of the Company may be similarly indemnified in respect of such service to the extent authorized at any time by the Board of Directors.
Reference is made to Article VI of the Underwriting Agreements filed as Exhibits 1(a), 1(c) and 1(d) hereto for a description of the indemnification arrangements in connection with an underwritten offering of the Securities registered hereby.
The directors of the Company are insured under officers and directors liability insurance policies purchased by GE Company. The directors, officers and employees of the Company are also insured against fiduciary liabilities under the Employee Retirement Income Security Act of 1974.
ITEM 16. EXHIBITS.
EXHIBIT
NUMBER INCORPORATED BY REFERENCE TO FILINGS INDICATED DESCRIPTION
------- ---------------------------------------------- -----------
1(a) --Exhibit 1(a) to the Company's Form of Underwriting Agreement for
Registration Statement on Form S-3 Debt Securities.
(No. 33-50909).
(b) --Exhibit 1(b) to the Company's Form of Amended and Restated U.S.
Registration Statement on Form S-3 Distribution Agreement dated as of
(No. 33-50909). August 31, 1993 among the Company and
the Dealers party thereto.
(c) --Exhibit 1 to the Company's Form of Underwriting Agreement
Registration Statement on Form S-3 Variable Cumulative Preferred Stock.
(No. 33-37156).
(d) Form of Underwriting Agreement
Preferred Stock.
4(a) Amended and Restated General Electric
Capital Corporation Standard Global
Multiple Series Indenture Provisions
dates as of February 27, 1997.
(b) Amended and Restated General Electric
Capital Corporation Standard Multiple-
Series Indenture Provisions dated as
of February 28, 1997.
(c) Amended and Restated Indenture dated
as of February 27, 1997 between the
Company and The Chase Manhattan Bank,
as successor trustee.
(d) Amended and Restated Indenture dated
as of February 28, 1997 between the
Company and The Chase Manhattan Bank,
as successor trustee.
(e) --Exhibit 4(k) to the Company's Form of Warrant Agreement.
Registration Statement on Form S-3
(No. 33-18118).
(f) Form of Global Medium-Term Note,
Series A, Fixed Rate Registered Note.
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EXHIBIT
NUMBER INCORPORATED BY REFERENCE TO FILINGS INDICATED DESCRIPTION
------- ---------------------------------------------- -----------
(g) Form of Global Medium-Term Note,
Series A, Floating Rate Registered
Note.
(h) --Exhibit 4(w) to the Company's Form of Global Medium-Term Note,
Registration Statement on Form S-3 Series B/C, Fixed Rate Temporary
(No. 33-50909). Global Bearer Note.
(i) --Exhibit 4(x) to the Company's Form of Global Medium-Term Note,
Registration Statement on Form S-3 Series B/C, Floating Rate Temporary
(No. 33-50909). Global Bearer Note.
(j) --Exhibit 4(y) to the Company's Form of Global Medium-Term Note,
Registration Statement on Form S-3 Series B/C, Fixed Rate
(No. 33-50909). Bearer/Registered Note.
(k) --Exhibit 4(z) to the Company's Form of Global Medium-Term Note,
Registration Statement on Form S-3 Series B/C, Floating Rate
(No. 33-50909). Bearer/Registered Note.
(l) --Exhibit 4(aa) to the Company's Form of Global Medium-Term Note,
Registration Statement on Form S-3 Series B/C, Fixed Rate Permanent
(No. 33-50909). Global Bearer Note.
(m) --Exhibit 4(bb) to the Company's Form of Global Medium-Term Note,
Registration Statement on Form S-3 Series B/C, Floating Rate Bearer Note.
(No. 33-50909).
(n) --Exhibit 3(i) to the Company's Annual Restated Organization Certificate
Report on Form 10-K for the fiscal filed by the Superintendent of Banks
year ended December 31, 1993 of the State of New York on November
(File No. 1-6461). 28, 1988, as last amended on December
6, 1990.
(o) --Exhibit 4(b) to the Company's Certificate of Amendment authorizing
Registration Statement on Form S-3 3,500 additional shares of Variable
(No. 33-58771). Cumulative Preferred Stock filed by
the Superintendent of Banks of the
State of New York on April 21, 1995.
(p) --Exhibit 4(c) to the Company's Certificate of Amendment specifying
Registration Statement on Form S-3 certain terms of the Series O, P and Q
(No. 33-61257). Variable Cumulative Preferred Stock
filed by the Acting Deputy
Superintendent of Banks of the State
of New York as of May 11, 1995.
(q) --Exhibit 4(d) to the Company's Certificate of Amendment specifying
Registration Statement on Form S-3 certain terms of the Series R, S, T,
(No. 33-61257). U, V and W Variable Cumulative
Preferred Stock filed by the Acting
Deputy Superintendent of Banks of the
State of New York as of June 28, 1995.
(r) --Exhibit 4(e) to the Company's Certificate of Amendment authorizing
Registration Statement on Form S-3 4,000 additional shares of Variable
(No. 33-61257). Cumulative Preferred Stock filed by
the Acting Deputy Superintendent of
Banks of the State of New York as of
July 17, 1995.
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EXHIBIT
NUMBER INCORPORATED BY REFERENCE TO FILINGS INDICATED DESCRIPTION
------- ---------------------------------------------- -----------
(s) --Exhibit 4(f) to the Company's Certificate of Amendment specifying
Registration Statement on Form S-3 certain terms of Series X, X-1, Y, Y-1
(No. 333-13195). and Z Variable Cumulative Preferred
Stock filed by the Acting Deputy
Superintendent of Banks of the State
of New York as of November 1, 1995.
(t) --Exhibit 4(f) to the Company's Certificate of Amendment authorizing
Registration Statement on Form S-3 5,000 additional shares of Variable
(No. 333-13195). Cumulative Preferred Stock and
effecting certain other amendments to
the Organization Certificate filed by
the Deputy Superintendent of Banks of
the State of New York as of September
26, 1996.
(u) --Exhibit 4(c) to the Company's Form of Certificate of Amendment
Registration Statement on Form S-3 specifying certain terms of each
(No. 33-58771). Series of Variable Cumulative
Preferred Stock.
(v) --Exhibit 4(f) to the Company's Certificate of Amendment specifying
Registration Statement on Form S-3 certain terms of Series AA, BB, CC and
(No. 333-13195). DD Variable Cumulative Preferred Stock
filed by the Deputy Superintendent of
Banks of the State of New York as of
December 9, 1997.
(w) --Exhibit 4(f) to the Company's Certificate of Amendment specifying
Registration Statement on Form S-3 certain terms of Series EE, FF, GG and
(No. 333-13195). HH Variable Cumulative Preferred Stock
filed by the Deputy Superintendent of
Banks of the State of New York as of
December 19, 1997.
(x) --Exhibit 4(f) to the Company's Certificate of Amendment reducing the
Registration Statement on Form S-3 authorized number of shares of Series
(No. 333-13195). EE, FF, GG and HH Variable Cumulative
Preferred Stock filed by the Deputy
Superintendent of Banks of the State
of New York as of February 17, 1998.
(y) Form of Certificate of Amendment
authorizing 5,000 additional shares of
Variable Cumulative Preferred Stock
and 750,000 shares of Preferred Stock,
par value $.01 per share to the
Organization Certificate to be filed
by the Deputy Superintendent of Banks
of New York.
(z) Form of Certificate of Amendment
specifying certain terms of each
Series of Preferred Stock, par value
$.01 per share.
5 Opinion and consent of Bruce C.
Bennett, Associate General Counsel--
Treasury Operations and Assistant
Secretary of the Company.
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EXHIBIT
NUMBER INCORPORATED BY REFERENCE TO FILINGS INDICATED DESCRIPTION
------- ---------------------------------------------- -----------
12 --Exhibit 12 to the Company's Computation of ratio of earnings to
Quarterly Report on Form 10-Q for the fixed charges and computation of ratio
quarter ended March 28, 1998 (File of earnings to fixed charges and
No. 1-6461). preferred stock dividends.
23 Consent of KPMG Peat Marwick LLP
(contained in Part II of this
Registration Statement).
Consent of Bruce C. Bennett is
included in his opinion referred to in
Exhibit 5 above.
Consent of James Kalashian, Senior Tax
Counsel of the Company.
24 Power of Attorney.
25 Form T-1 Statement of Eligibility and
Qualification under the Trust
Indenture Act of 1939 of The Chase
Manhattan Bank, in respect of the
Amended and Restated Indenture being
filed as Exhibit 4(c) and the Amended
and Restated Indenture being filed as
Exhibit 4(d).
99(a) --Exhibit 28(a) to the Company's Trust Company Agreement.
Registration Statement on Form S-3
(No. 33-24667).
99(b) --Exhibit 28(b) to the Company's Amendment to Trust Company Agreement.
Registration Statement on Form S-3
(No. 33-37156).
99(c) --Exhibit 28(c) to the Company's Amendment No. 2 to Trust Company
Registration Statement on Form S-3 Agreement.
(No. 33-37156).
99(d) --Exhibit 99(d) to the Company's Form of Amendment No. 3 to Trust
Registration Statement on Form S-3 Company Agreement.
(No. 33-58771).
99(e) --Exhibit 28(d) to the Company's Form of Broker-Dealer Agreement.
Registration Statement on Form S-3
(No. 33-37156).
99(f) --Exhibit 28(e) to the Company's Form of Letter to the Depository Trust
Registration Statement on Form S-3 Company.
(No. 33-37156).
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ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes: (1) To file, during any period
in which offers or sales are being made, a post-effective amendment to this
registration statement (i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933; (ii) to reflect in the prospectus any
facts or events arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set forth in
the registration statement; and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in the
registration statement or any material change to such information in the
registration statement; provided, however, that clauses (i) and (ii) do not
apply if the registration statement is on Form S-3 or Form S-8 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement; (2) That, for the
purpose of determining any liability under the Securities Act of 1933, each
such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof; (3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination
of the offering; (4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report pursuant
to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that
is incorporated by reference in the registration statement shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range may
be reflected in the form of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price represent no
more than a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the provisions described under Item 15 above, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
II-6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant, General Electric Capital Corporation, certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Stamford, State of Connecticut, on the 23rd day of July, 1998.
General Electric Capital Corporation
/s/ James A. Parke
By __________________________________
(JAMES A. PARKE SENIOR VICE
PRESIDENT, FINANCE)
|
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the date indicated.
SIGNATURE TITLE DATE
* Gary C. Wendt Chairman of the
------------------------------------- Board and Chief
(GARY C. WENDT) Executive Officer
(Principal
Executive Officer)
* Denis J. Nayden President, Chief
------------------------------------- Operating Officer
(DENIS J. NAYDEN) and Director
/s/ James A. Parke Senior Vice
------------------------------------- President, Finance
(JAMES A. PARKE) and Director
(Principal
Financial Officer) July 23, 1998
* Jeffrey S. Werner Senior Vice
------------------------------------- President--
(JEFFREY S. WERNER) Corporate Treasury
and Global Funding
Operation
* N.D.T. Andrews Director
-------------------------------------
(N.D.T. ANDREWS)
* Nancy E. Barton Director
-------------------------------------
(NANCY E. BARTON)
* James R. Bunt Director
-------------------------------------
(JAMES R. BUNT)
* David M. Cote Director
-------------------------------------
(DAVID M. COTE)
* Dennis D. Dammerman Director
-------------------------------------
(DENNIS D. DAMMERMAN)
II-7
|
SIGNATURE TITLE DATE
* Paolo Fresco Director
-------------------------------------
(PAOLO FRESCO)
* Benjamin W. Heineman, Jr. Director
-------------------------------------
(BENJAMIN W. HEINEMAN, JR.)
* Jeffrey R. Immelt Director
-------------------------------------
(JEFFREY R. IMMELT)
* W. James McNerney, Jr. Director
-------------------------------------
(W. JAMES MCNERNEY, JR.)
* John H. Myers Director
-------------------------------------
(JOHN H. MYERS)
* Robert L. Nardelli Director
-------------------------------------
(ROBERT L. NARDELLI)
* Michael A. Neal Director July 23, 1998
-------------------------------------
(MICHAEL A. NEAL)
* John M. Samuels Director
-------------------------------------
(JOHN M. SAMUELS)
* Edward D. Stewart Director
-------------------------------------
(EDWARD D. STEWART)
* John F. Welch, Jr. Director
-------------------------------------
(JOHN F. WELCH, JR.)
* Joan C. Amble Vice President and
------------------------------------- Controller
(JOAN C. AMBLE) (Principal
Accounting Officer)
/s/ James A. Parke Attorney-in-fact
*By _________________________________
(JAMES A. PARKE)
|
II-8
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to incorporation by reference in the Registration Statement on Form S-3 of General Electric Capital Corporation of our report dated February 13, 1998 relating to the statement of financial position of General Electric Capital Corporation and consolidated affiliates as of December 31, 1997 and 1996 and the related statements of current and retained earnings and cash flows for each of the years in the three-year period ended December 31, 1997, and related schedule, which report appears in the December 31, 1997 annual report on Form 10-K of General Electric Capital Corporation.
We also consent to the reference to our firm under the heading "Experts" in the Registration Statement.
KPMG Peat Marwick LLP
Stamford, Connecticut
July 23, 1998
II-9
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
------- -----------
1(d) Form of Underwriting Agreement Preferred Stock.
4(a) Amended and Restated General Electric Capital Corporation Standard
Global Multiple Series Indenture Provisions dates as of February 27,
1997.
(b) Amended and Restated General Electric Capital Corporation Standard
Multiple-Series Indenture Provisions dated as of February 28, 1997.
(c) Amended and Restated Indenture dated as of February 27, 1997 between
the Company and The Chase Manhattan Bank, as successor trustee.
(d) Amended and Restated Indenture dated as of February 28, 1997 between
the Company and The Chase Manhattan Bank, as successor trustee.
(f) Form of Global Medium-Term Note, Series A, Fixed Rate Registered Note.
(g) Form of Global Medium-Term Note, Series A, Floating Rate Registered
Note.
(y) Form of Certificate of Amendment authorizing 5,000 additional shares
of Variable Cumulative Preferred Stock, and 750,000 shares of
Preferred Stock, par value $.01 per share to the Organization
Certificate to be filed by the Deputy Superintendent of Banks of New
York.
(z) Form of Certificate of Amendment specifying certain terms of each
Series of Preferred Stock, par value $.01 per share.
5 Opinion and consent of Bruce C. Bennett, Associate General Counsel--
Treasury Operations and Assistant Secretary of the Company.
23 Consent of KPMG Peat Marwick LLP (contained in Part II of this
Registration Statement).
Consent of Bruce C. Bennett is included in his opinion referred to in
Exhibit 5 above.
Consent of James Kalashian, Senior Tax Counsel of the Company.
24 Power of Attorney.
25 Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of The Chase Manhattan Bank, in respect of the
Amended and Restated Indenture being filed as Exhibit 4(c) and the
Amended and Restated Indenture being filed as Exhibit 4(d).
|
EXHIBIT 1(d)
UNDERWRITING AGREEMENT
New York, New York
To the Representative(s) named in
Schedule I hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
General Electric Capital Corporation, a New York corporation
(hereinafter referred to as the Company), proposes to issue its
[Cumulative]Preferred Stock, par value $.01 per share, described in Schedule I
hereto (hereinafter referred to as the Securities) and the Company has filed
with the Securities and Exchange Commission (hereinafter referred to as the
Commission), and there has become effective, a registration statement (the file
number of which is set forth in Schedule I hereto), including a prospectus,
relating to the Securities. The registration statement as amended to the date
of this Agreement is hereinafter referred to as the Registration Statement, and
the prospectus as amended to the date of this Agreement (other than as amended
by prospectus supplements relating to securities other than the Securities) and
as amended by a prospectus supplement relating to the Securities to be filed
pursuant to Rule 424 under the Securities Act of 1933, as amended (the "Act"),
is hereinafter referred to as the Prospectus (including in each case documents
incorporated by reference).
I.
The Company hereby agrees to sell to the several Underwriters named in Schedule II hereto, and the Underwriters, upon the basis of the representations and warranties herein contained, but subject to the conditions hereinafter stated, agree to purchase from the Company, severally and not jointly, the principal amounts of Securities set forth opposite their names in Schedule II hereto, at the purchase price set forth in Schedule I hereto, plus accrued dividends, if any, from the date set forth in Schedule I hereto to the date of payment and delivery.
II.
The Company is advised by you that the Underwriters propose to make a public offering of their respective portions of the Securities as soon after this Agreement is
entered into as in your judgment is advisable. The terms of the public offering of the Underwriters' Securities are as specified in Schedule I hereto.
III.
Payment for the Securities shall be made to the Company in U.S. dollars in same day funds by transfer to an account designated by the Company to the Underwriters, on the date and at the time specified in Schedule I hereto, upon delivery to you for the respective accounts of the several Underwriters of the Securities registered in the name of CEDE & Co., as nominee of The Depository Trust Company. The time and date of such payment and delivery are herein referred to as the Closing Date.
IV.
The several obligations of the Underwriters hereunder are subject to the following conditions:
(a) 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 subsidiaries, taken as a whole, from that set forth in the Registration Statement and the Prospectus; and you shall have received on the Closing Date a certificate, dated the Closing 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.
(b) You shall have received on and as of the Closing Date an opinion of
either Nancy E. Barton, Senior Vice President, General Counsel and Secretary of
the Company, or Bruce C. Bennett, Associate General Counsel - Treasury
Operations and Assistant Secretary, dated the Closing Date, to the effect that
(i) the Company has been duly incorporated and is validly existing under the
laws of the State of New York; (ii) 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; (iii)
the Securities have been duly authorized and, when issued and delivered to and
paid for by the Underwriters, will be duly issued, fully paid and nonassessable
shares of the Company; (iv) this Agreement has been duly authorized, executed
and delivered by the Company and is a valid and binding agreement of the
Company, except as rights to indemnity hereunder may be limited under applicable
law; (v) neither the execution and delivery of this Agreement nor the issuance
and sale of the Securities by the Company as provided herein will contravene the
Organization Certificate or by-laws of the Company or result in any violation of
any of the terms or provisions of any law or regulation 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; (vi) the statements contained in
the Prospectus under the caption "Description of the Preferred Stock" fairly
present the matters referred to therein; (vii) each document incorporated by
reference in the Prospectus which was filed pursuant to
the Securities Exchange Act of 1934, as amended (the "Exchange Act") (except for
the financial statements included therein, as to which such counsel need not
express any opinion) complied when so filed as to form in all material respects
with the Exchange Act and the applicable rules and regulations thereunder;
(viii) the Registration Statement and the Prospectus and any supplements and
amendments thereto (except for the financial statements and except for
supplements relating only to securities other than the Securities, as to which
such counsel need express no opinion) comply as to form in all material respects
with the Act and the rules and regulations of the Commission thereunder; (ix)
such counsel believes that (except for the financial statements included
therein, as to which counsel need not express any belief) each part of the
Registration Statement at the time such part became effective 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,
and the Prospectus as of the date of the prospectus supplement relating to the
Securities did not, and the Prospectus (as amended or supplemented) 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.
(c) You shall have received on and as of the Closing Date an opinion of Davis Polk & Wardwell, counsel for the Underwriters, dated the Closing Date, covering the matters in (i), (iii), (iv), (vi), (viii) and (ix) of paragraph (b) above.
In rendering the opinion referred to in paragraph (b) above, such counsel
may state that with respect to (viii) and (ix) of paragraph (b) above, such
counsel's opinion and belief is based upon his participation in the preparation
of the Registration Statement and the Prospectus and any amendments and
supplements thereto (including documents incorporated by reference) and review
and discussion of the contents thereof, but is without independent check or
verification except as stated therein. In rendering the opinions referred to in
(c) above, such counsel may state that with respect to (viii) and (ix) of
paragraph (b) above, such counsel's opinion and belief is based upon their
participation in the preparation of the Registration Statement 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 is without
independent check or verification except as stated therein.
(d) You shall have received on the Closing Date, a letter dated the Closing Date in form and substance satisfactory to you, from KPMG Peat Marwick LLP, independent public accountants, 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.
V.
In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:
(a) To furnish to each of you without charge two copies of the Registration Statement (including exhibits and documents incorporated by reference), and to each other Underwriter a copy of the Registration Statement (without exhibits but including documents incorporated by reference), and, during the period mentioned in paragraph (c) below, as many copies of the Prospectus and any amendments or supplements thereto prepared pursuant to paragraph (c) below as you may reasonably request. The terms "supplement" and "amendment" or "amend" as used in this Agreement include all documents subsequently filed by the Company pursuant to the Exchange Act which are deemed to be incorporated by reference in the Prospectus from the date of filing such documents in accordance with Form S-3.
(b) To prepare and file (or mail for filing) with the Commission pursuant to Rule 424 under the Act, as promptly as practicable after the execution of this Agreement, a prospectus supplement setting forth such information as is necessary so that the Prospectus, when delivered to a purchaser of the Securities, will comply with law and, before amending the Registration Statement or supplementing the Prospectus with respect to the Securities, to furnish you a copy of each such proposed amendment or supplement.
(c) If, during such period after the first date of the public offering of the Securities as in the opinion of your counsel a prospectus is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with law, forthwith to prepare and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you shall furnish to the Company) to which Securities may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus will comply with law.
(d) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request and to pay all expenses (including fees and disbursements of counsel) in connection with such qualification and in connection with the determination of the eligibility of the Securities for investment under the laws of such jurisdictions as you may designate; provided that the Company shall not be required to qualify to do business in any jurisdiction where it is not now qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction where it is not now subject.
(e) To make generally available to its security holders as soon as practicable an earnings statement (which need not be audited) covering a twelve- month period beginning after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Act.
VI.
The Company represents and warrants to each Underwriter that (i) each document filed by the Company pursuant to the Exchange Act which is incorporated by reference in the Prospectus complied when so filed in all material respects with the Exchange 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 with the Exchange Act and the rules and regulations thereunder; (ii) the Registration Statement and the Prospectus comply, and the Registration Statement and the Prospectus (and any Amendments and supplements thereto, other than supplements relating only to securities other than the Securities) will on the Closing Date comply, in all material respects with the Act and the applicable rules and regulations of the Commission thereunder; (iii) each preliminary prospectus, if any, filed pursuant to Rule 424 under the Act complied when so filed in all material respects with the Act and the applicable rules and regulations thereunder; and (iv) each part of the Registration Statement at the time such part became effective 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, and the Prospectus as of the date of the prospectus supplement relating to the Securities did not, and the Prospectus (as amended or supplemented, other than as to supplements relating only to securities other than the Securities) on the Closing 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; except that these representations and warranties do not apply to statements or omissions in the Registration Statement or the Prospectus based upon information furnished to the Company in writing by any Underwriter expressly for use therein.
The Company agrees to indemnify and hold harmless each Underwriter and each person, if any, who controls any Underwriter within the meaning of Section 15 of the Act, or Section 20 of the Exchange 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 or the Prospectus (if used within the period set forth in paragraph (c) of Article V hereof 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 Underwriter expressly for use therein.
Each Underwriter 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 Underwriter, but only with reference to information relating to such Underwriter furnished in writing by such Underwriter expressly for use in the Registration Statement, the Prospectus or any preliminary prospectus.
In case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to either of the two preceding paragraphs, 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 fees and disbursements 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 you in the
case of parties indemnified pursuant to the second preceding paragraph and by
the Company in the case of parties indemnified pursuant to the first preceding
paragraph. 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.
If the indemnification provided for in this Article VI is unavailable to an indemnified party under the second or third paragraphs hereof 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 Underwriters on the other from the offering of the Underwriters' Securities, (ii) if the indemnifying party is an Underwriter, in such proportion as is appropriate to reflect the relative fault of such Underwriter on the one hand and the Company on the other hand in connection with the statements or omissions which resulted in such losses, 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 Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the Prospectus. The relative fault of the Company on the one hand and of the Underwriters on the other shall be determined by reference to, among other things, whether the untrue statement of a material fact or the omission to state a material fact relates to information supplied by the Company or by the Underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Article VI were determined by pro
rata allocation (even if the Underwriters 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 clause (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 Article VI, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the
Securities underwritten by such Underwriter and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
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 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Article VI are several, in proportion to the respective amounts of Securities
purchased by each of such Underwriters, and not joint.
The indemnity and contribution agreements contained in this Article VI and the representations and warranties of the Company in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Underwriter or any person controlling any Underwriter or by or on behalf of the Company, its directors or officers or any person controlling the Company and (iii) acceptance of and payment for the Securities.
VII.
Unless otherwise provided in Schedule I hereto, this Agreement shall be subject to termination in the discretion of a majority in interest of the Underwriters at any time prior to the Closing Date, by notice given to the Company, 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 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 a majority in interest of the Underwriters, as to prevent or materially impair the marketing, or enforcement of contracts for sale, of the Securities.
VIII.
If this Agreement shall be terminated by the Underwriters, or any of them, because of any failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, or if for any reason the Company shall be unable to perform its obligations under this Agreement, the Company will reimburse the Underwriters or such Underwriters as have so terminated this Agreement with respect to themselves, severally, for all out-of-pocket expenses (including the fees and disbursements of their counsel) reasonably incurred by such Underwriters in connection with the Securities.
This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with the laws of the State of New York.
Very truly yours,
GENERAL ELECTRIC CAPITAL CORPORATION
By:__________________________________
Name:
Title:
Accepted, as of the date set
forth in Schedule I hereto
UNDERWRITER NAME
By:___________________________________
Name:
Title:
acting severally on behalf of
such Representative(s) and the
several Underwriters named in
Schedule II hereto
SCHEDULE I
Underwriting Agreement dated _________, 199_
Registration Statement No. 333-_________
Representative(s) and address(es):
UNDERWRITER NAME
ADDRESS
Title of Securities: [Cumulative]Preferred Stock Series __
Number of Shares: ___ Shares (Series __)
Certain Terms of the Securities:
As set forth under "Description of the Preferred Stock", in the Prospectus dated July __ , 1998 and on the cover page and under "Description of the Preferred Shares" in the Prospectus Supplement dated as of ___________, 199_.
Certain Terms of the Underwriting:
Purchase Price: $____ per share Public Offering Price: $____ per share Underwriting Discount: $____ per share Dealer Concession: $____ per share Reallowance Concession: $____ per share |
The Underwriter's Securities are to be offered to the public at the Public Offering Price specified above, and to dealers at prices which represent concessions not in excess of the Dealer Concession set forth above.
Payment (if other than by wire transfer in immediately available funds):
N/A
Closing: Davis Polk & Wardwell, 450 Lexington Avenue, New York, New York 10017, at 10:00 a.m., New York City time, on [DATE].
SCHEDULE II
Total
GENERAL ELECTRIC CAPITAL CORPORATION
THIRD AMENDED AND RESTATED
STANDARD GLOBAL MULTIPLE-SERIES INDENTURE PROVISIONS
Dated as of February 27, 1997
CROSS REFERENCE SHEET/1/
between
the provisions of Sections 310 through 318(a) of the Trust Indenture Act of 1939, as amended, and the Third Amended and Restated General Electric Capital Corporation Standard Global Multiple-Series Indenture Provisions:
Section of Act Section of the
------------------------------------------------------ Third Amended and Restated
Standard Global
Multiple-Series
Indenture Provisions
----------------------------------
310 (a)(1), (2) and (5)............................... 7.09
310 (a)(3) and (4).................................... Not applicable
310 (b)............................................... 7.08 and 7.10
310 (c)............................................... Not applicable
311 (a) and (b)....................................... *
311 (c)............................................... Not applicable
312 (a)............................................... 5.01
312 (b) and (c)....................................... *
313 (a)............................................... 5.03
313 (b) (1)........................................... Not applicable
313 (b) (2)........................................... *
313 (c)............................................... *
313 (d)............................................... *
314 (a)............................................... 5.02
314 (b)............................................... Not applicable
314 (c) (1) and (2)................................... 14.05
314 (c) (3)........................................... Not applicable
314 (d)............................................... Not applicable
314 (e)............................................... 14.05
314 (f)............................................... Not applicable
315 (a), (c) and (d).................................. 7.01
315 (b)............................................... 6.08
315 (e)............................................... 6.09
316 (a) (1)........................................... 6.01 and 6.07
316 (a) (2)........................................... Omitted
316 (a) last sentence................................. 8.04
316 (b)............................................... 6.04
316 (e) *
317 (a)............................................... 6.02
317 (b)............................................... 4.04(a)
318 (a)............................................... 14.08
|
/1/ This cross reference sheet is not part of the Third Amended and Restated Standard Global Multiple-Series Indenture Provisions.
*Automatically included under Section 318(c) of the Trust Indenture Act of 1939, as amended.
