<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 23, 1998
POST-EFFECTIVE AMENDMENT NO. 1 TO REGISTRATION STATEMENT NO. 333-0746__FILE9NO.
333-
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1993
----------------
GENERAL ELECTRIC CAPITAL CORPORATION
(Exact name of registrant as specified in its charter)
NEW YORK 13-1500700
(State of incorporation) (I.R.S. Employer Identification
Number)
260 LONG RIDGE ROAD
STAMFORD, CONNECTICUT 06927
(203) 357-4000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
----------------
BRUCE C. BENNETT
ASSOCIATE GENERAL COUNSEL--TREASURY OPERATIONS AND ASSISTANT SECRETARY
260 LONG RIDGE ROAD
STAMFORD, CONNECTICUT 06927
(203) 357-4000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
----------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement as
determined by market conditions.
----------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [X]
----------------
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
PROPOSED
MAXIMUM
AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF OFFERING REGISTRATION
SECURITIES TO BE REGISTERED PRICE(1)(2)(3) FEE(4)
- --------------------------------------------------------------------------------
<S> <C> <C>
Debt Securities, Debt Warrants, Preferred Stock.... $7.5 billion $2,212,500
</TABLE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(1) Or, if any Debt Securities are issued (i) with an initial offering price
denominated in a foreign currency or a unit of two or more currencies,
such amount as shall result in an aggregate initial offering price
equivalent to $7.5 billion or (ii) at an original issue discount, such
greater amount as shall result in an aggregate initial offering price of
$7.5 billion.
(2) Estimated solely for the purpose of determining the registration fee.
(3) Warrants may be offered and sold entitling the holder to purchase any of
the Debt Securities. Pursuant to Rule 457(g), no registration fee is
attributable to the Warrants registered hereby.
(4) Pursuant to Rule 429 of the Securities Act of 1933, the amount of
registration fees does not include $1,298,999 previously paid to the
Commission relating to $3,767,096,501 aggregate principal amount of debt
securities and warrants previously registered pursuant to Registration
Statement No. 333-07469, which remained unissued as of the close of
business on July 22, 1998.
----------------
PURSUANT TO RULE 429 UNDER THE SECURITIES ACT OF 1933, THE PROSPECTUS
INCLUDED IN THIS REGISTRATION STATEMENT WILL ALSO BE USED IN CONNECTION WITH
THE ISSUANCE OF DEBT SECURITIES AND WARRANTS REGISTERED PURSUANT TO
REGISTRATION STATEMENTS NO. 333-07469 PREVIOUSLY FILED BY THE REGISTRANT ON
FORM S-3 AND DECLARED EFFECTIVE ON AUGUST 6, 1996.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
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
<PAGE>
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.
2
<PAGE>
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
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-------------------------------------------------------------- THREE MONTHS ENDED
1993 1994 1995 1996 1997 MARCH 28, 1998
---- ---- ---- ---- ---- ------------------
<S> <C> <C> <C> <C> <C>
1.62 1.63 1.51 1.53 1.48 1.54
</TABLE>
CONSOLIDATED RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK
DIVIDENDS
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-------------------------------------------------------------- THREE MONTHS ENDED
1993 1994 1995 1996 1997 MARCH 28, 1998
---- ---- ---- ---- ---- ------------------
<S> <C> <C> <C> <C> <C>
1.60 1.62 1.49 1.51 1.46 1.52
</TABLE>
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.
3
<PAGE>
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.
4
<PAGE>
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.
5
<PAGE>
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
6
<PAGE>
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.)
7
<PAGE>
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.
8
<PAGE>
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.
9
<PAGE>
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
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<PAGE>
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
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<PAGE>
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.
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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.
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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.
14
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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:
<TABLE>
<S> <C>
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
==========
</TABLE>
- --------
* Estimated, and subject to future contingencies.
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
II-1
<PAGE>
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.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER INCORPORATED BY REFERENCE TO FILINGS INDICATED DESCRIPTION
- ------- ---------------------------------------------- -----------
<S> <C> <C>
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.
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER INCORPORATED BY REFERENCE TO FILINGS INDICATED DESCRIPTION
- ------- ---------------------------------------------- -----------
<S> <C> <C>
(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.
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER INCORPORATED BY REFERENCE TO FILINGS INDICATED DESCRIPTION
- ------- ---------------------------------------------- -----------
<S> <C> <C>
(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.
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER INCORPORATED BY REFERENCE TO FILINGS INDICATED DESCRIPTION
- ------- ---------------------------------------------- -----------
<S> <C> <C>
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).
</TABLE>
II-5
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
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).
</TABLE>
<PAGE>
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
<PAGE>
2
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
<PAGE>
3
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.
<PAGE>
4
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.
<PAGE>
5
(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.
<PAGE>
6
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
<PAGE>
7
(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.
<PAGE>
8
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.
<PAGE>
9
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:
<PAGE>
10
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
<PAGE>
11
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
<PAGE>
12
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].
<PAGE>
13
SCHEDULE II
Series __
Shares to be
Underwriter(s) Purchased
--------------
UNDERWRITER
NAME
Total
<PAGE>
EXHIBIT 4(a)
_______________________________________________________________________________
GENERAL ELECTRIC CAPITAL CORPORATION
THIRD AMENDED AND RESTATED
STANDARD GLOBAL MULTIPLE-SERIES INDENTURE PROVISIONS
_______________________________________________________________________________
Dated as of February 27, 1997
<PAGE>
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:
<TABLE>
<CAPTION>
Section of Act Section of the
- ------------------------------------------------------ Third Amended and Restated
Standard Global
Multiple-Series
Indenture Provisions
----------------------------------
<S> <C>
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
</TABLE>
/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.
<PAGE>
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
_________________
/2/ This table of contents shall not, for any purpose, be deemed to be part of
the Third Amended and Restated Standard Global Multiple-Series Indenture
Provisions.
<PAGE>
Page
----
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
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
Section 6.06. Remedies Cumulative and
Continuing.................................... 44
Section 6.07. Direction of Proceedings and Waiver
ii
<PAGE>
Page
----
of Defaults by Securityholders................ 45
Section 6.08. Notice of Defaults............................ 46
Section 6.09. Undertaking to Pay Costs...................... 46
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
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
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
iii
<PAGE>
Page
----
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
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
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
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
iv
<PAGE>
Page
----
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 13.01. Indenture and Securities Solely
Corporate Obligations........................ 74
ARTICLE FOURTEEN
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
v
<PAGE>
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions. The terms defined in this Section 1.01
-----------
(except as herein otherwise expressly provided or unless the context otherwise
requires) for all purposes of this Third Amended and Restated Indenture shall
have the respective meanings specified in this Section 1.01. All other terms
used in this Third Amended and Restated Indenture which are defined in the Trust
Indenture Act of 1939, as amended, or which are by reference therein defined in
the Securities Act of 1933, as amended (except as herein otherwise expressly
provided or unless the context otherwise requires) shall have the meanings
assigned to such terms in said Trust Indenture Act and in said Securities Act as
in force at the date of this Third Amended and Restated Indenture as originally
executed. The words "herein", "hereof" and "hereunder", and other words of
similar import refer to this Third Amended and Restated Indenture as a whole and
not to any particular Article, Section or other subdivision.
Authenticating Agent:
- --------------------
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.
Authorized Newspaper:
- --------------------
The term "Authorized Newspaper" shall mean a newspaper (which, in the
case of The City of New York, will, if practicable, be The Wall Street Journal
-----------------------
(Eastern edition), in the case of the United Kingdom, will, if practicable, be
The Financial Times (London edition) and, in the case of Luxembourg, will, if
- -------------------
practicable, be The Luxemburger Wort) published in an official language of the
--------------------
country of publication customarily published at least once a day for at least
five days in each calendar week and of general circulation in The City of New
York, the United Kingdom or in Luxembourg, as applicable. If it shall be
impractical to make any publication of any notice required hereby in an
Authorized Newspaper, any publication or other notice in lieu thereof which is
made or given by the Trustee after consulting with the Company shall constitute
a sufficient publication of such notice.
1
<PAGE>
Board of Directors:
- ------------------
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.
Business Day:
- ------------
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.
Company:
- -------
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.
Coupon:
- ------
The term "Coupon" shall mean any interest coupon appertaining to a
Security.
currency:
- --------
The term "currency" shall mean Dollars or any Specified Currency.
2
<PAGE>
Depositary:
- ----------
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.
Dollar:
- ------
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.
Event of Default:
- ----------------
The term "Event of Default" shall have the meaning specified in
Section 6.01.
Global Series Note:
- ------------------
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.
interest:
- --------
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.
Officers' Certificate:
- ---------------------
3
<PAGE>
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.
Opinion of Counsel:
- ------------------
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.
Original Issue Discount Security:
- --------------------------------
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.
Overdue Rate:
- ------------
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.
Person:
- ------
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.
4
<PAGE>
Principal Office of the Trustee:
- -------------------------------
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.
Registered Global Security:
- --------------------------
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.
Registered Security:
- -------------------
The term "Registered Security" shall mean any Security registered on
the Security register of the Company.
Responsible Officer:
- -------------------
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.
Security or Securities; Outstanding:
- -----------------------------------
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:
5
<PAGE>
(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.
Security register:
- -----------------
The term "Security register" shall have the meaning specified in
Section 2.06.
Security registrar:
- ------------------
The term "Security registrar" shall have the meaning specified in
Section 2.06.
6
<PAGE>
Securityholder:
- --------------
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.
Specified Currency:
- ------------------
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.
Subsidiary; Finance Subsidiary:
- ------------------------------
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.
Third Amended and Restated Indenture:
- ------------------------------------
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.
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Tranche:
- -------
The term "Tranche" shall mean all Securities of the same series having
identical terms but for authentication date and public offering price.
Trust Indenture Act of 1939:
- ---------------------------
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.
Trustee:
- -------
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.
Unregistered Security:
- ---------------------
The term "Unregistered Security" shall mean any Security other than a
Registered Security.
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ARTICLE TWO
DESCRIPTION, EXECUTION, REGISTRATION AND
EXCHANGE OF SECURITIES
Section 2.01. Forms. The Securities and the Coupons, if any,
-----
appertaining thereto shall be in substantially such form as shall be established
by or pursuant to a resolution of the Board of Directors or in one or more
indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Third Amended and Restated Indenture, and may have such legends or
endorsements placed thereon as the officers executing the same may approve
(execution thereof to be conclusive evidence of such approval) and as are not
inconsistent with the provisions of this Third Amended and Restated Indenture,
or as may be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock exchange on which
such Securities may be listed, or to conform to usage.
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______________________________
Section 2.02. Amount Unlimited; Issuable in Series and Tranches. The
-------------------------------------------------
aggregate principal amount of Securities which may be authenticated and
delivered under this Third Amended and Restated Indenture is unlimited.
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
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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;
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(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;
11
<PAGE>
(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.
Section 2.03. Authentication. At any time and from time to time
--------------
after the execution and delivery of this Third Amended and Restated Indenture,
the Company may deliver Securities of any Tranche having attached thereto
appropriate Coupons, if any, executed by the Company to the Trustee or its agent
for authentication. Except as otherwise provided in this Article Two, the
Trustee shall
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<PAGE>
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
13
<PAGE>
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
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<PAGE>
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.
Section 2.04. Date and Denomination of Securities. The Securities of
-----------------------------------
each Tranche shall be issuable as Registered Securities or Unregistered
Securities in such denominations as shall be specified as contemplated by
Section 2.02. In the absence of any such specification (a) with respect to
Registered Securities, such Securities shall be 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; and (b) with respect to Unregistered
Securities, such Securities shall be issuable in denominations of 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.
Securities of each Tranche shall be numbered, lettered or otherwise
distinguished in such manner or in accordance with such plan as the officers of
the Company executing the same may determined with the approval of the Trustee.
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
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Directors or the supplemental indenture referred to in Section 2.02; provided,
--------
however, that Unregistered Securities which are part of the same Tranche as a
- -------
prior issue of Notes shall be dated the original issue date of such prior issue
of Notes.
The Person in whose name any Registered Security of a particular
Tranche is registered at the close of business on any record date (as
hereinafter defined) with respect to any interest payment date for such Tranche
shall be entitled to receive the interest payable on such interest payment date
notwithstanding the cancellation of such Registered Security upon any
registration of transfer or exchange subsequent to the record date and prior to
such interest payment date; provided, however, that if and to the extent that
-------- -------
the Company shall default in the payment of interest on such interest payment
date, such defaulted interest shall be paid to the Persons in whose names
Outstanding Registered Securities of such Tranche are registered on a subsequent
record date established by notice given by mail by or on behalf of the Company
to the holders of such Registered 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 Registered Securities of a
particular Tranche, 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 Business Day.
Section 2.05. Execution of Securities. The Securities and, if
-----------------------
applicable, the Coupons appertaining thereto, shall be signed in the name and on
behalf of the Company by the manual or facsimile signature of its President, its
Chairman of the Board, its Senior Vice President, Finance, or its Senior Vice
President-Corporate Treasury and Global Funding Operation, under its corporate
seal (which may be printed, engraved or otherwise reproduced thereon, by
facsimile or otherwise) attested by the Secretary or any Assistant Secretary of
the Company. Only such Securities as shall bear thereon a certificate of
authentication substantially in the form herein recited, executed by the
Trustee, shall be entitled to the benefits of this Third Amended and Restated
Indenture or be valid or
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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.
Section 2.06. Exchange and Registration of Transfer of Securities.
---------------------------------------------------
Registered Securities of any Tranche (other than a Registered Global Security,
except as set forth below) may be exchanged for a like aggregate principal
amount of Registered Securities of the same Tranche of other authorized
denominations. Unregistered Securities will not be issuable in exchange for
Registered Securities.
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
17
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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
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<PAGE>
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
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<PAGE>
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.
20
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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
21
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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.
Section 2.07. Mutilated, Destroyed, Lost or Stolen Securities. In
-----------------------------------------------
case any temporary or definitive Security or any Coupon appertaining to any
Security shall become mutilated or be destroyed, lost or stolen, the Company in
the case of a mutilated Security or Coupon shall, and in the case of a lost,
stolen, or destroyed Security or Coupon may in its discretion, execute and, upon
the written request or authorization of any officer of the Company, the Trustee
shall authenticate and deliver a new Security of the same Tranche or Coupon, as
the case may be, bearing a number not contemporaneously Outstanding, in exchange
and substitution for the mutilated Security or Coupon, or in lieu of and in
substitution for the Security or Coupon so destroyed, lost or stolen with (in
the case of mutilated, lost, stolen or destroyed Securities) Coupons
corresponding to the Coupons appertaining to such Securities. In every case the
applicant for a substituted Security or Coupon 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 to the Company and to the Trustee evidence to their
satisfaction of the destruction, loss or theft of such Security or Coupon and of
the ownership thereof.
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
22
<PAGE>
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.
Section 2.08. Temporary Securities. Pending the preparation of
--------------------
definitive Securities of any Tranche, the Company may execute and the Trustee
shall authenticate and deliver temporary Securities (printed, lithographed or
typewritten). Temporary Securities shall be issuable in any 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 Tranche and thereupon any or all temporary
Securities of such Tranche 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
23
<PAGE>
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).
Section 2.09. Cancellation of Securities Paid, etc. All Securities
-------------------------------------
and Coupons surrendered for the purpose of payment, redemption, repayment,
exchange or registration of transfer or for credit against any sinking fund
shall, if surrendered to the Company, any Security registrar, any paying agent
or any other agent of the Company or of the Trustee, be delivered to the Trustee
and promptly canceled by it, or, if surrendered to the Trustee, shall be
promptly canceled by it, and no Securities or Coupons shall be issued in lieu
thereof except as expressly permitted by any of the provisions of this Third
Amended and Restated Indenture. The Trustee may destroy canceled Securities and
Coupons and deliver a certificate of such destruction to the Company or, at the
written request of the Company, shall deliver canceled Securities and Coupons to
the Company. If the Company shall acquire any of the Securities or Coupons,
however, such acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Securities or Coupons unless and until the
same are delivered to the Trustee for cancellation.