TABLE OF CONTENTS/2/
Page
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions................................... 1
ARTICLE TWO
DESCRIPTION, EXECUTION, REGISTRATION AND
EXCHANGE OF SECURITIES
Section 2.01. Forms......................................... 8
Section 2.02. Amount Unlimited; Issuable in
Series and Tranches........................... 9
Section 2.03. Authentication................................ 12
Section 2.04. Date and Denomination of
Securities.................................... 14
Section 2.05. Execution of Securities....................... 16
Section 2.06. Exchange and Registration of
Transfer of Securities........................ 16
Section 2.07. Mutilated, Destroyed, Lost or
Stolen Securities............................. 21
Section 2.08. Temporary Securities.......................... 22
Section 2.09. Cancellation of Securities Paid,
etc........................................... 23
Section 2.10. Computation of Interest....................... 24
|
ARTICLE THREE
REDEMPTION OF SECURITIES; SINKING FUNDS; REPAYMENT AT THE
OPTION OF THE HOLDER
Section 3.01. Applicability of Article...................... 24
Section 3.02. Notice of Redemption; Selection of
Securities.................................... 24
Section 3.03. Payment of Securities Called for
Redemption.................................... 26
Section 3.04. Satisfaction of Mandatory Sinking
Fund Payments with Securities................. 27
Section 3.05. Redemption of Securities for
Sinking Fund.................................. 27
Section 3.06. Repayment at the Option of the
Holder........................................ 30
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
Section 4.01. Payment of Principal, Premium and
Interest...................................... 30
Section 4.02. Offices for Notices and Payments,
etc........................................... 31
Section 4.03. Appointments to Fill Vacancies in
Trustee's Office.............................. 33
Section 4.04. Provision as to Paying Agent.................. 33
Section 4.05. Statement as to Compliance.................... 34
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ARTICLE FIVE
SECURITYHOLDER LISTS AND REPORTS BY
THE COMPANY AND THE TRUSTEE
Section 5.01. Securityholder Lists.......................... 35 Section 5.02. Reports by the Company........................ 35 Section 5.03. Reports by the Trustee........................ 35 |
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND
SECURITYHOLDER ON EVENT OF DEFAULT
Section 6.01. Events of Default............................. 36
Section 6.02. Payment of Securities on Default;
Suit Therefor................................. 40
Section 6.03. Application of Moneys Collected by
Trustee....................................... 42
Section 6.04. Proceedings by Securityholders................ 43
Section 6.05. Proceedings by Trustee........................ 44
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Section 6.06. Remedies Cumulative and
Continuing.................................... 44
Section 6.07. Direction of Proceedings and Waiver
of Defaults by Securityholders................ 45
Section 6.08. Notice of Defaults............................ 46
Section 6.09. Undertaking to Pay Costs...................... 46
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ARTICLE SEVEN
CONCERNING THE TRUSTEE
Section 7.01. Duties and Responsibilities of
Trustee....................................... 47
Section 7.02. Reliance on Documents, Opinions,
etc........................................... 49
Section 7.03. No Responsibility for Recitals,
etc........................................... 50
Section 7.04. Ownership of Securities....................... 51
Section 7.05. Moneys to be Held in Trust.................... 51
Section 7.06. Compensation and Expenses of
Trustee....................................... 51
Section 7.07. Officers' Certificate as Evidence............. 52
Section 7.08. Indentures Not Creating Potential
Conflicting Interests for the Trustee......... 52
Section 7.09. Eligibility of Trustee........................ 52
Section 7.10. Resignation or Removal of Trustee............. 53
Section 7.11. Acceptance by Successor Trustee............... 55
Section 7.12. Succession by Merger, etc..................... 56
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Section 7.13. Appointment of Authenticating Agent......................................... 57
ARTICLE EIGHT
CONCERNING THE SECURITYHOLDERS
Section 8.01. Action by Securityholders..................... 59
Section 8.02. Proof of Execution by
Securityholders............................... 59
Section 8.03. Who are Deemed Absolute Owners................ 61
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Section 8.04. Company-Owned Securities
Disregarded................................... 61
Section 8.05. Revocation of Consents; Future
Holders Bound................................. 62
ARTICLE NINE
SECURITYHOLDERS' MEETINGS
Section 9.01. Purposes of Meetings.......................... 62
Section 9.02. Call of Meeting by Trustee.................... 63
Section 9.03. Call of Meeting by Company or
Securityholders............................... 63
Section 9.04. Qualifications for Voting..................... 64
Section 9.05. Quorum; Adjourned Meetings.................... 64
Section 9.06. Regulations................................... 65
Section 9.07. Voting........................................ 66
Section 9.08. No Delay of Rights by Meeting................. 67
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ARTICLE TEN
SUPPLEMENTAL INDENTURES
Section 10.01. Supplemental Indentures without
Consent of Securityholders................... 67
Section 10.02. Supplemental Indentures with
Consent of Securityholders................... 69
Section 10.03. Compliance with Trust Indenture
Act; Effect of Supplemental Indentures....... 70
Section 10.04. Notation on Securities....................... 70
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Section 10.05. Evidence of Compliance of Supplemental Indenture to be Furnished Trustee...................................... 71
ARTICLE ELEVEN
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 11.01. Company May Not Consolidate, etc.,...........
Except Under Certain Conditions.............. 71
Section 11.02. Successor Corporation to be
Substituted.................................. 72
Section 11.03. Documents to be Given Trustee................ 72
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ARTICLE TWELVE
SATISFACTION AND DISCHARGE OF INDENTURE
Section 12.01. Discharge of Indenture....................... 73
Section 12.02. Deposited Moneys to be Held in
Trust by Trustee............................. 74
Section 12.03. Paying Agent to Repay Moneys Held............ 74
Section 12.04. Return of Unclaimed Moneys................... 74
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ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 13.01. Indenture and Securities Solely
Corporate Obligations........................ 74
ARTICLE FOURTEEN
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MISCELLANEOUS PROVISIONS
Section 14.01. Provisions Binding on Company's
Successors................................... 75
Section 14.02. Official Acts by Successor
Corporation.................................. 75
Section 14.03. Addresses for Notices, etc................... 75
Section 14.04. New York Contract............................ 76
Section 14.05. Evidence of Compliance with
Conditions Precedent......................... 76
Section 14.06. Legal Holidays............................... 76
Section 14.07. Securities in a Specified Currency
Other Than Dollars........................... 77
Section 14.08. Trust Indenture Act to Control............... 78
Section 14.09. Table of Contents, Headings, etc............. 78
Section 14.10. Execution in Counterparts.................... 78
Section 14.11. Separability................................. 78
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ARTICLE ONE
DEFINITIONS
The term "Authenticating Agent" means any Person authorized by the Trustee pursuant to Section 7.13 to act on behalf of the Trustee to authenticate Securities.
The term "Board of Directors" shall mean the Board of Directors of the Company or any Committee of such Board to which the relevant powers of such Board have been lawfully delegated.
The term "Business Day" shall mean, unless otherwise specified with respect to a particular Tranche of Notes, any day other than a Saturday or Sunday or any other day on which banking institutions are generally authorized or obligated by law or regulation to close in The City of New York or (i) with respect to any floating rate notes where interest is determined with respect to LIBOR or with respect to any Series B or C Notes, in London, England, (ii) with respect to Notes denominated in a Specified Currency other than U.S. dollars, Australian dollars or European Currency Units ("ECUs"), in the principal financial center of the country of the Specified Currency, (iii) with respect to Notes denominated in Australian dollars, in Sydney or (iv) with respect to Notes denominated in ECUs, a day that is a non-ECU clearing day as determined by the ECU Banking Association in Paris.
The term "Company" shall mean General Electric Capital Corporation, a New York corporation, until any successor corporation shall have become such pursuant to the provisions of Article Eleven, and thereafter "Company" shall mean such successor, except as otherwise provided in Section 11.02.
The term "Coupon" shall mean any interest coupon appertaining to a Security.
The term "currency" shall mean Dollars or any Specified Currency.
The term "Depositary" shall mean, with respect to the Securities of any series or Tranche issuable or issued in the form of one or more Registered Global Securities, the Person designated as Depositary by the Company pursuant to Section 2.02 until a successor Depositary shall have become such pursuant to the applicable provisions of this Third Amended and Restated Indenture, and thereafter "Depositary" shall mean or include each Person who is then a Depositary hereunder, and if at any time there is more than one such Person, "Depositary" as used with respect to the Securities of any such series or Tranche shall mean the Depositary with respect to such Registered Global Security or Securities.
The term "Dollar" shall mean the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
The term "Event of Default" shall have the meaning specified in
Section 6.01.
The term "Global Series Note" shall mean any Outstanding Global Medium-Term Note, Series A (a "Global Series A Note"), Global Medium-Term Note, Series B (a "Global Series B Note"), Global Medium-Term Note, Series C (a "Global Series C Note"), and any and all such other series of Global Medium-Term Notes as may hereafter be established by or pursuant to a supplemental indenture or a resolution of the Board of Directors. The Global Series Notes may be issued in one or more Tranches, pursuant to the provisions of Section 2.02.
The term "interest", when used with respect to a non-interest bearing Security, means interest payable after the principal thereof has become due and payable, whether at maturity, by declaration of acceleration, by call for redemption, pursuant to a sinking fund or otherwise.
The term "Officers' Certificate" shall mean a certificate signed by the President, the Chairman or any Vice Chairman of the Board or any Vice President and by the Senior Vice President-Corporate Treasury and Global Funding Operation or any Assistant Treasurer, the Controller or the Secretary or any Assistant Secretary of the Company and delivered to the Trustee. Each such certificate shall comply with Section 314 of the Trust Indenture Act of 1939 and include the statements provided for in Section 14.05 if and to the extent required by the provisions of such Section.
The term "Opinion of Counsel" shall mean an opinion in writing signed by legal counsel, who may be an employee of or of counsel to the Company, or may be other counsel. Each such opinion shall comply with Section 314 of the Trust Indenture Act of 1939 and include the statements provided for in Section 14.05 if and to the extent required by the provisions of such Section.
The term "Original Issue Discount Security" shall mean any Security which at any time provides for an amount less than the principal amount thereof to be due and payable upon redemption or a declaration of acceleration of the maturity thereof pursuant to Section 6.01.
The term "Overdue Rate" with respect to each Tranche of Securities shall mean the rate designated as such in or pursuant to the resolution of the Board of Directors or the supplemental indenture, as the case may be, relating to such Tranche as contemplated by Section 2.02.
The term "Person" shall mean any individual, corporation, partnership, joint venture, association, joint stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
The term "principal office of the Trustee", or other similar term, shall mean the principal office of the Trustee at which any particular time its corporate trust business shall be administered.
The term "Registered Global Security" shall mean a Security evidencing
all or a part of a Tranche of Securities, issued to the Depositary for such
Tranche in accordance with Section 2.03 and bearing the legend prescribed in
Section 2.03.
The term "Registered Security" shall mean any Security registered on the Security register of the Company.
The term "Responsible Officer", when used with respect to the Trustee, shall mean the Chairman or any Vice Chairman of the Board of Directors, the Chairman or any Vice Chairman of the Executive Committee of the Board of Directors, the President, any Vice President, any Assistant Vice President, the Cashier, any Assistant Cashier, the Secretary, any Assistant Secretary, the Treasurer, any Assistant Treasurer, any Trust Officer, any Assistant Trust Officer, or any other officer or assistant officer of the Trustee customarily performing functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of his knowledge of and familiarity with the particular subject.
The terms "Security" or "Securities" shall mean any Security or Securities, as the case may be, authenticated and delivered under this Third Amended and Restated Indenture.
The term "Outstanding", when used with reference to Securities, shall, subject to the provisions of Section 8.04, mean, as of any particular time, all Securities authenticated and delivered by the Trustee under this Third Amended and Restated Indenture, except:
(a) Securities theretofore canceled by the Trustee or delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of which moneys in the necessary amount shall have been deposited in trust with the Trustee or with any paying agent (other than the Company) or shall have been set aside and segregated in trust by the Company (if the Company shall act as its own paying agent), provided that if such Securities are to be redeemed prior to the maturity thereof, notice of such redemption shall have been mailed as in Article Three provided, or provision satisfactory to the Trustee shall have been made for mailing such notice; and
(c) Securities in lieu of or in substitution for which other Securities shall have been authenticated and delivered, or which shall have been paid, pursuant to the terms of Section 2.07, unless proof satisfactory to the Trustee is presented that any such Securities are held by Persons in whose hands any of such Securities is a valid, binding and legal obligation of the Company.
In determining whether the holders of the requisite principal amount of Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration of the maturity thereof pursuant to Section 6.01.
The term "Security register" shall have the meaning specified in
Section 2.06.
The term "Security registrar" shall have the meaning specified in
Section 2.06.
The term "Securityholder", "holder of Securities", or other similar terms, shall mean, (a) with respect to any Registered Security, the Person in whose name at the time such Registered Security is registered on the books of the Company kept for that purpose in accordance with the terms hereof or (b) with respect to any Unregistered Security, the bearer thereof.
The term "Specified Currency" shall mean the currency in which a Security is denominated, which may include Dollars, any foreign currency or any composite of two or more currencies.
The term "Subsidiary" shall mean (i) any corporation of which the Company directly or indirectly owns or controls at that time at least a majority of the outstanding stock having under ordinary circumstances (not dependent upon the happening of a contingency) voting power to elect a majority of the board of directors of such corporation or (ii) any other Person (other than a corporation) in which the Company directly or indirectly has at least a majority ownership interest and power to direct the policies, management and affairs thereto.
The term "Finance Subsidiary" shall mean any Subsidiary engaged within the United States in the business of purchasing notes, accounts receivable (whether or not payable in installments), conditional sale contracts or other paper originating in sales at wholesale or retail, or of leasing new or used products or of making installment loans.
The term "Third Amended and Restated Indenture" shall mean this instrument as originally executed or as it may be amended or supplemented from time to time as herein provided, and shall include the form and terms of particular Tranches of Securities established as contemplated hereunder.
The term "Tranche" shall mean all Securities of the same series having identical terms but for authentication date and public offering price.
The term "Trust Indenture Act of 1939" shall mean the Trust Indenture Act of 1939 as it was in force at the date of execution of this Third Amended and Restated Indenture, except as provided in Section 10.03.
The term "Trustee" shall mean the corporation or association named as Trustee in this Third Amended and Restated Indenture and, subject to the provisions of Article Seven, shall also include its successors and assigns as Trustee hereunder. If pursuant to the provisions of this Third Amended and Restated Indenture there shall be at any time more than one Trustee hereunder, the term "Trustee" as used with respect to Securities of any Tranche shall mean the Trustee with respect to Securities of such Tranche.
The term "Unregistered Security" shall mean any Security other than a Registered Security.
ARTICLE TWO
DESCRIPTION, EXECUTION, REGISTRATION AND
EXCHANGE OF SECURITIES
The Trustee's Certificate of Authentication on all Securities shall be in substantially the following form, and shall be executed on behalf of the Trustee by its authorized officer or agent:
This is one of the Securities of the Tranche designated therein described in the within-mentioned Indenture.
________________________________, as Trustee
By______________________________
The Securities may be issued in one or more series, each of which may consist of one or more Tranches. There shall be established in or pursuant to a resolution of the Board of Directors or established in one or more
indentures supplemental hereto, prior to the issuance of Securities of any Tranche,
(1) the title of the series to which such Tranche belongs (which shall distinguish the Securities of such series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of such series or Tranche which may be authenticated and delivered under this Third Amended and Restated Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the Tranche pursuant to Section 2.06, 2.07, 2.08, 3.03, 3.06 or 10.04);
(3) the date or dates on which the principal and premium, if any, of the Securities of the Tranche are payable;
(4) the rate or rates, or the method of determination thereof, at which the Securities of the Tranche shall bear interest, if any, the date or dates from which such interest shall accrue, the interest payment dates on which such interest shall be payable and, in the case of Registered Securities, if other than as set forth in Section 2.04, the record dates for the determination of holders to whom interest is payable;
(5) the place or places where the principal of, and premium, if any, and any interest on Securities of the Tranche shall be payable;
(6) the Specified Currency of the Securities of the Tranche;
(7) the currency or currencies in which payments on the Securities of the Tranche are payable, if other than the Specified Currency;
(8) the price or prices at which, the period or periods within which and the terms and conditions upon which Securities of the Tranche may be redeemed, in whole or in part, at the option of the Company, pursuant to any sinking fund or otherwise;
(9) the obligation, if any, of the Company to redeem, purchase or repay Securities of the Tranche pursuant to any sinking fund or analogous provisions or at the option of a holder thereof and the price or prices at which or process by which and the period or periods within which and the terms and conditions upon which Securities of the Tranche shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;
(10) the denominations in which Securities of the Tranche shall be issuable, if other than as provided in Section 2.04;
(11) if other than the principal amount thereof, the portion of the principal amount of Securities of the Tranche which shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.01;
(12) if other than the Specified Currency, the coin or currency in which payment of the principal of or interest on the Securities of the Tranche shall be payable;
(13) if the principal of or interest on the Securities of the Tranche are to be payable, at the election of the Company or a holder thereof, in a coin or currency other than the Specified Currency, the period or periods within which, and the terms and conditions upon which, such election may be made;
(14) if the amount of payments of principal of and interest on the Securities of the Tranche may be determined with reference to an index based on a coin or currency other than the Specified Currency, the manner in which such amounts shall be determined;
(15) whether the Securities of the Tranche will be issuable as Registered Securities (and, if so, whether such Securities will be issuable as Registered Global Securities) or Unregistered Securities (with or without Coupons), or any combination of the foregoing, any restriction applicable to the offer, sale or delivery of Unregistered Securities or the payment of interest thereon and, if other than as provided in Section 2.06, the terms upon which Unregistered Securities of any Tranche may be exchanged for Registered Securities of such Tranche and vice versa;
(16) whether and under what circumstances the Company will pay additional amounts on the Securities of the Tranche held by a Person who is not a U.S. Person in respect of any tax, assessment, or governmental charge withheld or deducted and, if so, whether the Company will have the option to redeem such Securities rather than pay such additional amounts;
(17) if the Securities of such Tranche are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such Tranche) only upon receipt of certain
certificates or other documents or satisfaction of other conditions, the
form and terms of such certificates, documents or conditions, if other than
as provided for by the form of such Securities established pursuant to
Section 2.01;
(18) any Events of Default with respect to the Securities of the Tranche, if not set forth herein;
(19) if other than the rate of interest stated in the title of the Securities of the Tranche, the applicable Overdue Rate;
(20) in the case of any Tranche of non-interest bearing Securities, the applicable dates for purposes of clause (a) of Section 5.01;
(21) any trustees, depositaries, authenticating or paying agents, transfer agents or registrars or any other agents with respect to such Tranche; and
(22) any other terms of the Tranche (which terms shall not be inconsistent with the provisions of this Third Amended and Restated Indenture).
All Securities of any one Tranche and Coupons, if any, appertaining thereto, shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to such resolution of the Board of Directors or in any indenture supplemental hereto.
thereupon authenticate and deliver, or cause to be authenticated and delivered, said Securities to or for the account of the Company upon the written order of the Company, signed by its President, its Chairman or any Vice Chairman of the Board or one of its Vice Presidents (including Executive and Senior Vice Presidents) and by its Senior Vice President-Corporate Treasury and Global Funding Operation or its Controller. In authenticating or causing the authentication of such Securities and accepting the additional responsibilities under this Third Amended and Restated Indenture in relation to such Securities, the Trustee shall be entitled to receive and (subject to Sections 7.01 and 7.02) shall be fully protected in relying upon:
(1) a copy of any resolution or resolutions of the Board of Directors relating thereto and, if applicable, an appropriate record of any action taken pursuant to such resolution, in each case certified by the Secretary or an Assistant Secretary of the Company;
(2) an executed supplemental indenture, if any, relating thereto;
(3) an Officers' Certificate prepared in accordance with Section 14.05 which shall also state to the best knowledge of the signers of such Certificate that no Event of Default with respect to any Tranche of Securities shall have occurred and be continuing; and
(4) an Opinion of Counsel prepared in accordance with Section 14.05 which shall also state:
(a) that the forms of such Securities and Coupons, if any, have been established by or pursuant to a resolution of the Board of Directors or by a supplemental indenture as permitted by Section 2.01 in conformity with the provisions of this Third Amended and Restated Indenture;
(b) that the terms of such Securities have been established by or pursuant to a resolution of the Board of Directors or by a supplemental indenture as permitted by Section 2.02 in conformity with the provisions of this Third Amended and Restated Indenture;
(c) that such Securities and Coupons, if any, when authenticated (in the case of the Securities) and delivered by or at the direction
of the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute legal, valid and binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting the enforcement of creditors' rights and to general equity principles;
(d) that the Company has the corporate power to issue such Securities and Coupons, if any, and has duly taken all necessary corporate action with respect to such issuance;
(e) that the issuance of such Securities and Coupons, if any, will not contravene the organization certificate or by-laws of the Company or result in any violation of any of the terms or provisions of any law or regulation or of any indenture, mortgage or other agreement known to such Counsel by which the Company or any of its Subsidiaries is bound; and
(f) that all laws and requirements in respect of the execution and delivery by the Company of such Securities and Coupons, if any, and the related supplemental indenture, if any, have been complied with and that authentication and delivery of such Securities and Coupons, if any, and the execution and delivery of the related supplemental indenture, if any, by the Trustee will not violate the terms of this Third Amended and Restated Indenture.
The Trustee shall have the right to decline to authenticate and
deliver or cause to be authenticated and delivered any Securities under this
Section 2.03 if the Trustee, being advised by counsel, determines that such
action may not lawfully be taken or if the Trustee in good faith by action of
its board of directors or trustees, executive committee, or a trust committee of
directors or trustees and Responsible Officers shall determine that such action
would expose the Trustee to personal liability to existing Securityholders.
If the Company shall establish pursuant to Section 2.02 that the Securities of a Tranche are to be issued in the form of one or more Registered Global Securities, then the Company shall execute and the Trustee shall, in
accordance with this Section 2.03 and the Company order with respect to such
Tranche, authenticate and deliver one or more Registered Global Securities that
(i) shall represent and shall be denominated in an amount equal to the aggregate
principal amount of all of the Securities of such Tranche issued and not yet
canceled, (ii) shall be either in bearer form or registered in the name of the
Depositary for such Registered Global Security or Securities or the nominee of
such Depositary, (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instructions and (iv) shall bear a legend
substantially to the following effect: "Unless and until it is exchanged in
whole or in part for Securities in definitive registered form, this Security may
not be transferred except as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
Each Depositary designated pursuant to Section 2.02 must, at the time of its designation and at all times while it serves as Depositary hereunder, be a clearing agency registered under the United States Securities Exchange Act of 1934 and any other applicable statute or regulation.
Every Registered Security shall be dated the date of its authentication. Every Unregistered Security shall be dated as provided in the resolution of the Board of
obligatory for any purpose. Such certificate by the Trustee upon any Security executed by the Company shall be conclusive evidence that the Security so authenticated has been duly authenticated and delivered hereunder and that the holder is entitled to the benefits of this Third Amended and Restated Indenture.
In case any officer of the Company who shall have signed any of the Securities or Coupons, if any, shall cease to be such officer before the Securities or Coupons so signed (or the Securities to which the Coupons so signed appertain) shall have been authenticated and delivered by the Trustee, or disposed of by the Company, such Securities or Coupons nevertheless may be authenticated and delivered or disposed of as though the Person who signed such Securities or Coupons had not ceased to be such officer of the Company; and any Security or Coupon may be signed on behalf of the Company by such Persons as, at the actual date of such Security or Coupon, shall be the proper officers of the Company, although at the date of the execution of this Third Amended and Restated Indenture any such Person was not such an officer.
Unregistered Securities of any Tranche (with all unmatured Coupons, if any, and all matured Coupons, if any, then in default, attached thereto) may be exchanged for Registered Securities of the same Tranche of any authorized denominations and in an equal aggregate principal amount. Unregistered Securities surrendered in exchange for Registered Securities after the close of business on (i) any record date with respect to any regular payment of interest and before the opening of business at such office on the relevant interest payment date or (ii) any record date to be established for the payment of defaulted interest and before the opening of business on the related proposed date for payment of defaulted interest, shall be surrendered without the Coupon relating to such date for payment of interest.
Securities to be exchanged pursuant to the preceding two paragraphs shall be surrendered, at the option of the holders thereof, either at the office or agency
designated and maintained by the Company for such purpose in the Borough of
Manhattan, The City of New York in accordance with the provisions of Section
4.02 or at any of such other offices or agencies as may be designated and
maintained by the Company for such purpose in accordance with the provisions of
Section 4.02, and the Company shall execute and register and the Trustee shall
authenticate and deliver in exchange therefor the Security or Securities which
the Securityholder making the exchange shall be entitled to receive. Each Person
designated by the Company pursuant to the provisions of Section 4.02 as a Person
authorized to register and register transfer of the Securities is sometimes
herein referred to as a "Security registrar."
Unregistered Securities in definitive form of any Tranche will be exchangeable for Unregistered Securities in definitive form of the same Tranche in other authorized denominations, in an equal aggregate principal amount. Unregistered Securities to be so exchanged shall be surrendered, at the option of the holders thereof, either at the office or agency designated and maintained by the Company for such purpose outside the United States in accordance with the provisions of Section 4.02, or at the office of any agent appointed by the Company to perform such service, and the Company shall execute and the Trustee shall authenticate and deliver, or cause to be authenticated and delivered, in exchange therefor the Unregistered Security or Securities which the Securityholder making the exchange shall be entitled to receive.
The Company shall keep, at each such office or agency, a register for each Tranche of Registered Securities issued hereunder (the registers of all Security registrars being herein sometimes collectively referred to as the "Security register" or the "registry books of the Company") in which, subject to such reasonable regulations as it may prescribe, the Company shall register Registered Securities and shall register the transfer of Registered Securities as provided in this Article Two. The Security register shall be in written form or in any other form capable of being converted into written form within a reasonable time. At all reasonable times the Security register shall be open for inspection by the Trustee and any Security registrar other than the Trustee. Upon due presentment for registration of transfer of any Registered Security of any Tranche at any designated office or agency, the Company shall execute and register and the Trustee shall authenticate and deliver in the name of the transferee or transferees a new Registered Security or Registered Securities of the same Tranche for an equal aggregate principal amount. Registration or
registration of transfer of any Registered Security by any Security registrar in the registry books of the Company maintained by such Security registrar, and delivery of such Registered Security, duly authenticated, shall be deemed to complete the registration or registration of transfer of such Registered Security.
The Company will at all times designate one Person (who may be the Company and who need not be a Security registrar) to act as repository of a master list of names and addresses of the holders of the Registered Securities. The Company shall act as such repository unless and until some other Person is, by written notice from the Company to the Trustee and each Security registrar, designated by the Company to act as such. The Company shall cause each Security registrar to furnish to such repository, on a current basis, such information as to all registrations of transfer and exchanges effected by such registrar, as may be necessary to enable such repository to maintain such master list on as current a basis as is practicable.
No Person shall at any time be designated as or act as a Security registrar unless such Person is at such time empowered under applicable law to act as such and duly registered to act as such under and to the extent required by applicable law and regulations.
All Registered Securities presented for registration of transfer or for exchange, redemption, repayment or payment shall (if so required by the Company or the Trustee) be duly endorsed by, or be accompanied by a written instrument or instruments of transfer or exchange in form satisfactory to the Company and the Trustee duly executed by, the holder or his attorney duly authorized in writing.
No service charge shall be made for any exchange or registration of transfer of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith.
The Company shall not be required (i) to issue, register the transfer of or exchange Securities to be redeemed for a period of fifteen calendar days preceding the first publication of the relevant notice of redemption, or if Registered Securities are Outstanding and there is no publication, the mailing of the relevant notice of redemption, or (ii) to register the transfer of or exchange any Registered Securities selected for redemption, in whole
or in part, except the unredeemed portion of any such Registered Securities being redeemed in part, or (iii) to exchange any Unregistered Securities selected for redemption except that such Unregistered Securities may be exchanged for Registered Securities of like tenor, provided that such Registered Securities shall be simultaneously surrendered for redemption or (iv) to register the transfer of or exchange any Securities surrendered for optional repayment, in whole or in part.
Unregistered Securities and any Coupons appertaining thereto will be transferable by delivery.
Notwithstanding any other provision of this Section 2.06, unless and until it is exchanged in whole or in part for Securities in definitive registered form, a Registered Global Security representing all or a portion of the Securities of a Tranche may not be transferred except as a whole by the Depositary for such Tranche to a nominee of such Depositary or by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by such Depositary or any such nominee to a successor Depositary for such Tranche or a nominee of such successor Depositary.
If at any time the Depositary for any Registered Securities of a Tranche represented by one or more Registered Global Securities notifies the Company that it is unwilling or unable to continue as Depositary for such Registered Securities or if at any time the Depositary for such Registered Securities shall no longer be eligible under Section 2.03, the Company shall appoint a successor Depositary eligible under Section 2.03 with respect to such Registered Securities. If a successor Depositary eligible under Section 2.03 for such Registered Securities is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such ineligibility, the Company's election pursuant to Section 2.02 that such Registered Securities be represented by one or more Registered Global Securities shall no longer be effective and the Company will execute, and the Trustee, upon receipt of an Officer's Certificate for the authentication and delivery of definitive Securities of such Tranche, will authenticate and deliver Securities of such Tranche in definitive registered form without Coupons, in any authorized denominations, in an aggregate principal amount equal to the aggregate principal amount of the Registered Global Security or Securities representing such Registered Securities in exchange for such Registered Global Security or Securities.
The Company may at any time and in its sole discretion determine that Registered Securities issued in the form of one or more Registered Global Securities shall no longer be represented by a Registered Global Security or Securities. In such event the Company will execute and the Trustee, upon receipt of an Officer's Certificate for the authentication and delivery of definitive Securities, will authenticate and deliver Securities of the same Tranche in definitive registered form without Coupons, in any authorized denominations, in an aggregate principal amount equal to the aggregate principal amount of the Registered Global Security or Securities in exchange for such Registered Global Security or Securities.
If specified by the Company pursuant to Section 2.02 with respect to Securities represented by a Registered Global Security, the Depositary for such Registered Global Security may surrender such Registered Global Security in exchange in whole or in part for Securities of the same Tranche in definitive registered form on such terms as are acceptable to the Company and such Depositary. Thereupon, the Company shall execute, and the Trustee shall authenticate and deliver, without service charge:
(i) to the Person specified by such Depositary, a new Registered Security or Securities of the same Tranche, of any authorized denominations as requested by such Person, in an aggregate principal amount equal to and in exchange for such Person's beneficial interest in the Registered Global Security; and
(ii) to such Depositary, a new Registered Global Security in a denomination equal to the difference, if any, between the principal amount of the surrendered Registered Global Security and the aggregate principal amount of Registered Securities authenticated and delivered pursuant to clause (i) above.
Upon the exchange of a Registered Global Security for Securities in definitive registered form without Coupons, in authorized denominations, in an aggregate principal amount equal to the principal amount of such Registered Global Security, such Registered Global Security shall be canceled by the Trustee or an agent of the Company or the Trustee. Securities in definitive registered form without Coupons issued in exchange for a Registered Global Security pursuant to this Section 2.06 shall be registered in such names and in such authorized denominations as the Depositary for such Registered Global Security, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee or an agent of the Company or the Trustee. The Trustee or such agent shall deliver such Securities to or as directed by the Persons in whose names such Securities are so registered.
Notwithstanding anything herein or in the terms of any Securities to the contrary, none of the Company, the Trustee or any agent of the Company or the Trustee (any of which, other than the Company, shall be entitled to rely on an Officer's Certificate and an Opinion of Counsel) shall be required to exchange any Unregistered Security for a Registered Security if such exchange could result in adverse Federal income tax consequences to the Company (such as, for example, the inability of the Company to deduct from its income, as computed for Federal income tax purposes, the interest payable on the Unregistered Securities) under then applicable United States Federal income tax laws, as determined by the Company.
Upon the issuance of any substituted Security or Coupon, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses connected therewith. In case any Security or Coupon which has matured or is about to mature shall become
mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a
substituted Security or Coupon, pay or authorize the payment of the same
(without surrender thereof except in the case of a mutilated Security or Coupon)
if the applicant for such payment shall furnish to the Company and to the
Trustee such security or indemnity as may be required by them to save each of
them harmless and, in case of destruction, loss or theft, evidence satisfactory
to the Company and the Trustee of the destruction, loss or theft of such
Security or Coupon and the ownership thereof.
Every substituted Security or Coupon issued pursuant to the provisions of this Section 2.07 by virtue of the fact that any Security or Coupon is destroyed, lost or stolen shall constitute an additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security or Coupon shall be found at any time, and shall be entitled to all the benefits of this Third Amended and Restated Indenture equally and proportionately with any and all other Securities or Coupons of the same Tranche duly issued hereunder. All Securities and Coupons shall be held and owned upon the express condition that the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities and Coupons and shall preclude (to the extent lawful) any and all other rights or remedies with respect to the replacement or payment of negotiable instruments or other securities without their surrender.
provisions of Section 4.02 or at any of such other offices or agencies as may be
designated and maintained by the Company for such purpose in accordance with the
provisions of Section 4.02, and the Trustee shall authenticate and deliver in
exchange for such temporary Securities an equal aggregate principal amount of
definitive Securities of the same Tranche and, in the case of Unregistered
Securities, having attached thereto any appropriate Coupons. Such exchange shall
be made by the Company at its own expense and without any charge therefor. Until
so exchanged, the temporary Securities of any Tranche shall in all respects be
entitled to the same benefits under this Third Amended and Restated Indenture as
definitive Securities of the same Tranche authenticated and delivered hereunder,
unless otherwise established pursuant to Section 2.02. The provisions of this
Section 2.08 are subject to any restrictions or limitations on the issue and
delivery of temporary Unregistered Securities that may be established pursuant
to Section 2.01 or 2.02 (including any provision that such Unregistered
Securities initially be issued in the form of a single global Unregistered
Security to be delivered to a depositary located outside the United States and
the procedures pursuant to which definitive or global Unregistered Securities
would be issued in exchange for such temporary global Unregistered Security).
each Tranche shall be computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE THREE
REDEMPTION OF SECURITIES; SINKING FUNDS; REPAYMENT AT THE
OPTION OF THE HOLDER
The minimum amount of any sinking fund payment provided for by the terms of any Securities is herein referred to as a "mandatory sinking fund payment", and any payment in excess of such minimum amount provided for by the terms of such Securities is herein referred to as an "optional sinking fund payment."
information available to the Company for such purpose). Notice of redemption to all other holders of Unregistered Securities shall be published in an Authorized Newspaper in the Borough of Manhattan, The City of New York, in an Authorized Newspaper in London and, if any such Unregistered Securities are listed on the Luxembourg Stock Exchange, in an Authorized Newspaper in Luxembourg, in each case, once in each of three successive calendar weeks, the first publication to be not less than 30 nor more than 60 days prior to the date fixed for redemption. Any notice if given in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. In any case, failure to give notice or any defect in the notice to the holder of any Security of a Tranche designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Security of such Tranche.
Each such notice of redemption shall specify the date fixed for redemption, the redemption price at which the Securities of such Tranche are to be redeemed, the place or places of payment, that payment will be made upon presentation and surrender of such Securities and, in the case of Securities issued with Coupons, of all Coupons appertaining thereto maturing after the date fixed for redemption, that any interest accrued to the date fixed for redemption will be paid as specified in said notice, and that on and after said date any interest thereon or on the portions thereof to be redeemed will cease to accrue. If less than all the Securities of a Tranche are to be redeemed, the notice of redemption shall specify the number or numbers of the Securities to be redeemed. In case any Security is to be redeemed in part only, the notice of redemption shall state the portion of the principal amount thereof to be redeemed and shall state that on and after the date fixed for redemption, upon surrender of such Security, a new Security or Securities of the same Tranche in principal amount equal to the unredeemed portion thereof, together with any unmatured Coupons appertaining thereto, will be issued.
Prior to the redemption date specified in the notice of redemption given as provided in this Section 3.02, the Company will deposit with the Trustee or with one or more paying agents (or if the Company is acting as its own paying agent, shall segregate and hold in trust as provided in Section 4.05) an amount of money sufficient to redeem on the redemption date all the Securities or portions thereof so called for redemption, together with accrued interest to the date fixed for redemption. If less than all the
Securities of a Tranche are to be redeemed, the Company will give the Trustee notice not less than 60 days prior to the redemption date as to the aggregate principal amount of Securities of such Tranche to be redeemed, and the Trustee shall select or cause to be selected, in such manner as in its sole discretion it shall deem appropriate and fair, the Securities or portions thereof to be redeemed. Securities of a Tranche may be redeemed in part only in multiples of the smallest authorized denomination of that Tranche.
If any Security issued with Coupons is surrendered for redemption and is not accompanied by all appurtenant Coupons maturing after the date fixed for redemption and all matured Coupons, if any, then in default, the surrender of such missing Coupon or Coupons may be waived by the Company and the Trustee, if there be furnished to each of them such security or indemnity as they may require to save each of them harmless.
Upon presentation of any Security redeemed in part only, the Company shall execute and the Trustee shall authenticate and deliver to the holder thereof, at the expense of the Company, a new Security or Securities of the same Tranche, of authorized denominations, together with all unmatured Coupons, if any, and all matured Coupons, if any, then in default appertaining thereto, in aggregate principal amount equal to the unredeemed portion of the Security so presented.
Such certificate shall be irrevocable and, upon its delivery, the Company shall be obligated to make the cash payment or payments therein referred to, if any, on or before the next succeeding sinking fund payment date. In the case of the failure of the Company to deliver such certificate (or to deliver the Securities specified in this paragraph), the sinking fund payment due on the next succeeding sinking fund payment date for such Securities shall be paid entirely in cash and shall be sufficient to redeem the principal amount of such Securities subject to a mandatory sinking fund payment without the option to deliver or credit Securities as provided in Section 3.04 and without the right to make any optional sinking fund payment, if any, with respect to such Securities.
Any sinking fund payment or payments (mandatory or optional) made in cash plus any unused balance of any preceding sinking fund payments made in cash which, in the aggregate, shall equal or exceed 100,000 units of the Specified Currency with respect to the particular Tranche (or a lesser sum if the Company shall so request or determine) with respect to any Securities shall be applied by the Trustee (or by the Company if the Company is acting as its own paying agent) on the sinking fund payment date on which such payment is made (or, if such payment is made before a sinking fund payment date, on the next sinking fund payment date following the date of such payment) to the redemption of such Securities at the redemption price specified in such Securities for operation of the sinking fund together with accrued interest, if any, to the date fixed for redemption. Any sinking fund moneys not so applied or allocated by the Trustee (or by the Company if the Company is acting as its own paying agent) to the redemption of Securities shall be added to the next cash sinking fund payment received by the Trustee (or if the Company is acting as its own paying agent, segregated and held in trust as provided in Section 4.04) for such Securities and, together with such payment (or such amount so segregated), shall be applied in accordance with the provisions of this Section 3.05. Any and all sinking fund moneys with respect to any Securities held by the Trustee (or if the Company is acting as its own paying agent, segregated and held in trust as provided in Section 4.04) on the last sinking fund payment date with respect to such Securities and not held for the payment or redemption of particular Securities of such Tranche shall be applied by the Trustee (or by the Company if the Company is acting as its own paying agent), together with other moneys, if necessary, to be deposited (or segregated) sufficient for
the purpose, to the payment of the principal of the Securities of that Tranche at maturity.
The Trustee shall select or cause to be selected the Securities to be redeemed upon such sinking fund payment date in the manner specified in the last paragraph of Section 3.02 and the Company shall cause notice of the redemption thereof to be given in the manner provided in Section 3.02 except that the notice of redemption shall also state that the Securities are being redeemed by operation of the sinking fund. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Section 3.03.
On or before each sinking fund payment date, the Company shall pay to
the Trustee in cash (or if the Company is acting as its own paying agent, shall
segregate and hold in trust as provided in Section 4.04) a sum equal to any
interest accrued to the date fixed for redemption of Securities or portions
thereof to be redeemed on such sinking fund payment date pursuant to this
Section 3.05.
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
The Company will maintain one or more offices or agencies in a city or cities located outside the United States (including any city in which such an agency is required to be maintained under the rules of any stock exchange on which any of the Securities are listed) where any Unregistered Securities issued hereunder and Coupons, if any, appertaining thereto may be presented for payment. No payment on any Unregistered Security or Coupon will be made upon presentation of such Unregistered Security or Coupon at an agency of the Company within the United States nor will any payment be made by transfer to an account in, or by check mailed to an address in, the United States unless pursuant to applicable United States laws and regulations then in effect such payment can be made without adverse consequences to the Company. Notwithstanding the foregoing, payments in Dollars on Unregistered Securities and Coupons appertaining thereto may be made at an agency of the Company maintained in the Borough of Manhattan, The City of New York if such payment in Dollars at each agency maintained by the Company outside the United States for payment on such Unregistered Securities is illegal or effectively precluded by exchange controls or other similar restrictions.
Interest on Registered Securities may at the option of the Company be paid by check mailed to the Persons entitled thereto at their respective addresses as such appear on the registry books of the Company, or, at the option of any holder of $5,000,000 or more aggregate principal amount of Registered Securities of any Tranche and subject to applicable laws and regulations (or the equivalent thereof in a Specified Currency), be made by transfer to an account denominated in the currency in which such payment is to be made, maintained by such holder, if appropriate wire transfer instructions have been received by the Company or its agent not less than ten days prior to the applicable interest payment date.
Interest on Unregistered Securities and the Coupons appertaining thereto shall be made upon presentation of such Securities or Coupons, subject to applicable laws
and regulations, at the designated offices of such paying agents outside of the United States as the Company may designate from time to time. Payments on Unregistered Securities or the Coupons appertaining thereto will, upon presentation of such Securities or Coupons, at the holder's option and subject to applicable laws and regulations, be made by check or by wire transfer to an account denominated in the currency in which such payment is to be made, maintained by such holder with a bank outside the United States, if appropriate wire transfer instructions have been received by the Company or its agent not less than ten days prior to the applicable interest payment date.
The Company will maintain in the Borough of Manhattan, The City of New York an office or agency where notices and demands to or upon the Company in respect of any Securities issued hereunder, the Coupons appertaining thereto or this Third Amended and Restated Indenture may be served.
The Company will give to the Trustee written notice of the location of each such office or agency and of any change of location thereof. In case the Company shall fail to maintain any such office or agency in the Borough of Manhattan, The City of New York or shall fail to give such notice of the location or of any change in the location thereof, presentations and demands may be made and notices may be served at the principal office of the Trustee.
The Company hereby designates the office of the Company located at 335 Madison Avenue, New York, New York 10017 as the office or agency of the Company in the Borough of Manhattan, The City of New York where Registered Securities may be presented for payment, for registration of
transfer and for exchange as in this Third Amended and Restated Indenture provided and where notices and demands to or upon the Company in respect of the Securities or of this Third Amended and Restated Indenture may be served. The Company also designates the office of the Company located at 260 Long Ridge Road, Stamford, Connecticut 06927 as the office or agency of the Company as the repository pursuant to Section 2.06 for the master list of the names and addresses of the holders of Securities.
(1) that it will hold all sums held by it as such agent for the payment of the principal of, premium, if any, or interest, if any, on such Securities (whether such sums have been paid to it by the Company or by any other obligor on such Securities) in trust for the benefit of the holders of such Securities, or the Coupons appertaining thereto, if any;
(2) that it will give the Trustee notice of any failure by the Company (or by any other obligor on such Securities) to make any payment of the principal of, premium, if any, or interest, if any, on such Securities when the same shall be due and payable; and
(3) that at any time during the continuance of any failure by the Company (or by any other obligor on such Securities) specified in the preceding paragraph (2), such paying agent will, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by it.
(b) If the Company shall act as its own paying agent with respect to the Securities of any Tranche, it will, on or before each due date of the principal of, premium, if any, or interest, if any, on such Securities,
set aside, segregate and hold in trust for the benefit of the holders of such Securities or the Coupons appertaining thereto, if any, a sum sufficient to pay such principal, premium, if any, or interest, if any, so becoming due and will promptly notify the Trustee of any failure to take such action and of any failure by the Company (or by any other obligor on such Securities) to make any payment of the principal of, premium, if any, or interest, if any, on such Securities when the same shall become due and payable.
(c) Anything in this Section 4.04 to the contrary notwithstanding, the Company may, at any time, for the purpose of obtaining a satisfaction and discharge of this Third Amended and Restated Indenture, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust by it, or any paying agent hereunder, as required by this Section 4.04, such sums to be held by the Trustee upon the trusts herein contained.
(d) Anything in this Section 4.04 to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section 4.04 is subject to Sections 12.03 and 12.04.
(e) Whenever the Company shall have one or more paying agents with respect to the Securities of any Tranche, it will, prior to each due date of the principal of, premium, if any, or interest, if any, on the Securities of such Tranche, deposit with a designated paying agent a sum sufficient to pay the principal, premium, if any, and interest, if any, so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium, if any, or interest, if any, and (unless such paying agent is the Trustee) the Company will promptly notify the Trustee of any failure so to act.
knowledge of any such default or non-compliance and, if so, specifying each such default or non-compliance of which the signer has knowledge and the nature thereof.
ARTICLE FIVE
SECURITYHOLDER LISTS AND REPORTS BY
THE COMPANY AND THE TRUSTEE
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND
SECURITYHOLDER ON EVENT OF DEFAULT
(a) default in the payment of any installment of interest upon any Security of such series as and when the same shall become due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of, or premium, if any, on any Security of such series as and when the same shall become due and payable whether at maturity, upon redemption, by declaration, repayment or otherwise; or
(c) default in the making or satisfaction of any sinking fund payment or analogous obligation as and when the same shall become due and payable by the terms of the Securities of such series; or
(d) failure on the part of the Company duly to observe or perform any other of the covenants or agreements on the part of the Company in respect of the Securities of such series contained in this Third Amended and Restated Indenture (other than a covenant or agreement in respect of the Securities of such series a default in whose observance or performance is elsewhere in this Section 6.01 specifically dealt with) continued for a period of 60 days after the date on which written notice of such failure, requiring the Company to remedy the same, shall have been given to the Company by the Trustee by registered mail, or to the Company and the Trustee by the holders of at least
twenty-five percent in aggregate principal amount of the Securities of such series at the time Outstanding; or
the Securities of such series at the time Outstanding; or
(f) a decree or order by a court having jurisdiction in the premises shall have been entered adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization of the Company under the Federal Bankruptcy Code or any other similar applicable Federal or State law, and such decree and order shall have continued undischarged and unstayed for a period of 60 days; or a decree or order of a court having jurisdiction in the premises for the appointment of a receiver or liquidator or trustee or assignee (or other similar official) in bankruptcy or insolvency of the Company or of all or substantially all of its property, or for the winding up or liquidation of its affairs, shall have been entered, and such decree or order shall have continued undischarged and unstayed for a period of 60 days; or
(g) the Company shall institute proceedings to be adjudicated a voluntary bankrupt, or shall consent to the filing of a bankruptcy proceeding against it, or shall file a petition or answer or consent seeking reorganization under the Federal Bankruptcy Code or any other similar applicable Federal or State law, or shall consent to the filing of any such petition, or shall consent to the appointment of a receiver or liquidator or trustee or assignee (or other similar official) in bankruptcy or insolvency of it or of all or substantially all of its property, or shall make an assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts generally as they become due; or
(h) any other Event or Default provided in the applicable resolution
of the Board of Directors or in the supplemental indenture under which such
series of Securities is issued, as the case may be, as contemplated by
Section 2.02.
If an Event of Default with respect to Securities of any series at the time Outstanding occurs and is continuing, then and in each and every case, unless the principal of all of the Securities of such series shall have already become due and payable, either the Trustee or the holders of not less than twenty-five percent in aggregate principal amount of the Securities of such series then Outstanding hereunder, by notice in writing to the Company
(and to the Trustee if given by Securityholders of such series), may declare the principal amount (or, if the Securities of such series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the certificates evidencing the Securities of such series) of all the Securities of such series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Third Amended and Restated Indenture or in such Securities contained to the contrary notwithstanding. This provision, however, is subject to the condition that if, at any time after the principal amount (or, if such Securities are Original Issue Discount Securities, such portion of the principal amount as may be specified in the certificates evidencing the Securities of such series) of the Securities of any series shall have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, the Company shall pay or shall deposit with the Trustee a sum sufficient to pay all matured installments of interest, if any, upon all such Securities and the principal of, and premium, if any, on any and all such Securities which shall have become due otherwise than by acceleration (with interest on overdue installments of interest (to the extent that payment of such interest is enforceable under applicable law) and on such principal at the Overdue Rate applicable to such series, to the date of such payment or deposit) and all amounts payable to the Trustee pursuant to the provisions of Section 7.06, and any and all defaults under this Third Amended and Restated Indenture with respect to such series of Securities, other than the nonpayment of principal of and accrued interest on such Securities which shall have become due solely by acceleration, shall have been remedied or cured or waived or provision shall have been made therefor to the satisfaction of the Trustee -- then and in every such case the holders of a majority in aggregate principal amount of the Securities of such series then Outstanding, by written notice to the Company and to the Trustee, may waive all defaults with respect to such series and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce any right under this Third Amended and Restated Indenture and such proceedings shall have been discontinued or abandoned because of such rescission or annulment or for any other reason or shall have been determined adversely to
the Trustee, then and in every such case the Company and the Trustee shall be restored respectively to their several positions and rights hereunder, and all rights, remedies and powers of the Company and the Trustee shall continue as though no such proceedings had been taken.
In case the Company shall fail forthwith to pay such amounts upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute any actions or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree, and may enforce any such judgment or final decree against the Company or any other obligor upon such Securities and collect in the manner provided by law out of the property of the Company or any other obligor on such Securities wherever situated the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or for the reorganization of the Company or any other obligor on the Securities of any series under the Federal Bankruptcy Code or any other similar applicable Federal or State law, or in case a receiver or trustee (or other similar official) shall have been appointed for the property of the Company or such other obligor, or in the case of any other similar judicial proceedings relative to the Company or other obligor on any Securities, or to the creditors or property of the Company or such other obligor, the Trustee, irrespective of whether the principal of any Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this Section 6.02, shall be entitled and empowered, by intervention in such proceedings or otherwise, to file and prove a claim or claims for the whole amount of principal (or, if any Securities are Original Issue Discount Securities, such portion of the principal amount as may be due and payable with respect to such Securities pursuant to a declaration in accordance with Section 6.01), premium, if any, and interest, if any, owing and unpaid in respect of any Securities and, in the case of any judicial proceedings, to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee and of the Securityholders allowed in such judicial proceedings relative to the Company or any other obligor on any Securities, its or their creditors, or its or their property, and to collect and receive any moneys or other property payable or deliverable on any such claims, and to distribute the same after the deduction of costs and expenses of collection, and any further amounts payable to the Trustee pursuant to the provisions of Section 7.06 and incurred by it up to the date of such distribution; and any receiver, assignee or trustee (or other similar official) in bankruptcy or reorganization is hereby authorized by each of the Securityholders to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Securityholders, to pay to the Trustee costs and expenses of collection and any further amounts payable to the Trustee pursuant to the provisions of Section 7.06 and incurred by it up to the date of such distribution.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Securityholder any plan of reorganization, arrangement, adjustment or composition affecting any of the Securities or the rights of any holder
thereof, or to authorize the Trustee to vote in respect of the claim of any Securityholder in any such proceeding.
All rights of action and of asserting claims under this Third Amended and Restated Indenture, or under any Securities or Coupons appertaining to such Securities, may be enforced by the Trustee without the possession of such Securities or Coupons or the production thereof in any trial or other proceeding relative thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall be for the ratable benefit of the holders of the Securities or Coupons appertaining to such Securities in respect of which such action was taken. In any proceedings brought by the Trustee (and also any proceedings in which a declaratory judgment of a court may be sought as to the interpretation or construction of any provision of this Third Amended and Restated Indenture, to which the Trustee shall be a party), the Trustee shall be held to represent all the holders of the Securities or Coupons appertaining to such Securities to which such proceedings relate, and it shall not be necessary to make any holders of such Securities or Coupons appertaining to such Securities parties to any such proceedings.
FIRST: To the payment of all amounts due the Trustee pursuant to the provisions of Section 7.06;
SECOND: In case the principal of the Outstanding Securities in respect of which such moneys have been collected shall not have become due (at maturity, upon redemption, by declaration, repayment or otherwise) and be unpaid, to the payment of interest, if any, on such Securities, in the order of the maturity of the installments of such interest, with interest (to the extent that such interest has been collected by Trustee) upon the overdue installments of interest at the Overdue Rate applicable to such Securities, such payments to be made ratably to the Persons entitled thereto;
THIRD: In case the principal of the Outstanding Securities in respect of which such moneys have been collected shall have become due (at maturity, upon redemption, by declaration, repayment or otherwise), to the payment of the whole amount then owing and unpaid upon such Securities for principal, premium, if any, and interest, if any, with interest on the overdue principal, premium, if any, and (to the extent that such interest has been collected by the Trustee) overdue installments of interest, if any, at the Overdue Rate applicable to such Securities; and in case such moneys shall be insufficient to pay in full the whole amounts so due and unpaid upon such Securities, then to the payment of such principal, premium, if any, and interest, if any, without preference or priority of principal and premium, if any, over interest, if any, or of interest, if any, over principal, and premium, if any, or of any installment of interest, if any, over any other installment of interest, if any, or of any such Security over any other such Security, ratably to the aggregate of such principal, premium, if any, and accrued and unpaid interest, if any; and
FOURTH: To the payment of the remainder, if any, to the Company, its successors or assigns, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct.
Notwithstanding any other provisions in this Third Amended and Restated Indenture, however, the right of any holder of any Security or Coupon to receive payment of the principal of, premium, if any, and interest, if any, on such Security or Coupon, on or after the respective due dates expressed in such Security or Coupon, or upon redemption, by declaration, repayment or otherwise, or to institute suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such holder, and no provision of the
Securities of any series or Coupons appertaining to such Securities or of this Third Amended and Restated Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of, premium, if any, and interest, if any, on such Securities and Coupons at the respective places, at the respective times, at the respective rates and in the coin or currency, therein and herein prescribed.
if any, on any Security on or after the due date expressed in such Security, on or after the date fixed for redemption or repayment or after such Security shall have become due by declaration.
ARTICLE SEVEN
CONCERNING THE TRUSTEE
No provision of this Third Amended and Restated Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that
(a) prior to the occurrence of an Event of Default with respect to the Securities of a series and after the curing or waiving of all Events of Default with respect to such series which may have occurred:
(1) the duties and obligations of the Trustee with respect to the Securities shall be determined solely by the express provisions of this Third Amended and Restated Indenture, and the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Third Amended and Restated Indenture, and no implied covenants or obligations shall be read into this Third Amended and Restated Indenture against the Trustee; and
(2) in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely,
as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and conforming to the requirements of this Third Amended and Restated Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Third Amended and Restated Indenture;
(b) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Officers of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken, omitted or suffered to be taken by it in good faith in accordance with the direction of the holders of Securities of any series pursuant to Section 6.07 relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Third Amended and Restated Indenture with respect to such Securities.
None of the provisions of this Third Amended and Restated Indenture shall be construed as requiring the Trustee to expend or risk its own funds or otherwise to incur any personal financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
The provisions of this Section 7.01 are in furtherance of and subject to Section 315 of the Trust Indenture Act of 1939.
(a) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an instrument signed in the name of the Company by its President, its Chairman of the Board or any Vice President (including any Executive or Senior Vice President) and its Senior Vice President-Corporate Treasury and Global Funding Operation or its Controller (unless other evidence in respect thereof be herein specifically prescribed); and any resolution of the Board of Directors of the Company may be evidenced to the Trustee by a copy thereof certified by the Secretary, an Assistant Secretary or an Attesting Secretary of the Company;
(c) the Trustee may consult with counsel and any advice or Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, omitted or suffered to be taken by it hereunder in good faith and in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Third Amended and Restated Indenture at the request, order or direction of any of the Securityholders, pursuant to the provisions of this Third Amended and Restated Indenture, unless such Securityholder shall have offered reasonable security and indemnity satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken, omitted or suffered by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Third Amended and Restated Indenture;
(f) the Trustee shall not be bound to make any inquiry or investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice,
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder.
shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by law. Neither the Trustee nor any paying agent shall be under any liability for interest on any moneys received by it hereunder except such as it may agree in writing with the Company to pay thereon. So long as no Event of Default shall have occurred and be continuing, all interest allowed on any such moneys shall be paid from time to time upon the written order of the Company, signed by its President, Chairman or any Vice Chairman of the Board, or any Vice President (including any Executive or Senior Vice President), the Senior Vice President-Corporate Treasury and Global Funding Operation or Controller.
action to be taken hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved and established by an Officers' Certificate delivered to the Trustee, and such Certificate, in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken, omitted or suffered by it under the provisions of this Third Amended and Restated Indenture upon the faith thereof.
The provisions of this Section 7.09 are in furtherance of and subject to Section 310(a) of the Trust Indenture Act of 1939.
(b) In case at any time any of the following shall occur --
(1) the Trustee shall fail to comply with the provisions of Section 310(b) of the Trust Indenture Act of 1939 with respect to any series of Securities after written request therefor by the Company or by any Securityholder who has been a bona fide holder of a
Security or Securities of such series for at least six months, or
(2) the Trustee shall cease to be eligible in accordance with the provisions of Section 7.09 and Section 310(a) of the Trust Indenture Act of 1939 with respect to any series of Securities and shall fail to resign after written request therefor by the Company or by any such Securityholder, or
(3) the Trustee shall become incapable of acting with respect to any series of Securities, or shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its property shall be appointed, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation --
then, in any such case, the Company may remove the Trustee with respect to such series and appoint a successor Trustee with respect to such series by written instrument, in duplicate, executed in the name of and on behalf of the Company by a duly authorized officer, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor Trustee, or, subject to the provisions of Section 315(e) of the Trust Indenture Act of 1939, any Securityholder who has been a bona fide holder of a Security or Securities of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee with respect to such series. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor Trustee with respect to such series.
(c) The holders of a majority in aggregate principal amount of the Securities of one or more series (each series voting as a class) or all series at the time Outstanding may remove the Trustee with respect to the applicable series or all series, as the case may be, and appoint with respect to the applicable series or all series, as the case may be, a successor Trustee by written notice of such action to the Company, the Trustee and the successor Trustee.
(d) Any resignation or removal of the Trustee with respect to any series and any appointment of a successor Trustee with respect to such series pursuant to any of the provisions of this Section 7.10 shall become
effective upon acceptance of appointment by the successor Trustee as provided in
Section 7.11.
(e) No predecessor Trustee shall be liable for the acts or omissions of any successor Trustee.
In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the predecessor Trustee and each successor Trustee with respect to the Securities of any applicable series shall execute and deliver an indenture supplemental hereto which shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the predecessor Trustee with respect to the Securities of any series as to which the predecessor Trustee is not retiring shall continue to be vested in the predecessor Trustee, and shall add to or change any of the provisions of this Third Amended and Restated Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be Trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee.
No successor Trustee with respect to a series of Securities shall accept appointment as provided in this Section 7.11 unless at the time of such acceptance such successor Trustee shall, with respect to such series, be qualified under Section 310(b) of the Trust Indenture Act of 1939 and eligible under the provisions of Section 7.09.
Upon acceptance of appointment by a successor Trustee with respect to any series as provided in this Section 7.11, the Company shall give notice thereof (a) if any Unregistered Securities of a series affected are then Outstanding, to the holders thereof, by publication of such notice at least once in an Authorized Newspaper in the Borough of Manhattan, The City of New York, at least once in an Authorized Newspaper in London and, if any such Unregistered Securities are listed on the Luxembourg Stock Exchange, at least once in an Authorized Newspaper in Luxembourg, (b) if any Unregistered Securities of a series affected are then Outstanding, to the holders thereof who have filed their names and addresses with the Trustee pursuant to Section 313(c)(2) of the Trust Indenture Act of 1939, by mailing such notice to such holders at such addresses as were so furnished to the Trustee (and the Trustee shall make such information available to the Company for such purpose) and (c) to the holders of Registered Securities of each series affected, by mailing such notice to such holders at their addresses as they shall appear on the registry books of the Company. If the Company fails to mail such notice within ten days after the acceptance of appointment by the successor Trustee, the successor Trustee shall cause such notice to be given at the expense of the Company.
In case at the time such successor to the Trustee shall succeed to the trust created by this Third Amended and Restated Indenture with respect to one or more series of
Securities, any of such securities shall have been authenticated but not delivered, any such successor to the Trustee by merger, conversion or consolidation may adopt the certificate of authentication of any predecessor Trustee, and deliver such Security so authenticated; and in case at that time any of such Securities shall not have been authenticated, any successor to the Trustee may authenticate such Securities either in the name of such successor to the Trustee or, if such successor to the Trustee is a successor by merger, conversion or consolidation, the name of any predecessor hereunder; and in all such cases such certificate shall have the full force which it is anywhere in such Securities or in this Third Amended and Restated Indenture provided that the certificate of the Trustee shall have.
Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section 7.13.
Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under this Section 7.13, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section 7.13, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company and (i) if any Unregistered Securities are then Outstanding, shall publish notice of such appointment at least once in an Authorized Newspaper in the Borough of Manhattan, The City of New York, at least once in an Authorized Newspaper in London, and, if any Unregistered Securities are listed on the Luxembourg Stock Exchange, at least one in an Authorized Newspaper in Luxembourg and (ii) shall mail written notice of such appointment by first-class mail, postage prepaid, to all holders of Securities as their names and addresses appear in the Security register. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section 7.13.
The Company agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section 7.13.
If an appointment is made pursuant to this Section 7.13, the Securities may have endorsed thereon, in addition to the Trustee's certificate of authentication, an alternative certificate of authentication in the following form:
Dated:
This is one of the Notes referred to in the within-mentioned Indenture.