Section 2.10. Computation of Interest. Except as otherwise specified
-----------------------
as contemplated by Section 2.02 for Securities of any Tranche, interest on the
Securities of
24
<PAGE>
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
Section 3.01. Applicability of Article. The provisions of this
------------------------
Article Three shall be applicable, as the case may be, (i) to any Securities
which are redeemable or subject to repayment at the option of the holder before
their maturity and (ii) to any sinking fund for the retirement of any
Securities, in either case except as otherwise specified as contemplated by
Section 2.02 for any Tranche of Securities.
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."
Section 3.02. Notice of Redemption; Selection of Securities. In case
---------------------------------------------
the Company shall desire to exercise any right to redeem all, or, as the case
may be, any part of, the Securities of any Tranche in accordance with their
terms, it shall fix a date for redemption. Notice of redemption to the holders
of Registered Securities of any Tranche to be redeemed as a whole or in part at
the option of the Company shall be given by mailing notice of such redemption by
first class mail, postage prepaid, at least 30 days and not more than 60 days
prior to the date fixed for redemption to such holders at their last addresses
as they shall appear upon the registry books of the Company and to the Trustee.
Notices of redemption to be sent to the holders of Global Series Notes that are
Registered Securities shall be sent only to the holders of those Global Series
Notes to be redeemed. Notice of redemption to the holders of Unregistered
Securities to be redeemed as a whole or in part who have filed their names and
addresses with the Trustee pursuant to Section 313(c)(2) of the Trust Indenture
Act of 1939 shall be given by mailing notice of such redemption, by first class
mail, postage prepaid, at least 30 days and not more than 60 days prior to the
date fixed for redemption, to such holders at such addresses as were so
furnished to the Trustee (and, in the case of any such notice given by the
Company, the Trustee shall make such
25
<PAGE>
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
26
<PAGE>
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.
Section 3.03. Payment of Securities Called for Redemption. If notice
-------------------------------------------
of redemption has been given as provided in Section 3.02 or 3.05, the Securities
or portions of Securities of the Tranche with respect to which such notice has
been given shall become due and payable on the date and at the place or places
stated in such notice at the applicable redemption price, together with any
interest accrued to the date fixed for redemption, and on and after said date
(unless the Company shall default in the payment of such Securities or portions
of such Securities, together with any interest accrued to said date) any
interest on the Securities or portions of Securities of such Tranche so called
for redemption shall cease to accrue, and the unmatured Coupons, if any,
appertaining thereto shall be void. On presentation and surrender of such
Securities at a place of payment in said notice specified, together with all
Coupons, if any, appertaining thereto maturing after the date fixed for
redemption, the said Securities or the specified portions thereof shall be paid
and redeemed by the Company at the applicable redemption price, together with
any interest accrued thereon to the date fixed for redemption; provided,
--------
however, that payment of interest becoming due on or prior to the date fixed for
- -------
redemption shall be payable in the case of Securities with Coupons attached
thereto, to the holders of the Coupons for such interest upon surrender thereof,
and in the case of Registered Securities, to the Holders of such Registered
Securities registered as such on the relevant record date subject to the terms
and provisions of Sections 2.02 and 2.04.
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.
27
<PAGE>
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.
Section 3.04. Satisfaction of Mandatory Sinking Fund Payments with
----------------------------------------------------
Securities. In lieu of making all or any part of any mandatory sinking fund
- ----------
payment with respect to any Securities in cash, the Company may at its option
(a) deliver to the Trustee Securities, together with all unmatured Coupons, if
any, appertaining thereto, of the same Tranche theretofore purchased or
otherwise acquired by the Company or (b) receive credit for the principal amount
of Securities of the same Tranche which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities; provided that such Securities have not previously been so
--------
credited. Such Securities shall be received and credited for such purpose by
the Trustee at the redemption price specified in such Securities for redemption
through operation of the sinking fund and the amount of such mandatory sinking
fund payment shall be reduced accordingly.
Section 3.05. Redemption of Securities for Sinking Fund. Not less
-----------------------------------------
than 60 days prior to each sinking fund payment date for any Securities, the
Company will deliver to the Trustee a certificate signed by the Senior Vice
President-Corporate Treasury and Global Funding Operation or any Assistant
Treasurer of the Company specifying the amount of the next ensuing sinking fund
payment for such Securities pursuant to the terms thereof, the portion thereof,
if any, which is to be satisfied by payment of cash (which cash may be deposited
with the Trustee or with one or more paying agents, or if the Company is acting
as its own paying agent, segregated and held in trust as provided in Section
4.04) and the portion thereof, if any, which is to be satisfied by delivering
and crediting Securities of the same Tranche pursuant to Section 3.04 (which
Securities, if not theretofore delivered, will accompany such certificate) and
whether the Company intends to exercise its right to make a permitted optional
sinking fund payment with respect to such Securities. Such certificate shall
also state that no Event of Default has occurred and is continuing with respect
to such Securities.
28
<PAGE>
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
29
<PAGE>
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.
Neither the Trustee nor the Company shall redeem any Securities with
sinking fund moneys or give any notice of redemption of such Securities by
operation of the sinking fund for such Tranche during the continuance of a
default in payment of interest, if any, on such Securities or of any Event of
Default (other than an Event of Default occurring as a consequence of this
paragraph) with respect to such Securities, except that if the notice of
redemption of any such Securities shall theretofore have been given in
accordance with the provisions hereof, the Trustee (or the Company if the
Company is acting as its own paying agent) shall redeem such Securities if cash
sufficient for that purpose shall be deposited with the Trustee (or segregated
by the Company) for that purpose in accordance with the terms of this Article
Three. Except as aforesaid, any moneys in the sinking fund for such Securities
at the time when any such default or Event of Default shall occur and any moneys
thereafter paid into such sinking fund shall, during the continuance of such
default or Event of Default, be held as security for the payment of such
Securities; provided, however, that in case such default or Event of Default
-------- -------
shall have been cured or waived as provided herein, such moneys shall thereafter
be applied on the next sinking fund payment date for such Securities to which
such moneys may be applied pursuant to the provisions of this Section 3.05.
30
<PAGE>
Section 3.06. Repayment at the Option of the Holder. Any Tranche of
-------------------------------------
Securities may be made, by provision contained in or established pursuant to a
supplemental indenture or a resolution of the Board of Directors pursuant to
Section 2.02, subject to repayment, in whole or in part, at the option of the
holder on a date or dates specified prior to maturity, at a price equal to 100%
of the principal amount thereof, together with accrued interest to the date of
repayment or, in the case of Original Issue Discount Securities, at a price
equal to 100% of the accreted principal amount thereof to the date of such
repayment, on such notice as may be required; provided, however, that the holder
-------- -------
of a Security may only elect partial repayment in an amount that will result in
the portion of such Security that will remain Outstanding after such repayment
constituting an authorized denomination, or combination thereof, of such
Securities.
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
Section 4.01. Payment of Principal, Premium and Interest. The
------------------------------------------
Company covenants and agrees for the benefit of all holders of Securities issued
hereunder that it will duly and punctually pay or cause to be paid the principal
of, premium, if any, and interest, if any, on all such Securities (for all
purposes herein, references to interest shall include any additional amounts
payable pursuant to the terms of such Securities) at the places, at the
respective times and in the manner provided in such Securities, in the Coupons,
if any, appertaining thereto, and in this Third Amended and Restated Indenture.
The interest on Securities issued with Coupons (together with any additional
amounts payable pursuant to the terms of such Securities) shall be payable only
upon presentation and surrender of the several Coupons for such interest
installments as are evidenced thereby as they severally mature. If any
temporary Unregistered Security provides that interest thereon may be paid while
such Security is in temporary form, the interest on any such temporary
Unregistered Security (together with any additional amounts payable pursuant to
the terms of such Security) shall be paid, as to the installments of interest
evidenced by Coupons attached thereto, if any, only upon presentation and
surrender thereof, and, as to the other installments of interest, if any, only
upon presentation of such Securities for notation thereon of the payment of such
interest, in each case subject to any restrictions that may be established
pursuant to Section 2.02.
31
<PAGE>
Section 4.02. Offices for Notices and Payments, etc. As long as any
--------------------------------------
Registered Securities remain Outstanding hereunder, the Company will designate
and maintain in the Borough of Manhattan, The City of New York an office or
agency where such Registered Securities may be presented for payment, and where
such Securities may be presented for registration of transfer and for exchange
as in this Third Amended and Restated Indenture provided.
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
32
<PAGE>
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 may from time to time designate one or more additional
offices or agencies where Securities and any Coupons appertaining thereto may be
presented for payment, where Securities may be presented for exchange as
provided in this Third Amended and Restated Indenture and pursuant to Section
2.02 and where Registered Securities may be presented for registration of
transfer as in this Third Amended and Restated Indenture provided, and the
Company may from time to time rescind any such designation, as the Company may
deem desirable or expedient; provided, however, that no such designation or
-------- -------
rescission shall in any manner relieve the Company of its obligation to maintain
the agencies provided for in this Section 4.02. The Company will give to the
Trustee prompt written notice of any such designation or rescission thereof.
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
33
<PAGE>
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.
Section 4.03. Appointments to Fill Vacancies in Trustee's Office.
--------------------------------------------------
The Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Section 7.10, a successor
Trustee, so that there shall at all times be a Trustee with respect to all
Securities issued hereunder.
Section 4.04. Provision as to Paying Agent. (a) If the Company
----------------------------
shall appoint a paying agent other than the Trustee with respect to the
Securities of any Tranche, it will cause such paying agent to execute and
deliver to the Trustee an instrument in which such agent shall agree with the
Trustee, subject to the provisions of this Section 4.04,
(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,
34
<PAGE>
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.
Section 4.05. Statement as to Compliance. The Company will furnish
--------------------------
to the Trustee on or before June 1 in each year (beginning with first June 1
which is not less than 60 days following the first date of issuance of any
Tranche of Securities under this Third Amended and Restated Indenture) a brief
certificate (which need not comply with Section 14.05) from the principal
executive, financial or accounting officer or the Senior Vice President-
Corporate Treasury and Global Funding Operation of the Company stating that in
the course of the performance by the signer of his duties as an officer of the
Company he would normally have knowledge of any default or non-compliance by the
Company in the performance of any covenants or conditions contained in Sections
4.01 and 11.01, stating whether or not he has
35
<PAGE>
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
Section 5.01. Securityholder Lists. If and so long as the Trustee
--------------------
shall not be the Security registrar for any Tranche of Registered Securities,
the Company will furnish or cause to be furnished to the Trustee with respect to
each Tranche of Registered Securities issued hereunder a list in such form as
the Trustee may reasonably require of the names and addresses of the holders of
Registered Securities of such Tranche pursuant to Section 312 of the Trust
Indenture Act of 1939 (a) semiannually not more than 15 days after each record
date for the payment of interest in respect of the Registered Securities of such
Tranche, as of such record date, and on dates to be determined pursuant to
Section 2.02 for each Tranche of non-interest bearing Registered Securities in
each year and (b) at such other times as the Trustee may request in writing,
within 30 days after receipt by the Company of any such request, as of a date
not more than 15 days prior to the time such information is furnished.
Section 5.02. Reports by the Company. The Company covenants to file
----------------------
with the Trustee, within 15 days after the Company is required to file the same
with the Securities and Exchange Commission, copies of the annual reports and of
the information, documents and other reports that the Company may be required to
file with the Securities and Exchange Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 or pursuant to Section 314
of the Trust Indenture Act of 1939.
Section 5.03. Reports by the Trustee. Any Trustee's report required
----------------------
under Section 313(a) of the Trust Indenture Act of 1939 shall be transmitted on
or before May 15 in each year beginning May 15, 1997, as provided in Section
313(c) of the Trust Indenture Act of 1939, so long as any Securities are
Outstanding hereunder, and shall be dated as of a date convenient to the Trustee
no more than 60 days prior thereto.
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ARTICLE SIX
REMEDIES OF THE TRUSTEE AND
SECURITYHOLDER ON EVENT OF DEFAULT
Section 6.01. Events of Default. The term "Event of Default"
-----------------
whenever used herein with respect to Securities of any series means any one of
the following events and such other events as may be established with respect to
the Securities of such series as contemplated by Section 2.02, continued for the
period of time, if any, and after the giving of notice, if any, designated in
this Third Amended and Restated Indenture or as may be established with respect
to such Securities as contemplated by Section 2.02, as the case may be, unless
it is either inapplicable or is specifically deleted or modified 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:
(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
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twenty-five percent in aggregate principal amount of the Securities of such
series at the time Outstanding; or
(e) an event of default with respect to any other series of Securities
issued pursuant to this Third Amended and Restated Indenture or as defined
in any other indenture or instrument evidencing or under which the Company
has at the date of this Third Amended and Restated Indenture or shall
hereafter have outstanding any indebtedness for borrowed money shall happen
and be continuing and such other series of Securities or such indebtedness,
as the case may be, shall have been accelerated so that the same shall be
or become due and payable prior to the date on which the same would
otherwise have become due and payable, and such acceleration shall not be
rescinded or annulled within ten days after written notice of such
acceleration shall have been given to the Company by the Trustee or to the
Company and the Trustee by the holders of at least twenty-five percent in
aggregate principal amount of such Securities at the time Outstanding or
within ten days after written notice of such acceleration shall have been
given to the Company pursuant to the terms of such other indenture or
instrument, as the case may be; provided, however, that if such event of
-------- -------
default with respect to such other series of Securities or under such other
indenture or instrument, as the case may be, shall be remedied or cured by
the Company, or waived by the holders of such other series of Securities or
of such other indebtedness, as the case may be, then the Event of Default
hereunder by reason thereof shall be deemed likewise to have been thereupon
remedied, cured or waived without further action upon the part of either
the Trustee or any of the Securityholders of such series; and provided
--------
further that, subject to the provisions of Sections 6.08 and 7.01, the
-------
Trustee shall not be charged with knowledge of any such event of default or
any remedy, cure or waiver thereof or any 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 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
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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
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(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
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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.
Section 6.02. Payment of Securities on Default; Suit Therefor. The
-----------------------------------------------
Company covenants that (a) in case default shall be made in the payment of any
installment of interest upon any Security as and when the same shall become due
and payable, and such default shall have continued for a period of 30 days, (b)
in case default shall be made in the payment of the principal of, or premium, if
any, on any Security as and when the same shall become due and payable, whether
at maturity of such Security or upon redemption or by declaration, repayment or
otherwise or (c) in case of default in the making or satisfaction of any sinking
fund payment or analogous obligation when the same becomes due by the terms of
the Securities of any series -- then, upon demand of the Trustee, the Company
will pay to the Trustee, for the benefit of the holder of any such Security (or
holders of any series of Securities in the case of clause (c) above) the whole
amount that then shall have become due and payable on any such Security (or
Securities of any such series in the case of clause (c) above) for principal,
premium, if any, and interest, if any, with interest upon the overdue principal
and premium, if any, and (to the extent that payment of such interest is
enforceable under applicable law) upon the overdue installments of interest, if
any, at the Overdue Rate applicable to any such Security (or Securities of any
such series in the case of clause (c) above); and, in addition thereto, such
further amount as shall be sufficient to cover costs and expenses of collection,
and any further amounts payable to the Trustee pursuant to the provisions of
Section 7.06.
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.
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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
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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.
Section 6.03. Application of Moneys Collected by Trustee. Any moneys
------------------------------------------
collected by the Trustee pursuant to this Article Six shall be applied in the
order following, at the date or dates fixed by the Trustee for the distribution
of such moneys, upon presentation of the several Securities and Coupons
appertaining to such Securities in respect of which moneys have been collected,
and the notation thereon of the payment if only partially paid, and upon
surrender thereof if fully paid:
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;
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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.
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Section 6.04. Proceedings by Securityholders. No holder of any
------------------------------
Security or of any Coupon appertaining thereto shall have any right by virtue of
or by availing of any provision of this Third Amended and Restated Indenture to
institute any suit, action or proceeding to the extent lawful in equity or at
law upon or under or with respect to this Third Amended and Restated Indenture
or for the appointment of a receiver or trustee (or other similar official), or
for any other remedy hereunder, unless such holder previously shall have given
to the Trustee written notice of default with respect to such series of
Securities and of the continuance thereof, as 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 or
Coupon with every other taker and holder and the Trustee, that no one or more
holders of Securities of such series or Coupons appertaining to such Securities
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 Coupons
appertaining to such Securities, 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
and Coupons appertaining to such Securities.
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
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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.