The CHASE MANHATTAN BANK,
As Trustee
[AUTHENTICATING AGENT],
As Authenticating Agent
ARTICLE EIGHT
CONCERNING THE SECURITYHOLDERS
following manner: The fact and date of the execution by any holder of any instrument may be proved by the certificate of any notary public or other officer of any jurisdiction authorized to take acknowledgements of deeds or administer oaths that the Person executing such instruments acknowledged to him the execution thereof, or by an affidavit of a witness to such execution sworn to before any such notary or other such officer. Where such execution is by or on behalf of any legal entity other than an individual, such certificate or affidavit shall also constitute sufficient proof of the authority of the Person executing the same. The fact of the holding by any holder of an Unregistered Security, and the identifying number of such Security and the date of his holding the same, may be proved by the production of such Security or by a certificate executed by any trust company, bank, banker or recognized securities dealer wherever situated satisfactory to the Trustee if such certificate shall be deemed by the Trustee to be satisfactory. Each such certificate shall be dated and shall state that on the date thereof a Security of such series bearing a specified identifying number was deposited with or exhibited to such trust company, bank, banker or recognized securities dealer by the Person named in such certificate. Any such certificate may be issued in respect of one or more Unregistered Securities of one or more series specified therein. The holding by the Person named in any such certificate of any Unregistered Securities of any series specified therein shall be presumed to continue for a period of one year from the date of such certificate unless at the time of any determination of such holding (1) another certificate bearing a later date issued in respect of the same Securities shall be produced, or (2) the Security specified in such certificate shall be produced by some other Person, or (3) the Security specified in such certificate shall have ceased to be Outstanding. Subject to Sections 7.01 and 7.02, the fact and date of the execution of any such instrument and the amount and numbers of Securities held by the Person so executing such instrument and the amount and numbers of any Security or Securities may also be proven in accordance with such reasonable rules and regulations as may be prescribed by the Trustee for the relevant series or in any other manner which the Trustee for such series may deem sufficient.
The ownership of Registered Securities shall be proved by the registry books of the Company or by a certificate of the Person designated by the Company to act as repository in accordance with the provisions of Section 2.06.
The record of any Securityholders' meeting shall be proved in the manner provided in Section 9.07.
The Company may set a record date for purposes of determining the identity of holders of Registered Securities of any series entitled to vote or consent to any action referred to in Section 8.01, which record date may be set at any time or from time to time by notice to the Trustee, for any date or dates (in the case of any adjournment or reconsideration) not more than 60 days nor less than five days prior to the proposed date of such vote or consent, and thereafter, notwithstanding any other provisions hereof, with respect to Registered Securities of any series, only holders of Registered Securities of such series of record on such record date shall be entitled to so vote or give such consent or revoke such vote or consent.
ARTICLE NINE
SECURITYHOLDERS' MEETINGS
(1) to give any notice to the Company or to the Trustee, or to give any directions to the Trustee, or to consent to the waiving of any default hereunder and its consequences, or to take any other action authorized to be taken by Securityholders pursuant to any of the provisions of Article Six;
(2) to remove the Trustee and nominate a successor Trustee pursuant to the provisions of Article Seven;
(3) to consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of Section 10.02; or
(4) to take any other action authorized to be taken by or on behalf of the holders of any specified aggregate principal amount of the Securities of any or all series, as the case may be, under any other provision of this Third Amended and Restated Indenture or under applicable law.
pursuant to Section 313(c)(2) of the Trust Indenture Act of 1939 at such addresses as were so furnished to the Trustee and (iii) by mailing notice of such meeting to the holders of then Outstanding Registered Securities of each series affected at their addresses as they shall appear on the registry books of the Company. Such notice shall be given not less than 10 nor more than 90 days prior to the date fixed for the meeting.
for a period of not less than ten days as determined by the chairman of the meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting shall be further adjourned for a period of not less than ten days as determined by the chairman of the meeting. Notice of the reconvening of any adjourned meeting shall be given as provided in Section 9.02, except that such notice need be published only once and must be mailed or published not less than five days prior to the date on which the meeting is schedule to be reconvened.
Subject to the foregoing, at the second reconvening of any meeting adjourned for lack of a quorum, the Persons entitled to vote 25% in aggregate principal amount of the Securities of the relevant series then Outstanding shall constitute a quorum for the taking of any action set forth in the notice of the original meeting. Notice of the reconvening of an adjourned meeting shall state expressly the percentage of the aggregate principal amount of the Securities of the relevant series then Outstanding which shall constitute a quorum.
At a meeting or any adjourned meeting duly convened and at which a quorum is present as aforesaid, any resolution and all matters (except as limited by the proviso in Section 10.02) shall be effectively passed and decided if passed or decided by the Persons entitled to vote the lesser of (a) a majority in aggregate principal amount of the Securities of the relevant series then Outstanding and (b) 75% in aggregate principal amount of the Securities represented and voting at the meeting.
conduct of the meeting as it shall think fit. Except as otherwise permitted or required by any such regulations, the holding of Securities shall be proved in the manner specified in Section 8.02 and the appointment of any proxy shall be proved in the manner specified in Section 8.02.
The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Securityholders as provided in Section 9.03, in which case the Company or the Securityholders calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by majority vote of the meeting.
votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A record in duplicate of the proceedings of each meeting of Securityholders shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more Persons having knowledge of the facts and setting forth a copy of the notice of the meeting and showing that said notice was given as provided in Section 9.02. The record will show the principal amount of the Securities (in the case of Original Discount Securities, such principal amount to be determined as provided in the definition of "Security or Securities; Outstanding" in Section 1.01) voting in favor of or against any resolution. The record shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one of the duplicates shall be delivered to the Company and the other to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the matters therein stated.
ARTICLE TEN
SUPPLEMENTAL INDENTURES
(a) to evidence the succession of another corporation to the Company, or successive successions, and the assumption by the successor corporation of the covenants, agreements and obligations of the Company pursuant to Article Eleven;
(c) to provide for the issuance under this Third Amended and Restated Indenture of Securities in coupon form (including Securities registrable as to principal only) and to provide for exchangeability of such Securities with the Securities of the same series issued hereunder in fully registered form and to make all appropriate changes for such purpose;
(d) to establish the forms or terms of Securities of any series or of the Coupons appertaining to such Securities as permitted by Sections 2.01 and 2.02;
(e) to cure any ambiguity or to correct or supplement any provision contained herein or in any supplemental indenture which may be defective or inconsistent with any other provision contained herein or in any supplemental indenture, or to make such other provisions in regard to matters or questions arising under this Third Amended and Restated Indenture which shall not adversely affect the interests of the holders of any Outstanding Securities or Coupons; and
(f) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series or to add to or change any of the provisions of this Third Amended and Restated Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 7.11.
The Trustee is hereby authorized to join with the Company in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations which may be therein contained and to accept the conveyance, transfer and assignment of any property thereunder, but the Trustee shall not be obligated to, but may in its discretion, enter into any such supplemental indenture which affects the Trustee's own rights, duties or immunities under this Third Amended and Restated Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section 10.01 may be executed by the Company and the Trustee without the consent
of the holders of any of the Securities at the time Outstanding, notwithstanding
any of the provisions of Section 10.02.
Upon the request of the Company and upon the filing with the Trustee of evidence of the consent of Securityholders as aforesaid, the Trustee shall join with the Company in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee's own rights, duties or immunities under this Third Amended and Restated Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under this Section 10.02 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
supplemental indenture executed pursuant hereto complies with the requirements of this Article Ten.
ARTICLE ELEVEN
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Company and delivered to the Trustee; and, upon the order of such successor corporation, instead of the Company, and subject to all the terms, conditions and limitations in this Third Amended and Restated Indenture prescribed, the Trustee shall authenticate and deliver any Securities together with any Coupons appertaining thereto which previously shall have been signed and delivered by the officers of the Company to the Trustee for authentication, and any Securities which such successor corporation thereafter shall cause to be signed and delivered to the Trustee for that purpose. All the Securities so issued together with any Coupons appertaining thereto shall in all respects have the same legal rank and benefit under this Third Amended and Restated Indenture as the Securities theretofore or thereafter issued in accordance with the terms of this Third Amended and Restated Indenture as though all of such Securities and Coupons appertaining thereto had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, conveyance, transfer or other disposition, such changes in phraseology and form (but not in substance) may be made in the Securities and Coupons thereafter to be issued as may be appropriate.
ARTICLE TWELVE
SATISFACTION AND DISCHARGE OF INDENTURE
incurred by the Trustee in connection with this Third Amended and Restated Indenture or the Securities or Coupons appertaining thereto.
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
be given or served by the Trustee or by the holders of Securities or Coupons on the Company may be given or served by being deposited postage prepaid by first class mail in a post office letter box addressed (until another address is filed by the Company with the Trustee) to General Electric Capital Corporation, 260 Long Ridge Road, Stamford, Connecticut 06927, Attention Senior Vice President- Corporate Treasury and Global Funding Operation. Any notice, direction, request or demand by any holder of Securities or Coupons to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or made in writing and (i) deposited (first class postage prepaid) in a post office letter box, (ii) transmitted by facsimile transmission or (iii) delivered by courier, in any event addressed and delivered to the principal office of the Trustee and to the attention of its corporate trust office.
Each certificate or opinion provided for in this Third Amended and Restated Indenture and delivered to the Trustee with respect to compliance with a condition or covenant provided for in this Third Amended and Restated Indenture shall include: (1) a statement that the person making such certificate or opinion has read such covenant or condition; (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinion contained in such certificate or opinion are based; (3) a statement that, in the opinion of such person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and (4) a statement as to whether or not, in
the opinion of such person, such condition or covenant has been complied with.
in question, which for purposes of the ECU shall be Brussels, Belgium, or such other quotations or, in the case of ECU, rates of exchange, as the Trustee shall deem appropriate. The provisions of this paragraph shall apply in determining the equivalent principal amount in respect of Securities of a series denominated in a Specified Currency other than Dollars in connection with any action taken by holders of Securities pursuant to the terms of this Third Amended and Restated Indenture, including, without limitation, any determination contemplated in Section 6.01(d) or (e).
All decisions and determinations of the Trustee regarding the Market Exchange Rate or any alternative determination provided for in the preceding paragraph shall be in its sole discretion and shall, in the absence of manifest error, be conclusive to the extent permitted by law for all purposes and irrevocably binding upon the Company and all Securityholders.
GENERAL ELECTRIC CAPITAL CORPORATION
THIRD AMENDED AND RESTATED
STANDARD MULTIPLE-SERIES INDENTURE PROVISIONS
Dated as of February 28, 1997
CROSS REFERENCE SHEET/1/
between
the provisions of Sections 310 through 318(a) of the Trust Indenture Act of 1939, as amended, and the General Electric Capital Corporation Third Amended and Restated Standard Multiple-Series Indenture Provisions:
Section of the
Third Amended and
Restated Standard
Multiple-Series
Section of Act Indenture Provisions
-------------- --------------------
310 (a)(1), (2) and (5)................... 7.09
310 (a)(3) and (4)........................ Not applicable
310 (b)................................... 7.08 and 7.10
310 (c)................................... Not applicable
311 (a) and (b)........................... *
311 (c)................................... Not applicable
312 (a)................................... 5.01
312 (b) and (c)........................... *
313 (a)................................... 5.03
313 (b)(1)................................ Not applicable
313 (b)(2)................................ *
313 (c)................................... *
313 (d)................................... *
314 (a)................................... 5.02
314 (b)................................... Not applicable
314 (c)(1) and (2)........................ 14.05
314 (c)(3)................................ Not applicable
314 (d)................................... Not applicable
314 (e)................................... 14.05
314 (f)................................... Not applicable
315 (a), (c) and (d)...................... 7.01
315 (b)................................... 6.08
315 (e)................................... 6.09
316 (a)(1)................................ 6.01 and 6.07
316 (a)(2)................................ Omitted
316 (a) last sentence..................... 8.04
316 (b)................................... 6.04
316 (c)................................... *
317 (a)................................... 6.02
317 (b)................................... 4.04(a)
318 (a)................................... 14.08
__________________________
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/1/ This cross reference sheet is not part of the Third Amended and Restated Standard Multiple-Series Indenture Provisions.
* Automatically included under Section 318(c) of the Trust Indenture Act of 1939, as amended.
TABLE OF CONTENTS/1/
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions........................... 1
ARTICLE TWO
DESCRIPTION, EXECUTION, REGISTRATION AND
EXCHANGE OF SECURITIES.
Section 2.01. Forms................................. 6
Section 2.02. Amount Unlimited; Issuable in
Series................................ 7
Section 2.03. Authentication........................ 9
Section 2.04. Date and Denomination of
Securities............................ 11
Section 2.05. Execution of Securities............... 12
Section 2.06. Exchange and Registration of
Transfer of Securities................ 12
Section 2.07. Mutilated, Destroyed, Lost or
Stolen Securities..................... 14
Section 2.08. Temporary Securities.................. 15
Section 2.09. Cancellation of Securities Paid,
etc................................... 16
Section 2.10. Computation of Interest............... 16
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ARTICLE THREE
REDEMPTION OF SECURITIES; SINKING FUNDS
Section 3.01. Applicability of Article.............. 17
Section 3.02. Notice of Redemption; Selection of
Securities............................ 17
Section 3.03. Payment of Securities Called for
Redemption............................ 18
Section 3.04. Satisfaction of Mandatory Sinking
Fund Payments with Securities......... 19
_______________________
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/2/ This table of contents shall not, for any purpose, be deemed to be a
part of the Third Amended and Restated Standard Multiple-Series Indenture
Provisions.
Section 3.05. Redemption of Securities for
Sinking Fund.......................... 19
Section 3.06. Repayment at the Option of the
Holder................................ 21
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ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
Section 4.01. Payment of Principal, Premium and
Interest.............................. 22
Section 4.02. Offices for Notices and Payments,
etc................................... 22
Section 4.03. Appointments to Fill Vacancies in
Trustee's Office...................... 23
Section 4.04. Provision as to Paying Agent.......... 23
Section 4.05. Statement as to Compliance............ 24
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ARTICLE FIVE
SECURITYHOLDER LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE
Section 5.01. Securityholder Lists.................. 25 Section 5.02. Reports by the Company................ 25 Section 5.03. Reports by the Trustee................ 25 |
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS.ON
EVENT OF DEFAULT
Section 6.01. Events of Default..................... 26
Section 6.02. Payment of Securities on Default;
Suit Therefor......................... 30
Section 6.03. Application of Moneys Collected by
Trustee............................... 32
Section 6.04. Proceedings by Securityholders........ 33
Section 6.05. Proceedings by Trustee................ 34
Section 6.06. Remedies Cumulative and
Continuing............................ 35
Section 6.07. Direction of Proceedings and Waiver
of Defaults by Securityholders........ 35
Section 6.08. Notice of Defaults.................... 36
Section 6.09. Undertaking to Pay Costs.............. 36
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ARTICLE SEVEN
CONCERNING THE TRUSTEE
Section 7.01. Duties and Responsibilities of
Trustee............................... 37
Section 7.02. Reliance on Documents, Opinions,
etc................................... 39
Section 7.03. No Responsibility for Recitals,
etc................................... 40
Section 7.04. Ownership of Securities............... 40
Section 7.05. Moneys to be Held in Trust............ 40
Section 7.06. Compensation and Expenses of
Trustee............................... 41
Section 7.07. Officers' Certificate as Evidence..... 41
Section 7.08. Indentures Not Creating Potential
Conflicting Interests for the Trustee. 42
Section 7.09. Eligibility of Trustee................ 42
Section 7.10. Resignation or Removal of Trustee..... 43
Section 7.11. Acceptance by Successor Trustee....... 44
Section 7.12. Succession by Merger, etc............. 46
Section 7.13. Other Matters Concerning the
Trustee............................... 46
Section 7.14. Appointment of Authenticating
Agent................................. 46
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ARTICLE EIGHT
CONCERNING THE SECURITYHOLDERS
Section 8.01. Action by Securityholders............. 49
Section 8.02. Proof of Execution by
Securityholders....................... 49
Section 8.03. Who Are Deemed Absolute Owners........ 50
Section 8.04. Company-Owned Securities
Disregarded........................... 50
Section 8.05. Revocation of Consents; Future
Holders Bound......................... 50
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ARTICLE NINE
SECURITYHOLDERS' MEETINGS
Section 9.01. Purposes of Meetings.................. 51
Section 9.02. Call of Meetings by Trustee........... 51
iii
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Section 9.03. Call of Meetings by Company or
Securityholders....................... 52
Section 9.04. Qualifications for Voting............. 52
Section 9.05. Regulations........................... 52
Section 9.06. Voting................................ 53
Section 9.07. No Delay of Rights by Meeting......... 54
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ARTICLE TEN
SUPPLEMENTAL INDENTURES
Section 10.01. Supplemental Indentures without
Consent of Securityholders............ 54
Section 10.02. Supplemental Indentures with
Consent of Securityholders............ 56
Section 10.03. Compliance with Trust Indenture
Act; Effect of Supplemental
Indentures............................ 57
Section 10.04. Notation on Securities................ 58
Section 10.05. Evidence of Compliance of
Supplemental Indenture to be
Furnished Trustee..................... 58
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ARTICLE ELEVEN
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 11.01. Company May Not Consolidate, etc.,
Except Under Certain Conditions....... 58
Section 11.02. Successor Corporation to be
Substituted........................... 59
Section 11.03. Documents to be Given Trustee......... 59
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ARTICLE TWELVE
SATISFACTION AND DISCHARGE OF INDENTURE
Section 12.01. Discharge of Indenture................ 60
Section 12.02. Deposited Moneys to be Held in
Trust by Trustee...................... 60
Section 12.03. Paying Agent to Repay Moneys Held..... 61
Section 12.04. Return of Unclaimed Moneys............ 61
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ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 13.01. Indenture and Securities Solely Corporate Obligations................. 61
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
Section 14.01. Provisions Binding on Company's
Successors............................ 62
Section 14.02. Official Acts by Successor
Corporation........................... 62
Section 14.03. Addresses for Notices, etc............ 62
Section 14.04. New York Contract..................... 62
Section 14.05. Evidence of Compliance with
Conditions Precedent.................. 62
Section 14.06. Legal Holidays........................ 63
Section 14.07. Securities in a Specified Currency
other than Dollars.................... 63
Section 14.08. Trust Indenture Act to Control........ 64
Section 14.09. Table of Contents, Headings, etc...... 64
Section 14.10. Execution in Counterparts............. 65
Section 14.11. Separability; Benefits................ 65
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ARTICLE ONE
DEFINITIONS
The term "Authenticating Agent" means any Person authorized by the Trustee pursuant to Section 7.15 to act on behalf of the Trustee to authenticate Securities.
The term "Board of Directors" shall mean the Board of Directors of the Company or any Committee of such Board to which the relevant powers of such Board have been lawfully delegated.
The term "Company" shall mean General Electric Capital Corporation, a New York corporation, until any successor corporation shall have become such pursuant to the provisions of Article Eleven, and thereafter "Company" shall mean such successor, except as otherwise provided in Section 11.02.
The term "currency" shall mean Dollars or any Specified Currency.
The term "Dollar" shall mean the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
The term "Event of Default" shall have the meaning specified in
Section 6.01.
The term "interest", when used with respect to a non-interest bearing Security, means interest payable after the principal thereof has become due and payable whether at maturity, by declaration of acceleration, by call for redemption, pursuant to a sinking fund, or otherwise.
The term "Officers' Certificate" shall mean a certificate signed by the President, the Chairman or any Vice Chairman of the Board or any Vice President and by the Senior Vice President-Corporate Treasury and Global Funding Operation or any Assistant Treasurer, the Controller or the Secretary or any Assistant Secretary of the Company and delivered to the Trustee. Each such certificate shall comply with Section 314 of the Trust Indenture Act of 1939 and include the statements provided for in Section 14.05 if and to the extent required by the provisions of such Section.
The term "Opinion of Counsel" shall mean an opinion in writing signed by legal counsel, who may be an employee of or of counsel to the Company, or may be other counsel. Each such opinion shall comply with Section 314 of the Trust Indenture Act of 1939 and include the statements provided for in Section 14.05 if and to the extent required by the provisions of such Section.
The term "Original Issue Discount Security" shall mean any Security which at any time provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the maturity thereof pursuant to Section 6.01.
The term "Overdue Rate" with respect to each series of Securities shall mean the rate designated as such in the resolution of the Board of Directors or the supplemental indenture, as the case may be, relating to such series as contemplated by Section 2.02.
The term "Person" shall mean any individual, corporation, partnership, joint venture, association, joint stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
The term "principal office of the Trustee", or other similar term, shall mean the principal office of the Trustee at which at any particular time its corporate trust business shall be administered.
The term "Responsible Officer" when used with respect to the Trustee shall mean the chairman or any vice chairman of the board of directors, the chairman or any vice chairman of the executive committee of the board of directors, the president, any vice president, any assistant vice president, the cashier, any assistant cashier, the secretary, any assistant secretary, the treasurer, any assistant treasurer, any trust officer, any assistant trust officer or any other officer or assistant officer of the Trustee customarily performing functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of his knowledge of and familiarity with the particular subject.
The terms "Security" or "Securities" shall mean any Security or Securities, as the case may be, authenticated and delivered under this Third Amended and Restated Indenture.
The term "Outstanding", when used with reference to Securities, shall, subject to the provisions of Section 8.04, mean, as of any particular time, all Securities authenticated and delivered by the Trustee under this Third Amended and Restated Indenture, except
(a) Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of which moneys in the necessary amount shall have been deposited in trust with the Trustee or with any paying agent (other than the Company) or shall have been set aside and segregated in trust by the Company (if the Company shall act as its own paying agent), provided that if such Securities are to be redeemed prior to the maturity thereof, notice of such redemption shall have been mailed as in Article Three provided, or provision satisfactory to the Trustee shall have been made for mailing such notice; and
(c) Securities in lieu of or in substitution for which other Securities shall have been authenticated and delivered, or which shall have been paid, pursuant to the terms of Section 2.07, unless proof satisfactory to the Trustee is presented that any such Securities are held by Persons in whose hands any of such Securities is a valid, binding and legal obligation of the Company.
In determining whether the holders of the requisite principal amount of Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration of the maturity thereof pursuant to Section 6.01.
The term "Security register" shall have the meaning set forth in
Section 2.06.
The term "Security registrar" shall have the meaning set forth in
Section 2.06.
The term "Securityholder", "holder of Securities", or other similar terms, shall mean any Person in whose name at the time a particular Security is registered on the books of the Company kept for that purpose in accordance with the terms hereof.
The term "Specified Currency" shall mean the currency in which a Security is denominated, which may include Dollars, any foreign currency or any composite of two or more currencies.
The term "Subsidiary" shall mean (i) any corporation of which the Company directly or indirectly owns or controls at that time at least a majority of the outstanding stock having under ordinary circumstances (not dependent upon the happening of a contingency) voting power to elect a majority of the board of directors of such corporation or (ii) any other Person (other than a corporation) in which the Company directly or indirectly has at least a majority ownership interest and power to direct the policies, management and affairs thereof.
The term "Finance Subsidiary" shall mean any Subsidiary engaged within the United States in the business of purchasing notes, accounts receivable (whether or not payable in installments), conditional sale contracts or other paper originating in sales at wholesale or retail, or of leasing new or used products or of making instalment loans.
The term "Third Amended and Restated Indenture" shall mean this instrument as originally executed or as it may be amended or supplemented from time to time as herein provided, and shall include the form and terms of particular series of Securities established as contemplated hereunder.
The term "Trust Indenture Act of 1939" shall mean the Trust Indenture Act of 1939 as it was in force at the date of execution of this Third Amended and Restated Indenture, except as provided in Section 10.03.
The term "Trustee" shall mean the corporation or association named as Trustee in this Third Amended and Restated Indenture and, subject to the provisions of Article Seven hereof, shall also include its successors and assigns as Trustee hereunder. If pursuant to the provisions of this Third Amended and Restated Indenture there shall be at any time more than one Trustee hereunder, the term "Trustee" as used with respect to Securities of any series shall mean the Trustee with respect to Securities of that series.
ARTICLE TWO
DESCRIPTION, EXECUTION, REGISTRATION AND
EXCHANGE OF SECURITIES.
(b) The resolutions adopted by the Board of Directors establishing the form and terms of the Securities of any series pursuant to Sections 2.01 and 2.02, respectively, of this Third Amended and Restated Indenture, may provide for issuance of the Securities in global form. If Securities of a series are so authorized to be issued in global form, any such global Security may provide that it shall represent that aggregate amount of Securities from time to time endorsed thereon and may also provided that the aggregate amount of Outstanding Securities represented thereby may from time to time be reduced to reflect exchanges. Any endorsement of a Security in global form to reflect the amount, or any increase or decrease in the amount or changes in the rights of holders of Securities represented thereby, shall be made in such manner and by such Person or Persons as shall be specified therein.
(c) The Trustee's Certificate of Authentication on all Securities shall be in substantially the following form:
"This is one of the Securities of the series designated therein described in the within-mentioned Indenture.
The Securities may be issued in one or more series. There shall be established in or pursuant to a resolution of the Board of Directors or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Third Amended and Restated Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 2.06, 2.07, 2.08, 3.03, 3.06 or 10.04);
(3) the date or dates on which the principal and premium, if any, of the Securities of the series is payable;
(4) the rate or rates, or the method of determination thereof, at
which the Securities of the series shall bear interest, if any, the date or
dates from which such interest shall accrue, the interest payment dates on
which such interest shall be payable and, if other than as set forth in
Section 2.04, the record dates for the determination of holders to whom
interest is payable;
(5) the place or places where the principal of, and premium, if any, and any interest on Securities of the series shall be payable;
(6) the Specified Currency of the Securities of the series;
(7) the currency or currencies in which payments on the Securities of the series are payable, if other than the Specified Currency;
(8) the price or prices at which, the period or periods within which and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Company, pursuant to any sinking fund or otherwise;
(9) the obligation, if any, of the Company to redeem, purchase or repay Securities of the series pursuant to any sinking fund or analogous provisions or at the option of a holder thereof and the price at or process by which and the period or periods within which and the terms and conditions upon which Securities of the series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;
(10) if other than denominations of $1,000 and any integral multiple thereof, the denominations in which Securities of the series shall be issuable;
(11) if other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.01;
(12) if other than the Specified Currency, the coin or currency in which payment of the principal of or interest on the Securities of the series shall be payable;
(13) if the principal of or interest on the Securities of the series are to be payable, at the election of the Company or a holder thereof, in a coin or currency other than the Specified Currency, the period or periods within which, and the terms and conditions upon which, such election may be made;
(14) if the amount of payments of principal of and interest on the Securities of the series may be
determined with reference to an index based on a coin or currency other than the Specified Currency, the manner in which such amounts shall be determined;
(15) any Events of Default with respect to the Securities of the series, if not set forth herein;
(16) if other than the rate of interest stated in the title of the Securities of the series, the applicable Overdue Rate;
(17) in the case of any series of non-interest bearing Securities, the applicable dates for purposes of clause (a) of Section 5.01; and
(18) any other terms of the series (which terms shall not be inconsistent with the provisions of this Third Amended and Restated Indenture).
All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to such resolution of the Board of Directors or in any such indenture supplemental hereto.
(1) a copy of any resolution or resolutions of the Board of Directors relating thereto and, if applicable, an appropriate record of any action taken pursuant to such resolution, in each case certified by the Secretary or an Assistant Secretary of the Company;
(2) an executed supplemental indenture, if any, relating thereto;
(3) an Officers' Certificate prepared in accordance with Section 14.05 which shall also state to the best knowledge of the signers of such Certificate that no Event of Default with respect to any series of Securities shall have occurred and be continuing; and
(4) an Opinion of Counsel prepared in accordance with Section 14.05 which shall also state
(a) that the form of such Securities has been established by or pursuant to a resolution of the Board of Directors or by a supplemental indenture as permitted by Section 2.01 in conformity with the provisions of this Third Amended and Restated Indenture;
(b) that the terms of such Securities have been established by or pursuant to a resolution of the Board of Directors or by a supplemental indenture as permitted by Section 2.02 in conformity with the provisions of this Third Amended and Restated Indenture;
(c) that such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute legal, valid and binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting the enforcement of creditors' rights and to general equity principles;
(d) that the Company has the corporate power to issue such Securities, and has duly taken all necessary corporate action with respect to such issuance;
(e) that the issuance of such Securities will not contravene the organization certificate or by-laws of the Company or result in any violation of any of the terms or provisions of any law or regulation or of any indenture, mortgage or other agreement known to such Counsel by which the Company or any of its Subsidiaries is bound; and
(f) that all laws and requirements in respect of the execution and delivery by the Company of such Securities and the related supplemental indenture, if any, have been complied with and that authentication and delivery of such Securities and the execution and delivery of the related supplemental indenture, if any, by the Trustee will not violate the terms of this Third Amended and Restated Indenture.
The Trustee shall have the right to decline to authenticate and deliver or cause to be authenticated any Securities under this Section 2.03 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken or if the Trustee in good faith by action of its board of directors or trustees, executive committee, or a trust committee of directors or trustees and Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Securityholders.
Every Security shall be dated the date of its authentication.
Company to the holders of such Securities not less than 15 days preceding such subsequent record date, such record date to be not less than five days preceding the date of payment of such defaulted interest. Except as otherwise specified as contemplated by Section 2.02 for Securities of a particular series, the term "record date" as used in this Section 2.04 with respect to any regular interest payment date shall mean the last day of the calendar month preceding such interest payment date if such interest payment date is the fifteenth day of the calendar month, and shall mean the fifteenth day of the calendar month preceding such interest payment date if such interest payment date is the first day of a calendar month, whether or not such day shall be a day on which banking institutions in The City of New York are authorized or required by law or executive order to close or remain closed.
Interest on the Securities may at the option of the Company be paid by check mailed to the Persons entitled thereto at their respective addresses as such appear on the registry books of the Company.
In case any officer of the Company who shall have signed any of the Securities shall cease to be such officer before the Securities so signed shall have been authenticated and delivered by the Trustee, or disposed of by the Company, such Securities nevertheless may be authenticated and delivered or disposed of as though the Person who signed such Securities had not ceased to be such officer of the Company; and any Security may be signed on behalf of the Company by such Persons as, at the actual date of the execution of such Security, shall be the proper officers of the Company, although at the date of the
execution of this Third Amended and Restated Indenture any such Person was not such an officer.
The Company shall keep, at each such office or agency, a register for each series of Securities issued hereunder (the registers of all Security registrars being herein sometimes collectively referred to as the "Security register" or the "registry books of the Company") in which, subject to such reasonable regulations as it may prescribe, the Company shall register Securities and shall register the transfer of Securities as in this Article Two provided. The Security register shall be in written form or in any other form capable of being converted into written form within a reasonable time. At all reasonable times the Security register shall be open for inspection by the Trustee and any Security registrar other than the Trustee. Upon due presentment for registration of transfer of any Security of any series at any designated office or agency, the Company shall execute and register and the Trustee shall authenticate and deliver in the name of the transferee or transferees a new Security or Securities of the same series for an equal aggregate principal amount. Registration or registration of transfer of any Security by any Security registrar in the registry books of the Company maintained by such Security registrar, and delivery of such Security, duly authenticated, shall be deemed to complete the registration or registration of transfer of such Security.
The Company will at all times designate one Person (who may be the Company and who need not be a Security
registrar) to act as repository of a master list of names and addresses of the holders of the Securities. The Company shall act as such repository unless and until some other Person is, by written notice from the Company to the Trustee and each Security registrar, designated by the Company to act as such. The Company shall cause each Security registrar to furnish to such repository, on a current basis, such information as to all registrations of transfer and exchanges effected by such registrar, as may be necessary to enable such repository to maintain such master list on as current a basis as is practicable.
No Person shall at any time be designated as or act as a Security registrar unless such Person is at such time empowered under applicable law to act as such under and duly registered to act as such under and to the extent required by applicable law and regulations.
All Securities presented for registration of transfer or for exchange, redemption or payment shall (if so required by the Company or the Trustee) be duly endorsed by, or be accompanied by a written instrument or instruments of transfer or exchange in form satisfactory to the Company and the Trustee duly executed by, the holder or his attorney duly authorized in writing.
No service charge shall be made for any exchange or registration of transfer of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith.
Neither the Company nor the Trustee shall be required to exchange or register a transfer of (a) any Securities of any series for the period of 15 days next preceding the selection of Securities of that series to be redeemed and thereafter until the date of the mailing of a notice of redemption of Securities of that series selected for redemption or (b) any Securities selected, called or being called for redemption in whole or in part except, in the case of any Security to be redeemed in part, the portion thereof not so to be redeemed.
Security of the same series, bearing a number not contemporaneously Outstanding, in exchange and substitution for the mutilated Security, or in lieu of and in substitution for the Security so destroyed, lost or stolen. In every case the applicant for a substituted Security shall furnish to the Company and to the Trustee such security or indemnity as may be required by them to save each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish the Company and to the Trustee evidence to their satisfaction of the destruction, loss or theft of such Security and the ownership thereof.
Upon the issuance of any substituted Security, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses connected therewith. In case any Security which has matured or is about to mature shall become mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substituted Security, pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated Security) if the applicant for such payment shall furnish to the Company and to the Trustee such security or indemnity as may be required by them to save each of them harmless and, in case of destruction, loss or theft, evidence satisfactory to the Company and the Trustee of the destruction, loss or theft of such Security and the ownership thereof.
Every substituted Security issued pursuant to the provisions of this
Section 2.07 by virtue of the fact that any Security is destroyed, lost or
stolen shall constitute an additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security shall be found at any
time, and shall be entitled to all the benefits of this Third Amended and
Restated Indenture equally and proportionately with any and all other Securities
of the same series duly issued hereunder. All Securities shall be held and
owned upon the express condition that the foregoing provisions are exclusive
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities and shall preclude (to the extent lawful) any and all other
rights or remedies with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
authorized denomination and substantially in the form of the definitive Securities in lieu of which they are issued, but with such omissions, insertions and variations as may be appropriate for temporary Securities, all as may be determined by the Company. Every such temporary Security shall be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with the same effect, as the definitive Securities in lieu of which they are issued. Without unreasonable delay the Company will execute and deliver to the Trustee definitive Securities of such series and thereupon any or all temporary Securities of such series may be surrendered in exchange therefor, at the option of the holders thereof, either at the office or agency to be designated and maintained by the Company for such purpose in the Borough of Manhattan, The City of New York in accordance with the provisions of Section 4.02 or at any of such other offices or agencies as may be designated and maintained by the Company for such purpose in accordance with the provisions of Section 4.02, and the Trustee shall authenticate and deliver in exchange for such temporary Securities an equal aggregate principal amount of definitive Securities of the same series. Such exchange shall be made by the Company at its own expense and without any charge therefor. Until so exchanged, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Third Amended and Restated Indenture as definitive Securities of the same series authenticated and delivered hereunder.
Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE THREE
REDEMPTION OF SECURITIES; SINKING FUNDS
The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a "mandatory sinking fund payment", and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an "optional sinking fund payment".
Each such notice of redemption shall specify the date fixed for redemption, the redemption price at which the Securities of such series are to be redeemed, the place or places of payment, that payment will be made upon presentation and surrender of such Securities, that any
interest accrued to the date fixed for redemption will be paid as specified in said notice, and that on and after said date any interest thereon or on the portions thereof to be redeemed will cease to accrue. If less than all the Securities of a series are to be redeemed the notice of redemption shall specify the number or numbers of the Securities of that series to be redeemed. In case any Security of a series is to be redeemed in part only, the notice of redemption shall state the portion of the principal amount thereof to be redeemed and shall state that on and after the date fixed for redemption, upon surrender of such Security, a new Security or Securities of that series in aggregate principal amount equal to the unredeemed portion thereof will be issued.
Prior to the redemption date specified in the notice of redemption given as provided in this Section 3.02, the Company will deposit with the Trustee or with one or more paying agents (or if the Company is acting as its own paying agent, shall segregate and hold in trust as provided in Section 4.05) an amount of money sufficient to redeem on the redemption date all the Securities or portions thereof so called for redemption, together with accrued interest to the date fixed for redemption. If less than all the Securities of a series are to be redeemed, the Company will give the Trustee notice not less than 60 days prior to the redemption date as to the aggregate principal amount of Securities of such series to be redeemed and the Trustee shall select or cause to be selected, in such manner as in its sole discretion it shall deem appropriate and fair, the Securities of that series or portions thereof to be redeemed. Securities of a series may be redeemed in part only in multiples of the smallest authorized denomination of that series.
Upon presentation of any Security redeemed in part only, the Company shall execute and the Trustee shall authenticate and deliver to the holder thereof, at the expense of the Company, a new Security or Securities of the same series, of authorized denominations, in aggregate principal amount equal to the unredeemed portion of the Security so presented.
to exercise its right to make a permitted optional sinking fund payment with resect to such series. Such certificate shall also state that no Event of Default has occurred and is continuing with respect to such series. Such certificate shall be irrevocable, and upon its delivery, the Company shall be obligated to make the cash payment or payments therein referred to, if any, on or before the next succeeding sinking fund payment date. In the case of the failure of the Company to deliver such certificate (or to deliver the Securities specified in this paragraph), the sinking fund payment due on the next succeeding sinking fund payment date for that series shall be paid entirely in cash and shall be sufficient to redeem the principal amount of such Securities subject to a mandatory sinking fund payment without the option to deliver or credit Securities as provided in Section 3.04 and without the right to make any optional sinking fund payment, if any, with respect to such series.
Any sinking fund payment or payments (mandatory or optional) made in
cash plus any unused balance of any preceding sinking fund payments made in cash
which, in the aggregate, shall equal or exceed $100,000 (or a less sum if the
Company shall so request or determine) with respect to the Securities of any
particular series shall be applied by the Trustee (or by the Company if the
Company is acting as its own paying agent) on the sinking fund payment date on
which such payment is made (or, if such payment is made before a sinking fund
payment date, on the next sinking fund payment date following the date of such
payment) to the redemption of such Securities at the redemption price specified
in such Securities for operation of the sinking fund together with accrued
interest, if any, to the date fixed for redemption. Any sinking fund moneys not
so applied or allocated by the Trustee (or by the Company if the Company is
acting as its own paying agent) to the redemption of Securities shall be added
to the next cash sinking fund payment received by the Trustee (or if the Company
is acting as its own paying agent, segregated and held in trust as provided in
Section 4.04) for such series and, together with such payment (or such amount so
segregated), shall be applied in accordance with the provisions of this Section
3.05. Any and all sinking fund moneys with respect to the Securities of any
particular series held by the Trustee (or if the Company is acting as its own
paying agent, segregated and held in trust as provided in Section 4.04) on the
last sinking fund payment date with respect to Securities of such series and not
held for the payment or redemption of particular Securities of such series shall
be applied by the Trustee (or by the Company if the Company is acting as its own
paying agent),
together with other moneys, if necessary, to be deposited (or segregated) sufficient for the purpose, to the payment of the principal of the Securities of that series at maturity.
The Trustee shall select or cause to be selected the Securities to be redeemed upon such sinking fund payment date in the manner specified in the last paragraph of Section 3.02 and the Company shall cause notice of the redemption thereof to be given in the manner provided in Section 3.02 except that the notice of redemption shall also state that the Securities are being redeemed by operation of the sinking fund. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Section 3.03.
On or before each sinking fund payment date, the Company shall pay to
the Trustee in cash (or if the Company is acting as its own paying agent, shall
segregate and hold in trust as provided in Section 4.04) a sum equal to any
interest accrued to the date fixed for redemption of Securities or portions
thereof to be redeemed on such sinking fund payment date pursuant to this
Section 3.05.
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
the Company may from time to time rescind such designation, as it may deem desirable or expedient. The Company will give to the Trustee written notice of the location of each such office or agency and of any change of location thereof. In case the Company shall fail to maintain any such office or agency in the Borough of Manhattan, The City of New York or shall fail to give such notice of the location or of any change in the location thereof, presentations and demands may be made and notices may be served at the principal office of the Trustee.
The Company hereby designates the office of the Company located at 335 Madison Avenue, New York, New York 10017 as the office or agency of the Company in the Borough of Manhattan, The City of New York where the Securities of each series may be presented for payment, for registration of transfer and for exchange as in this Third Amended and Restated Indenture provided and where notices and demands to or upon the Company in respect of the Securities of each series or of this Third Amended and Restated Indenture may be served. The Company also designates as repository the office of the Company located at 260 Long Ridge Road, Stamford, Connecticut 06427 as the office or agency of the Company as pursuant to Section 2.06 for the master list of the names and addresses of the holders of the Securities of each series.
(1) that it will hold all sums held by it as such agent for the payment of the principal of, premium, if any, or interest, if any, on the Securities of such series (whether such sums have been paid to it by the Company or by any other obligor on the Securities of such series) in trust for the benefit of the holders of the Securities of such series;
(2) that it will give the Trustee notice of any failure by the Company (or by any other obligor on the Securities of such series) to make any payment of the principal of, premium, if any, or interest, if any, on the Securities of such series when the same shall be due and payable; and
(3) that at any time during the continuance of any failure by the Company (or by any other obligor on the Securities of such series) specified in the preceding paragraph (2), such paying agent will, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by it.
(b) If the Company shall act as its own paying agent with respect to the Securities of any series, it will, on or before each due date of the principal of, premium, if any, or interest, if any, on the Securities of such series, set aside, segregate and hold in trust for the benefit of the holders of such Securities a sum sufficient to pay such principal, premium, if any, or interest, if any, so becoming due and will promptly notify the Trustee of any failure to take such action and of any failure by the Company (or by any other obligor on the Securities of such series) to make any payment of the principal of, premium, if any, or interest, if any, on the Securities of such series when the same shall become due and payable.
(c) Anything in this Section 4.04 to the contrary notwithstanding, the Company may, at any time, for the purpose of obtaining a satisfaction and discharge of this Third Amended and Restated Indenture, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust by it, or any paying agent hereunder, as required by this Section 4.04, such sums to be held by the Trustee upon the trusts herein contained.
(d) Anything in this Section 4.04 to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section 4.04 is subject to Sections 12.03 and 12.04.
(e) Whenever the Company shall have one or more paying agents with respect to the Securities of any series, it will, prior to each due date of the principal of, premium, if any, or interest, if any, on the Securities of such series, deposit with a designated paying agent a sum sufficient to pay the principal, premium, if any, and interest, if any, so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such
principal, premium, if any, or interest, if any, and (unless such paying agent is the Trustee) the Company will promptly notify the Trustee of any failure so to act.
ARTICLE FIVE
SECURITYHOLDER LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE
the Securities Exchange Act of 1934 or pursuant to Section 314 of the Trust Indenture Act of 1939.
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON
EVENT OF DEFAULT
(a) default in the payment of any instalment of interest upon any Security of such series as and when the same shall become due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of, or premium, if any, on any Security of such series as and when the same shall become due and payable whether at maturity, upon redemption, by declaration, repayment or otherwise; or
(c) default in making or satisfaction of any sinking fund payment or analogous obligation as and when the same shall become due and payable by the terms of the Securities of such series; or
(d) failure on the part of the Company duly to observe or perform any other of the covenants or
agreements on the part of the Company in respect of the Securities of such series contained in this Third Amended and Restated Indenture (other than a covenant or agreement in respect of the Securities of such series a default in whose observance or performance is elsewhere in this Section 6.01 specifically dealt with) continued for a period of 60 days after the date on which written notice of such failure, requiring the Company to remedy the same, shall have been given to the Company by the Trustee by registered mail, or to the Company and the Trustee by the holders of at least twenty- five percent in aggregate principal amount of the Securities of such series at the time Outstanding; or
such acceleration unless written notice thereof shall have been given to the Trustee by the Company, by a holder or an agent of a holder of any Securities of such other series or of any such other indebtedness, as the case may be, or by the Trustee then acting under this Third Amended and Restated Indenture with respect to such other series of Securities or under any other indenture or other instrument, as the case may be, under which such event of default shall have occurred, or by the holders of at least twenty-five percent in aggregate principal amount of the Securities of such series at the time Outstanding; or
(f) a decree or order by a court having jurisdiction in the premises shall have been entered adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization of the Company under the Federal Bankruptcy Code or any other similar applicable Federal or State law, and such decree or order shall have continued undischarged and unstayed for a period of 60 days; or a decree or order of a court having jurisdiction in the premises for the appointment of a receiver or liquidator or trustee or assignee (or other similar official) in bankruptcy or insolvency of the Company or of all or substantially all of its property, or for the winding up or liquidation of its affairs, shall have been entered, and such decree or order shall have continued undischarged and unstayed for a period of 60 days; or
(g) the Company shall institute proceedings to be adjudicated a voluntary bankrupt, or shall consent to the filing of a bankruptcy proceeding against it, or shall file a petition or answer or consent seeking reorganization under the Federal Bankruptcy Code or any other similar applicable Federal or State law, or shall consent to the filing of any such petition, or shall consent to the appointment of a receiver or liquidator or trustee or assignee (or other similar official) in bankruptcy or insolvency of it or of all or substantially all of its property, or shall make an assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts generally as they become due; or
(h) any other Event or Default provided in the applicable resolution
of the Board of Directors or in the supplemental indenture under which such
series of Securities is issued, as the case may be, as contemplated by
Section 2.02.
If an Event of Default with respect to Securities of any series at the time Outstanding occurs and is continuing, then and in each and every such case, unless the principal of all of the Securities of such series shall have already become due and payable, either the Trustee or the holders of not less than twenty-five percent in aggregate principal amount of the Securities of such series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by Securityholders of such series), may declare the principal amount (or, if the Securities of such series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the certificates evidencing the Securities of such series) of all the Securities of such series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Third Amended and Restated Indenture or in the Securities of such series contained to the contrary notwithstanding. This provision, however, is subject to the condition that if, at any time after the principal amount (or, if the Securities of such series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the certificates evidencing the Securities of such series) of the Securities of any series shall have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, the Company shall pay or shall deposit with the Trustee a sum sufficient to pay all matured installments of interest, if any, upon all of the Securities of such series and the principal of, and premium, if any, on any and all Securities of such series which shall have become due otherwise than by acceleration (with interest on overdue installments of interest (to the extent that payment of such interest is enforceable under applicable law) and on such principal at the Overdue Rate applicable to such series, to the date of such payment or deposit) and all amounts payable to the Trustee pursuant to the provisions of Section 7.06, and any and all defaults under this Third Amended and Restated Indenture with respect to such series of Securities, other than the nonpayment of principal of and accrued interest on Securities of such series which shall have become due solely by acceleration, shall have been remedied or cured or waived or provision shall have been made therefor to the satisfaction of the Trustee -- then and in every such case the holders of a majority in aggregate principal amount of the Securities of such series then Outstanding, by written notice to the Company and to the Trustee, may waive all default, with respect to such series and rescind and annul such declaration and its consequences; but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce any right under this Third Amended and Restated Indenture and such proceeding shall have been discontinued or abandoned because of such rescission or annulment or for any other reason or shall have been determined adversely to the Trustee, then and in every such case the Company and the Trustee shall be restored respectively to their several positions and rights hereunder, and all rights, remedies and powers of the Company and the Trustee shall continue as though no such proceeding had been taken.
In case the Company shall fail forthwith to pay such amounts upon such demand, the Trustee, in its own name and as trustee of any express trust, shall be entitled and empowered to institute any actions or proceedings at law or in equity for the collection of the sums so due and unpaid,
and may prosecute any such action or proceeding to judgment or final decree, and may enforce any such judgment or final decree against the Company or any other obligor upon such Securities and collect in the manner provided by law out of the property of the Company or any other obligor on such Securities wherever situated the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or for the reorganization of the Company or any other obligor on the Securities of any series under the Federal Bankruptcy Code or any other similar applicable Federal or State law, or in case a receiver or trustee (or other similar official) shall have been appointed for the property of the Company or such other obligor, or in the case of any other similar judicial proceedings relative to the Company or other obligor on the Securities of any series, or to the creditors or property of the Company or such other obligor, the Trustee, irrespective of whether the principal of the Securities of any series shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this Section 6.02, shall be entitled and empowered, by intervention in such proceedings or otherwise, to file and prove a claim or claims for the whole amount of principal (or, if the Securities of any series are Original Issue Discount Securities, such portion of the principal amount as may be due and payable with respect to such series pursuant to a declaration in accordance with Section 6.01), premium, if any, and interest, if any, owing and unpaid in respect of the Securities of any series and, in case of any judicial proceedings, to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee and of the Securityholders of any series allowed in such judicial proceedings relative to the Company or any other obligor on the Securities of any series, its or their creditors, or its or their property, and to collect and receive any moneys or other property payable or deliverable on any such claims, and to distribute the same after the deduction of costs and expenses of collection, and any further amounts payable to the Trustee pursuant to the provisions of Section 7.06 and incurred by it up to the date of such distribution; and any receiver, assignee or trustee (or other similar official) in bankruptcy or reorganization is hereby authorized by each of the Securityholders to make such payments to the Trustee, and, in the event that the Trustee shall consent to the making of such payments directly to the Securityholders, to pay to the Trustee costs and expenses of collection and any further amounts payable to the Trustee pursuant to the
provisions of Section 7.06 and incurred by it up to the date of such distribution.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Securityholder any plan of reorganization, arrangement, adjustment or composition affecting any of the Securities of any series or the rights of any holder thereof, or to authorize the Trustee to vote in respect of the claim of any Securityholder in any such proceeding.
All rights of action and of asserting claims under this Third Amended and Restated Indenture, or under the Securities of any series, may be enforced by the Trustee without the possession of any of the Securities of such series or the production thereof in any trial or other proceeding relative thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall be for the ratable benefit of the holders of the Securities in respect of which such action was taken. In any proceedings brought by the Trustee (and also any proceedings in which a declaratory judgment of a court may be sought as to the interpretation or construction of any provision of this Third Amended and Restated Indenture, to which the Trustee shall be a party), the Trustee shall be held to represent all the holders of the Securities to which such proceedings relate, and it shall not be necessary to make any holders of such Securities parties to any such proceedings.
FIRST: To the payment of all amounts due the Trustee pursuant to the provisions of Section 7.06;
SECOND: In case the principal of the Outstanding Securities in respect of which such moneys have been collected shall not have become due (at maturity, upon redemption, by declaration, repayment or otherwise) and be unpaid, to the payment of interest, if any, on such Securities,
in the order of the maturity of the installments of such interest, with interest (to the extent that such interest has been collected by the Trustee) upon the overdue installments of interest at the Overdue Rate applicable to such Securities, such payments to be made ratably to the Persons entitled thereto;
THIRD: In case the principal of the Outstanding Securities in respect of which such moneys have been collected shall have become due (at maturity, upon redemption, by declaration, repayment or otherwise), to the payment of the whole amount then owing and unpaid upon such Securities for principal, premium, if any, and interest, if any, with interest on the overdue principal, premium, if any, and (to the extent that such interest has been collected by the Trustee) upon overdue installments of interest, if any, at the Overdue Rate applicable to such Securities; and in case such moneys shall be insufficient to pay in full the whole amounts so due and unpaid upon such Securities, then to the payment of such principal, premium, if any, and interest, if any, without preference or priority of principal and premium, if any, over interest if any, or of interest, if any, over principal, and premium, if any, or of any instalment of interest, if any, over any other instalment of interest, if any, or of any such Security over any other such Security, ratably to the aggregate of such principal, premium, if any, and accrued and unpaid interest, if any; and
FOURTH: To the payment of the remainder, if any, to the Company, its successors or assigns, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct.
hereinbefore provided, and unless also the holders of not less than twenty-five percent in aggregate principal amount of the Securities of such series then Outstanding shall have made written request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder and shall have offered to the Trustee such reasonable indemnity as it may require against the costs, expenses and liabilities to be incurred therein or thereby, and the Trustee for 60 days after its receipt of such notice, request and offer of indemnity, shall have neglected or refused to institute any such action, suit or proceeding, it being understood and intended, and being expressly covenanted by the taker and holder of every Security with every other taker and holder and the Trustee, that no one or more holders of Securities of such series shall have any right in any manner whatever by virtue of or by availing of any provision of this Third Amended and Restated Indenture to affect, disturb or prejudice the rights of any other holder of Securities of such series, or to obtain or seek to obtain priority over or preference to any other such holder, or to enforce any right under this Third Amended and Restated Indenture, except in the matter herein provided and for the equal, ratable and common benefit of all holders of Securities of such series.
Notwithstanding any other provisions in this Third Amended and Restated Indenture, however, the right of any holder of any Security to receive payment of the principal of, premium, if any, and interest, if any, on such Security, on or after the respective due dates expressed in such Security, or upon redemption, by declaration, repayment or otherwise, or to institute suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such holder, and no provision of the Securities of any series or of this Amended and Restated Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of, premium, if any, and interest, if any, on the Securities of such series at the respective places, at the respective times, at the respective rates and in the coin or currency, therein and herein prescribed.
specific enforcement of any covenant or agreement contained in this Third Amended and Restated Indenture or in aid of the exercise of any power granted in this Third Amended and Restated Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Third Amended and Restated Indenture or by law.
consequences except a default in the payment of interest, if any, on, or the principal of or premium, if any, on any Security of such series, or in the payment of any sinking fund instalment or analogous obligation with respect to Securities of such series, or in respect of a covenant or provision hereof which under Section 10.02 cannot be modified or amended without the consent of the holder of each Security affected. Upon any such waiver the Company, the Trustee and the holders of the Securities of that series shall be restored to their former positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon. Whenever any default or Event of Default hereunder shall have been waived as permitted by this Section 6.07, said default or Event of Default shall for all purposes of the Securities of such series and this Third Amended and Restated Indenture be deemed to have been cured and to be not continuing.
discretion require, in any suit for the enforcement of any right or remedy under this Third Amended and Restated Indenture, or in any suit against the Trustee for any action taken, omitted or suffered by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys' fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section 6.09 shall not apply to any suit instituted by the Trustee, to any suit instituted by any holder of Securities of any series or group of such holders, holding in the aggregate more than twenty- five percent in principal amount of the Outstanding Securities of such series or to any suit instituted by any Securityholder for the enforcement of the payment of the principal of, premium, if any, or interest, if any, on any Security on or after the due date expressed in such Security, on or after the date fixed for redemption or repayment or after such Security shall have become due by declaration.
ARTICLE SEVEN
CONCERNING THE TRUSTEE
No provision of this Third Amended and Restated Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own wilful misconduct, except that
(a) prior to the occurrence of an Event of Default with respect to the Securities of a series and
after the curing or waiving of all Events of Default with respect to such series which may have occurred:
(1) the duties and obligations of the Trustee with respect to the Securities of a series shall be determined solely by the express provisions of this Third Amended and Restated Indenture, and the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Third Amended and Restated Indenture, and no implied covenants or obligations shall be read into this Third Amended and Restated Indenture against the Trustee; and
(2) in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and conforming to the requirements of this Third Amended and Restated Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Third Amended and Restated Indenture;
(b) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Officers of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken, omitted or suffered to be taken by it in good faith in accordance with the direction of the holders of Securities of any series pursuant to Section 6.07 relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Third Amended and Restated Indenture with respect to Securities of such series.
None of the provisions of this Third Amended and Restated Indenture shall be construed as requiring the Trustee to expend or risk its own funds or otherwise to incur any personal financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if there shall be reasonable grounds
for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
The provisions of this Section 7.01 are in furtherance of and subject to Section 315 of the Trust Indenture Act of 1939.
(a) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an instrument signed in the name of the Company by its President, its Chairman of the Board or any Vice President (including any Executive or Senior Vice President) and its Senior Vice President-Corporate Treasury and Global Funding Operation or its Controller (unless other evidence in respect thereof be herein specifically prescribed); and any resolution of the Board of Directors of the Company may be evidenced to the Trustee by a copy thereof certified by the Secretary, an Assistant Secretary or an Attesting Secretary of the Company;
(c) the Trustee may consult with counsel, and any advice or Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, omitted or suffered to be taken by it hereunder in good faith and in accordance with such Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Third Amended and Restated Indenture at the request, order or direction of any of the Securityholders, pursuant to the provisions of this Third Amended and Restated Indenture, unless such Securityholders shall offer reasonable security or indemnity satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken, omitted or suffered by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Third Amended and Restated Indenture;
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder.
satisfaction and discharge of this Third Amended and Restated Indenture.
corporation at any time shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In case at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section 7.09, the Trustee shall resign immediately in the manner and with the effect specified in Section 7.10.
The provisions of this Section 7.09 are in furtherance of and subject to Section 310(a) of the Trust Indenture Act of 1939.
(b) In case at any time any of the following shall occur --
(1) the Trustee shall fail to comply with the provisions of
Section 310(b) of the Trust Indenture Act of 1939 with respect to any
series of Securities after written request therefor by the Company or
by any Securityholder who has been a bona fide holder of a Security or
Securities of such series for at least six months, or
(2) the Trustee shall cease to be eligible in accordance with the provisions of Section 7.09 and Section 310(a) of the Trust Indenture Act of 1939 with respect to any series of Securities and shall fail to resign after written request therefor by the Company or by any such Securityholder, or
(3) the Trustee shall become incapable of acting with respect to any series of Securities, or shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation --
then, in any such case, the Company may remove the Trustee with respect to such series and appoint a successor Trustee with respect to such series by written instrument, in duplicate, executed in the name of and on behalf of the Company by a duly authorized officer, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor Trustee, or, subject to the provisions of Section 315(e) of the Trust Indenture Act of 1939, any Securityholder who has been a bona fide holder of a Security or Securities of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee with respect to such series. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor Trustee with respect to such series.
(c) The holders of a majority in aggregate principal amount of the Securities of one or more series (each series voting as a class) or all series at the time Outstanding may at any time remove the Trustee with respect to the applicable series or all series, as the case may be, and appoint with respect to the applicable series or all series, as the case may be, a successor Trustee by written notice of such action to the Company, the Trustee and the successor Trustee.
(d) Any resignation or removal of the Trustee with respect to any series and any appointment of a successor Trustee with respect to such series pursuant to any of the provisions of this Section 7.10 shall become effective upon acceptance of appointment by the successor Trustee as provided in Section 7.11.
(e) No predecessor Trustee shall be liable for the acts or omissions of any successor Trustee.
In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the predecessor Trustee and each successor Trustee with respect to the Securities of any applicable series shall execute and deliver an indenture supplemental hereto which shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the predecessor Trustee with respect to the Securities of any series as to which the predecessor Trustee is not retiring shall continue to be vested in the predecessor Trustee, and shall add to or change any of the provisions of this Third Amended and Restated Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-Trustees of the same trust and that each such Trustee shall be Trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee.
No successor Trustee with respect to a series of Securities shall accept appointment as provided in this
Section 7.11 unless at the time of such acceptance such successor Trustee shall, with respect to such series, be qualified under Section 310(b) of the Trust Indenture Act of 1939 and eligible under the provisions of Section 7.09.
Upon acceptance of appointment by a successor Trustee with respect to any series as provided in this Section 7.11, the Company shall mail notice of the succession of such Trustee hereunder to the holders of Securities of such series at their addresses as they shall appear on the registry books of the Company. If the Company fails to mail such notice within 10 days after the acceptance of appointment by the successor Trustee, the successor Trustee shall cause such notice to be mailed at the expense of the Company.
In case at the time such successor to the Trustee shall succeed to the trust created by this Third Amended and Restated Indenture with respect to one or more series of Securities, any of such Securities shall have been authenticated but not delivered, any such successor to the Trustee by merger, conversion or consolidation may adopt the certificate of authentication of any predecessor Trustee, and deliver such Security so authenticated; and in case at that time any of such Securities shall not have been authenticated, any successor to the Trustee may authenticate such Securities either in the name of such successor to the Trustee or, if such successor to the Trustee is a successor by merger, conversion or consolidation, the name of any predecessor hereunder; and in all such cases such certificate shall have the full force which it is anywhere in such Securities or in this Third Amended and Restated Indenture provided that the certificate of the Trustee shall have.
Indenture is located at 450 West 33rd Street, 15th Floor, New York, New York 10003, Attention: Global Trust Services Administration.
Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under this Section 7.14, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section 7.14, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall mail written notice of such appointment by first-class mail, postage prepaid, to all holders of Securities as their names and addresses appear in the Security register. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section 7.14.
The Company agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section 7.14.
If an appointment is made pursuant to this Section 7.14, the Securities may have endorsed thereon, in addition to the Trustee's certificate of authentication, an alternative certificate of authentication in the following form:
Dated:
This is one of the Notes described in the within-mentioned Indenture.
The Chase Manhattan Bank, As Trustee
[AUTHENTICATING AGENT]
As Authenticating Agent
By_____________________,
Authorized Signatory
ARTICLE EIGHT
CONCERNING THE SECURITYHOLDERS
The record of any Securityholders' meeting shall be proved in the manner provided in Section 9.06.