Section 6.05. Proceedings by Trustee. In case of an Event of Default
----------------------
hereunder, the Trustee may in its discretion proceed to protect and enforce the
rights vested in it by this Third Amended and Restated Indenture by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any of such rights, either by suit in equity or by action at
law or by proceeding in bankruptcy or otherwise, whether for the 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.
Section 6.06. Remedies Cumulative and Continuing. All powers and
----------------------------------
remedies given by this Article Six to the Trustee or to the holders of the
Securities of any series or Coupons appertaining to such Securities shall, to
the extent permitted by law, be deemed cumulative and not exclusive of any
thereof or of any other powers and remedies available to the Trustee or the
holders of such Securities or Coupons, by judicial proceedings or otherwise, to
enforce the performance or observance of the covenants and agreements contained
in this Third Amended and Restated Indenture, and no delay or omission of the
Trustee or of any holder of any such Securities or Coupons to exercise any right
or power accruing upon any default occurring and continuing as aforesaid shall
impair any such right or power, or shall be construed to be a waiver of any such
default or an acquiescence therein; and, subject to the provisions of Section
6.04, every power and remedy given by this Article Six or by law to the Trustee
or to the holders of the Securities of any series or Coupons appertaining to
such Securities may be exercised from time to time, and as often as shall be
deemed expedient, by the Trustee or by the holders of such Securities or
Coupons.
Section 6.07. Direction of Proceedings and Waiver of Defaults by
--------------------------------------------------
Securityholders. The holders of a majority in aggregate principal amount of the
- ---------------
Securities of any
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series 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,
or exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series; provided, however, that (subject to the provisions of
-------- -------
Section 7.01) the Trustee shall have the right to decline to follow any such
direction if the Trustee, being advised by counsel, determines that the action
or proceeding so directed may not lawfully be taken or if the Trustee in good
faith by its board of directors or trustees, executive committee, or a trust
committee of directors or trustees and/or Responsible Officers shall determine
that the action or proceeding so directed would involve the Trustee in personal
liability. Prior to any declaration accelerating the maturity of the Securities
of any series, the holders of a majority in aggregate principal amount of such
Securities at the time Outstanding may on behalf of the holders of all such
Securities and all Coupons appertaining thereto waive any past default or Event
of Default with respect to such Securities and all Coupons appertaining thereto
and its 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 any
Coupon appertaining thereto, or in the payment of any sinking fund installment
or analogous obligation with respect to such Securities or Coupons, 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 or Coupon
affected. Upon any such waiver the Company, the Trustee and the holders of such
Securities and Coupons shall be restored to their former position 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 all Coupons appertaining thereto
and this Third Amended and Restated Indenture be deemed to have been cured and
to be not continuing.
Section 6.08. Notice of Defaults. The Trustee shall, within 90 days
------------------
after the occurrence of a default with respect to the Securities of any series,
give notice of all defaults with respect to that series known to a Responsible
Officer of the Trustee (i) if any Unregistered Securities of that series are
then Outstanding, to the holders thereof and of all Coupons appertaining
thereto, by publication at least once in an Authorized Newspaper in the Borough
of Manhattan, The City of New York at least once in an Authorized
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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 and (ii) to all holders of Securities of such series and of all
Coupons appertaining thereto in the manner and to the extent provided in Section
313(c) of the Trust Indenture Act of 1939, unless such defaults shall have been
cured before the giving of such notice (the term "defaults" for the purpose of
this Section 6.08 being hereby defined to be the events specified in Section
6.01 or established with respect to such Securities as contemplated by Section
2.02, not including the periods of grace, if any, provided for therein or
established with respect to such Securities as contemplated by Section 2.02 and
irrespective of the giving of the notices specified in clauses (d) and (e) of
Section 6.01 or established with respect to such Securities as contemplated by
Section 2.02); provided, however, that except in the case of default in the
-------- -------
payment of the principal of, premium, if any, or interest, if any, on any of the
Securities of such series or in the making of any sinking fund installment or
analogous obligation with respect to such Securities, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee, or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interest of the holders of such Securities and the Coupons
appertaining thereto.
Section 6.09. Undertaking to Pay Costs. All parties to this Third
------------------------
Amended and Restated Indenture agree, and each holder of any Security or Coupon
by his acceptance thereof shall be deemed to have agreed, that any court may in
its 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 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,
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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
Section 7.01. Duties and Responsibilities of Trustee. With respect
--------------------------------------
to the holders of any series of Securities issues hereunder, the Trustee, prior
to the occurrence of any Event of Default with respect to the Securities of such
series and after the curing or waiving of all Events of Default which may have
occurred with respect to such series, undertakes to perform such duties and only
such duties as are specifically set forth in this Third Amended and Restated
Indenture. In case an Event of Default with respect to the Securities of a
series has occurred (which has not been cured or waived), the Trustee shall
exercise such of the rights and powers vested in it by this Third Amended and
Restated Indenture with respect to such series, and use the same degree of care
and skill in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
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,
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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.
Section 7.02. Reliance on Documents, Opinions, etc. In furtherance
-------------------------------------
of and subject to the Trust Indenture Act of 1939, and subject to the provisions
of Section 7.01:
(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,
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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,
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request, direction, consent, order, bond, note or other paper or
document unless requested in writing so to do by the holders of a
majority in aggregate principal amount of the Securities of any series
affected then Outstanding; provided, however, that if the payment
-------- -------
within a reasonable time to the Trustee of the costs and expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security conferred upon it by the terms
of this Third Amended and Restated Indenture, the Trustee may require
reasonable indemnity against such costs, expenses or liabilities as a
condition to so proceeding; and the reasonable expenses of such
investigation shall be paid by the Company or, if paid by the Trustee,
shall be repaid by the Company upon demand; and
(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.
Section 7.03. No Responsibility for Recitals, etc. The recitals
------------------------------------
contained herein and in the Securities shall be taken as the statements of the
Company (except in the Trustee's certificates of authentication), and the
Trustee assumes no responsibility for the correctness of the same. The Trustee
makes no representations as to the validity or sufficiency of this Third Amended
and Restated Indenture or of the Securities or Coupons, provided that the
--------
Trustee shall not be relieved of its duty to authenticate Securities only as
authorized by this Third Amended and Restated Indenture. The Trustee shall not
be accountable for the use or application by the Company of any of the
Securities or of the proceeds thereof.
Section 7.04. Ownership of Securities. The Trustee and any agent of
-----------------------
the Company or of the Trustee, in its individual or any other capacity, may
become the owner or pledgee of Securities or Coupons with the same rights it
would have if it were not Trustee or such agent.
Section 7.05. Moneys to be Held in Trust. Subject to the provisions
--------------------------
of Sections 4.04, 12.03 and 12.04, all moneys received by the Trustee or any
paying agent
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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.
Section 7.06. Compensation and Expenses of Trustee. The Company
------------------------------------
covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to, reasonable compensation (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
and, except as otherwise expressly provided, the Company will pay or reimburse
the Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any of the
provisions of this Third Amended and Restated Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all Persons not regularly in its employ) except any such expense, disbursement
or advance as may arise from its negligence or bad faith. The Company also
covenants to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on the part
of the Trustee, arising out of or in connection with the acceptance or
administration of this trust and its duties hereunder, including the costs and
expenses of defending itself against any claim of liability in the premises.
The obligations of the Company under this Section 7.06 to compensate and
indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder
and shall survive the satisfaction and discharge of this Third Amended and
Restated Indenture.
Section 7.07. Officers' Certificate as Evidence. Subject to the
---------------------------------
provisions of Sections 7.01 and 7.02, whenever in the administration of the
provisions of this Third Amended and Restated Indenture the Trustee shall deem
it necessary or desirable that a matter be proved or established prior to
taking, omitting or suffering any
53
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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.
Section 7.08. Indentures Not Creating Potential Conflicting Interests
-------------------------------------------------------
for the Trustee. The following indentures are hereby specifically described for
- ---------------
the purposes of Section 310(b)(1) of the Trust Indenture Act of 1939: (a) this
Third Amended and Restated Indenture with respect to the Securities of any other
series; (b) the indenture dated as of October 1, 1991, between the Company and
the Trustee; (c) the indenture dated as of February 1, 1994, between the Company
and the Trustee; (d) the indenture dated as of November 1, 1981, between the
Company and the Trustee; (e) the indenture dated as of April 1, 1991, between
the Company and the Trustee; (f) the indenture dated as of August 1, 1995,
between the Company and the Trustee; and (g) the indenture dated as June 3,
1994, between the Company and the Trustee.
Section 7.09. Eligibility of Trustee. The Trustee hereunder shall at
----------------------
all times be a corporation organized and doing business under the laws of the
United States or any State, which (a) is authorized under such laws to exercise
corporate trust powers and (b) is subject to supervision or examination by
Federal or State authority and (c) shall have at all times a combined capital
and surplus of not less than $10,000,000. If such corporation publishes reports
of condition at least annually, pursuant to law, or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section 7.09, the combined capital and surplus of such 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.
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Section 7.10. Resignation or Removal of Trustee. The Trustee, or any
---------------------------------
Trustee or Trustees hereafter appointed, may at any time resign with respect to
any one or more or all series of Securities by giving written notice of
resignation to the Company and (i) if any Unregistered Securities of a series
affected are then Outstanding, by giving notice of such resignation to the
holders thereof, by publication 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, (ii) if any Unregistered Securities of a series affected are then
Outstanding, by mailing notice of such resignation 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, at such addresses as were so
furnished to the Trustee and (iii) by mailing notice of such resignation 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. Upon
receiving such notice of resignation, the Company shall promptly appoint a
successor Trustee or Trustees with respect to the applicable 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 resigning Trustee and one copy to the successor Trustee. If no successor
Trustee shall have been so appointed with respect to any series and have
accepted appointment within 60 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee, or any Securityholder
who has been a bona fide holder of a Security or Securities of the applicable
series for at least six months may, subject to the provisions of Section 6.09,
on behalf of himself and all others similarly situated, petition any such court
for the appointment of a successor Trustee. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, appoint a successor
Trustee.
(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
55
<PAGE>
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
56
<PAGE>
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.
Section 7.11. Acceptance by Successor Trustee. Any successor Trustee
-------------------------------
appointed as provided in Section 7.10 shall execute, acknowledge and deliver to
the Company and to its predecessor Trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee with respect to any or all applicable series shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, duties and
obligations with respect to such series of its predecessor hereunder, with like
effect as if originally named as Trustee herein; but, nevertheless, on the
written request of the Company or of the successor Trustee, the Trustee ceasing
to act shall, upon payment (or due provision therefor) of any amounts then due
it pursuant to the provisions of Section 7.06, execute and deliver an instrument
transferring to such successor Trustee all the rights and powers with respect to
such series of the Trustee so ceasing to act. Upon request of any such
successor Trustee, the Company shall execute any and all instruments in writing
in order more fully and certainly to vest in and confirm to such successor
Trustee all such rights and powers.
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.
57
<PAGE>
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.
Section 7.12. Succession by Merger, etc. Any corporation into which
--------------------------
the Trustee may be merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to the corporate
trust business of the Trustee, shall be the successor to the Trustee hereunder,
provided such corporation shall be qualified under Section 310(b) of the Trust
Indenture Act of 1939, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
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
58
<PAGE>
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.
Section 7.13. Appointment of Authenticating Agent. The Trustee may
-----------------------------------
appoint an Authenticating Agent or Agents which shall be authorized to act on
behalf of the Trustee to authenticate Securities issued upon original issue and
upon exchange, registration of transfer, partial conversion or partial
redemption or pursuant to Section 2.07 and Securities so authenticated shall be
entitled to the benefits of this Third Amended and Restated Indenture and shall
be valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Third Amended and Restated
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $10,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section 7.13, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 7.13, such
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<PAGE>
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.
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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
By________________________,
Authorized Signatory
--------------------
ARTICLE EIGHT
CONCERNING THE SECURITYHOLDERS
Section 8.01. Action by Securityholders. Whenever in this Third
-------------------------
Amended and Restated Indenture it is provided that the holders of a specified
percentage in aggregate principal amount of the Securities of any or all series
may take any action (including the making of any demand or request, the giving
of any notice, consent or waiver or the taking of any other action) the fact
that at the time of taking any such action the holders of such specified
percentage have joined therein may be evidenced (a) by any instrument or any
number of instruments of similar tenor executed by such Securityholders in
person or by agent or proxy appointed in writing, or (b) by the record of such
holders of Securities voting in favor thereof at any meeting of such
Securityholders duly called and held in accordance with the provisions of
Article Nine, or (c) by a combination of such instrument or instruments and any
such record of such a meeting of such Securityholders.
Section 8.02. Proof of Execution by Securityholders. Subject to the
-------------------------------------
provisions of Sections 7.01, 7.02 and 9.05, the execution of any instrument by a
Securityholder or his agent or proxy may be proved in the
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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.
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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.
Section 8.03. Who are Deemed Absolute Owners. The Company, the
------------------------------
Trustee and any agent of the Company or of the Trustee may deem the Person in
whose name any Registered Security shall be registered upon the books of the
Company to be, and may treat such Person as, the absolute owner of such Security
(whether or not such Security shall be overdue and notwithstanding any notation
of ownership or other writing thereon) for the purpose of receiving payment of
or on account of the principal of, premium, if any, and interest, if any, on
such Security and for all other purposes; and neither the Company nor the
Trustee nor any agent of the Company or of the Trustee shall be affected by any
notice to the contrary. The Company, the Trustee and any agent of the Company
or the Trustee may treat the holder of the Unregistered Security and the holder
of any Coupon as the absolute owner of such Unregistered Security or Coupon
(whether or not such Unregistered Security or Coupon shall be overdue) for the
purpose of receiving payment thereof or on account thereof and for all other
purposes and neither the Company, the Trustee, nor any agent of the Company or
the Trustee shall be affected by any notice to the contrary. All such payments
so made to any holder for the time being, or upon his order, shall be valid,
and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for moneys payable upon any such Security or Coupon.
Section 8.04. Company-Owned Securities Disregarded. In determining
------------------------------------
whether the holders of the requisite aggregate principal amount of Securities
have concurred in any demand, request, notice, direction, consent or waiver
under this Third Amended and Restated Indenture, Securities which are owned by
the Company or any other
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obligor on the Securities with respect to which such determination is being made
or by any Person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company or any other obligor on the
Securities with respect to which such determination is being made shall be
disregarded and deemed not to be Outstanding for the purpose of any such
determination; provided, that for the purposes of determining whether the
--------
Trustee shall be protected in relying on any such demand, request, notice,
direction consent or waiver, only Securities which a Responsible Officer of the
Trustee knows are so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding for the purposes
of this Section 8.04 if the pledgee shall establish to the satisfaction of the
Trustee the pledgee's right to vote such Securities and that the pledgee is not
a Person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company of any such other obligor. In the case
of a dispute as to such right, any decision by the Trustee taken upon the advice
of counsel shall be full protection to the Trustee.
Section 8.05. Revocation of Consents; Future Holders Bound. At any
--------------------------------------------
time prior to (but not after) the evidencing to the Trustee, as provided in
Section 8.01, of 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.
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ARTICLE NINE
SECURITYHOLDERS' MEETINGS
Section 9.01. Purposes of Meetings. A meeting of holders of
--------------------
Securities of any or all series may be called at any time and from time to time
pursuant to the provisions of this Article Nine for any of the following
purposes:
(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.
Section 9.02. Call of Meeting by Trustee. The Trustee may at any
--------------------------
time call a meeting of holders of Securities of any or all series to take any
action specified in Section 9.01, to be held at such time and at such place 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 given (i) if any Unregistered Securities of a series affected are then
Outstanding, by giving notice of such meeting to the holders thereof, by
publication 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 one in an Authorized Newspaper in Luxembourg, (ii) if
any Unregistered Securities of a series affected are then Outstanding, by
mailing notice of such a meeting to the holders thereof who have filed their
names and addresses with the Trustee
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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.
Section 9.03. Call of Meeting by Company or Securityholders. In case
---------------------------------------------
at any time a duly authorized officer of the Company in the name of and on
behalf of the Company or the holders of at least ten percent in aggregate
principal amount of the Securities then Outstanding of any series that may be
affected by the action proposed to be taken at the meeting, shall have requested
the Trustee to call a meeting of the holders of Securities of all series that
may be so affected, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have given
the notice of such meeting within 20 days after receipt of such request, then
the Company or such Securityholders, in the amount specified above, may
determine the time and the place for such meeting and may call such meeting to
take any action authorized in Section 9.01, by giving notice thereof as provided
in Section 9.02.