The Company may set a record date for purposes of determining the identity of holders of Securities of any series entitled to vote or consent to any action referred to in Section 8.01, which record date may be set at any time or from time to time by notice to the Trustee, for any date or dates (in the case of any adjournment or reconsideration) not more than 60 days nor less than five days prior to the proposed date of such vote or consent, and thereafter, notwithstanding any other provisions hereof, with respect to Securities of any series, only holders of Securities of such series of record on such record date shall be entitled so to vote or give such consent or revoke such vote or consent.
the taking of any action by the holders of the percentage in aggregate principal amount of the Securities of any or all series, as the case may be, specified in this Third Amended and Restated Indenture in connection with such action, any holder of a Security which is shown by the evidence to be included in the Securities the holders of which have consented to such action may, by filing written notice with the Trustee at its principal office and upon proof of holding as provided in Section 8.02, revoke such action so far as concerns such Security. Except as aforesaid any such action taken by the holder of any Security shall be conclusive and binding upon such holder and upon all future holders of such Security, irrespective of whether or not any notation in regard thereto is made upon such Security or any Security issued in exchange or substitution therefor.
ARTICLE NINE
SECURITYHOLDERS' MEETINGS
(1) to give any notice to the Company or to the Trustee, or to give any directions to the Trustee, or to consent to the waiving of any default hereunder and its consequences, or to take any other action authorized to be taken by Securityholders pursuant to any of the provisions of Article Six;
(2) to remove the Trustee and nominate a successor Trustee pursuant to the provisions of Article Seven;
(3) to consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of Section 10.02; or
(4) to take any other action authorized to be taken by or on behalf of the holders of any specified aggregate principal amount of the Securities of any or all series, as the case may be, under any other provision of this Third Amended and Restated Indenture or under applicable law.
in Section 9.01, to be held at such time and at such place in the Borough of Manhattan, The City of New York as the Trustee shall determine. Notice of every meeting of the holders of Securities of any or all series, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be mailed to holders of Securities of each series affected at their addresses as they shall appear on the registry books of the Company. Such notice shall be mailed not less than 10 nor more than 90 days prior to the date fixed for the meeting.
the right to vote, and such other matters concerning the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Securityholders, as provided in Section 9.03, in which case the Company or the Securityholders calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by majority vote of the meeting.
prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more Persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was mailed as provided in Section 9.02. The record shall show the principal amount of the Securities (in the case of Original Issue Discount Securities, such principal amount to be determined as provided in the definition of "Security or Securities; Outstanding" in Section 1.01) voting in favor of or against any resolution. The record shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one of the duplicates shall be delivered to the Company and the other to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the matters therein stated.
ARTICLE TEN
SUPPLEMENTAL INDENTURES
(a) to evidence the succession of another corporation to the Company, or successive successions, and the assumption by the successor corporation of the covenants, agreements and obligations of the Company pursuant to Article Eleven;
(b) to add to the covenants of the Company such further covenants, restrictions or conditions for the
(c) to provide for the issuance under this Third Amended and Restated Indenture of Securities in coupon form (including Securities registrable as to principal only) and to provide for exchangeability of such Securities with the Securities of the same series issued hereunder in fully registered form and to make all appropriate changes for such purpose;
(d) to establish the forms or terms of Securities of any series as permitted by Sections 2.01 and 2.02;
(e) to cure any ambiguity or to correct or supplement any provision contained herein or in any supplemental indenture which may be defective or inconsistent with any other provision contained herein or in any supplemental indenture, or to make such other provisions in regard to matters or questions arising under this Third Amended and Restated Indenture which shall not adversely affect the interests of the holders of any Outstanding Securities; and
(f) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series or to add to or change any of the provisions of this Third Amended and Restated Indenture as shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, pursuant to the requirements of
Section 7.11.
The Trustee is hereby authorized to join with the Company in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations which may be therein contained and to accept the conveyance, transfer and assignment of any property thereunder, but the Trustee shall not be obligated to, but may in its discretion, enter into any such supplemental indenture which affects the Trustee's own rights, duties or immunities under this Third Amended and Restated Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section 10.01 may be executed by the Company and the Trustee without the consent
of the holders of any of the Securities at the time Outstanding, notwithstanding
any of the provisions of Section 10.02.
reduce the percentage in principal amount of Outstanding Securities of any
series, the holders of which are required to consent to any such supplemental
indenture or any waiver of any past default or Event of Default pursuant to
Section 6.07, or (iii) modify any provision of Section 6.07 or 10.02 (except to
increase any such percentage or to provide that certain other provisions of this
Third Amended and Restated Indenture cannot be modified or waived without the
consent of the holder of each Security so affected) without, in the case of each
of the foregoing clauses (i), (ii) and (iii), the consent of the holder of each
Security so affected. A supplemental indenture which changes or eliminates any
covenant or other provision of this Third Amended and Restated Indenture which
has expressly been included solely for the benefit of one or more particular
series of Outstanding Securities, or which modifies the rights of the holders of
Outstanding Securities of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this Third Amended and
Restated Indenture of the holders of Securities of any other series.
Upon the request of the Company and upon the filing with the Trustee of evidence of the consent of Securityholders as aforesaid, the Trustee shall join with the Company in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee's own rights, duties or immunities under this Third Amended and Restated Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under this Section 10.02 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
such modifications and amendments, and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Third Amended and Restated Indenture for any and all purposes.
ARTICLE ELEVEN
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
corporation and (ii) the Company or such successor corporation, as the case may be, shall not, immediately after such merger or consolidation, or such sale, conveyance, transfer or other disposition, be in default in the performance of any such covenant or condition. In the event of any such sale, conveyance (other than by way of lease), transfer or other disposition, the predecessor company may be dissolved, wound up and liquidated at any time thereafter.
In case of any such consolidation, merger, sale, conveyance, transfer or other disposition, such changes in phraseology and form (but not in substance) may be made in the Securities thereafter to be issued as may be appropriate.
such consolidation, merger, sale, conveyance, transfer or other disposition, and any such assumption, comply with the provisions of this Article Eleven.
ARTICLE TWELVE
SATISFACTION AND DISCHARGE OF INDENTURE
pursuant to the provisions of Section 12.01 shall be held in trust and applied by it to the payment, either directly or through any paying agent (including the Company if acting as its own paying agent), to the holders of the particular Securities for payment or redemption of which such moneys have been deposited with the Trustee, of all sums due and to become due thereon for principal, premium, if any, and interest, if any.
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
expressly understood that all such liability is hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Third Amended and Restated Indenture and the issue of the Securities.
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
Each certificate or opinion provided for in this Third Amended and Restated Indenture and delivered to the Trustee with respect to compliance with a condition or covenant provided for in this Third Amended and Restated Indenture shall include: (1) a statement that the Person making such certificate or opinion has read such covenant or condition; (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinion contained in such certificate or opinion are based; (3) a statement that, in the opinion of such Person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and (4) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.
All decisions and determinations of the Trustee regarding the Market Exchange Rate or any alternative determination provided for in the preceding paragraph shall be in its sole discretion and shall, in the absence of manifest error, be conclusive to the extent permitted by law for all purposes and irrevocably binding upon the Company and all Securityholders.
Third Amended and Restated Indenture by operation of, Sections 310 to 318, inclusive, of the Trust Indenture Act of 1939, such imposed duties or incorporated provision shall control.
Nothing in this Third Amended and Restated Indenture or in the Securities, expressed or implied, shall give to any Person, other than the parties hereto and their successors hereunder, and the holders of the Securities, any benefit or any legal or equitable right, remedy or claim under this Third Amended and Restated Indenture.
GENERAL ELECTRIC CAPITAL CORPORATION
AND
THE CHASE MANHATTAN BANK,
Trustee
THIRD AMENDED AND RESTATED
INDENTURE
Dated as of February 27, 1997
Notes
THIS THIRD AMENDED AND RESTATED INDENTURE, dated as of February 27, 1997, between GENERAL ELECTRIC CAPITAL CORPORATION, a corporation duly organized and existing under the laws of the State of New York (the "Company"), and THE CHASE MANHATTAN BANK, a bank duly organized and existing under the laws of the State of New York, as trustee (the "Trustee"),
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an indenture dated as of September 1, 1982 between the Company and the
Trustee, providing for the issuance by the Company from time to time of its
unsecured notes or other evidences of indebtedness to be issued in one or more
series up to such principal amount or amounts as may from time to time be
authorized in or pursuant to one or more resolutions of the Board of Directors,
and which indenture was supplemented by (i) a First Supplemental Indenture dated
as of March 1, 1988, with the Trustee (the "First Supplemental Indenture"),
establishing the terms of the Medium-Term Notes, Series A and amending certain
provisions of such indenture, (ii) a Second Supplemental Indenture dated as of
June 30, 1989, with the Trustee (the "Second Supplemental Indenture"),
establishing the terms of the Medium-Term Notes, Series B and amending certain
provisions of such indenture as theretofore supplemented, (iii) a Third
Supplemental Indenture (the "Third Supplemental Indenture") dated as of April 1,
1990, with Mercantile Safe Deposit and Trust Company, a bank and trust company
incorporated under the laws of the State of Maryland, as trustee ("Mercantile"),
establishing the terms of the Global Medium-Term Notes, Series A and amending
certain provisions of such indenture as theretofore supplemented, (iv) a Fourth
Supplemental Indenture dated as of April 1, 1990, with Mercantile (the "Fourth
Supplemental Indenture"), establishing the terms of the Global Medium-Term
Notes, Series B and C and amending certain provisions of such indenture as
theretofore supplemented, (v) a Fifth Supplemental Indenture dated as of August
31, 1990, with Mercantile (the "Fifth Supplemental Indenture"), amending certain
provisions of such indenture as theretofore supplemented, (vi) a Sixth
Supplemental Indenture dated as of October 31, 1990, with Mercantile (the "Sixth
Supplemental Indenture"), amending certain provisions of such indenture as
theretofore supplemented, (vii) a Seventh Supplemental Indenture dated as of
September 10, 1991, with Mercantile (the "Seventh Supplemental Indenture"),
amending certain provisions of such indenture as theretofore supplemented,
(viii) an Eighth Supplemental Indenture dated as of February 26, 1992, with
Mercantile (the "Eighth Supplemental Indenture"), amending certain provisions of
such indenture as theretofore supplemented, (ix) a Ninth Supplemental Indenture
dated as of May 12, 1992, with Mercantile (the "Ninth Supplemental Indenture"),
amending certain provisions of such indenture as theretofore supplemented, and
(x) a Tenth Supplemental Indenture dated as of April 1, 1994, with Mercantile
(the "Tenth Supplemental Indenture"), amending certain
provisions of such indenture as theretofore supplemented (such indenture as supplemented by the First Supplemental Indenture, the Second Supplemental Indenture, the Third Supplemental Indenture, the Fourth Supplemental Indenture, the Fifth Supplemental Indenture, the Sixth Supplemental Indenture, the Seventh Supplemental Indenture, the Eighth Supplemental Indenture, the Ninth Supplemental Indenture and the Tenth Supplemental Indenture referred to hereinafter as the "Original Indenture"); and
WHEREAS, the Company has heretofore executed and delivered to The Bank of New York, a banking corporation duly organized and existing under the laws of the State of New York, as trustee (the "Prior Trustee"), an indenture dated as of June 1, 1994 (as supplemented, the "Amended and Restated Indenture"), amending and restating the Original Indenture; and
WHEREAS, the Prior Trustee has heretofore resigned as trustee under the Amended and Restated Indenture, and the Company has heretofore appointed the Trustee as successor trustee pursuant to an Instrument of Assignment, Appointment and Acceptance dated as of May 15, 1995 among the Company, the Prior Trustee and the Trustee; and
WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture dated as of June 1, 1994 (the "Second Amended and Restated Indenture"), amending and restating the Amended and Restated Indenture, and which Second Amended and Restated Indenture was supplemented by a First Supplemental Indenture dated as of August 1, 1996, amending certain terms of the Second Amended and Restated Indenture; and
WHEREAS, the Second Amended and Restated Indenture incorporates by reference Articles One through Fourteen of the General Electric Capital Corporation Second Amended and Restated Standard Global Multiple-Series Indenture Provisions dated as of June 1, 1994 (the "Second Amended and Restated Standard Global Provisions"); and
WHEREAS, it is provided in Section 10.01 of the Second Amended and Restated Indenture, among other things, that without the consent of the holder of any security issued under the Second Amended and Restated Indenture, the Company and the Trustee (as defined in the Second Amended and Restated Standard Global Provisions) may enter into indentures supplemental thereto to make provisions in regard to matters arising under the Second Amended and Restated Indenture which shall not adversely affect the interests of the holder of any such security or coupon; and
WHEREAS, in accordance with Section 10.01 of the Second Amended and Restated Indenture, the Company desires, and the Trustee has agreed, to enter into
this Third Amended and Restated Indenture to amend and restate the Second Amended and Restated Indenture and the Second Amended and Restated Standard Global Provisions in their entirety with effect from and after the date hereof; and
WHEREAS, all acts and things necessary to make this Third Amended and Restated Indenture a valid agreement of the Company according to its terms, have been done and performed, and the execution and delivery of this Third Amended and Restated Indenture have in all respects been duly authorized,
NOW, THEREFORE, WITNESSETH:
That in order to declare the terms and conditions upon which Securities (as defined below) issued after the date hereof are, and are to be, authenticated, issued and delivered, and in consideration of the premises, of the purchase and acceptance of the Securities by the holders thereof and of the sum of one dollar duly paid to it by the Trustee at the execution and delivery of these presents, the receipt whereof is hereby acknowledged, the Company and the Trustee mutually covenant and agree for the equal and proportionate benefit of the respective holders from time to time of the Securities or of any series thereof, that the Second Amended and Restated Indenture is hereby amended and restated, with effect only from and after the date hereof, in its entirety as follows:
Solely for the purpose of this Third Amended and Restated Indenture and the Securities issued from and after the date hereof, the Second Amended and Restated Global Standard Provisions are deleted in their entirety and there is substituted in lieu thereof Articles One through Fourteen of the Third Amended and Restated General Electric Capital Corporation Standard Global Multiple- Series Indenture Provisions dated as of February 27, 1997 (the "Third Amended and Restated Standard Global Provisions"), which are hereby incorporated herein by reference with the same force and effect as though fully set out herein.
For purposes of this Third Amended and Restated Indenture, the terms "Security" or "Securities", when used in the Third Amended and Restated Standard Global Provisions, shall mean any Note or Notes, as the case may be, authenticated and delivered under this Third Amended and Restated Indenture.
Each of the following provisions, which constitutes part of this Third Amended and Restated Indenture, is numbered to conform with the format of the Third Amended and Restated Standard Global Provisions:
Each Global Series A Notes will mature on a day from 9 months to 60 years from the date of issue, as selected by the initial purchaser thereof and agreed to by the Company. Except as may be otherwise provided with respect to any Tranche of Global Series A Notes, in the event that such maturity date is not a Business Day, principal and interest due at maturity will be paid on the next succeeding Business Day, with the same effect as if made on the stated maturity date.
The Global Series A Notes will be denominated in U.S. dollars or a foreign or composite currency (the "Specified Currency") and are issuable only in fully registered form in denominations of 100,000 units of the Specified Currency and integral multiples of 1,000 units of the Specified Currency in excess thereof, except as may otherwise be provided in or pursuant to a supplemental indenture or resolution of the Board of Directors in accordance with Section 2.02 of this Third Amended and Restated Indenture with respect to any particular Tranche of Global Series A Notes.
Each Global Series B Note and Global Series C Note will mature on a day from 9 months to 60 years from the date of issue, as selected by the initial purchaser thereof and agreed to by the Company. Except as may be otherwise provided with respect to any Tranche of Global Series B Notes or Global Series C Notes, in the event that such maturity date is not a Business Day, principal and interest due at maturity will be paid on the next succeeding Business Day, with the same effect as if made on the stated maturity date.
The Global Series B and C Notes will be denominated in a Specified Currency and are issuable as Unregistered Securities (the "Unregistered Notes") with or without Coupons or, at the option of the holder thereof, as Registered Securities (the "Registered Notes") without Coupons. Unregistered Notes are issuable in denominations not less than 1,000 units of the Specified Currency and in such other denominations in excess thereof as may be provided in or pursuant to a supplemental indenture or resolution of the Board of Directors in accordance with Section 2.02 of this Third
Amended and Restated Indenture with respect to any particular Tranche of Global Series B or C Notes. Registered Notes are issuable in denominations of 100,000 units of the Specified Currency and integral multiples of 1,000 units of the Specified Currency in excess thereof, except as may otherwise be provided in or pursuant to a supplemental indenture or a resolution of the Board of Directors in accordance with Section 2.02 of this Third Amended and Restated Indenture with respect to any particular Tranche of Global Series B or C Notes.
(b) Additional Notes authenticated and delivered pursuant to Section 2.06, 2.07, 2.08, 3.03, 3.06 or 10.04 of this Third Amended and Restated Indenture shall be Global Series B or C Notes, as the case may be, of the same Tranche as the prior issue of Global Series B or C Notes, as the case may be.
(c) Additional Notes, together with any prior issue of Global Series B or C Notes, as the case may be, having identical terms (except for authentication date and public offering price), shall constitute one and the same Tranche of Notes for all purposes under this Third Amended and Restated Indenture.
THE CHASE MANHATTAN BANK hereby accepts the trusts in this Third Amended and Restated Indenture declared and provided, upon the terms and conditions hereinabove set forth.
IN WITNESS WHEREOF, GENERAL ELECTRIC CAPITAL CORPORATION has caused this Third Amended and Restated Indenture to be signed and acknowledged by its Senior Vice President-Corporate Treasury and Global Funding Operation and its corporate seal to be affixed hereunto, and the same to be attested by its Secretary or one of its Assistant Secretaries, and THE CHASE MANHATTAN BANK has caused this Third Amended and Restated Indenture to be signed and acknowledged by one of its Second Vice Presidents and its corporate seal to be affixed hereunto, and the same to be attested by one of its Assistant Treasurers, as of the day and year first written above.
[CORPORATE SEAL] GENERAL ELECTRIC CAPITAL CORPORATION
By /s/ Jeffrey S. Werner
---------------------------------------------------------
Name: Jeffrey S. Werner
Titles: Senior Vice President Corporate Treasury and
Global Funding Operation
Attest:
/s/ Bruce C. Bennett
------------------------------
Title: Assistant Secretary
|
[CORPORATE SEAL] THE CHASE MANHATTAN BANK
By /s/ Mary Lewicki
---------------------------------------------------------
Name: Mary Lewicki
Title: Second Vice President
Attest:
/s/
------------------------------
Title: Assistant Treasurer
|
STATE OF CONNECTICUT )
: ss.:
COUNTY OF FAIRFIELD )
On the 3rd day of June, 1997, before me personally came Jeffrey S. Werner, to me known, who, being by me duly sworn, did depose and say that he resides at 96 Southfield Avenue, Stamford, Connecticut 06902; that he is Senior Vice President Corporate Treasury and Global Funding Operation of GENERAL ELECTRIC CAPITAL CORPORATION, one of the corporations described in and which executed the above instrument; that he knows the corporate seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation; and that he signed his name thereto by like authority.
[NOTARIAL SEAL]
/s/ Gail S. Thiede ----------------------------- Notary Public |
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 27th day of February, 1997, before me personally came Mary Lewicki, to me known, who, being by me duly sworn, did depose and say that she resides in Staten Island, New York; that she is a Second Vice President of THE CHASE MANHATTAN BANK, one of the entities described in and which executed the above instrument; that she knows the corporate seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation; and that she signed her name thereto by like authority.
[NOTARIAL SEAL]
/s/ Della K. Benjamin -------------------------- Notary Public |
GENERAL ELECTRIC CAPITAL CORPORATION
AND
THE CHASE MANHATTAN BANK,
Trustee
THIRD AMENDED AND RESTATED
INDENTURE
Dated as of February 28, 1997
Notes
THIS THIRD AMENDED AND RESTATED INDENTURE, dated as of February 28, 1997, between GENERAL ELECTRIC CAPITAL CORPORATION, a corporation duly organized and existing under the laws of the State of New York (the "Company"), and THE CHASE MANHATTAN BANK, a bank duly organized and existing under the laws of the State of New York, as trustee (the "Trustee"),
WHEREAS, the Company has heretofore executed and delivered to Mercantile-Safe Deposit and Trust Company, a bank and trust company incorporated under the laws of the State of Maryland, as trustee, an indenture dated as of March 15, 1986 (the "Original Indenture"), providing for the issuance by the Company from time to time of its unsecured notes or other evidences of indebtedness to be issued in one or more series up to such principal amount or amounts as may from time to time be authorized in or pursuant to one or more resolutions of the Board of Directors, as supplemented by a First Supplemental Indenture dated as of December 15, 1987, amending certain provisions of the Original Indenture; and
WHEREAS, the Company has heretofore executed and delivered to The Bank of New York, a banking corporation duly organized and existing under the laws of the State of New York, as trustee (the "Prior Trustee"), an indenture dated as of June 15, 1994 (as supplemented, the "Amended and Restated Indenture"), amending and restating the Original Indenture, as supplemented; and
WHEREAS, the Prior Trustee has heretofore resigned as trustee, and the Company has appointed the Trustee as successor trustee pursuant to an Instrument of Assignment, Appointment and Acceptance dated as of May 15, 1995, among the Company, the Prior Trustee and the Trustee; and
WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture dated as of June 15, 1994 (the "Second Amended and Restated Indenture"), amending and restating the Amended and Restated Indenture, and which Second Amended and Restated Indenture was supplemented by a First Supplemental Indenture dated as of August 1, 1996, amending certain provisions of the Second Amended and Restated Indenture; and
WHEREAS, the Second Amended and Restated Indenture incorporates by reference Articles One through Fourteen of the General Electric Capital Corporation Second Amended and Restated Standard Multiple-Series Indenture Provisions dated as of June 15, 1994 (the "Second Amended and Restated Standard Provisions"); and
WHEREAS, it is provided in Section 10.01 of the Second Amended and Restated Indenture, among other things, that without the consent of the holder of any security issued under the Second Amended and Restated Indenture, the Company and the Trustee (as defined in the Second Amended and Restated Standard Provisions) may enter into indentures supplemental thereto to make provisions in regard to matters arising under the Second Amended and Restated Indenture which shall not adversely effect the interests of the holders of any such security; and
WHEREAS, in accordance with Section 10.01 of the Second Amended and Restated Indenture, the Company desires, and the Trustee has agreed, to enter into this Third Amended and Restated Indenture to amend and restate the Second Amended and Restated Indenture and the Second Amended and Restated Standard Provisions in their entirety with effect from and after the date hereof; and
WHEREAS, all acts and things necessary to make this Third Amended and Restated Indenture a valid agreement of the Company according to its terms, have been done and performed, and the execution and delivery of this Third Amended and Restated Indenture have in all respects been duly authorized,
NOW, THEREFORE, WITNESSETH:
That in order to declare the terms and conditions upon which the Securities (as defined below) issued after the date hereof are, and are to be, authenticated, issued and delivered, and in consideration of the premises, of the purchase and acceptance of the Securities by the holders thereof and of the sum of one dollar duly paid to it by the Trustee at the execution and delivery of these presents, the receipt whereof is hereby acknowledged, the Company and the Trustee mutually covenant and agree for the equal and proportionate benefit of the respective holders from time to time of the Securities or of any series thereof, that the Second Amended and Restated Indenture is hereby amended and restated, with effect only from and after the date hereof, in its entirety as follows:
Solely for the purpose of this Third Amended and Restated Indenture and the Securities issued from and after the date hereof, the Second Amended and Restated Standard Provisions, as heretofore amended or supplemented, are deleted in their entirety and there is substituted in lieu thereof Articles One through Fourteen of the General Electric Capital Corporation Third Amended and Restated Standard Multiple-Series Indenture Provisions dated as of February 28, 1997 (the "Third Amended and Restated Standard Provisions"), which are hereby incorporated herein by reference with the same force and effect as though fully set out herein.
For purposes of this Third Amended and Restated Indenture, the terms "Security" or "Securities", when used in the Third Amended and Restated Standard Provisions, shall mean any Note or Notes, as the case may be, authenticated and delivered under this Third Amended and Restated Indenture.
THE CHASE MANHATTAN BANK hereby accepts the trusts in this Third Amended and Restated Indenture declared and provided, upon the terms and conditions hereinabove set forth.
IN WITNESS WHEREOF, GENERAL ELECTRIC CAPITAL CORPORATION has caused this Third Amended and Restated Indenture to be signed and acknowledged by its Senior Vice President-Corporate Treasury and Global Funding Operation, and its corporate seal to be affixed hereunto, and the same to be attested by its Secretary or one of its Assistant Secretaries, and THE CHASE MANHATTAN BANK has caused this Third Amended and Restated Indenture to be signed and acknowledged by one of its Second Vice Presidents, and its corporate seal to be affixed hereunto, and the same to be attested by one of its Assistant Treasurers as of the day and year first written above.
[CORPORATE SEAL] GENERAL ELECTRIC CAPITAL CORPORATION
By /s/ Jeffrey S. Werner
--------------------------------------------------------
Name: Jeffrey S. Werner
Title: Senior Vice President Corporate Treasury and
Global Funding Operation
Attest:
/s/ Bruce C. Bennett
------------------------------
Title: Assistant Secretary
|
[CORPORATE SEAL] THE CHASE MANHATTAN BANK
By /s/ Mary Lewicki
---------------------------------------------------------
Name: Mary Lewicki
Title: Second Vice President
Attest:
/s/
------------------------------
Title: Assistant Treasurer
|
STATE OF CONNECTICUT)
: ss.:
COUNTY OF FAIRFIELD )
On the 3rd day of June, 1997, before me personally came Jeffrey S. Werner, to me known, who, being by me duly sworn, did depose and say that he resides at 96 Southfield Avenue, Stamford, Connecticut 06902; that he is Senior Vice President Corporate Treasury and Global Funding Operation of GENERAL ELECTRIC CAPITAL CORPORATION, one of the corporations described in and which executed the above instrument; that he knows the corporate seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation; and that he signed his name thereto by like authority.
[NOTARIAL SEAL]
/s/ Gail S. Theide ------------------ Notary Public |
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK)
On the 27th day of February, 1997, before me personally came Mary Lewicki, to me known, who, being by me duly sworn, did depose and say that she resides in Staten Island, New York; that she is a Second Vice President of THE CHASE MANHATTAN BANK, one of the corporations described in and which executed the above instrument; that she knows the corporate seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation; and that she signed her name thereto by like authority.
[NOTARIAL SEAL]
/s/ Della K. Benjamin --------------------- Notary Public |
Exhibit 4(f)
[FORM OF FACE OF SERIES A MTN FIXED RATE
REGISTERED NOTE]
U.S. FIXED RATE NOTE
REGISTERED REGISTERED
NO. USFXR [ ]/1/
CUSIP: _____/2/ [ ]/3/
|
Unless this certificate is presented by an authorized representative of The Depository Trust Company (55 Water Street, New York, New York) to the issuer or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or such other name as requested by an authorized representative of The Depository Trust Company and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein.
IF APPLICABLE, THE "AMOUNT OF OID", THE "ORIGINAL ISSUE DATE", THE "YIELD TO MATURITY", AS WELL AS THE METHOD USED TO DETERMINE THE YIELD TO MATURITY WHERE THERE IS A SHORT ACCRUAL PERIOD AND THE AMOUNT OF OID ALLOCABLE TO SUCH SHORT ACCRUAL PERIOD WILL BE SET FORTH BELOW. THE CALCULATION OF THE AMOUNT OF OID UPON (A) OPTIONAL REDEMPTION OR (B) DECLARATION OF ACCELERATION IS DISCUSSED ON THE REVERSE HEREOF.
GENERAL ELECTRIC CAPITAL CORPORATION
GLOBAL MEDIUM-TERM NOTE, SERIES A
(Fixed Rate)
ORIGINAL ISSUE DATE: INITIAL REDEMPTION DATE: APPLICABILITY OF MODIFIED
PAYMENT UPON
MATURITY DATE: INITIAL REDEMPTION ACCELERATION:
PERCENTAGE:
INTEREST RATE: If yes, state Issue Price:
OPTION ELECTION DATES(S):/4/
INTEREST PAYMENT DATE(S): APPLICABILITY OF ANNUAL
DESIGNATED EXCHANGE REDEMPTION PERCENTAGE
SPECIFIED (FACE AMOUNT)/4,5/ DATE:/4/ INCREASE:
CURRENCY:
AMOUNT OF OID: I yes, state each redemption date and
INDEXED CURRENCY:/5/ redemption price:
INTEREST PAYMENT PERIOD:
CURRENCY BASE RATE:/5/ INITIAL ACCRUAL PERIOD OID
APPLICABILITY OF ANNUAL (computed under the Approximate
OPTIONAL REPAYMENT REDEMPTION PERCENTAGE method):
DATES: REDUCTION:
DETERMINATION AGENT:/5/
INTEREST ACCRUAL DATE: If yes, state Annual Percentage
Reduction: YIELD TO MATURITY:
OPTIONAL PAYMENT
CURRENCY:/4/ OPTION VALUE CALCULATION
AGENT:/4/
|
Issue Date to the registered holder of this Note on the Record Date with respect to such second Interest Payment Date.
[WITH RESPECT TO ANY DUAL-CURRENCY NOTES, THE COMPANY MAY ELECT ON
EACH OPTION ELECTION DATE SPECIFIED ABOVE (EACH SUCH DATE HEREIN BEING CALLED AN "OPTION ELECTION DATE") TO PAY THE AMOUNTS DUE ON THIS NOTE ON THE SUCCEEDING INTEREST PAYMENT DATE OR MATURITY DATE, AS THE CASE MAY BE, IN THE OPTIONAL PAYMENT CURRENCY SPECIFIED ABOVE (THE "OPTIONAL PAYMENT CURRENCY") INSTEAD OF IN THE FACE AMOUNT CURRENCY. THE AMOUNTS DUE IN THE OPTIONAL PAYMENT CURRENCY ON ANY INTEREST PAYMENT DATE OR AT THE MATURITY DATE, AS THE CASE MAY BE, SHALL BE DETERMINED BY THE COMPANY USING THE DESIGNATED EXCHANGE RATE SPECIFIED ABOVE (THE "DESIGNATED EXCHANGE RATE"). IF SUCH ELECTION IS MADE, THE COMPANY SHALL NOTIFY THE PAYING AGENT, AS DEFINED BELOW, OF THE ELECTION ON THE OPTION ELECTION DATE AND NOTICE OF SUCH ELECTION SHALL BE MAILED TO THE REGISTERED HOLDER OF THIS NOTE BY FIRST CLASS MAIL, POSTAGE PREPAID, AT THE ADDRESS OF SUCH HOLDER AS THAT ADDRESS APPEARS UPON THE BOOKS OF THE COMPANY WITHIN TWO BUSINESS DAYS (THIS AND CERTAIN OTHER CAPITALIZED TERMS USED HEREIN ARE DEFINED ON THE REVERSE OF THIS NOTE) OF THE OPTION ELECTION DATE AND SHALL STATE (I) THE INTEREST PAYMENT DATE AND (II) THE EXCHANGE RATE TO BE USED TO CONVERT AMOUNTS FROM THE FACE AMOUNT CURRENCY TO THE OPTIONAL PAYMENT CURRENCY, WHICH RATE SHALL BE THE DESIGNATED EXCHANGE RATE. ANY SUCH NOTICE BY THE COMPANY TO THE REGISTERED HOLDER OF THIS NOTE, ONCE GIVEN, MAY NOT BE WITHDRAWN. IF THE COMPANY ELECTS ON ANY OPTION ELECTION DATE TO PAY THE AMOUNTS DUE ON EACH SUCCEEDING INTEREST PAYMENT DATE OR AT THE MATURITY DATE, AS THE CASE MAY BE, IN THE OPTIONAL PAYMENT CURRENCY, THEN IT SHALL PAY ALL SUCH AMOUNTS (INCLUDING PRINCIPAL) DUE WITH RESPECT TO THIS NOTE IN THE OPTIONAL PAYMENT CURRENCY ON EACH SUCCEEDING INTEREST PAYMENT DATE OR AT THE MATURITY DATE, AS THE CASE MAY BE. IF THE COMPANY DOES NOT ELECT ON AN OPTION ELECTION DATE TO PAY THE AMOUNT DUE ON THE SUCCEEDING INTEREST PAYMENT DATE OR AT THE MATURITY DATE, AS THE CASE MAY BE, IN THE OPTIONAL PAYMENT CURRENCY, THEN SUCH PAYMENT SHALL BE MADE IN THE FACE AMOUNT CURRENCY AND NO NOTICE OF SUCH PAYMENT NEED BE GIVEN.]/6/
Payment of the principal of this Note, any premium and the interest due at the Maturity Date (or any redemption or repayment date) will be made in immediately available funds upon surrender of this Note at the office or agency of such paying agent as the Company may determine maintained for that purpose in the Borough of Manhattan, The City of New York (a "Paying Agent"), or at the office or agency of such other Paying Agent as the Company may determine.
Interest on this Note will accrue initially from the Original Issue Date and thereafter will accrue from the most recent Interest Payment Date to which interest has been paid or duly provided for initially from the Original Issue Date and thereafter will accrue until the principal hereof has been paid or duly made available for payment (except as provided below). The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date, will, subject to certain exceptions described herein, be paid to the person in whose name this Note (or one or more predecessor Note) is registered at the close of business on the date 15 days prior to
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee, as defined on the reverse hereof, by manual signature, this Note shall not be entitled to any benefit under the Indenture, as defined on the reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this Note to be duly executed under its corporate seal.
DATED: GENERAL ELECTRIC CAPITAL
CORPORATION
[SEAL] By:_____________________________
Title:
Attest:
By:___________________________
|
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the Tranche designated herein described in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK, as Trustee
By: ___________________________________________ Authorized Officer
[FORM OF REVERSE OF NOTE]
This Note is one of a duly authorized issue of Global Medium-Term Notes, Series A, having maturities from nine months to 60 years from the date of issue (the "Notes") of the Company. The Notes are issuable under an indenture, dated as of September 1, 1982 between the Company and The Chase Manhattan Bank (such indenture as amended to the date hereof being referred to herein as the "Indenture"), to which Indenture and all indentures supplemented thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities of the Company, the Trustee and the holders of the Notes and the terms upon which the Notes are, and are to be, authenticated and delivered. The Chase Manhattan Bank has been appointed Exchange Rate Agent (the "Exchange Rate Agent", which terms include any successor or exchange rate agent with respect to the Notes, and The Chase Manhattan Bank at its corporate trust office in The City of New York has been appointed the registrar and as a Paying Agent with respect to the Notes. The terms of individual Notes may vary with respect to interest rates, interest rate formulas, issue dates, maturity dates, or otherwise, all as provided in the Indenture. To the extent not inconsistent herewith, the terms of the Indenture are hereby incorporated by reference herein.
This Note will not be subject to any sinking fund and will not be redeemable or subject to repayment at the option of the holder prior to maturity, except as provided below.
Interest payments on this Note will include interest accrued to but excluding the Interest Payment Dates or the Maturity Date (or earlier redemption or repayment date), as the case may be. Interest payments for this Note will be computed and paid on the basis of a 360-day year of twelve 30-day months.
In the case where the Interest Payment Date or the Maturity Date (or any redemption or repayment date) does not fall on a Business Day, payment of interest, premium, if any, or principal otherwise payable on such date need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the Interest Payment Date or on the Maturity Date (or any redemption or repayment date), and no interest shall accrue for the period from and after the Interest Payment Date or the Maturity Date (or any redemption or repayment date) to such next succeeding Business Day.
This Note, and any Note or Notes issued upon transfer or exchange hereof, is issuable only in fully registered form, without coupons, in denominations of 100,000 units of the Specified Currency indicated on the face hereof or any integral multiple of 1,000 units of such Specified Currency in excess thereof.
In case any Note shall at any time become mutilated, destroyed, lost or stolen, or is apparently destroyed, lost or stolen, and such Note or evidence of the loss, theft or destruction thereof (together with the indemnity hereinafter referred to and such other documents or proof as may be required in the premises) shall be delivered to the Registrar, a new Note of like tenor will be issued by the Company in exchange for the Note so mutilated or defaced, or in lieu of the Note so destroyed or lost or stolen, but, in the case of any destroyed or lost or stolen Note only upon receipt of evidence satisfactory to the Registrar and the Company that such Note was destroyed or lost or stolen and, if required, upon receipt also of indemnity satisfactory to each of them. All expenses and reasonable charges associated with procuring such indemnity and with the preparation, authentication and delivery of a new Note shall be borne by the owner of the Note mutilated, defaced, destroyed, lost or stolen.
The Indenture provides that if an Event of Default (as defined in the Indenture) with respect to any series of debt securities issued under the Indenture, including the series of Global Medium-Term Notes, Series A, of which this Note forms a part, shall have occurred and be continuing, either the Trustee or the holders of not less than 25% in principal amount of the debt securities of such series then outstanding under the Indenture, by notice in writing to the Company (and to the Trustee if given by securityholders of such series), may declare the principal of all debt securities of all such series and interest accrued thereon to be due and payable immediately, but upon certain conditions such declarations may be annulled and past defaults may be waived (except a continuing default in payment of principal (or premium, if any) or interest on such debt securities) by the holders of a majority in principal amount of the debt securities of such series then outstanding.
If the face hereof indicates that this Note is subject to "Modified Payment upon Acceleration", then (i) if the principal hereof is declared to be due and payable as described in the preceding paragraph, the amount of principal due and payable with respect to this Note shall be limited to the sum of the Issue Price specified on the face hereof plus the Amortized Amount, (ii) for the purpose of any vote of securityholders taken pursuant to the Indenture prior to the acceleration of payment of this Note, the principal amount hereof shall equal the amount that would be due and payable hereon, calculated as set forth in clause (i) above, if this Note were declared to be due and payable on the
date of any such vote and (iii) for the purpose of any vote of securityholders taken pursuant to the Indenture following the acceleration of payment of this Note, the principal amount hereof shall equal the amount of principal due and payable with respect to this Note, calculated as set forth in clause (i) above.
Except as set forth below, if the principal of, or premium, if any, or interest, if any, on this Note is payable in a Specified Currency other than U.S. dollars and such Specified Currency is not available to the Company for making payments thereof due to the imposition of exchange controls or other circumstances beyond the control of the Company or is no longer used by the government of the country issuing, or authority sponsoring, such Specified Currency or for the settlement of transactions by public institutions within the international banking community, then the Company will be entitled to satisfy its obligations to the holder of this Note by making such payments in U.S. dollars on the basis of the noon U.S. dollar buying rate in The City of New York for cable transfers of the Specified Currency as certified for customs purposes by the Federal Reserve Bank of New York, as determined by the Exchange Rate Agent on the date of such payment, or if such rate is not available on such date, as of the most recent practicable date. Any payment made under such circumstances in U.S. dollars where the required payment is in a Specified Currency other than U.S. dollars will not constitute an Event of Default.
With respect to each due date for the payment of principal of, premium, if any, or interest on, the Notes denominated in ECU on or prior to which the ECU is not used in the European Monetary System or on or prior to which banks in all member countries of the EC shall have ceased to provide ECU accounts, the Company or its agent shall (in the case of an agent, without liability on its part but after consultation with the Company and having regard to the availability to the Company of the relevant currency) choose a substitute currency (the "Chosen Currency") which shall be a component currency of the ECU or U.S. dollars with respect to which all payments due on that date with respect to the Notes required to be made in U.S. dollars shall be calculated and in which all payments due on that date with respect to the Notes required to be made in ECU shall be made. Notice of the Chosen Currency so selected shall be given to holders of Registered Notes by mail. The amount of each payment calculated with reference to or made in such Chosen Currency shall be computed on the basis of the equivalent of the ECU in that currency, determined as described below, as of the fourth business day in Luxembourg prior to the date on which such payment is due.
On or about the fifth business day in Luxembourg following the day on which the ECU is not used in the European Monetary System or on which banks in all member countries of the EC shall have ceased to provide ECU accounts, the Company or its agent shall (in the case of an agent, without liability on its part but after consultation with the Company and having regard to the availability to the Company of the relevant currency) choose a Chosen Currency in which all payments with respect to Notes having a due date prior thereto but not yet presented for
payment are to be made. The amount of each payment in such Chosen Currency shall be computed on the basis of the equivalent of the ECU in that currency, determined as described below, as of such first business day.
The equivalent of the ECU in the relevant Chosen Currency as of any date
(the "Day of Valuation") shall be determined by the Exchange Rate Agent on the
following basis. The amounts and components composing the ECU for this purpose
(the "Components') shall be the amounts and components which composed the ECU
(i) as of the last date on which the ECU was used in the European Monetary
System (or, if after such last date the ECU was used for the settlement of
transactions by public institutions of or within the EC, as of the most recent
date when the ECU was so used) or (ii) where the selection of a Chosen Currency
shall have been required only because banks in all member countries of the EC
shall have ceased to provide ECU accounts, as of the Day of Valuation. The
equivalent of the ECU in the Chosen Currency shall be calculated by, first,
aggregating the U.S. dollar equivalents of the Components; and then, in the case
of a Chosen Currency other than U.S. dollars, using the rate used for
determining the U.S. dollar equivalent of the Components in the Chosen Currency
as set forth below, calculating the equivalent in the Chosen Currency of such
aggregate amount in U.S. dollars.
The U.S. dollar equivalent of each of the Components shall be determined by the Exchange Rate Agent on the basis of the middle spot delivery quotations prevailing at 2:30 p.m., Luxembourg time, on the Day of Valuation, as obtained by the Exchange Rate Agent from one or more major banks, as selected by the Company or its agent, in the country of issue of the component currency in question.
If for any reason no direct quotations are available for a Component as of a Day of Valuation from any of the banks selected for this purpose, in computing the U.S. dollar equivalent of such Component, the Exchange Rate Agent shall (except as provided below) use the most recent direct quotations for such Component obtained by it or on its behalf, provided that such quotations were prevailing in the country of issue not more than two Business Days before such Day of Valuation. If such most recent quotations were so prevailing more than two Business Days in the country of issue before such Day of Valuation, the Exchange Rate Agent shall determine the U.S. dollar equivalent of such Component on the basis of cross rates derived from the middle spot delivery quotations for such component currency and for the U.S. dollar prevailing at 2:30 p.m. Luxembourg time on such Day of Valuation, as obtained by, or on behalf of, the Exchange Rate Agent from one or more major banks, as selected by the Company or its agents, in a country other than the country of issue of such component currency. Notwithstanding the foregoing, the Exchange Rate Agent shall determine the U.S. dollar equivalent of such Component on the basis of such cross rates if the Company or such Agent judges that the equivalent so calculated is more representative than the U.S. dollar equivalent calculated as provided in the first sentence of this paragraph. Unless otherwise specified by the Company or its agent, if there is more than one market for dealing in any component currency by reason of foreign exchange regulations or for any other reason, the market to be referred to in respect of such currency shall be that upon which a non-resident issuer of notes denominated in such currency would purchase such currency in order to make payments in respect of such notes.
If the official unit of any Component is altered by way of combination or subdivision, the number of units of that currency as a Component shall be divided or multiplied in the same proportion. If two or more Components are consolidated into a single currency, the amounts of those currencies as Components shall be replaced by an amount in such single currency equal to the sum of the amounts of the consolidated component currencies expressed in such single currency. If any Component is divided into two or more currencies each of which shall be equal to the amount of the original component currency separated into the number of currencies into which such original currency was divided.
All determinations referred to above made by the Company or its agent shall be at its sole discretion and shall, in the absence of manifest error, be conclusive for all purposes and binding on holders of Notes.
So long as this Note shall be outstanding, the Company will cause to be maintained an office or agency for the payment of the principal of and premium, if any, and interest on this Note as herein provided in the Borough of Manhattan, The City of New York, and an office or agency in said Borough of Manhattan for the registration, transfer and exchange as aforesaid of the Notes. The Company may designate other agencies for the payment of said principal, premium, if any, and interest at such place or places (subject to applicable laws and regulations) as the
Company may decide. So long as there shall be any such agency, the Company shall keep the Trustee advised of the names and locations of such agencies, if any are so designated.
With respect to moneys paid by the Company and held by the Trustee or any Paying Agent for the payment of the principal of or interest or premium, if any, on any Notes that remain unclaimed at the end of three years after such principal, interest or premium shall have become due and payable (whether at maturity or upon call for redemption or otherwise), (i) the Trustee or such Paying Agent shall notify the holders of such Notes that such moneys shall be repaid to the Company and any person claiming such moneys shall thereafter look only to the Company for payment thereof and (ii) such moneys shall be so repaid to the Company. Upon such repayment all liability of the Trustee or such Paying Agent with respect to such moneys shall thereupon cease, without, however, limiting in any way any obligation that the Company may have to pay the principal of or interest or premium, if any, on this Note as the same shall become due.
No provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of, premium, if any, and interest on this Note at the time, place, and rate, and in the coin or currency, herein and in the Indenture prescribed unless otherwise agreed between the Company and the registered holder of this Note.
Prior to due presentment of this Note for registration of transfer, the Company or any agent of the Company, the Registrar or the Trustee may treat the holder in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Company, the Registrar, the Trustee nor any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of, or premium, if any, or the interest on, this Note, for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture or any indenture supplemental thereto, against any incorporator, shareholder, officer or director, as such, past, present or future, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issuer hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed in accordance with, the laws of the State of New York.
As used herein:
(a) the term "AMORTIZED AMOUNT" is equal to the original issue discount amortized from the Original Issue Date to the date of redemption or declaration, as the case may be, which amortization shall be calculated using the "constant yield method" (computed in accordance with the rules under the Internal Revenue Code of 1986, as amended, and the regulations thereunder, in effect on the date of redemption or declaration, as the case may be);
(b) the term "BUSINESS DAY" means any day that is not a Saturday or Sunday and that is not a day on which banking institutions are generally authorized or obligated by law to close in The City of New York and (i) with respect to notes denominated in a Specified Currency other than U.S. dollars, ECUs or Australian dollars, in the principal financial center of the country of such Specified Currency, (ii) with respect to Notes denominated in ECUs, in Brussels, Belgium and (iii) with respect to Notes denominated in Australian dollars, in both Sydney, Australia and Melbourne, Australia.
(c) the term "UNITED STATES" means the United States of America (including the States and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction.
(d) all other terms used in this Note which are defined in the Indenture and not otherwise defined herein shall have the meanings assigned to them in the Indenture.
The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM-as tenants in common
TEN ENT-as tenants in the entireties
JT TEN-as joint tenants with right of ownership and not as tenants in
common
Under Uniform Gifts to Minors Act____________________________________
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
[PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING ZIP CODE, OF ASSIGNEE]
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing such person
attorney to transfer such Note on the books of the Company, with full power of
substitution in the
premises.
Dated:
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Note in every particular without
alteration or enlargement or any change whatsoever.
|
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) the Issuer to repay the within Note (or portion thereof specified below) pursuant to its terms at a price equal to the principal amount thereof, together with interest to the Optional Repayment Date, to the undersigned, at (PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF THE UNDERSIGNED)
If less than the entire principal amount of the within Note is to be repaid, specify the portion thereof (which shall be increments of 1,000 units of the Specified Currency indicated on the face hereof) which the holder elects to have repaid: ____________________; and specify the denomination or denominations (which shall not be less than the minimum authorized denomination) of the Notes to be issued to the holder for the portion of the within Note not being repaid (in the absence of any such specification, one such Note will be issued for the portion not being repaid):
Date:
NOTICE: The signature on this Option to Elect Repayment must correspond with the name as written upon the face of the within instrument in every particular without alteration or enlargement.
7/22/98 Exhibit 4(g)
[FORM OF SERIES A FLOATING RATE REGISTERED NOTE]
U.S. FLOATING RATE NOTE
REGISTERED REGISTERED
No. USFLR [ ]/1/
CUSIP: /2/ [ ]/3/
-----
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Unless this certificate is presented by an authorized representative of The Depository Trust Company (55 Water Street, New York, New York) to the issuer or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or such other name as requested by an authorized representative of The Depository Trust Company and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein.
IF APPLICABLE, THE "AMOUNT OF OID", THE "ORIGINAL ISSUE DATE", THE "YIELD TO MATURITY", AS WELL AS THE METHOD USED TO DETERMINE THE YIELD TO MATURITY WHERE THERE IS A SHORT ACCRUAL PERIOD AND THE AMOUNT OF OID ALLOCABLE TO SUCH SHORT ACCRUAL PERIOD WILL BE SET FORTH BELOW. THE CALCULATION OF THE AMOUNT OF OID UPON (A) OPTIONAL REDEMPTION OR (B) DECLARATION OF ACCELERATION IS DISCUSSED ON THE REVERSE HEREOF.
GENERAL ELECTRIC CAPITAL CORPORATION
GLOBAL MEDIUM-TERM NOTE, SERIES A
(FLOATING RATE)
ORIGINAL ISSUE INITIAL INTEREST SPREAD (PLUS OR INITIAL REDEMPTION
DATE: DATE: MINUS): DATE:
MATURITY DATE: INTEREST ACCRUAL ALTERNATE RATE INITIAL REDEMPTION
DATE: EVENT SPREAD: PERCENTAGE:
SPECIFIED (FACE
AMOUNT) /4/,/5/ MAXIMUM INTEREST SPREAD MULTIPLIER: ANNUAL REDEMPTION
CURRENCY: RATE: PERCENTAGE BASE
INTEREST PAYMENT REDUCTION:
BASE RATE: MINIMUM INTEREST PERIOD:
RATE: OPTIONAL
APPLICABILITY OF INTEREST RESENT REPAYMENT DATE(S):
ANNUAL REDEMPTION INDEX MATURITY: PERIOD:
PERCENTAGE YIELD TO MATURITY:
INCREASE: OPTION ELECTION/4/ INTEREST RESET
DATES: DATES: AMOUNT OF OID:
If yes, state each
redemption date and OPTIONAL/4/ PAYMENT APPLICABILITY OF INITIAL ACCRUAL
redemption price: CURRENCY: MODIFIED PAYMENT PERIOD OID:
UPON ACCELERATION (compound under the
APPLICABILITY OF DESIGNATED/4/ OR REDEMPTION: Approximate method)
ANNUAL REDEMPTION EXCHANGE RATE:
REDUCTION: If yes, state Issue Price:
OPTION VALUE/4/
If yes, state Annual CALCULATION INDEXED CURRENCY:/5/
Percentage Reduction: AGENT:
CURRENCY BASE/5/
RATE:
DETERMINATION/5/
AGENT:
|
CALCULATION AGENT: IF INTEREST RATE BASIS IS LIBOR:
INDEX CURRENCY:
-------------------
|
INTEREST CALCULATION: DAY COUNT CONVENTION
[ ] Regular Floating Rate Note [ ] Actual/360 for the period
[ ] Floating Rate/Fixed Rate from to
Fixed Rate Commencement Date: [ ] Actual/Actual to the period
Fixed Interest Rate: from to
[ ] Inverse Floating Rate Note
Fixed Interest Rate:
ADDENDUM ATTACHED:
[ ] Yes
[ ] No
OTHER PROVISIONS:
[WITH RESPECT TO ANY DUAL-CURRENCY NOTES, THE COMPANY MAY ELECT ON EACH
OPTION ELECTION DATE SPECIFIED ABOVE (EACH SUCH DATE HEREIN BEING CALLED AN "OPTION ELECTION DATE") TO PAY THE AMOUNTS DUE ON THIS NOTE ON THE SUCCEEDING INTEREST PAYMENT DATE OR MATURITY DATE, AS THE CASE MAY BE, IN THE OPTIONAL PAYMENT CURRENCY SPECIFIED ABOVE (THE "OPTIONAL PAYMENT CURRENCY")
INSTEAD OF IN THE FACE AMOUNT CURRENCY. THE AMOUNTS DUE IN THE OPTIONAL PAYMENT CURRENCY ON ANY INTEREST PAYMENT DATE OR AT THE MATURITY DATE, AS THE CASE MAY BE, SHALL BE DETERMINED BY THE COMPANY USING THE DESIGNATED EXCHANGE RATE SPECIFIED ABOVE (THE "DESIGNATED EXCHANGE RATE"). IF SUCH ELECTION IS MADE, THE COMPANY SHALL NOTIFY THE PAYING AGENT, AS DEFINED BELOW, OF THE ELECTION ON THE OPTION ELECTION DATE AND NOTICE OF SUCH ELECTION SHALL BE MAILED TO THE REGISTERED HOLDER OF THIS NOTE BY FIRST CLASS MAIL, POSTAGE PREPAID, AT THE ADDRESS OF SUCH HOLDER AS THAT ADDRESS APPEARS UPON THE BOOKS OF THE COMPANY WITHIN TWO BUSINESS DAYS (THIS AND CERTAIN OTHER CAPITALIZED TERMS USED HEREIN ARE DEFINED ON THE REVERSE OF THIS NOTE) OF THE OPTION ELECTION DATE AND SHALL STATE (I) THE INTEREST PAYMENT DATE AND (II) THE EXCHANGE RATE TO BE USED TO CONVERT AMOUNTS FROM THE FACE AMOUNT CURRENCY TO THE OPTIONAL PAYMENT CURRENCY, WHICH RATE SHALL BE THE DESIGNATED EXCHANGE RATE. ANY SUCH NOTICE BY THE COMPANY TO THE REGISTERED HOLDER OF THIS NOTE, ONCE GIVEN, MAY NOT BE WITHDRAWN. IF THE COMPANY ELECTS ON ANY OPTION ELECTION DATE TO PAY THE AMOUNTS DUE ON EACH SUCCEEDING INTEREST PAYMENT DATE OR AT THE MATURITY DATE, AS THE CASE MAY BE, IN THE OPTIONAL PAYMENT CURRENCY, THEN IT SHALL PAY ALL SUCH AMOUNTS (INCLUDING PRINCIPAL) DUE WITH RESPECT TO THIS NOTE IN THE OPTIONAL PAYMENT CURRENCY ON EACH SUCCEEDING INTEREST PAYMENT DATE OR AT THE MATURITY DATE, AS THE CASE MAY BE. IF THE COMPANY DOES NOT ELECT ON AN OPTION ELECTION DATE TO PAY THE AMOUNT DUE ON THE SUCCEEDING INTEREST PAYMENT DATE OR AT THE MATURITY DATE, AS THE CASE MAY BE, IN THE OPTIONAL PAYMENT CURRENCY, THEN SUCH PAYMENT SHALL BE MADE IN THE FACE AMOUNT CURRENCY AND NO NOTICE OF SUCH PAYMENT NEED BE GIVEN.]/6/
Payment of the principal of this Note, any premium and the interest due at the Maturity Date (or any redemption or repayment date) will be made in immediately available funds upon surrender of this Note at the office or agency of such paying agent as the Company may determine maintained for that purpose in the Borough of Manhattan, The City of New York (a "Paying Agent"), or at the office or agency of such other Paying Agent as the Company may determine.
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee, as defined on the reverse hereof, by manual signature, this Note shall not be entitled to any benefit under the Indenture, as defined on the reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this Note to be duly executed under its corporate seal.
DATED: GENERAL ELECTRIC CAPITAL
CORPORATION
[SEAL] By:
--------------------------
Title:
ATTEST:
By:
-------------------------------------
|
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the Tranche designated herein described in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK, as Trustee
[FORM OF REVERSE OF NOTE]
This Note is one of a duly authorized issue of Global Medium-Term Notes, Series A, having maturities from nine months to 60 years from the date of issue (the "Notes") of the Company. The Notes are issuable under an indenture, dated as of September 1, 1982 between the Company and The Chase Manhattan Bank (such indenture as amended to the date hereof being referred to herein as the "Indenture"), to which Indenture and all indentures supplemented thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities of the Company, the Trustee and the holders of the Notes and the terms upon which the Notes are, and are to be, authenticated and delivered. The Chase Manhattan Bank has been appointed Exchange Rate Agent and Calculation Agent (the "Exchange Rate Agent" and "Calculation Agent", respectively, which terms include any successor, exchange rate agent or calculation agent, as the case may be) with respect to the Notes, and The Chase Manhattan Bank at its corporate trust office in The City of New York has been appointed the registrar and as a Paying Agent with respect to the Notes. The terms of individual Notes may vary with respect to interest rates, interest rate formulas, issue dates, maturity dates, or otherwise, all as provided in the Indenture. To the extent not inconsistent herewith, the terms of the Indenture are hereby incorporated by reference herein.
This Note will not be subject to any sinking fund and will not be redeemable or subject to repayment at the option of the holder prior to maturity, except as provided below.
This Note will bear interest at the rate determined as follows:
4. Notwithstanding the foregoing, if this Note is designated on the face hereof as having an Addendum attached, the Note shall bear interest in accordance with the terms described in such Addendum.
Except as provided above, the interest rate in effect on each day shall be
(a) if such day is an Interest Reset Date, the interest rate determined on the
Interest Determination Date (as defined below) immediately preceding such
Interest Reset Date or (b) if such day is not an Interest Reset Date, the
interest rate determined on the Interest Determination Date immediately
preceding the next preceding Interest Reset Date. Each Interest Rate Basis
shall be the rate determined in accordance with the applicable provision below.
If any Interest Reset Date (which term includes the term Initial Interest Reset
Date unless the context otherwise requires) would otherwise be a day that is not
a Business Day, such Interest Reset Date shall be postponed to the next
succeeding day that is a Business Day, except that if an Interest Rate Basis
specified on the face hereof is LIBOR and such next Business Day falls in the
next succeeding calendar month, such Interest Reset Date shall be the next
preceding Business Day.
The "CALCULATION DATE" pertaining to any Interest Determination Date will
be the earlier of (i) the tenth calendar day after such Interest Determination
Date or, if such day is not a Business Day, the next succeeding Business Day or
(ii) the Business Day preceding the applicable Interest Payment Date or Maturity
Date, as the case may be.
"MONEY MARKET YIELD" shall be a yield (expressed as a percentage) calculated in accordance with the following formula:
where "D" refers to the applicable per annum rate for commercial paper quoted on a bank discount basis and expressed as a decimal and "M" refers to the actual number of days in the period for which interest is being calculated.
Determination Date, then the Eleventh District Cost of Funds Rate for such Interest Determination Date will be the Eleventh District Cost of Funds Rate in effect on such Interest Determination Date.
(i) LIBOR will be either (a) if "LIBOR Telerate" is specified on the
face hereof or if the face hereof does not specify a source for LIBOR, the
rate for deposits in the London interbank market in the Index Currency (as
defined below) having the Index Maturity designated on the face hereof
commencing on the second London Business Day immediately following such
Interest Determination Date that appears on Telerate Page 3750 (or such
other page as is specified on the face hereof) as of 11:00 a.m., London
time, on such Interest Determination Date, or (b) if "LIBOR Reuters" is
specified on the face hereof, the arithmetic mean of the offered rates
(unless the specified Designated LIBOR Page (as defined below) by its terms
provides only for a single rate, in which case such single rate shall be
used) for deposits in the London interbank market in the Index Currency
having the Index Maturity designated on the face hereof and commencing on
the second London Business Day immediately following such Interest
Determination Date, that appear on the Designated LIBOR Page as of 11:00
a.m., London time, on such Interest Determination Date, if at least two
such offered rates appear (unless, as aforesaid, only a single rate is
required) on such Designated LIBOR Page. If fewer than two offered rates
appear, or no rate appears, as applicable, LIBOR in respect of such
Interest Determination Date will be determined as if the parties had
specified the rate described in clause (ii) below.
(ii) If fewer than two offered rates appear, or no rate appears, as the case may be, on the applicable Designated LIBOR Page as specified in clause (i) above, the Calculation Agent will request the principal London offices of each of four major reference banks in the London interbank market, as selected by the Calculation Agent, to provide the Calculation Agent with its offered quotation for deposits in the Index Currency for the period of the Index Maturity designated on the face hereof, commencing on the second London Business Day immediately following such Interest Determination Date, to prime banks in the London interbank market at approximately 11:00 a.m.,
Unless provided otherwise on the face hereof, "PRINCIPAL FINANCIAL CENTER" will be the capital city of the country of the specified Index Currency, except that with respect to U.S. dollars, Deutschemarks, and ECUs, the Principal Financial Center shall be The City of New York, Frankfurt, and Luxembourg, respectively.
Notwithstanding the foregoing, the interest rate hereon shall not be greater than the Maximum Interest Rate, if any, or less than the Minimum Interest Rate, if any, specified on the face hereof. The Calculation Agent shall calculate the interest rate hereon in accordance with the foregoing on or before each Calculation Date. The interest rate on this Note will in no event be higher than the maximum rate permitted by New York law, as the same may be modified by United States Federal law of general application.
At the request of the holder hereof, the Calculation Agent will provide to the holder hereof the interest rate hereon then in effect and, if determined, the interest rate that will become effective as of the next Interest Reset Date.