Section 9.04. Qualifications for Voting. To be entitled to vote at
-------------------------
any meeting of Securityholders, a Person shall (a) be a holder of one or more
Securities with respect to which such meeting is being held or (b) be a Person
appointed by an instrument in writing as proxy by a holder of one or more such
Securities. The only Persons who shall be entitled to be present or to speak at
any meeting of Securityholders shall be the Persons entitled to vote at such
meeting and their counsel and any representatives of the Trustee and its counsel
and any representatives of the Company and its counsel.
Section 9.05. Quorum; Adjourned Meetings. The Persons entitled to
--------------------------
vote a majority in aggregate principal amount of the Securities of the relevant
series at the time Outstanding shall constitute a quorum for the transaction of
all business specified in Section 9.01. No business shall be transacted in the
absence of a quorum (determined as provided in this Section 9.05). In the
absence of a quorum within 30 minutes after the time appointed for any such
meeting, the meeting shall, if convened at the request of the holders of
Securities (as provided in Section 9.03), be dissolved. In any other case the
meeting shall be adjourned
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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.
Any holder of a Security who has executed in person or by proxy and
delivered to the Trustee an instrument in writing complying with the provisions
of Article Eight shall be deemed to be present for the purposes of determining a
quorum and be deemed to have voted; provided that such holder of a Security
--------
shall be considered as present or voting only with respect to the matters
covered by such instrument in writing.
Section 9.06. Regulations. Notwithstanding any other provisions of
-----------
this Third Amended and Restated Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting of Securityholders, in
regard to proof of the holding of Securities and of the appointment of proxies,
and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of the
right to vote and such other matters concerning the
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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.
Subject to the provisions of Section 8.04, at any meeting each holder
of Securities with respect to which such meeting is being held or proxy for such
holder shall be entitled to one vote for each $1,000 (or the equivalent thereof
in any foreign or composite currency) of principal amount (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) of such Securities held or represented by him; provided, however, that no
-------- -------
vote shall be cast or counted at any meeting in respect of any such Security
challenged as not Outstanding and ruled by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall have no right to vote other than
by virtue of such Securities held by him or instruments in writing as aforesaid
duly designating him as the Person to vote on behalf of other such
Securityholders. Any meeting of holders of Securities with respect to which a
meeting was duly called pursuant to the provisions of Section 9.02 or 9.03 may
be adjourned from time to time by a majority of those present, whether or not
constituting a quorum, and the meeting may be held as so adjourned without
further notice.
Section 9.07. Voting. The vote upon any resolution submitted to any
------
meeting of holders of Securities with respect to which such meeting is being
held shall be by written ballots on which shall be subscribed the signatures of
such holder of Securities or of their representatives by proxy and the principal
amount (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) held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all
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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.
Section 9.08. No Delay of Rights by Meeting. Nothing in this Article
-----------------------------
Nine shall be deemed or construed to authorize or permit, by reason of any call
of a meeting of Securityholders of any or all series or any rights expressly or
impliedly conferred hereunder to make such call, any hindrance or delay in the
exercise of any right or rights conferred upon or reserved to the Trustee or to
the Securityholders of any or all such series under any of the provisions of
this Third Amended and Restated Indenture or of the Securities.
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ARTICLE TEN
SUPPLEMENTAL INDENTURES
Section 10.01. Supplemental Indentures without Consent of
------------------------------------------
Securityholders. The Company and the Trustee may from time to time and at any
- ---------------
time enter into an indenture or indentures supplemental hereto for one or more
of the following purposes:
(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 protection of the holders of all or any
series of Securities or Coupons appertaining to Unregistered Securities
(and if such covenants are to be for the benefit of less than all
Securities, stating that such covenants are expressly being included for
the benefit of such series) as a duly authorized officer of the Company, on
behalf of the Company, and the Trustee shall consider to be for the
protection of the holders of such Securities or Coupons, and to make the
occurrence, or the occurrence and continuance, of a default in any of such
additional covenants, restrictions or conditions a default or an Event of
Default permitting the enforcement of all or any of the several remedies
provided in this Third Amended and Restated Indenture as herein set forth;
provided, however, that in respect of any such additional covenant,
-------- -------
restriction or condition such supplemental indenture may provide for a
particular period of grace after default (which period may be shorter or
longer than that allowed in the case of other defaults) or may provide for
an immediate enforcement upon such default or may limit the remedies
available to the Trustee upon such default;
(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;
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(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.
Section 10.02. Supplemental Indentures with Consent of
---------------------------------------
Securityholders. With the consent (evidenced as provided in Sections 8.01 and
- ---------------
8.02) of the holders of not less than 66-2/3% in aggregate principal amount of
the Outstanding Securities of each series (each series voting as a class) (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) affected by such supplemental indenture at the
time Outstanding, the Company and the Trustee may from time
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to time and at any time enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Third Amended and Restated Indenture
or of any supplemental indenture or modifying in any manner the rights of the
holders of the Outstanding Securities of each such series or the Coupons
appertaining to such Securities; provided, however, that no such supplemental
-------- -------
indenture shall (i) extend the fixed maturity of any Outstanding Security, or
reduce the rate or extend the time of payment of interest, if any, thereon, or
reduce the principal amount or premium, if any, thereof, or make the principal
thereof or premium, if any, or interest, if any, thereon payable in any coin or
currency other than that provided in any Outstanding Security or Coupon, or
impair the right of any holder of a Security to institute suit for any such
payment, or reduce the amount of the principal of an Outstanding Original Issue
Discount Security that would be due and payable upon an acceleration of the
maturity thereof pursuant to Section 6.01 or adversely affect the right of
repayment, if any, at the option of the holder, or extend the time, or reduce
the amount of any payment to any sinking fund or analogous obligation relating
to any Security, (ii) 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 or
of Coupons appertaining to such Securities 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
or of Coupons appertaining to such Securities.
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
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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.
Section 10.03. Compliance with Trust Indenture Act; Effect of
----------------------------------------------
Supplemental Indentures. Any supplemental indenture executed pursuant to the
- -----------------------
provisions of this Article Ten shall comply with the Trust Indenture Act of 1939
as then in effect. Upon the execution of any supplemental indenture pursuant to
the provisions of this Article Ten, this Third Amended and Restated Indenture
shall be deemed to be modified and amended in accordance therewith and the
respective rights, limitations of rights, obligations, duties and immunities
under this Third Amended and Restated Indenture of the Trustee, the Company and
the holders of Securities shall thereafter be determined, exercised and enforced
hereunder subject in all respects to 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.
Section 10.04. Notation on Securities. Securities authenticated and
----------------------
delivered after the execution of any supplemental indenture pursuant to the
provisions of this Article Ten may bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company or the Trustee shall so determine, new Securities of any series so
modified as to conform, in the opinion of the Trustee and a duly authorized
officer of the Company, to any modification of this Third Amended and Restated
Indenture contained in any such supplemental indenture may be prepared and
executed by the Company, authenticated by the Trustee and delivered in exchange
for the Securities of such series then Outstanding.
Section 10.05. Evidence of Compliance of Supplemental Indenture to be
------------------------------------------------------
Furnished Trustee. The Trustee, subject to the provisions of Sections 7.01 and
- -----------------
7.02, shall be entitled to receive an Officers' Certificate and an Opinion of
Counsel as conclusive evidence that any
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supplemental indenture executed pursuant hereto complies with the requirements
of this Article Ten.
ARTICLE ELEVEN
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 11.01. Company May Not Consolidate, etc., Except Under
-----------------------------------------------
Certain Conditions. The Company covenants that it will not merge or consolidate
- ------------------
with any other Person or sell, convey, transfer or otherwise dispose of all or
substantially all of its assets to any other Person, unless (i) either the
Company shall be the continuing corporation, or the successor Person (if other
than the Company) shall be a corporation organized and existing under the laws
of the United States of America or a State thereof and such corporation shall
expressly assume the due and punctual payment of the principal of, and premium,
if any, and interest, if any, on all the Outstanding Securities and Coupons, if
any, according to their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of this Third Amended and
Restated Indenture to be performed by the Company by supplemental indenture
satisfactory to the Trustee, executed and delivered to the Trustee by such
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.
Section 11.02. Successor Corporation to be Substituted. In case of
---------------------------------------
any such consolidation, merger, sale, conveyance (other than by way of lease),
transfer or other disposition, and upon any such assumption by the successor
corporation, such successor corporation shall succeed to and be substituted for
the Company, with the same effect as if it had been named herein as the Company,
and the Company shall be relieved of any further obligation under this Third
Amended and Restated Indenture and under the Outstanding Securities and Coupons,
if any. Such successor corporation thereupon may cause to be signed, and may
issue either in its own name or in the name of General Electric Capital
Corporation, any or all of the Securities issuable hereunder together with any
Coupons appertaining thereto which theretofore shall not have been signed by the
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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.
Section 11.03. Documents to be Given Trustee. The Trustee, subject
-----------------------------
to the provisions of Sections 7.01 and 7.02, shall be entitled to receive an
Officers' Certificate and an Opinion of Counsel as conclusive evidence that any
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
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Section 12.01. Discharge of Indenture. When (a) the Company shall deliver
----------------------
to the Trustee for cancellation all Securities theretofore authenticated and all
unmatured Coupons appertaining thereto (other than any Securities or Coupons
which shall have been destroyed, lost or stolen or in lieu of or in substitution
for which other Securities or Coupons shall have been authenticated and
delivered, or which shall have been paid, pursuant to the provisions of Section
2.07) and not theretofore canceled or (b) all the Securities and all unmatured
Coupons appertaining thereto not theretofore canceled or delivered to the
Trustee for cancellation shall have become due and payable, or are by their
terms to become due and payable within one year or are to be called for
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption, and the Company shall deposit with the
Trustee, in trust, funds sufficient to pay at maturity or upon redemption all of
the Securities and Coupons appertaining thereto (other than any (i) Securities
or Coupons which shall have been mutilated, destroyed, lost or stolen and in
lieu of or in substitution for which other Securities or Coupons shall have been
authenticated and delivered, or which shall have been paid pursuant to the
provisions of Section 2.07 or (ii) Securities or Coupons for whose payment money
has theretofore been deposited in trust and thereafter repaid to the Company as
provided in Section 12.04) not theretofore canceled or delivered to the Trustee
for cancellation, including principal, premium, if any, and interest, if any,
due or to become due to such date of maturity or date fixed for redemption, as
the case may be, and if in either case the Company shall also pay or cause to be
paid all other sums payable hereunder by the Company, then this Third Amended
and Restated Indenture shall cease to be of further effect (except as to (i)
rights of registration of transfer and exchange of Securities, (ii) substitution
of mutilated, defaced, destroyed, lost or stolen Securities, (iii) rights of
holders to receive payments of principal thereof and interest thereon, and
remaining rights of the holders to receive mandatory sinking fund payments, if
any, (iv) the rights, obligations and immunities of the Trustee hereunder and
(v) the rights of the Securityholders as beneficiaries hereof with respect to
the property so deposited with the Trustee payable to all or any of them), and
the Trustee, on demand of the Company accompanied by an Officers' Certificate
and an Opinion of Counsel and at the cost and expense of the Company, shall
execute proper instruments acknowledging satisfaction of and discharging this
Third Amended and Restated Indenture, the Company, however, hereby agreeing to
reimburse the Trustee for any costs or expenses thereafter reasonably and
properly
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incurred by the Trustee in connection with this Third Amended and
Restated Indenture or the Securities or Coupons appertaining thereto.
Section 12.02. Deposited Moneys to be Held in Trust by Trustee. All
-----------------------------------------------
moneys deposited with the Trustee 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 or Coupons 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.
Section 12.03. Paying Agent to Repay Moneys Held. Upon the
---------------------------------
satisfaction and discharge of this Third Amended and Restated Indenture, all
moneys then held by any paying agent of the Securities (other than the Trustee)
shall, upon demand of the Company, be repaid to it or paid to the Trustee, and
thereupon such paying agent shall be released from all further liability with
respect to such moneys.
Section 12.04. Return of Unclaimed Moneys. Any moneys, deposited
--------------------------
with or paid to the Trustee for payment of the principal of, premium, if any, or
interest, if any, on any Securities or Coupons appertaining thereto and not
applied but remaining unclaimed by the holders of such Securities or Coupons for
two years after the date upon which the principal of, premium, if any, or
interest, if any, on such Securities or Coupons, as the case may be, shall have
become due and payable, shall be repaid to the Company by the Trustee; and the
holder of any such Securities or Coupons shall thereafter look only to the
Company for any payment which such holder may be entitled to collect.
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ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 13.01. Indenture and Securities Solely Corporate Obligations.
-----------------------------------------------------
No recourse for the payment of the principal of, premium, if any, or interest,
if any, on any Security or any Coupon appertaining thereto, or for any claim
based thereon or otherwise in respect thereof, and no recourse under or upon any
obligation, covenant or agreement of the Company in this Third Amended and
Restated Indenture or in any supplemental indenture, or in any Security or
Coupon, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, 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; it being 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 and Coupons appertaining thereto.
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
Section 14.01. Provisions Binding on Company's Successors. All the
------------------------------------------
covenants, stipulations, promises and agreements in this Third Amended and
Restated Indenture contained by the Company shall bind its successors and
assigns whether so expressed or not.
Section 14.02. Official Acts by Successor Corporation. Any act or
--------------------------------------
proceeding by any provision of this Third Amended and Restated Indenture
authorized or required to be done or performed by any board, committee or
officer of the Company shall and may be done and performed with like force and
effect by the like board, committee or officer of any corporation that shall at
the time be the lawful sole successor of the Company.
Section 14.03. Addresses for Notices, etc. Any notice or demand
---------------------------
which by any provision of this Third Amended and Restated Indenture is required
or permitted to
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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.
Section 14.04. New York Contract. This Third Amended and Restated
-----------------
Indenture and each Security, including any Coupons appertaining thereto, shall
be deemed to be a contract made under the laws of the State of New York, and for
all purposes shall be construed in accordance with the laws of said State.
Section 14.05. Evidence of Compliance with Conditions Precedent.
------------------------------------------------
Upon any application or demand by the Company to the Trustee to take any action
under any of the provisions of this Third Amended and Restated Indenture, the
Company shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Third Amended and Restated
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.
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
79
<PAGE>
the opinion of such person, such condition or covenant has been complied with.
Section 14.06. Legal Holidays. Except as may be otherwise provided
--------------
with respect to any Tranche or series of Securities, in any case where the date
of payment of interest, if any, on or principal of, or premium, if any, on the
Securities or the date fixed for redemption or repayment of any Security or
Coupon will not be a Business Day, then payment of such interest, if any, on or
principal of or premium, if any, on the Securities 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 date of maturity or date fixed for redemption or
repayment, and no interest shall accrue for the period from and after such date.
Section 14.07. Securities in a Specified Currency Other Than Dollars.
-----------------------------------------------------
Unless otherwise specified as contemplated by Section 2.02 with respect to a
particular series of Securities, whenever for purposes of this Third Amended and
Restated Indenture any action may be taken by the holders of a specified
percentage in aggregate principal amount of Securities of all series or all
series affected by a particular action at the time Outstanding and, at such
time, there are Outstanding any Securities of any series which are denominated
in a Specified Currency other than Dollars (including ECUs), then the principal
amount of Securities of such series which shall be deemed to be Outstanding for
the purpose of taking such action shall be that amount of Dollars that could be
obtained for such amount of such Specified Currency at the Market Exchange Rate.
For purposes of this Section 14.07, Market Exchange Rate shall mean the noon
Dollar buying rate in The City of New York for cable transfers of the Specified
Currency published by the Federal Reserve Bank of New York; provided, however,
-------- -------
in the case of ECUs, Market Exchange Rate shall mean the rate of exchange
determined by the Commission of the European Communities (or any successor
thereto) as published in the Official Journal of the European Communities (such
publication or any successor publication, the "Journal"). If such Market
Exchange Rate is not available for any reason with respect to such Specified
Currency, the Trustee shall use, in its sole discretion and without liability on
its part, such quotation of the Federal Reserve Bank of New York or, in the case
of ECUs, the rate of exchange as published in the Journal, as of the most recent
available date, or quotations or, in the case of ECUs, rates of exchange from
one or more major banks in The City of New York or in the country of issue of
the currency
80
<PAGE>
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.
Section 14.08. Trust Indenture Act to Control. If and to the extent
------------------------------
that any provision of this Third Amended and Restated Indenture limits,
qualifies or conflicts with the duties imposed by, or with another provision (an
"incorporated provision") included in this 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.
Section 14.09. Table of Contents, Headings, etc. The table of
---------------------------------
contents and the titles and headings of the articles and sections of this Third
Amended and Restated Indenture have been inserted for convenience of reference
only, are not to be considered a part hereof, and shall in no way modify or
restrict any of the terms or provisions hereof.
Section 14.10. Execution in Counterparts. This Third Amended and
-------------------------
Restated Indenture may be executed in any number of counterparts, each of which
shall be an original, but such counterparts shall together constitute but one
and the same instrument.
Section 14.11. Separability. In case any provision in this Third
------------
Amended and Restated Indenture or in the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
81
<PAGE>
EXHIBIT 4(b)
_______________________________________________________________________________
GENERAL ELECTRIC CAPITAL CORPORATION
THIRD AMENDED AND RESTATED
STANDARD MULTIPLE-SERIES INDENTURE PROVISIONS
_______________________________________________________________________________
Dated as of February 28, 1997
<PAGE>
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
__________________________
/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.
<PAGE>
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
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
_______________________
/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.
i
<PAGE>
Section 3.05. Redemption of Securities for
Sinking Fund.......................... 19
Section 3.06. Repayment at the Option of the
Holder................................ 21
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
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
ii
<PAGE>
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
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
ARTICLE NINE
SECURITYHOLDERS' MEETINGS
Section 9.01. Purposes of Meetings.................. 51
Section 9.02. Call of Meetings by Trustee........... 51
iii
<PAGE>
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
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
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
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
iv
<PAGE>
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
v
<PAGE>
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions. The terms defined in this Section 1.01
-----------
(except as herein otherwise expressly provided or unless the context otherwise
requires) for all purposes of this Third Amended and Restated Indenture shall
have the respective meanings specified in this Section 1.01. All other terms
used in this Third Amended and Restated Indenture which are defined in the Trust
Indenture Act of 1939, as amended, or which are by reference therein defined in
the Securities Act of 1933, as amended, (except as herein otherwise expressly
provided or unless the context otherwise requires) shall have the meanings
assigned to such terms in said Trust Indenture Act and in said Securities Act as
in force at the date of this Third Amended and Restated Indenture as originally
executed. The words "herein", "hereof" and "hereunder" and other words similar
import refer to this Third Amended and Restated Indenture as a whole and not to
any particular Article, Section or other subdivision.
Authenticating Agent:
- --------------------
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.
Board of Directors:
- ------------------
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.
Company:
- -------
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.
currency:
- --------
The term "currency" shall mean Dollars or any Specified Currency.
1
<PAGE>
Dollar:
- ------
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.
Event of Default:
- ----------------
The term "Event of Default" shall have the meaning specified in
Section 6.01.
interest:
- --------
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.
Officers' Certificate:
- ---------------------
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.
Opinion of Counsel:
- ------------------
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.
Original Issue Discount Security:
- --------------------------------
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.
2
<PAGE>
Overdue Rate:
- ------------
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.
Person:
- ------
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.
Principal Office of the Trustee:
- -------------------------------
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.
Responsible Officer:
- -------------------
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.
Security or Securities; Outstanding:
- -----------------------------------
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
3
<PAGE>
(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.
Security register:
- -----------------
The term "Security register" shall have the meaning set forth in
Section 2.06.
Security registrar:
- ------------------
The term "Security registrar" shall have the meaning set forth in
Section 2.06.
Securityholder:
- --------------
4
<PAGE>
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.
Specified Currency:
- ------------------
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.
Subsidiary; Finance Subsidiary:
- ------------------------------
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.
Third Amended and Restated Indenture:
- ------------------------------------
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.
Trust Indenture Act of 1939:
- ---------------------------
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.
Trustee:
- -------
5
<PAGE>
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.
Section 2.01. Forms. (a) The Securities of each series shall be in
-----
substantially such form as shall be established by or pursuant to a resolution
of the Board of Directors or in one or more indentures supplemental hereto, in
each case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Third Amended and Restated
Indenture, and may have such legends or endorsements placed thereon as the
officers executing the same may approve (execution thereof to be conclusive
evidence of such approval) and as are not inconsistent with the provisions of
this Third Amended and Restated Indenture, or as may be required to comply with
any law or with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which the Securities of such series may be
listed, or to conform to usage.
(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.
6
<PAGE>
(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.
________________________,
as Trustee
----------
By__________________
Authorized Officer"
------------------
Section 2.02. Amount Unlimited; Issuable in Series. The aggregate
---------------- ------------------
principal amount of Securities which may be authenticated and delivered under
this Third Amended and Restated Indenture is unlimited.
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;
7
<PAGE>
(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
8
<PAGE>
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.
Section 2.03. Authentication. At any time and from time to time
--------------
after the execution and delivery of this Third Amended and Restated Indenture,
the Company may deliver Securities of any series executed by the Company to the
Trustee for authentication. Except as otherwise provided in this Article Two,
the Trustee shall thereupon authenticate and deliver 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 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;
9
<PAGE>
(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
10
<PAGE>
(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.
Section 2.04. Date and Denomination of Securities. The Securities of
-----------------------------------
each series shall be issuable in registered form without coupons in such
denominations as shall be specified as contemplated by Section 2.02. In the
absence of any such specification with respect to the Securities of any series,
the Securities of such series shall be issuable in denominations of $1,000 and
any multiple of $1,000. Securities of each series shall be numbered, lettered
or otherwise distinguished in such manner or in accordance with such plan as the
officers of the Company executing the same may determine with the approval of
the Trustee.
Every Security shall be dated the date of its authentication.
The Person in whose name any Security of a particular series is
registered at the close of business on any record date (as hereinafter defined)
with respect to any interest payment date for such series shall be entitled to
receive the interest payable on such interest payment date notwithstanding the
cancellation of such Security upon any registration of transfer or exchange
subsequent to the record date and prior to such interest payment date; provided,
--------
however, that if and to the extent that the Company shall default in the payment
- -------
of interest due on such interest payment date, such defaulted interest shall be
paid to the Persons in whose names Outstanding Securities of such series are
registered on a subsequent record date established by notice given by mail by or
on behalf of the
11
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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.
Section 2.05. Execution of Securities. The Securities shall be
-----------------------
signed in the name and on behalf of the Company by the manual or facsimile
signature of its President or its Chairman of the Board and its Senior Vice
President - Corporate Treasury and Global Funding Operation or its Secretary,
under its corporate seal (which may be printed, engraved or otherwise reproduced
thereon, by facsimile or otherwise). Only such Securities as shall bear thereon
a certificate of authentication substantially in the form herein recited,
executed by the Trustee, shall be entitled to the benefits of this Third Amended
and Restated Indenture or be valid or 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 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
12
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execution of this Third Amended and Restated Indenture any such Person was not
such an officer.
Section 2.06. Exchange and Registration of Transfer of Securities.
---------------------------------------------------
Securities of any series may be exchanged for a like aggregate principal amount
of Securities of the same series of other authorized denominations. Securities
to be 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 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".
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
13
<PAGE>
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.
Section 2.07. Mutilated, Destroyed, Lost or Stolen Securities. In
-----------------------------------------------
case any temporary or definitive Security shall become mutilated or be
destroyed, lost or stolen, the Company in the case of a mutilated Security
shall, and in the case of a lost, stolen or destroyed Security may in its
discretion, execute and, upon the written request or authorization of any
officer of the Company, the Trustee shall authenticate and deliver, a new
14
<PAGE>
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.
Section 2.08. Temporary Securities. Pending the preparation of
--------------------
definitive Securities of any series, the Company may execute and the Trustee
shall authenticate and deliver temporary Securities (printed, lithographed or
typewritten). Temporary Securities shall be issuable in any
15
<PAGE>
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.
Section 2.09. Cancellation of Securities Paid, etc. All Securities
-------------------------------------
surrendered for the purpose of payment, redemption, repayment, exchange or
registration of transfer or for credit against any sinking fund shall, if
surrendered to the Company, any Security registrar, any paying agent or any
other agent of the Company or of the Trustee, be delivered to the Trustee and
promptly cancelled by it, or, if surrendered to the Trustee, shall be promptly
cancelled by it, and no Securities shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Third Amended and Restated
Indenture. The Trustee may destroy cancelled Securities and deliver a
certificate of such destruction to the Company or, at the written request of the
Company, shall deliver cancelled Securities to the Company. If the Company
shall acquire any of the Securities, however, such acquisition shall not operate
as a redemption or satisfaction of the indebtedness represented by such
Securities unless and until the same are delivered to the Trustee for
cancellation.
Section 2.10. Computation of Interest. Except as otherwise specified
-----------------------
as contemplated by Section 2.02 for
16
<PAGE>
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
Section 3.01. Applicability of Article. The provisions of this
------------------------
Article Three shall be applicable, as the case may be, (i) to the Securities of
any series which are redeemable before their maturity and (ii) to any sinking
fund for the retirement of Securities of any series, in either case except as
otherwise specified as contemplated by Section 2.02 for Securities of such
series.
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".
Section 3.02. Notice of Redemption; Selection of Securities. In case
---------------------------------------------
the Company shall desire to exercise any right to redeem all, or, as the case
may be, any part of, the Securities of any series in accordance with their
terms, it shall fix a date for redemption and shall mail or cause to be mailed a
notice of such redemption at least 30 and not more than 60 days prior to the
date fixed for redemption to the holders of Securities of such series so to be
redeemed as a whole or in part at their last addresses as the same appear on the
registry books of the Company and to the Trustee, except as the resolutions
adopted by the Board of Directors to establish the terms of any series of
Securities may otherwise provide. Such mailing shall be by first class mail.
The notice if mailed 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 such notice by mail or any defect in the
notice to the holder of any Security of a series 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 series.
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
17
<PAGE>
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.
Section 3.03. Payment of Securities Called for Redemption. If notice
-------------------------------------------
of redemption has been given as provided in Section 3.02 or 3.05, the Securities
or portions of Securities of the series with respect to which such notice has
been given shall become due and payable on the date and at the place or places
stated in such notice at the applicable redemption price, together with any
interest accrued to the date fixed for redemption, and on and after said date
(unless the Company shall default in the payment of such Securities or portions
of such Securities, together with any interest accrued to said date) any
interest on the Securities of such series or portions of Securities of such
series so called for redemption shall cease to accrue. On presentation and
surrender of such Securities at a place of payment in said notice specified, the
said Securities or the specified portions thereof shall be paid and redeemed by
the
18
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Company at the applicable redemption price, together with any interest
accrued thereon to the date fixed for redemption; provided, however, that any
-------- -------
semi-annual instalment of interest becoming due on or prior to the date fixed
for redemption shall be payable to holders of such Securities registered as such
on the relevant record date according to their terms.
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.
Section 3.04. Satisfaction of Mandatory Sinking Fund Payments with
----------------------------------------------------
Securities. In lieu of making all or any part of any mandatory sinking fund
- ----------
payment with respect to any Securities of a series in cash, the Company may at
its option (a) deliver to the Trustee Securities of that series theretofore
purchased or otherwise acquired by the Company, or (b) receive credit for the
principal amount of Securities of that series which have been redeemed either at
the election of the Company pursuant to the terms of such Securities or through
the application of permitted optional sinking fund payments pursuant to the
terms of such Securities; provided that such Securities have not been previously
--------
so credited. Such Securities shall be received and credited for such purpose by
the Trustee at the redemption price specified in such Securities for redemption
through operation of the sinking fund and the amount of such mandatory sinking
fund payment shall be reduced accordingly.
Section 3.05. Redemption of Securities for Sinking Fund. Not less
-----------------------------------------
than 60 days prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee a certificate signed by the
Senior Vice President-Corporate Treasury and Global Funding Operation or any
Assistant Treasurer of the Company specifying the amount of the next ensuing
sinking fund payment for that series pursuant to the terms of that series, the
portion thereof, in any, which is to be satisfied by payment of cash (which cash
may be deposited with the Trustee or with one or more paying agents, or if the
Company is acting as its own paying agent segregated and held in trust as
provided in Section 4.04) and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 3.04 (which Securities, if not theretofore delivered, will accompany
such certificate) and whether the Company intends
19
<PAGE>
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),
20
<PAGE>
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.
Neither the Trustee nor the Company shall redeem any Securities of a
series with sinking fund moneys or mail any notice of redemption of such
Securities by operation of the sinking fund for such series during the
continuance of a default in payment of interest, if any, on such Securities or
of any Event of Default (other than an Event of Default occurring as a
consequence of this paragraph) with respect to such Securities, except that if
the notice of redemption of any such Securities shall theretofore have been
mailed in accordance with the provisions hereof, the Trustee (or the Company if
the Company is acting as its own paying agent) shall redeem such Securities if
cash sufficient for that purpose shall be deposited with the Trustee (or
segregated by the Company) for that purpose in accordance with the terms of this
Article Three. Except as aforesaid, any moneys in the sinking fund for such
series at the time when any such default or Event of Default shall occur and any
moneys thereafter paid into such sinking fund shall, during the continuance of
such default or Event of Default, be held as security for the payment of such
Securities; provided, however, that in case such default or Event of Default
-------- -------
shall have been cured or waived as provided herein, such moneys shall thereafter
be applied on the next sinking fund payment date for such Securities to which
such moneys may be applied pursuant to the provisions of this Section 3.05.
21
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Section 3.06. Repayment at the Option of the Holder. Any series of
-------------------------------------
Securities may be made, by provision contained in or established pursuant to a
supplemental indenture or a resolution of the Board of Directors pursuant to
Section 2.02, subject to repayment, in whole or in part, at the option of the
holder on a date or dates specified prior to maturity, at a price equal to 100%
of the principal amount thereof, together with accrued interest to the date of
repayment, or, in the case of Original Issue Discount Securities, at a price
equal to 100% of the accredited principal amount thereof to the date of such
repayment on such notice as may be required; provided, however, that the holder
-------- -------
of a Security may only elect partial repayment in an amount that will result in
the portion of such Security that will remain Outstanding after such repayment
constituting an authorized denomination, or combination thereof, of such
Securities.
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
Section 4.01. Payment of Principal, Premium and Interest. The
------------------------------------------
Company covenants and agrees for the benefit of holders of each series of
Securities that it will duly and punctually pay or cause to be paid the
principal of, premium, if any, and interest, if any, on each of the Securities
of that series at the places, at the respective times and in the manner provided
in such Securities. References to interest herein shall include any additional
amounts payable pursuant to the terms of the applicable Securities.
Section 4.02. Offices for Notices and Payments, etc. As long as any
--------------------------------------
of the Securities of a series remain Outstanding, the Company will designate and
maintain in the Borough of Manhattan, The City of New York an office or agency
where the Securities of that series may be presented for payment, an office or
agency where the Securities of that series may be presented for registration of
transfer and for exchange as in this Third Amended and Restated Indenture
provided and an office or agency where notices and demands to or upon the
Company in respect of the Securities of that series or of this Third Amended and
Restated Indenture may be served. In addition to such office or offices or
agency or agencies, the Company may from time to time designate and maintain one
or more additional offices or agencies within or outside the Borough of
Manhattan, The City of New York where the Securities of that series may be
presented for registration of transfer or for exchange, and
22
<PAGE>
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.
Section 4.03. Appointments to Fill Vacancies in Trustee's Office.
--------------------------------------------------
The Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Section 7.10, a successor
Trustee, so that there shall at all times be a Trustee with respect to each
series of Securities hereunder.
Section 4.04. Provision as to Paying Agent. (a) If the Company shall
----------------------------
appoint a paying agent other than the Trustee with respect to the Securities of
any series, it will cause such paying agent to execute and deliver to the
Trustee an instrument in which such agent shall agree with the Trustee, subject
to the provisions of this Section 4.04,
(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;
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(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
24
<PAGE>
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.