Accrued interest hereon shall be calculated by multiplying the face amount hereof by an accrued interest factor. Such accrued interest factor is computed by adding the interest factor calculated for each day from the date of issue, or from the last day to which interest has been paid or duly provided for, to the date for which accrued interest is being calculated. Unless otherwise specified on the face hereof, the interest factor for each such day will be computed by dividing the interest rate applicable to such day by 360, if the Base Rate specified on the face hereof is the CD Rate, the Commercial Paper Rate, the Eleventh District Cost of Funds Rate, the Federal Funds Rate, LIBOR or the Prime Rate, or by the actual number of days in the year if the Base Rate specified on the face hereof is the Treasury Rate.
In the case where the Interest Payment Date or the Maturity Date (or any redemption or repayment date) does not fall on a Business Day, payment of interest, premium, if any, or principal otherwise payable on such date need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the Interest Payment Date or on the Maturity Date (or any redemption or repayment date), and no interest shall accrue for the period from and after the Interest Payment Date or the Maturity Date (or any redemption or repayment date) to such next succeeding Business Day.
This Note, and any Note or Notes issued upon transfer or exchange hereof, is issuable only in fully registered form, without coupons, in denominations of 100,000 units of the Specified Currency indicated on the face hereof or any integral multiple of 1,000 units of such Specified Currency in excess thereof.
In case any Note shall at any time become mutilated, destroyed, lost or stolen, or is apparently destroyed, lost or stolen, and such Note or evidence of the loss, theft or destruction thereof (together with the indemnity hereinafter referred to and such other documents or proof as may be required in the premises) shall be delivered to the Registrar, a new Note of like tenor will be issued by the Company in exchange for the Note so mutilated or defaced, or in lieu of the Note so destroyed or lost or stolen, but, in the case of any destroyed or lost or stolen Note only upon receipt of evidence satisfactory to the Registrar
and the Company that such Note was destroyed or lost or stolen and, if required, upon receipt also of indemnity satisfactory to each of them. All expenses and reasonable charges associated with procuring such indemnity and with the preparation, authentication and delivery of a new Note shall be borne by the owner of the Note mutilated, defaced, destroyed, lost or stolen.
The Indenture provides that if an Event of Default (as defined in the Indenture) with respect to any series of debt securities issued under the Indenture, including the series of Global Medium-Term Notes, Series A, of which this Note forms a part, shall have occurred and be continuing, either the Trustee or the holders of not less than 25% in principal amount of the debt securities of such series then outstanding under the Indenture, by notice in writing to the Company (and to the Trustee if given by securityholders of such series), may declare the principal of all debt securities of all such series and interest accrued thereon to be due and payable immediately, but upon certain conditions such declarations may be annulled and past defaults may be waived (except a continuing default in payment of principal (or premium, if any) or interest on such debt securities) by the holders of a majority in principal amount of the debt securities of such series then outstanding.
If the face hereof indicates that this Note is subject to "Modified Payment upon Acceleration", then (i) if the principal hereof is declared to be due and payable as described in the preceding paragraph, the amount of principal due and payable with respect to this Note shall be limited to the sum of the Issue Price specified on the face hereof plus the Amortized Amount, (ii) for the purpose of any vote of securityholders taken pursuant to the Indenture prior to the acceleration of payment of this Note, the principal amount hereof shall equal the amount that would be due and payable hereon, calculated as set forth in clause (i) above, if this Note were declared to be due and payable on the date of any such vote and (iii) for the purpose of any vote of securityholders taken pursuant to the Indenture following the acceleration of payment of this Note, the principal amount hereof shall equal the amount of principal due and payable with respect to this Note, calculated as set forth in clause (i) above.
Except as set forth below, if the principal of, or premium, if any, or interest, if any, on this Note is payable in a Specified Currency other than U.S. dollars and such Specified Currency is not available to the Company for making payments thereof due to the imposition of exchange controls or other circumstances beyond the control of the Company or is no longer used by the government of the country issuing, or authority sponsoring, such Specified Currency or for the settlement of transactions by public institutions within the international banking community, then the Company will be entitled to satisfy its obligations to the holder of this Note by making such payments in U.S. dollars on the basis of the noon U.S. dollar buying rate in The City of New York for cable transfers of the Specified Currency as certified for customs purposes by the Federal Reserve Bank of New York, as determined by the Exchange Rate Agent on the date of such payment, or if such rate is not available on such date, as of the most recent practicable date. Any payment made under such circumstances in U.S. dollars where the required payment is in a Specified Currency other than U.S. dollars will not constitute an Event of Default.
With respect to each due date for the payment of principal of, premium, if any, or interest on, the Notes denominated in ECU on or prior to which the ECU is not used in the European Monetary System or on or prior to which banks in all member countries of the EC shall have ceased to provide ECU accounts, the Company or its agent shall (in the case of an agent, without liability on its part but after consultation with the Company and having regard to the availability to the Company of the relevant currency) choose a substitute currency (the "Chosen Currency") which shall be a component currency of the ECU or U.S. dollars with respect to which all payments due on that date with respect to the Notes required to be made in U.S. dollars shall be calculated and in which all payments due on that date with respect to the Notes required to be made in ECU shall be made. Notice of the Chosen Currency so selected shall be given to holders of Registered Notes by mail. The amount of each payment calculated with reference to or made in such Chosen Currency shall be computed on the basis of the equivalent of the ECU in that currency, determined as described below, as of the fourth business day in Luxembourg prior to the date on which such payment is due.
On or about the fifth business day in Luxembourg following the day on which the ECU is not used in the European Monetary System or on which banks in all member countries of the EC shall have ceased to provide ECU accounts, the Company or its agent shall (in the case of an agent, without liability on its part but after consultation with the Company and having regard to the availability to the Company of the relevant currency) choose a Chosen Currency in which all payments with respect to Notes having a due date prior thereto but not yet presented for payment are to be made. The amount of each payment in such Chosen Currency shall be computed on the basis of the equivalent of the ECU in that currency, determined as described below, as of such first business day.
The equivalent of the ECU in the relevant Chosen Currency as of any date
(the "Day of Valuation") shall be determined by the Exchange Rate Agent on the
following basis. The amounts and components composing the ECU for this purpose
(the "Components') shall be the amounts and components which composed the ECU
(i) as of the last date on which the ECU was used in the European Monetary
System (or, if after such last date the ECU was used for the settlement of
transactions by public institutions of or within the EC, as of the most recent
date when the ECU was so used) or (ii) where the selection of a Chosen Currency
shall have been required only because banks in all member countries of the EC
shall have ceased to provide ECU accounts, as of the Day of Valuation. The
equivalent of the ECU in the Chosen Currency shall be calculated by, first,
aggregating the U.S. dollar equivalents of the Components; and then, in the case
of a Chosen Currency other than U.S. dollars, using the rate used for
determining the U.S. dollar equivalent of the Components in the Chosen Currency
as set forth below, calculating the equivalent in the Chosen Currency of such
aggregate amount in U.S. dollars.
The U.S. dollar equivalent of each of the Components shall be determined by the Exchange Rate Agent on the basis of the middle spot delivery quotations prevailing at 2:30 p.m., Luxembourg time, on the Day of Valuation, as obtained by the Exchange Rate Agent from one or more major banks, as selected by the Company or its agent, in the country of issue of the component currency in question.
If for any reason no direct quotations are available for a Component as of a Day of Valuation from any of the banks selected for this purpose, in computing the U.S. dollar equivalent of such Component, the Exchange Rate Agent shall (except as provided below) use the most recent direct quotations for such Component obtained by it or on its behalf, provided that such quotations were prevailing in the country of issue not more than two Business Days before such Day of Valuation. If such most recent quotations were so prevailing more than two Business Days in the country of issue before such Day of Valuation, the Exchange Rate Agent shall determine the U.S. dollar equivalent of such Component on the basis of cross rates derived from the middle spot delivery quotations for such component currency and for the U.S. dollar prevailing at 2:30 p.m. Luxembourg time on such Day of Valuation, as obtained by, or on behalf of, the Exchange Rate Agent from one or more major banks, as selected by the Company or its agents, in a country other than the country of issue of such component currency. Notwithstanding the foregoing, the Exchange Rate Agent shall determine the U.S. dollar equivalent of such Component on the basis of such cross rates if the Company or such Agent judges that the equivalent so calculated is more representative than the U.S. dollar equivalent calculated as provided in the first sentence of this paragraph. Unless otherwise specified by the Company or its agent, if there is more than one market for dealing in any component currency by reason of foreign exchange regulations or for any other reason, the market to be referred to in respect of such currency shall be that upon which a non-resident issuer of notes denominated in such currency would purchase such currency in order to make payments in respect of such notes.
If the official unit of any Component is altered by way of combination or subdivision, the number of units of that currency as a Component shall be divided or multiplied in the same proportion. If two or more Components are consolidated into a single currency, the amounts of those currencies as Components shall be replaced by an amount in such single currency equal to the sum of the amounts of the consolidated component currencies expressed in such single currency. If any Component is divided into two or more currencies each of which shall be equal to the amount of the original component currency separated into the number of currencies into which such original currency was divided.
All determinations referred to above made by the Company or its agent shall be at its sole discretion and shall, in the absence of manifest error, be conclusive for all purposes and binding on holders of Notes.
So long as this Note shall be outstanding, the Company will cause to be maintained an office or agency for the payment of the principal of and premium, if any, and interest on this Note as herein provided in the Borough of Manhattan, The City of New York, and an office or agency in said Borough of Manhattan for the registration, transfer and exchange as aforesaid of the Notes. The Company may designate other agencies for the payment of said principal, premium, if any, and interest at such place or places (subject to applicable laws and regulations) as the Company may decide. So long as there shall be any such agency, the Company shall keep the Trustee advised of the names and locations of such agencies, if any are so designated.
With respect to moneys paid by the Company and held by the Trustee or any Paying Agent for the payment of the principal of or interest or premium, if any, on any Notes that remain unclaimed at the
end of three years after such principal, interest or premium shall have become
due and payable (whether at maturity or upon call for redemption or otherwise),
(i) the Trustee or such Paying Agent shall notify the holders of such Notes that
such moneys shall be repaid to the Company and any person claiming such moneys
shall thereafter look only to the Company for payment thereof and (ii) such
moneys shall be so repaid to the Company. Upon such repayment all liability of
the Trustee or such Paying Agent with respect to such moneys shall thereupon
cease, without, however, limiting in any way any obligation that the Company may
have to pay the principal of or interest or premium, if any, on this Note as the
same shall become due.
No provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of, premium, if any, and interest on this Note at the time, place, and rate, and in the coin or currency, herein and in the Indenture prescribed unless otherwise agreed between the Company and the registered holder of this Note.
Prior to due presentment of this Note for registration of transfer, the Company or any agent of the Company, the Registrar or the Trustee may treat the holder in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Company, the Registrar, the Trustee nor any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of, or premium, if any, or the interest on, this Note, for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture or any indenture supplemental thereto, against any incorporator, shareholder, officer or director, as such, past, present or future, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issuer hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed in accordance with, the laws of the State of New York.
As used herein:
(a) the term "AMORTIZED AMOUNT" is equal to the original issue discount amortized from the Original Issue Date to the date of redemption or declaration, as the case may be, which amortization shall be calculated using the "constant yield method" (computed in accordance with the rules under the Internal Revenue Code of 1986, as amended, and the regulations thereunder, in effect on the date of redemption or declaration, as the case may be);
(b) the term "BUSINESS DAY" means any day that is not a Saturday or Sunday and that is not a day on which banking institutions are generally authorized or obligated by law to close in The City of New York and (i) with respect to notes denominated in a Specified Currency other than U.S. dollars, ECUs or Australian dollars, in the principal financial center of the country of such Specified Currency, (ii) with respect to Notes denominated in ECUs, in Brussels, Belgium and (iii) with respect to Notes denominated in Australian dollars, in both Sydney, Australia and Melbourne, Australia.
(c) the term "LONDON BANKING DAY" means any day on which dealings in deposits in the Specified Currency are transacted in the London interbank market;
(d) the term "UNITED STATES" means the United States of America (including the States and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction.
(e) all other terms used in this Note which are defined in the Indenture and not otherwise defined herein shall have the meanings assigned to them in the Indenture.
The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM-as tenants in common
TEN ENT-as tenants in the entireties
JT TEN-as joint tenants with right of ownership and not as tenants in
common
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within Note in every particular without alteration or enlargement or any change whatsoever.
OPTION TO ELECT REPAYMENT
NOTICE: The signature on this Option to Elect Repayment must correspond with the name as written upon the face of the within instrument in every particular without alteration or enlargement.
EXHIBIT 4(y)
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF
GENERAL ELECTRIC CAPITAL CORPORATION
UNDER SECTION 8005 OF THE BANKING LAW
We, the undersigned, ______________ and Nancy E. Barton, being respectively the ______________________________ and the Secretary of General Electric Capital Corporation, do hereby certify and set forth:
1. The name of this corporation is General Electric Capital Corporation. The name under which the corporation was formed was General Electric Credit Corporation.
2. The Organization Certificate of General Electric Capital Corporation was filed by the Superintendent of Banks of the State of New York on the 6th day of October, 1943, and in the office of the Clerk of New York County on the 21st day of October, 1943. A Restated Organization Certificate was filed by the Superintendent of Banks of the State of New York on the 28th day of November, 1988 (hereinafter, the "Restated Organization Certificate"), and Certificates of Amendment of the Organization Certificate were filed by the Superintendent of Banks of the State of New York on the 21st day of December, 1988, the 22nd day of December, 1989, the 28th day of September, 1990, the 18th day of October, 1990, the 14th day of November, 1990, the 6th day of December, 1990, the 21st day of April, 1995, the 11th day of May, 1995, the 28th day of June, 1995, the 17th day of July, 1995, the 1st day of November, 1995, the 27th day of September 1996, the 9th day of December, 1997, the 19th day of December, 1997, the 17th day of February, 1998 and the 24th day of June, 1998 (hereinafter collectively referred to as the "Certificates of Amendment"). The Restated Organization Certificate as so amended by the Certificates of Amendment is hereinafter referred to as the "Organization Certificate".
3. Paragraph Third of the Organization Certificate, which article relates to the capital stock of this corporation, is amended so as to (a) increase the number of authorized shares of Variable Cumulative Preferred Stock from 23,000 shares to 28,000 shares, (b) increase the maximum aggregate redemption price of all shares of all series of Variable Cumulative Preferred Stock from $2,800,000,000 to $3,300,000,000, by substituting in Paragraph Third in both places at which the words "Twenty Three Thousand (23,000)" appear, the words "Twenty-Eight Thousand (28,000)" and by substituting in Part A of Section Eight of Subparagraph (c) of Paragraph Third the words "Three Billion Three Hundred Million Dollars ($3,300,000,000)" in place of the words "Two Billion Eight
Hundred Million Dollars ($2,800,000,000)", (c) establish a new class of
preferred stock to be called Preferred Stock, par value $.01 per share, and
to set the number of authorized shares of such Preferred Stock at 750,000
(seven hundred fifty thousand shares), and (d) add a new subparagraph (b)
to read as follows:
"(b) The Board of Directors (or any committee to which it may duly delegate the authority granted in this paragraph), in accordance with Section 5002 of the Banking Law of the State of New York, is hereby empowered to authorize the issuance from time to time of seven hundred fifty thousand (750,000) shares of Preferred Stock of the par value of One Cent ($.01) each, which shall be designated the Preferred Stock, issuable in one or more series, in the case of each such series, (i) in such number of shares and with such designations, relative rights, preferences or limitations, including, without limitation, dividend rights, dissolution rights, conversion rights, exchange rights and redemption rights, as shall be stated and expressed in a resolution or resolutions adopted by the Board of Directors (or such committee thereof) providing for the issuance of such series of Preferred Stock and (ii) except as otherwise set forth in such resolution or resolutions, or as otherwise required by law, the holders of any series of Preferred Stock shall have no voting power whatsoever."
4. The foregoing amendments of Paragraph Third of the Organization Certificate were authorized by a resolution of the Board of Directors adopted at a meeting duly called and held on the 22nd day of July, 1998 and by consent of the sole common stockholder of the corporation.
IN WITNESS WHEREOF, this Certificate has been signed this 22nd day of July, 1998.
STATE OF CONNECTICUT )
) S.S.:
COUNTY OF FAIRFIELD )
______________ and Nancy E. Barton, each being duly sworn, respectively deposes and says: that the said ______________ is the _______________________________ and that the said Nancy E. Barton is the Secretary of General Electric Capital Corporation, the corporation executing the foregoing instrument; that each of them has read the same and that the statements contained therein are true and they have been authorized to execute and file the foregoing Certificate of Amendment by resolution of the Board of Directors adopted at a meeting duly called and held on the 22nd day of July, 1998.
Subscribed and sworn to
before me this ____ day
of July, 1998
EXHIBIT 4(z)
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF
GENERAL ELECTRIC CAPITAL CORPORATION
UNDER SECTION 8005 OF THE BANKING LAW
We, the undersigned, ______________ and Nancy E. Barton, being respectively the ______________ and the Secretary of General Electric Capital Corporation, do hereby certify and set forth:
1. The name of this corporation is General Electric Capital Corporation. The name under which the corporation was formed was General Electric Credit Corporation.
2. The Organization Certificate of General Electric Capital Corporation was filed by the Superintendent of Banks of the State of New York on the 6th day of October, 1943, and in the office of the Clerk of New York County on the 21st day of October, 1943. A Restated Organization Certificate was filed by the Superintendent of Banks of the State of New York on the 28th day of November, 1988 (hereinafter the "Restated Organization Certificate"). Certificates of Amendment of the Organization Certificate were filed by the Superintendent of Banks of the State of New York on the 21st day of December, 1988, the 22nd day of December, 1989, the 28th day of September, 1990, the 18th day of October, 1990, the 14th day of November, 1990, the 6th day of December, 1990, the 21st day of April, 1995, the 11th day of May, 1995, the 28th day of June, 1995, the 17th day of July, 1995, the 1st day of November, 1995, the 27th day of September, 1996, the 9th day of December, 1997, the 17th day of February, 1998, the 24th day of June, 1998, and the -- day of July, 1998 (hereinafter the "Certificates of Amendment"). The Restated Organization Certificate as amended by such Certificates of Amendment is hereinafter referred to as the "Organization Certificate."
3. Paragraph Third of the Organization Certificate, which Paragraph relates to the amount of capital stock of this corporation, is amended so as to add the following provisions authorizing one series and stating the numbers, designations and certain relative rights, preferences and limitations of such series, as fixed by a resolution of the Board of Directors of the corporation, at the end of subparagraph (b) thereof, following section ____________, as follows:
"SECTION __________: Preferred Stock, par value $.01 per share, Series __.
There is hereby created one series of the Preferred Stock, consisting of ____ shares to be designated the "Preferred Stock, Series __" (the "Series __ Shares").
The initial Dividend Rate for the Series __ Shares shall be ___% per annum. The Initial Dividend Period shall end for the Series __ Shares on ____________.
[insert applicable redemption provisions, if any]
[insert applicable dividend rate]
[insert applicable voting rights, if any]
4. The foregoing amendment of Paragraph Third of the Organization Certificate was authorized by a resolution of the Securities and Borrowing Committee of the Board of Directors adopted at a meeting duly called and held on _______________, such resolution having been adopted pursuant to authority granted to such Committee of the Board of Directors in the Organization Certificate referred to in paragraph 2 which was authorized by resolutions of the Board of Directors and by consent of the sole common stockholder of the corporation.
IN WITNESS WHEREOF, this Certificate has been signed this ___ day of ____, 199_.
Nancy E. Barton Secretary
STATE OF CONNECTICUT )
: ss.:
COUNTY OF FAIRFIELD )
|
______________ and Nancy E. Barton, each being duly sworn, respectively deposes and says: that the said ______________ is the ______________ and that the said Nancy E. Barton is the Secretary of General Electric Capital Corporation, the corporation executing the foregoing instrument; that each of them has read the same and that the statements contained therein are true and they have been authorized to execute and file the foregoing Certificate of Amendment by resolution of the Securities and Borrowing Committee of the Board of Directors adopted at a meeting duly called and held on the ____ day of ____, 199_.
Subscribed and sworn to
before me this ____ day of
____, 199_
July 22, 1998
General Electric Capital Corporation
260 Long Ridge Road
Stamford, CT 06927
Ladies and Gentlemen:
I have examined the Registration Statement on Form S-3 being filed by General Electric Capital Corporation (the "Company") with the Securities and Exchange Commission under the Securities Act of 1933, as amended, for the registration of $7,500,000,000 aggregate principal amount of the Company's debt securities (the "Notes"), warrants to purchase debt securities (the "Warrants"), Variable Cumulative Preferred Stock, par value $100 per share and Preferred Stock, par value $.01 per share (collectively, the "Preferred Stock"). The Notes will be issued from time to time either in whole under one or the other of two amended and restated indentures, or in part under each of such indentures, one of which is dated as of February 27, 1997 between the Company and The Chase Manhattan Bank, as successor trustee, as supplemented through the date hereof, and the other one of which is dated as of February 28, 1997 between the Company and The Chase Manhattan Bank, as successor trustee, as supplemented through the date hereof (each of such indentures, as so supplemented, being herein called an "Indenture" and such indentures being collectively called the "Indentures"), The Warrants to purchase any of the Notes will be issued under one or more warrant agreements between the Company and a banking institution organized under the laws of the United States or one of the states thereof, as Warrant Agent (each a "Warrant Agreement"). The Preferred Stock will be issued in series through underwriters pursuant to one or more underwriting agreements (the "Underwriting Agreement").
In my opinion, when
a. the issuance of the Notes and approval of the final terms thereof have been duly authorized by appropriate corporate action and the Notes
have been duly executed, authenticated and delivered against payment therefor,
b. the issuance of the Warrants and approval of the final terms thereof have been duly authorized by appropriate corporate action and the Warrants have been duly executed, countersigned and delivered against payment therefor, and
c. the related Warrant Agreement or Warrant Agreements, as the case may be, under which the Warrants are to be issued have been duly authorized, executed and delivered,
d. further action by the Board of Directors or a duly authorized committee thereof, establishing the designation of, and certain other particular terms of, the Preferred Stock of any series and approving the Certificate of Amendment to the Organization Certificate relating to such series, has been taken,
e. such Certificate of Amendment has been duly filed by the Superintendent of Banks of the State of New York, and
f. the issuance, delivery and payment for the Preferred Stock of such series in the manner contemplated in the relevant Underwriting Agreement;
(i) subject to the final terms of the Notes being in compliance with then
applicable law, the Notes will be valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms and will entitle
the holders thereof to the benefits provided by the related Indenture or
Indentures, as the case may be, pursuant to which such Notes were issued, (ii)
the Warrants will be valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms and will entitle the holders
thereof to the benefits provided by the related Warrant Agreement or Warrant
Agreements, as the case may be, pursuant to which such Warrants were issued, and
(iii) the shares of Preferred Stock have been duly authorized by appropriate
corporate action and the shares of Preferred Stock of such series will be
validly issued, fully paid and non assessable, except in each case as the
enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights generally and by general equitable principles (regardless of whether the issue of enforceability is considered in a proceeding in equity or at law).
I hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to myself under the caption "Legal Opinions" in the Registration Statement.
Very truly yours,
/s/ Bruce C. Bennett Bruce C. Bennett |
cmb
I hereby consent to the inclusion of my opinion under the caption "United States Tax Considerations" or any similar caption referring to United States taxation and to any reference to me under the caption "Legal Opinions" in any Prospectus Supplement or Pricing Supplement accompanying the Prospectus included in this Registration Statement.
/s/ James M. Kalashian
-------------------------------
James M. Kalashian
General Electric Capital Corporation
Senior Tax Counsel
July 22, 1998
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EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned, being directors and/or officers of General Electric Capital Corporation, a New York corporation (the "Corporation"), hereby constitutes and appoints Gary C. Wendt, Denis J. Nayden, James A. Parke, Jeffrey S. Werner and Nancy E. Barton, and each of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead in any and all capacities, to execute in the name of each such person and to file (i) a Registration Statement of the Corporation on Form S-3 under the Securities Act of 1933 with respect to $7,500,000,000 aggregate amount of the Corporation's debt securities, warrants and preferred stock, and (ii) any and all amendments and post-effective amendments to such Registration Statement as such person or persons executing the same pursuant to this Power of Attorney may approve.
This Power of Attorney may be signed in any number of counterparts, each of which shall constitute an original and all of which, taken together, shall constitute one Power of Attorney.
IN WITNESS WHEREOF, each of the undersigned has hereunto set his or her hand this 22nd day of July, 1998.
/s/ Gary C. Wendt /s/ Denis J. Nayden ____________________________________ ______________________________________ Gary C. Wendt Denis J. Nayden Chairman of the Board President, Chief Operating and Chief Executive Officer Officer and Director (Principal Executive Officer) /s/ James A. Parke /s/ Joan C. Amble ____________________________________ ______________________________________ James A. Parke Joan C. Amble Senior Vice President, Finance Vice President and Controller and Director (Principal Financial (Principal Accounting Officer) Officer) /s/ Jeffrey S. Werner /s/ Nigel D.T. Andrews ____________________________________ ______________________________________ Jeffrey S. Werner Nigel D.T. Andrews Senior Vice President - Corporate Director Treasury and Global Funding Operation /s/ Nancy E. Barton /s/ James R. Bunt ____________________________________ ______________________________________ Nancy E. Barton James R. Bunt Director Director |
/s/ David M. Cote /s/ Dennis D. Dammerman ____________________________________ ______________________________________ David M. Cote Dennis D. Dammerman Director Director /s/ Paolo Fresco /s/ Benjamin W. Heineman, Jr. ____________________________________ ______________________________________ Paolo Fresco Benjamin W. Heineman, Jr. Director Director /s/ Jeffrey R. Immelt /s/ W. James McNerney, Jr. ____________________________________ ______________________________________ Jeffrey R. Immelt W. James McNerney, Jr. Director Director /s/ John H. Myers /s/ Robert L. Nardelli ____________________________________ ______________________________________ John H. Myers Robert L. Nardelli Director Director /s/ Michael A. Neal /s/ John M. Samuels ____________________________________ ______________________________________ Michael A. Neal John M. Samuels Director Director /s/ Edward D. Stewart /s/ John F. Welch, Jr. ____________________________________ ______________________________________ Edward D. Stewart John F. Welch, Jr. Director Director |
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
_____________________________________________
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GENERAL ELECTRIC CAPITAL CORPORATION
(Exact name of obligor as specified in its charter)
NEW YORK 13-1500700
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
200 LONG RIDGE ROAD
STANFORD, CONNECTICUT 06927
(Address of principal executive offices) (Zip Code)
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DEBT SECURITIES
(Title of the indenture securities)
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GENERAL
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Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which it is subject.
New York State Banking Department, Suite 2310, 5 Empire State Plaza,
Albany, New York 12223. Board of Governors of the Federal Reserve
System, 20th and C Street, NW, Washington, D.C., 20551. Federal
Reserve Bank of New York, District No. 2, 33 Liberty Street,
New York, N.Y. 10045
Federal Deposit Insurance Corporation, 550 Seventeenth Street NW,
Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of Eligibility.
1. A copy of the Articles of Association of the Trustee as now in effect, including the Organization Certificate and the Certificates of Amendment dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982, February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1 filed in connection with Registration Statement No. 333-06249, which is incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence Business (see Exhibit 2 to Form T-1 filed in connection with Registration Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in connection with the merger of Chemical Bank and The Chase Manhattan Bank (National Association), Chemical Bank, the surviving corporation, was renamed The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form T-1 filed in connection with Registration Statement No. 333-06249, which is incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see Exhibit 6 to Form T-1 filed in connection with Registration Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in connection with the merger of Chemical Bank and The Chase Manhattan Bank (National Association), Chemical Bank, the surviving corporation, was renamed The Chase Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the Trustee, The Chase Manhattan Bank, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of New York and State of New York, on the 22nd day of July, 1998.
THE CHASE MANHATTAN BANK
By /s/ James P. Freeman
-----------------------------------------
James P. Freeman
Assistant Vice President
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Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1998, in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
DOLLAR AMOUNTS
ASSETS IN MILLIONS
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin.............................. $ 12,037
Interest-bearing balances...................... 4,054
Securities:........................................
Held to maturity securities........................ 2,340
Available for sale securities...................... 50,134
Federal funds sold and securities purchased under
agreements to resell............................. 24,982
Loans and lease financing receivables:
Loans and leases, net of unearned income $127,958
Less: Allowance for loan and lease losses 2,797
Less: Allocated transfer risk reserve.... 0_________
Loans and leases, net of unearned income,
allowance, and reserve........................... 125,161
Trading Assets..................................... 61,820
Premises and fixed assets (including capitalized
leases).......................................... 2,961
Other real estate owned............................ 347
Investments in unconsolidated subsidiaries and
associated companies............................. 242
Customers' liability to this bank on acceptances
outstanding...................................... 1,380
Intangible assets.................................. 1,549
Other assets....................................... 11,727
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TOTAL ASSETS....................................... $298,734
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LIABILITIES
Deposits
In domestic offices.............................. $ 96,682
Noninterest-bearing.................... $38,074
Interest-bearing....................... 58,608 _________
In foreign offices, Edge and Agreement,
subsidiaries and IBF's........................... 72,630
Noninterest-bearing ............................. $ 3,289
Interest-bearing................................. 69,341
Federal funds purchased and securities sold under
agreements to repurchase.......................... 42,735
Demand notes issued to the U.S. Treasury........... 872
Trading liabilities................................ 45,545
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less.... 4,454
With a remaining maturity of more than one year
through three years............................. 231
With a remaining maturity of more than three
years........................................... 106
Bank's liability on acceptances executed and
outstanding 1,380
Subordinated notes and debentures.................. 5,708
Other liabilities.................................. 11,295
TOTAL LIABILITIES.................................. 281,638
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EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock....................................... 1,211
Surplus (exclude all surplus related to preferred stock) 10,291
Undivided profits and capital reserves............. 5,579
Net unrealized holding gains (losses)
on available-for-sale securities................... (1)
Cumulative foreign currency translation adjustments 16
TOTAL EQUITY CAPITAL............................... 17,096
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TOTAL LIABILITIES AND EQUITY CAPITAL............... $298,734
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I, Joseph L. Sclafani, E.V.P. & Controller of the above-named
bank, do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued
by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this Report of Condition and declare that it has been
examined by us, and to the best of our knowledge and
belief has been prepared in conformance with the in-
structions issued by the appropriate Federal regulatory
authority and is true and correct.
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WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)