Section 4.05. Statement as to Compliance. The Company will furnish
--------------------------
to the Trustee on or before June 1, in each year (beginning with June 1, 1995) a
brief certificate (which need not comply with Section 14.05) from the principal
executive, financial or accounting officer or the Senior Vice President-
Corporate Treasury and Global Funding Operation of the Company stating that in
the course of the performance by the signer of his duties as an officer of the
Company he would normally have knowledge of any default or non-compliance by the
Company in the performance of any covenants or conditions contained in Sections
4.01 and 11.01, stating whether or not he has 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
Section 5.01. Securityholder Lists. If and so long as the Trustee
--------------------
shall not be the Security registrar of any series, the Company and any other
obligor on the Securities will furnish or cause to be furnished to the Trustee a
list in such form as the Trustee may reasonably require of the names and
addresses of the holders of the Securities of such series pursuant to Section
312 of the Trust Indenture Act of 1939 (a) semi-annually not more than 15 days
after each record date for the payment of interest on such Securities, as
hereinabove specified, as of such record date, and on dates to be determined
pursuant to Section 2.02 for non-interest bearing Securities in each year and
(b) at such other times as the Trustee may request in writing, within 30 days
after receipt by the Company of any such request as of a date not more than 15
days prior to the time such information is furnished.
Section 5.02. Reports by the Company. The Company covenants to file
----------------------
with the Trustee, within 15 days after the Company is required to file the same
with the Securities and Exchange Commission, copies of the annual reports and of
the information, documents and other reports that the Company may be required to
file with the Securities and Exchange Commission pursuant to Section 13 or 15(d)
of
25
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the Securities Exchange Act of 1934 or pursuant to Section 314 of the Trust
Indenture Act of 1939.
Section 5.03. Reports by the Trustee. Any Trustee's report required
----------------------
under Section 313(a) of the Trust Indenture Act of 1939 shall be transmitted on
or before May 15 in each year beginning May 15, 1997, as provided in Section
313(c) of the Trust Indenture Act of 1939, so long as any Securities are
Outstanding hereunder, and shall be dated as of a date convenient to the Trustee
no more than 60 days prior thereto.
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON
EVENT OF DEFAULT
Section 6.01. Events of Default. The term "Event of Default"
-----------------
whenever used herein with respect to Securities of any series means any one of
the following events and such other events as may be established with respect to
the Securities of such series as contemplated by Section 2.02, continued for the
period of time, if any, and after the giving of notice, if any, designated in
this Third Amended and Restated Indenture or as may be established with respect
to such Securities as contemplated by Section 2.02, as the case may be, unless
it is either inapplicable or is specifically deleted or modified 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:
(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
26
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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
(e) an event of default with respect to any other series of Securities
issued pursuant to this Third Amended and Restated Indenture or as defined
in any other indenture or instrument evidencing or under which the Company
has at the date of this Third Amended and Restated Indenture or shall
hereafter have outstanding any indebtedness for borrowed money shall happen
and be continuing and such other series of Securities or such indebtedness,
as the case may be, shall have been accelerated so that the same shall be
or become due and payable prior to the date on which the same would
otherwise have become due and payable, and such acceleration shall not be
rescinded or annulled within 10 days after written notice of such
acceleration shall have been given to the Company by the Trustee 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 within 10 days after written notice of such acceleration
shall have been given to the Company pursuant to the terms of such other
indenture or instrument, as the case may be; provided, however, that if
-------- -------
such event of default with respect to such other series of Securities or
under such other indenture or instrument, as the case may be, shall be
remedied or cured by the Company, or waived by the holders of such other
series of Securities or of such other indebtedness, as the case may be,
then the Event of Default hereunder by reason thereof shall be deemed
likewise to have been thereupon remedied, cured or waived without further
action upon the part of either the Trustee or any of the Securityholders of
such series; and provided further that, subject to the provisions of
-------- -------
Sections 6.08 and 7.01, the Trustee shall not be charged with knowledge of
any such event of default or any remedy, cure or waiver thereof or any
27
<PAGE>
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.
28
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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
29
<PAGE>
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.
Section 6.02. Payment of Securities on Default; Suit Therefor. The
-----------------------------------------------
Company covenants that (a) in case default shall be made in the payment of any
instalment of interest upon any Security of any series as and when the same
shall become due and payable, and such default shall have continued for a period
of 30 days, (b) in case default shall be made in the payment of the principal
of, or premium, if any, on any Security of any series as and when the same shall
become due and payable, whether at maturity of the Securities of that series or
upon redemption or by declaration, repayment or otherwise or (c) in case of
default in the making or satisfaction of any sinking fund payment or analogous
obligation when the same becomes due by the terms of the Securities of any
series -- then, upon demand of the Trustee, the Company will pay to the Trustee,
for the benefit of the holder of any such Security (or holders of any series of
Securities in the case of clause (c) above) the whole amount that then shall
have become due and payable on any such Security (or Securities of any such
series in the case of clause (c) above) for principal, premium, if any, and
interest, if any, with interest upon the overdue principal and premium, if any,
and (to the extent that payment of such interest is enforceable under applicable
law) upon the overdue installments of interest, if any, at the Overdue Rate
applicable to any such Security (or Securities of any such series in the case of
clause (c) above); and, in addition thereto, such further amount as shall be
sufficient to cover costs and expenses of collection and any further amounts
payable to the Trustee pursuant to the provisions of Section 7.06.
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,
30
<PAGE>
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
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<PAGE>
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.
Section 6.03. Application of Moneys Collected by Trustee. Any moneys
------------------------------------------
collected by the Trustee pursuant to this Article Six shall be applied in the
order following, at the date or dates fixed by the Trustee for the distribution
of such moneys, upon presentation of the several Securities in respect of which
moneys have been collected, and the notation thereon of the payment, if only
partially paid, and upon surrender thereof if fully paid:
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,
32
<PAGE>
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.
Section 6.04. Proceedings by Securityholders. No holder of any
------------------------------
Security of any series shall have any right by virtue of or by availing of any
provision of this Third Amended and Restated Indenture to institute any suit,
action or proceeding to the extent lawful in equity or at law upon or under or
with respect to this Third Amended and Restated Indenture or for the appointment
of a receiver or trustee (or other similar official), or for any other remedy
hereunder, unless such holder previously shall have given to the Trustee written
notice of default with respect to Securities of such series and of the
continuance thereof, as
33
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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.
Section 6.05. Proceedings by Trustee. In case of an Event of Default
----------------------
hereunder, the Trustee may in its discretion proceed to protect and enforce the
rights vested in it by this Third Amended and Restated Indenture by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any of such rights, either by suit in equity or by action at
law or by proceeding in bankruptcy or otherwise, whether for the
34
<PAGE>
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.
Section 6.06. Remedies Cumulative and Continuing. All powers and
----------------------------------
remedies given by this Article Six to the Trustee or to the Securityholders of
any series shall, to the extent permitted by law, be deemed cumulative and not
exclusive of any thereof or of any other powers and remedies available to the
Trustee or the holders of such Securities, by judicial proceedings or otherwise,
to enforce the performance or observance of the covenants and agreements
contained in this Third Amended and Restated Indenture, and no delay or omission
of the Trustee or of any holder of any such Securities to exercise any right or
power accruing upon any default occurring and continuing as aforesaid shall
impair any such right or power, or shall be construed to be a waiver of any such
default or an acquiescence therein; and, subject to the provisions of Section
6.04, every power and remedy given by this Article Six or by law to the Trustee
or to the Securityholders of any series may be exercised from time to time, and
as often as shall be deemed expedient, by the Trustee or by the Securityholders
of such series.
Section 6.07. Direction of Proceedings and Waiver of Defaults by
--------------------------------------------------
Securityholders. The holders of a majority in aggregate principal amount of the
- ---------------
Securities of any series 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, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series; provided, however, that (subject to
-------- -------
the provisions of Section 7.01) the Trustee shall have the right to decline to
follow any such direction if the Trustee, being advised by counsel, determines
that the action or proceeding so directed may not lawfully be taken or if the
Trustee in good faith by its board of directors or trustees, executive
committee, or a trust committee of directors or trustees and/or Responsible
Officers shall determine that the action or proceeding so directed would involve
the Trustee in personal liability. Prior to any declaration accelerating the
maturity of the Securities of any series, the holders of a majority in aggregate
principal amount of the Securities of such series at the time Outstanding may on
behalf of the holders of all of the Securities of such series waive any past
default or Event of Default with respect to such Securities and its
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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.
Section 6.08. Notice of Defaults. The Trustee shall, within 90 days
------------------
after the occurrence of a default with respect to the Securities of any series,
mail to all holders of Securities of such series, as the names and addresses of
such holders appear upon the registry books of the Company, notice of all
defaults with respect to such series known to a Responsible Officer of the
Trustee, unless such defaults shall have been cured before the giving of such
notice (the term "defaults" for the purpose of this Section 6.08 being hereby
defined to be the events specified in Section 6.01 or established with respect
to such Securities as contemplated by Section 2.02, not including the periods of
grace, if any, provided for therein or established with respect to such
Securities as contemplated by Section 2.02 and irrespective of the giving of the
notices specified in clauses (d) and (e) of Section 6.01 or established with
respect to such Securities as contemplated by Section 2.02); provided, however,
-------- -------
that except in the case of default in the payment of the principal of, premium,
if any, or interest, if any, on any of the Securities of such series or in the
making of any sinking fund instalment or analogous obligation with respect to
such Securities, the Trustee shall be protected in withholding such notice if
and so long as the board of directors, the executive committee, or a trust
committee of directors and/or Responsible Officers of the Trustee in good faith
determines that the withholding of such notice is in the interest of the holders
of Securities of such series.
Section 6.09. Undertaking to Pay Costs. All parties to this Third
------------------------
Amended and Restated Indenture agree, and each holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
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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
Section 7.01. Duties and Responsibilities of Trustee. With respect
--------------------------------------
to the holders of any series of Securities issued hereunder, the Trustee, prior
to the occurrence of an Event of Default with respect to the Securities of such
series and after the curing or waiving of all Events of Default which may have
occurred with respect to such series, undertakes to perform such duties and only
such duties as are specifically set forth in this Third Amended and Restated
Indenture. In case an Event of Default with respect to the Securities of a
series has occurred (which has not been cured or waived), the Trustee shall
exercise such of the rights and powers vested in it by this Third Amended and
Restated Indenture with respect to such series, and use the same degree of care
and skill in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
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
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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
38
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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.
Section 7.02. Reliance on Documents, Opinions, etc. In furtherance
-------------------------------------
of and subject to the Trust Indenture Act of 1939, and subject to the provisions
of Section 7.01:
(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;
39
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(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, request,
direction, consent, order, bond, note or other paper or document unless
requested in writing so to do by the holders of a majority in aggregate
principal amount of the Securities of any series affected then Outstanding;
provided, however, that if the payment within a reasonable time to the
-------- -------
Trustee of the costs and expenses or liabilities likely to be incurred by
it in the making of such investigation is, in the opinion of the Trustee,
not reasonably assured to the Trustee by the security conferred upon it by
the terms of this Third Amended and Restated Indenture, the Trustee may
require reasonable indemnity against such costs, expenses or liabilities as
a condition to so proceeding; and the reasonable expenses of such
investigation shall be paid by the Company, or, if paid by the Trustee,
shall be repaid by the Company upon demand; and
(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.
Section 7.03. No Responsibility for Recitals, etc. The recitals
------------------------------------
contained herein and in the Securities shall be taken as the statements of the
Company (except in the Trustee's certificates of authentication), and the
Trustee assumes no responsibility for the correctness of the same. The Trustee
makes no representations as to the validity or sufficiency of this Third Amended
and Restated Indenture or the Securities, provided that the Trustee shall not be
--------
relieved of its duty to authenticate Securities only as authorized by this Third
Amended and Restated Indenture. The Trustee shall not be accountable for the
use or application by the Company or any of the Securities or of the proceeds
thereof.
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Section 7.04. Ownership of Securities. The Trustee and any agent of
-----------------------
the Company or of the Trustee, in its individual or any other capacity, may
become the owner or pledgee of Securities with the same rights it would have if
it were not Trustee or such agent.
Section 7.05. Moneys to be Held in Trust. Subject to the provisions
--------------------------
of Sections 4.04, 12.03 and 12.04, all moneys received by the Trustee or any
paying agent 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.
Section 7.06. Compensation and Expenses of Trustee. The Company
------------------------------------
covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to, reasonable compensation (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
and, except as otherwise expressly provided, the Company will pay or reimburse
the Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any of the
provisions of this Third Amended and Restated Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all Persons not regularly in its employ) except any such expense, disbursement
or advance as may arise from its negligence or bad faith. The Company also
covenants to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on the part
of the Trustee, arising out of or in connection with the acceptance or
administration of this trust and its duties hereunder, including the costs and
expenses of defending itself against any claim of liability in the premises.
The obligations of the Company under this Section 7.06 to compensate and
indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder
and shall survive the
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satisfaction and discharge of this Third Amended and Restated Indenture.
Section 7.07. Officers' Certificate as Evidence. Subject to the
---------------------------------
provisions of Sections 7.01 and 7.02, whenever in the administration of the
provisions of this Amended and Restated Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking,
omitting or suffering any 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.
Section 7.08. Indentures Not Creating Potential Conflicting Interests
-------------------------------------------------------
for the Trustee. The following indentures are hereby specifically described for
- ---------------
the purposes of Section 310(b) (1) of the Trust Indenture Act of 1939: (a) this
Third Amended and Restated Indenture with respect to the Securities of any other
series; (b) the indenture dated as of October 1, 1991, between the Company and
the Trustee; (c) the indenture dated as of February 1, 1994, between the Company
and the Trustee; (d) the Third Amended and Restated Indenture dated as of
February 27, 1997, between the Company and the Trustee, with respect to each
series of securities issued thereunder; (e) the indenture dated as of June 3,
1994, between the Company and the Trustee; (f) the indenture dated as of
November 1, 1981, between the Company and the Trustee; (g) the indenture dated
as of April 1, 1991, between the Company and the Trustee; and (h) the indenture
dated as of August 1, 1995, between the Company and the Trustee.
Section 7.09. Eligibility of Trustee. The Trustee hereunder shall at
----------------------
all times be a corporation organized and doing business under the laws of the
United States or any State, which (a) is authorized under such laws to exercise
corporate trust powers and (b) is subject to supervision or examination by
Federal or State authority and (c) shall have at all times a combined capital
and surplus of not less than ten million dollars. If such corporation publishes
reports of condition at least annually, pursuant to law, or to the requirements
of the aforesaid supervising or examining authority, then for the purposes of
this Section 7.09, the combined capital and surplus of such
42
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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.
Section 7.10. Resignation or Removal of Trustee. (a) The Trustee,
---------------------------------
or any Trustee or Trustees hereafter appointed, may at any time resign with
respect to any one or more or all series of Securities by giving written notice
of resignation to the Company and by mailing notice thereof to the holders of
the applicable series of Securities at their addresses as they shall appear on
the registry books of the Company. Upon receiving such notice of resignation,
the Company shall promptly appoint a successor Trustee or Trustees with respect
to the applicable 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 resigning Trustee and one copy to the
successor Trustee. If no successor Trustee shall have been so appointed with
respect to any series and have accepted appointment within 60 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee, or
any Securityholder who has been a bona fide holder of a Security or Securities
of the applicable series for at least six months may, subject to the provisions
of Section 6.09, on behalf of himself and all others similarly situated,
petition any such court for the appointment of a successor Trustee. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor Trustee.
(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
43
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(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.
44
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(e) No predecessor Trustee shall be liable for the acts or omissions
of any successor Trustee.
Section 7.11. Acceptance by Successor Trustee. Any successor Trustee
-------------------------------
appointed as provided in Section 7.10 shall execute, acknowledge and deliver to
the Company and to its predecessor Trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee with respect to any or all applicable series shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, duties and
obligations with respect to such series of its predecessor hereunder, with like
effect as if originally named as Trustee herein; but, nevertheless, on the
written request of the Company or of the successor Trustee, the Trustee ceasing
to act shall, upon payment (or due provision therefor) of any amounts then due
it pursuant to the provisions of Section 7.06, execute and deliver an instrument
transferring to such successor Trustee all the rights and powers with respect to
such series of the Trustee so ceasing to act. Upon request of any such
successor Trustee, the Company shall execute any and all instruments in writing
in order more fully and certainly to vest in and confirm to such successor
Trustee all such rights and powers.
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
45
<PAGE>
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.
Section 7.12. Succession by Merger, etc. Any corporation into which
--------------------------
the Trustee may be merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to the corporate
trust business of the Trustee, shall be the successor to the Trustee hereunder,
provided such corporation shall be qualified under Section 310(b) of the Trust
Indenture Act of 1939, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
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.
Section 7.13. Other Matters Concerning the Trustee. The principal
------------------------------------
corporate trust office of the Trustee at the date of this Third Amended and
Restated
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Indenture is located at 450 West 33rd Street, 15th Floor, New York, New York
10003, Attention: Global Trust Services Administration.
Section 7.14. Appointment of Authenticating Agent. The Trustee may
-----------------------------------
appoint an Authenticating Agent or Agents which shall be authorized to act on
behalf of the Trustee to authenticate Securities issued upon original issue and
upon exchange, registration of transfer, partial conversion or partial
redemption or pursuant to Section 2.07, and Securities so authenticated shall be
entitled to the benefits of this Third Amended and Restated Indenture and shall
be valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Third Amended and Restated
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $10,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 7.14, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section 7.14.
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.
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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
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<PAGE>
ARTICLE EIGHT
CONCERNING THE SECURITYHOLDERS
Section 8.01. Action by Securityholders. Whenever in this Third
-------------------------
Amended and Restated Indenture it is provided that the holders of a specified
percentage in aggregate principal amount of the Securities of any or all series
may take any action (including the making of any demand or request, the giving
of any notice, consent or waiver or the taking of any other action), the fact
that at the time of taking any such action the holders of such specified
percentage have joined therein may be evidenced (a) by any instrument or any
number of instruments of similar tenor executed by such Securityholders in
Person or by agent or proxy appointed in writing or (b) by the record of such
holders of Securities voting in favor thereof at any meeting of such
Securityholders duly called and held in accordance with the provisions of
Article Nine or (c) by a combination of such instrument or instruments and any
such record of such a meeting of such Securityholders.
Section 8.02. Proof of Execution by Securityholders. Subject to the
-------------------------------------
provisions of Sections 7.01, 7.02 and 9.05, proof of the execution of any
instrument by a Securityholder or his agent or proxy shall be sufficient if made
in accordance with such reasonable rules and regulations as may be prescribed by
the Trustee or in such manner as shall be satisfactory to the Trustee. The
ownership of 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 9.06.
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.
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Section 8.03. Who Are Deemed Absolute Owners. The Company, the
------------------------------
Trustee and any agent of the Company or of the Trustee may deem the Person in
whose name such Security shall be registered upon the books of the Company to
be, and may treat him as, the absolute owner of such Security (whether or not
such Security shall be overdue and notwithstanding any notation of ownership or
other writing thereon) for the purpose of receiving payment of or on account of
the principal of, premium, if any, and interest, if any, on such Security and
for all other purposes; and neither the Company nor the Trustee nor any agent of
the Company or of the Trustee shall be affected by any notice to the contrary.
All such payments so made to any holder for the time being, or upon his order,
shall be valid, and, to the extent of the sum or sums so paid, effectual to
satisfy and discharge the liability for moneys payable upon any such Security.
Section 8.04. Company-Owned Securities Disregarded. In determining
------------------------------------
whether the holders of the requisite aggregate principal amount of Securities
have concurred in any demand, request, notice, direction, consent or waiver
under this Third Amended and Restated Indenture, Securities which are owned by
the Company or any other obligor of the Securities with respect to which such
determination is being made or by any Person directly or indirectly controlling
or controlled by or under direct or indirect common control with the Company or
any other obligor of the Securities with respect to which such determination is
being made shall be disregarded and deemed not to be Outstanding for the purpose
of any such determination; provided that for the purposes of determining whether
--------
the Trustee shall be protected in relying on any such demand, request, notice,
direction, consent or waiver, only Securities which a Responsible Officer of the
Trustee knows are so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding for the purposes
of this Section 8.04 if the pledgee shall establish to the satisfaction of the
Trustee the pledgee's right to vote such Securities and that the pledgee is not
a Person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company or any such other obligor. In the case
of a dispute as to such right, any decision by the Trustee taken upon the advice
of counsel shall be full protection to the Trustee.
Section 8.05. Revocation of Consents; Future Holders Bound. At any
--------------------------------------------
time prior to (but not after) the evidencing to the Trustee, as provided in
Section 8.01, of
50
<PAGE>
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
Section 9.01. Purposes of Meetings. A meeting of holders of
--------------------
Securities of any or all series may be called at any time and from time to time
pursuant to the provisions of this Article Nine for any of the following
purposes:
(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.
Section 9.02. Call of Meetings by Trustee. The Trustee may at any
---------------------------
time call a meeting of holders of Securities of any or all series to take any
action specified
51
<PAGE>
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.
Section 9.03. Call of Meetings by Company or Securityholders. In
----------------------------------------------
case at any time a duly authorized officer of the Company in the name of and on
behalf of the Company or the holders of at least ten percent in aggregate
principal amount of the Securities then Outstanding of any series that may be
affected by the action proposed to be taken at the meeting, shall have requested
the Trustee to call a meeting of the holders of Securities of all series that
may be so affected, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have
mailed the notice of such meeting within 20 days after receipt of such request,
then the Company or such Securityholders, in the amount specified above, may
determine the time and the place in said Borough of Manhattan, The City of New
York for such meeting and may call such meeting to take any action authorized in
Section 9.01, by mailing notice thereof as provided in Section 9.02.
Section 9.04. Qualifications for Voting. To be entitled to vote at
-------------------------
any meeting of Securityholders, a Person shall (a) be a holder of one or more
Securities with respect to which such meeting is being held or (b) be a Person
appointed by an instrument in writing as proxy by a holder of one or more such
Securities. The only Persons who shall be entitled to be present or to speak at
any meeting of Securityholders shall be the Persons entitled to vote at such
meeting and their counsel and any representatives of the Trustee and its counsel
and any representatives of the Company and its counsel.
Section 9.05. Regulations. Notwithstanding any other provisions of
-----------
this Third Amended and Restated Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting of Securityholders, in
regard to proof of the holding of Securities and of the appointment of proxies,
and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of
52
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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.
Subject to the provisions of Section 8.04, at any meeting each holder
of Securities with respect to which such meeting is being held or proxy for such
holder shall be entitled to one vote for each $1,000 principal amount (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) of such Securities held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting in
- -------- -------
respect of any such Security challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. The chairman of the meeting
shall have no right to vote other than by virtue of such Securities held by him
or instruments in writing as aforesaid duly designating him as the Person to
vote on behalf of other such Securityholders. Any meeting of holders of
Securities with respect to which a meeting was duly called pursuant to the
provisions of Section 9.02 or 9.03 may be adjourned from time to time by a
majority of those present, whether or not constituting a quorum, and the meeting
may be held as so adjourned without further notice.
Section 9.06. Voting. The vote upon any resolution submitted to any
------
meeting of holders of Securities with respect to which such meeting is being
held shall be by written ballots on which shall be subscribed the signatures of
such holders of Securities or of their representatives by proxy and the
principal amount (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) of such Securities held or represented
by them. The permanent chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting their
verified written reports in duplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of Securityholders shall
be
53
<PAGE>
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.
Section 9.07. No Delay of Rights by Meeting. Nothing in this Article
-----------------------------
Nine contained shall be deemed or construed to authorize or permit, by reason of
any call of a meeting of Securityholders of any or all series or any rights
expressly or impliedly conferred hereunder to make such call, any hindrance or
delay in the exercise of any right or rights conferred upon or reserved to the
Trustee or to the Securityholders of any or all such series under any of the
provisions of this Third Amended and Restated Indenture or of the Securities.
ARTICLE TEN
SUPPLEMENTAL INDENTURES
Section 10.01. Supplemental Indentures without Consent of
------------------------------------------
Securityholders. The Company and the Trustee may from time to time and at any
- ---------------
time enter into an indenture or indentures supplemental hereto for one or more
of the following purposes:
(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
54
<PAGE>
protection of the holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included for the benefit of
such series) as a duly authorized officer of the Company, on behalf of the
Company, and the Trustee shall consider to be for the protection of the
holders of such Securities, and to make the occurrence, or the occurrence
and continuance, of a default in any of such additional covenants,
restrictions or conditions a default or an Event of Default permitting the
enforcement of all or any of the several remedies provided in this Third
Amended and Restated Indenture as herein set forth; provided, however, that
-------- -------
in respect of any such additional covenant, restriction or condition such
supplemental indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the
case of other defaults) or may provide for an immediate enforcement upon
such default or may limit the remedies available to the Trustee upon such
default;
(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
55
<PAGE>
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.
Section 10.02. Supplemental Indentures with Consent of
---------------------------------------
Securityholders. With the consent (evidenced as provided in Sections 8.01 and
- ---------------
8.02) of the holders of not less than 66-2/3% in aggregate principal amount of
the Outstanding Securities of each series (each series voting as a class) (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) affected by such supplemental indenture at the
time Outstanding, the Company and the Trustee may from time to time and at any
time enter into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Third Amended and Restated Indenture or any supplemental
indenture or of modifying in any manner the rights of the holders of the
Outstanding Securities of each such series; provided, however, that no such
-------- -------
supplemental indenture shall (i) extend the fixed maturity of any Outstanding
Security, or reduce the rate or extend the time of payment of interest, if any,
thereon, or reduce the principal amount or premium, if any, thereof, or make the
principal thereof or premium, if any, or interest, if any, thereon payable in
any coin or currency other than that provided in any Outstanding Security, or
impair the right of any holder of a Security to institute suit for any such
payment, or reduce the amount of the principal of an Outstanding Original Issue
Discount Security that would be due and payable upon an acceleration of the
maturity thereof pursuant to Section 6.01 or adversely affect the right of
repayment, if any, at the option of the holder, or extend the time, or reduce
the amount of any payment to any sinking fund or analogous obligation relating
to any Security, (ii)
56
<PAGE>
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.
Section 10.03. Compliance with Trust Indenture Act; Effect of
----------------------------------------------
Supplemental Indentures. Any supplemental indenture executed pursuant to the
- -----------------------
provisions of this Article Ten shall comply with the Trust Indenture Act of 1939
as then in effect. Upon the execution of any supplemental indenture pursuant to
the provisions of this Article Ten, this Third Amended and Restated Indenture
shall be deemed to be modified and amended in accordance therewith and the
respective rights, limitations of rights, obligations, duties and immunities
under this Third Amended and Restated Indenture of the Trustee, the Company and
the holders of Securities shall thereafter be determined, exercised and enforced
hereunder subject in all respects to
57
<PAGE>
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.
Section 10.04. Notation on Securities. Securities authenticated and
----------------------
delivered after the execution of any supplemental indenture pursuant to the
provisions of this Article Ten may bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company or the Trustee shall so determine, new Securities of any series so
modified as to conform, in the opinion of the Trustee and a duly authorized
officer of the Company on behalf of the Company, to any modification of this
Third Amended and Restated Indenture contained in any such supplemental
indenture may be prepared and executed by the Company, authenticated by the
Trustee and delivered in exchange for the Securities of such series then
Outstanding.
Section 10.05. Evidence of Compliance of Supplemental Indenture to be
------------------------------------------------------
Furnished Trustee. The Trustee, subject to the provisions of Sections 7.01 and
- -----------------
7.02, shall be entitled to receive an Officers' Certificate and an Opinion of
Counsel as conclusive evidence that any supplemental indenture executed pursuant
hereto complies with the requirements of this Article Ten.
ARTICLE ELEVEN
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 11.01. Company May Not Consolidate, etc., Except Under
-----------------------------------------------
Certain Conditions. The Company covenants that it will not merge or consolidate
- ------------------
with any other Person or sell, convey, transfer or otherwise dispose of all or
substantially all of its assets to any other Person, unless (i) either the
Company shall be the continuing corporation, or the successor Person (if other
than the Company) shall be a corporation organized and existing under the laws
of the United States of America or a State thereof and such corporation shall
expressly assume the due and punctual payment of the principal of, premium, if
any, and interest, if any, on all the Outstanding Securities, according to their
tenor, and the due and punctual performance and observance of all of the
covenants and conditions of this Third Amended and Restated Indenture to be
performed by the Company by supplemental indenture satisfactory to the Trustee,
executed and delivered to the Trustee by such
58
<PAGE>
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.
Section 11.02. Successor Corporation to be Substituted. In case of
---------------------------------------
any such consolidation, merger, sale, conveyance (other than by way of lease),
transfer or other disposition, and upon any such assumption by the successor
corporation, such successor corporation shall succeed to and be substituted for
the Company, with the same effect as if it had been named herein as the Company,
and the Company shall be relieved of any further obligation under this Third
Amended and Restated Indenture and under the Outstanding Securities. Such
successor corporation thereupon may cause to be signed, and may issue either in
its own name or in the name of General Electric Capital Corporation, any or all
of the Securities issuable hereunder which theretofore shall not have been
signed by the 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 shall deliver any Securities
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 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 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 thereafter to be issued as may be
appropriate.
Section 11.03. Documents to be Given Trustee. The Trustee, subject
-----------------------------
to the provisions of Sections 7.01 and 7.02, shall be entitled to receive an
Officers' Certificate and an Opinion of Counsel as conclusive evidence that any
59
<PAGE>
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
Section 12.01. Discharge of Indenture. When (a) the Company shall
----------------------
deliver to the Trustee for cancellation all Securities theretofore authenticated
(other than any Securities which shall have been destroyed, lost or stolen or 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
provisions of Section 2.07) and not theretofore cancelled or (b) all the
Securities not theretofore cancelled or delivered to the Trustee for
cancellation shall have become due and payable, or are by their terms to become
due and payable within one year or are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the giving of notice of
redemption, and the Company shall deposit with the Trustee, in trust, funds
sufficient to pay at maturity or upon redemption all of the Securities (other
than any (i) Securities which shall have been mutilated, destroyed, lost or
stolen and 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
provisions of Section 2.07 or (ii) Securities for whose payment money has
theretofore been deposited in trust and thereafter repaid to the Company as
provided in Section 12.04) not theretofore cancelled or delivered to the Trustee
for cancellation, including principal, premium, if any, and interest, if any,
due or to become due to such date of maturity or date fixed for redemption, as
the case may be, and if in either case the Company shall also pay or cause to be
paid all other sums payable hereunder by the Company, then this Third Amended
and Restated Indenture shall cease to be of further effect, and the Trustee, on
demand of the Company accompanied by an Officers' Certificate and an Opinion of
Counsel and at the cost and expense of the Company, shall execute proper
instruments acknowledging satisfaction of and discharging this Third Amended and
Restated Indenture, the Company, however, hereby agreeing to reimburse the
Trustee for any costs or expenses thereafter reasonably and properly incurred by
the Trustee in connection with this Third Amended and Restated Indenture or the
Securities.
Section 12.02. Deposited Moneys to be Held in Trust by Trustee. All
-----------------------------------------------
moneys deposited with the Trustee
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<PAGE>
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.
Section 12.03. Paying Agent to Repay Moneys Held. Upon the
---------------------------------
satisfaction and discharge of this Third Amended and Restated Indenture, all
moneys then held by any paying agent of the Securities (other than the Trustee)
shall, upon demand of the Company, be repaid to it or paid to the Trustee, and
thereupon such paying agent shall be released from all further liability with
respect to such moneys.
Section 12.04. Return of Unclaimed Moneys. Any moneys deposited with
--------------------------
or paid to the Trustee for payment of the principal of, premium, if any, or
interest, if any, on Securities of any series and not applied but remaining
unclaimed by the holders of Securities of that series for two years after the
date upon which the principal of, premium, if any, or interest, if any, on such
Securities, as the case may be, shall have become due and payable, shall be
repaid to the Company by the Trustee; and the holder of any such Securities
shall thereafter look only to the Company for any payment which such holder may
be entitled to collect.
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 13.01. Indenture and Securities Solely Corporate Obligations.
-----------------------------------------------------
No recourse for the payment of the principal of, premium, if any, or interest,
if any, on any Security, or for any claim based thereon or otherwise in respect
thereof, and no recourse under or upon any obligation, covenant or agreement of
the Company in this Third Amended and Restated Indenture or in any supplemental
indenture, or in any Security, or because of the creation of any indebtedness
represented thereby, shall be had against any incorporator, stockholder, 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; it being
61
<PAGE>
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
Section 14.01. Provisions Binding on Company's Successors. All the
------------------------------------------
covenants, stipulations, promises and agreements in this Third Amended and
Restated Indenture contained by the Company shall bind its successors and
assigns whether so expressed or not.
Section 14.02. Official Acts by Successor Corporation. Any act or
--------------------------------------
proceeding by any provision of this Third Amended and Restated Indenture
authorized or required to be done or performed by any board, committee or
officer of the Company shall and may be done and performed with like force and
effect by the like board, committee or officer of any corporation that shall at
the time be the lawful sole successor of the Company.
Section 14.03. Addresses for Notices, etc. Any notice or demand
---------------------------
which by any provision of this Third Amended and Restated Indenture is required
or permitted to be given or served by the Trustee or by the holders of
Securities 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, P.O. Box 8300, Stamford, Connecticut 06904. Any notice, direction,
request or demand by any Securityholder 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 to the principal office of the Trustee and to the
attention of its corporate trust office as specified in Section 7.13.
Section 14.04. New York Contract. This Third Amended and Restated
-----------------
Indenture and each Security shall be deemed to be a contract made under the laws
of the State of New York, and for all purposes shall be construed in accordance
with the laws of said State.
62
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Section 14.05. Evidence of Compliance with Conditions Precedent.
------------------------------------------------
Upon any application or demand by the Company to the Trustee to take any action
under any of the provisions of this Third Amended and Restated Indenture, the
Company shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Third Amended and Restated
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.
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.
Section 14.06. Legal Holidays. In any case where the date of
--------------
maturity of interest, if any, on or principal of, or premium, if any, on the
Securities or the date fixed for redemption or repayment of any Security will be
in The City of New York, New York, a Saturday, a Sunday, a legal holiday or a
day on which banking institutions are authorized or required by law or executive
order to close or remain closed, then payment of such interest, if any, on or
principal of or premium, if any, on the Securities need not be made on such date
but may be made on the next succeeding day not in such city, a Saturday, a
Sunday, a legal holiday or a day on which banking institutions are authorized or
required by law or executive order to close or remain closed, with the same
force and effect as if made on the date of maturity or a date fixed for
redemption or repayment, and no interest shall accrue for the period from and
after such date.
Section 14.07. Securities in a Specified Currency other than Dollars.
-----------------------------------------------------
Unless otherwise specified as contemplated by Section 2.02 with respect to a
particular series of Securities, whenever for purposes of this Third
63
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Amended and Restated Indenture any action may be taken by the holders of a
specified percentage in aggregate principal amount of Securities of all series
or all series affected by a particular action at the time Outstanding and, at
such time, there are Outstanding any Securities of any series which are
denominated in a Specified Currency other than Dollars (including European
Currency Units ("ECUs")), then the principal amount of Securities of such series
which shall be deemed to be Outstanding for the purpose of taking such action
shall be that amount of Dollars that could be obtained for such amount of such
Specified Currency at the Market Exchange Rate. For purposes of this Section
14.07, Market Exchange Rate shall mean the noon Dollar buying rate in The City
of New York for cable transfers of the Specified Currency published by the
Federal Reserve Bank of New York; provided, however, in the case of ECUs,
-------- -------
Market Exchange Rate shall mean the rate of exchange determined by the
Commission of the European Communities (or any successor thereto) as published
in the Official Journal of the European Communities (such publication or any
successor publication, the "Journal"). If such Market Exchange Rate is not
available for any reason with respect to such Specified Currency, the Trustee
shall use, in its sole discretion and without liability on its part, such
quotation of the Federal Reserve Bank of New York or, in the case of ECUs, the
rate of exchange from one or more major banks in The City of New York or in the
country of issue of the currency 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.
Section 14.08. Trust Indenture Act to Control. If and to the extent
------------------------------
that any provision of this Third Amended and Restated Indenture limits,
qualifies or conflicts with the duties imposed by, or with another provision (an
"incorporated provision") included in this
64
<PAGE>
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.
Section 14.09. Table of Contents, Headings, etc. The table of
---------------------------------
contents and the titles and headings of the articles and sections of this Third
Amended and Restated Indenture have been inserted for convenience of reference
only, are not to be considered a part hereof, and shall in no way modify or
restrict any of the terms or provisions hereof.
Section 14.10. Execution in Counterparts. This Third Amended and
-------------------------
Restated Indenture may be executed in any number of counterparts, each of which
shall be an original, but such counterparts shall together constitute but one
and the same instrument.
Section 14.11. Separability; Benefits. In case any provision in this
----------------------
Third Amended and Restated Indenture or in the Securities shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
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.
65
<PAGE>
EXHIBIT 4(c)
_______________________________________________________________________________
GENERAL ELECTRIC CAPITAL CORPORATION
AND
THE CHASE MANHATTAN BANK,
Trustee
________________________________
THIRD AMENDED AND RESTATED
INDENTURE
Dated as of February 27, 1997
_________________________________
Notes
_______________________________________________________________________________
<PAGE>
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"),
W I T N E S S E T H:
- - - - - - - - - -
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
<PAGE>
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
<PAGE>
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:
PARAGRAPH A. Incorporation by Reference
----------- --------------------------
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.
PARAGRAPH B. Additional Provisions
----------- ---------------------
<PAGE>
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:
1. Title and Terms of Global Series A Notes
----------------------------------------
Section 2.01. Title and Terms. The series of securities created by
---------------
the Third Supplemental Indenture, which was designated therein as the "Global
Medium-Term Notes, Series A" and designated under the Second Amended and
Restated Indenture as "Global Medium-Term Notes, Series A" is hereby designated
as a series of Securities under this Third Amended and Restated Indenture and
shall be known and designated as the "Global Medium-Term Notes, Series A" (the
"Global Series A Notes"). The Global Series A Notes may be issued in one or
more Tranches, pursuant to Section 2.02 of this Third Amended and Restated
Indenture.
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.
Section 2.02. Amount and Denomination. The Global Series A Notes
-----------------------
which may be authenticated and delivered hereunder are unlimited in aggregate
principal amount. The Company shall, by delivery of a certificate of any
officer of the Company, notify the Trustee from time to time of any limitation
which may have been adopted by the Board of Directors on the authentication and
delivery of Global Series A Notes pursuant to the preceding sentence.
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.
Section 2.03. Form of the Global Series A Notes; Other Terms of the
-----------------------------------------------------
Global Series A Notes. The forms of the Global Series A Notes, and terms of the
- ---------------------
Global Series A Notes other than as provided herein, may be established 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.
<PAGE>
Section 2.04. Subsequent Authentication of Global Series A Notes.
--------------------------------------------------
Global Series A Notes authenticated and delivered pursuant to any of Sections
2.06, 2.07, 2.08, 3.03, 3.06 or 10.04 of this Third Amended and Restated
Indenture shall be Global Series A Notes of the same Tranche as the predecessor
Global Series A Notes.
2. Title and Terms of Global Series B Notes and Global Series C Notes
------------------------------------------------------------------
Section 2.01. Titles and Terms. The series of securities created by
----------------
the Fourth Supplemental Indenture which were designated therein as "Global
Medium-Term Notes, Series B" and "Global Medium-Term Notes, Series C" and
designated under the Second Amended and Restated Indenture as "Global Medium-
Term Notes, Series B" and "Global Medium-Term Notes, Series C" are each hereby
designated as a series of Securities under this Third Amended and Restated
Indenture and shall be known and designated as "Global Medium-Term Notes, Series
B" and "Global Medium-Term Notes, Series C", respectively (collectively the
"Global Series B and C Notes"). The Global Series B and C Notes may be issued
in one or more Tranches, pursuant to Section 2.02 of this Third Amended and
Restated Indenture.
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.
Section 2.02. Amount and Denomination. The Global Series B and C
-----------------------
Notes which may be authenticated and delivered hereunder are unlimited in
aggregate principal amount. The Company shall, by delivery of a certificate of
any officer of the Company, notify the Trustee from time to time of any
limitation which may have been adopted by the Board of Directors on the
authentication and delivery of Global Series B and C Notes pursuant to the
preceding sentence.
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
<PAGE>
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.
Section 2.03. Forms of the Global Series B and C Notes; Other Terms
-----------------------------------------------------
of the Global Series B and C Notes. The forms of the Global Series B and C
- ----------------------------------
Notes, and terms of the Global Series B and C Notes other than as provided
herein, may be established 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.
Section 2.04. Subsequent Authentication of Global Series B and C
----------------------------------- --------------
Notes. Global Series B and C Notes authenticated and delivered pursuant to any
- ------
of the Sections 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 predecessor Global Series B or C Notes, as the case may
be.
Section 2.05. Additional Notes. (a) Additional Global Series B or C
----------------
Notes, as the case may be, of the same Tranche may be issued subsequent to the
original issue date of any Global Series B or C Notes (the "Additional Notes").
Any such Additional Notes shall be issued as Unregistered Notes (which Notes may
be issued initially in the form of a Temporary Global Note) which, on or after
the Exchange Date for such Additional Notes, shall be issued in definitive form
with Coupons attached and shall be dated the date of such prior issue of Notes.
In the event Additional Notes are issued prior to the Exchange Date for the
prior issue of Global Series B or C Notes of the same Tranche, the Exchange Date
for such prior issue of Notes may be extended to a date not less than 40 days
after the issue date of the Additional 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.
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
EXHIBIT 4(d)
_______________________________________________________________________________
GENERAL ELECTRIC CAPITAL CORPORATION
AND
THE CHASE MANHATTAN BANK,
Trustee
___________________________________
THIRD AMENDED AND RESTATED
INDENTURE
Dated as of February 28, 1997
__________________________________
Notes
_______________________________________________________________________________
<PAGE>
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"),
W I T N E S S E T H:
- - - - - - - - - -
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
<PAGE>
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:
Incorporation by Reference
--------------------------
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.
<PAGE>
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.
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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.
- --------------------------------
/1/Insert Principal Amount.
/2/Applies only if this Note is a Registered Global Security.
/3/Insert Optional Payment Amount if the Note has a dual currency feature.
1
<PAGE>
2
GENERAL ELECTRIC CAPITAL CORPORATION
GLOBAL MEDIUM-TERM NOTE, SERIES A
(Fixed Rate)
<TABLE>
<CAPTION>
<S> <C>
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/
</TABLE>
General Electric Capital Corporation, a New York corporation (together
with its successors and assigns, the "Company"), for value received, hereby
promises to pay to ____________, or registered assignees, the principal sum (or
Face Amount, if the Note has a dual-currency or index feature) of
________________ on the Maturity Date specified above (except to the extent
redeemed or repaid prior to the Maturity Date) and to pay interest thereon at
the Interest Rate per annum specified above from the Original Issue Date
specified above until the principal hereof is paid or duly made available for
payment (except as provided below), in arrears monthly, quarterly, semiannually,
or annually as specified above as the Interest Payment Period on each Interest
Payment Date (as specified above), commencing with the first Interest Payment
Date next succeeding the Original Issue Date specified above, and on the
Maturity Date (or any redemption or repayment date); provided, however, that if
-------- -------
the Original Issue Date occurs between a Record Date, as defined below, and the
next succeeding Interest Payment Date, interest payments will commence on the
second Interest Payment Date succeeding the Original
- ---------------------------------------
/4/If Note has dual-currency feature.
/5/If Note has index feature.
<PAGE>
3
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
- -------------------------------------
/6/Use if Note has dual-currency feature.
<PAGE>
4
an Interest Payment Date (whether or not a Business Day) (each such date a
"Record Date"); provided, however, that interest payable on the Maturity Date
-------- -------
(or any redemption or repayment date) will be payable to the person to whom the
principal hereof shall be payable.
If the Specified Currency indicated on the face hereof is other than
U.S. dollars, any payment on this Note on an Interest Payment Date or the
Maturity Date (or any redemption or repayment date) will be made in U.S.
dollars, as provided below, unless the holder hereof elects by written request
(which request shall also include appropriate wire transfer instructions) to the
Paying Agent at its corporate trust office in The City of New York received on
or prior to the Record Date relating to an Interest Payment Date or at least 10
days prior to the Maturity Date (or any redemption or repayment date), as the
case may be, to receive such payment in such Specified Currency except as
provided on the reverse hereof; provided, that any U.S. dollar amount to be
--------
received by a holder of this Note will be based on the highest bid quotation in
New York City received by the Exchange Rate Agent, as defined on the reverse
hereof, at approximately 11:00 A.M., New York City time, on the second Business
Day (this and certain other capitalized terms used herein are defined on the
reverse of this Note) preceding the applicable payment date from three
recognized foreign exchange dealers (one of which may be the Exchange Rate
Agent) for the purchase by the quoting dealer of such Specified Currency for
U.S. dollars for settlement on such payment date in the aggregate amount of such
Specified Currency payable to all holders of Notes having the same terms as this
Note (including Original Issue Date) scheduled to receive U.S. dollar payments
and at which the applicable dealer commits to execute a contract; provided,
--------
further, that if such bid quotations are not available, such payments shall be
- -------
made in such Specified Currency. All currency exchange costs will be borne by
the holder of this Note by deductions from such payments. The holder hereof may
elect to receive payment in such Specified Currency for all such payments and
need not file a separate election for each such payment, and such election shall
remain in effect until revoked by written notice to the Paying Agent at its
corporate trust office in The City of New York received on a date prior to the
Record Date for the relevant Interest Payment Date or at least 10 days prior to
the Maturity Date (or any redemption or repayment date), as the case may be;
provided, however, that such election is irrevocable as to the next succeeding
- -------- -------
payment to which it relates; if such election is made as to full payment on this
Note, such election may thereafter be revoked so long as the Paying Agent is
notified of the revocation within the time period set forth above.
If the Specified Currency indicated on the face hereof is U.S.
dollars, payment of the principal of and premium, if any, and interest on this
Note will be made in such coin or currency of the United States as at the time
of payment is legal tender for payment of public and private debts; provided,
--------
however, that payments of interest, other than interest due at maturity (or any
- -------
redemption or repayment date) will be made by United States dollar check mailed
to the address of the person entitled thereto as such address shall appear in
the Note register. A holder of U.S.$5,000,000 or more in aggregate principal
amount of Notes having the same Interest Payment Date will be entitled to
receive payments of interest, other than interest due at maturity or any date of
redemption or repayment, by wire transfer of immediately available funds to an
account maintained by the holder of this Note if appropriate wire transfer
instructions in writing have been received by the Paying Agent not less than 10
days prior to the applicable Interest Payment Date.
<PAGE>
5
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.
<PAGE>
6
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
<PAGE>
7
[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.
Unless otherwise indicated on the face of this Note, this Note shall not be
subject to repayment at the option of the holder prior to the Maturity Date. If
so indicated on the face of this Note, this Note may be subject to repayment at
the option of the holder on the Optional Repayment Date or Dates specified on
the face hereof on the terms set forth herein. On any Optional Repayment Date,
this Note will be repayable in whole or in part in increments of 1,000 units of
the Specified Currency indicated on the face hereof (provided that any remaining
principal amount hereof shall not be less than the minimum authorized
denomination hereof) at the option of the holder hereof at a price equal to 100%
of the principal amount to be repaid, together with interest hereon payable to
the date of repayment. For this Note to be repaid in whole or in part at the
option of the holder hereof, the Company must receive at the corporate trust
office of the Paying Agent in the Borough of Manhattan, The City of New York, at
least 30 days but not more than 60 days prior to the repayment, (i) this Note
with the form entitled "Option to Elect Repayment" on the reverse hereof duly
completed or (ii) a telegram, facsimile transmission or a letter from a member
of a national securities exchange or a member of the National Association of
Securities Dealers, Inc. (the "NASD") or a commercial bank or trust company in
the United States which must set forth the name of the holder of the Note, the
principal amount of this Note, the principal amount of this Note to be repaid,
the certificate number or a description of the tenor and terms of this Note, a
statement that the option to elect repayment is being exercised thereby and a
guarantee that this Note to be repaid, together with the duly completed form
entitled "Option to Elect Repayment" on the reverse hereof, will be received by
the Principal Paying Agent not later than the fifth Business Day after the date
of such telegram, facsimile transmission or letter; provided, however, that such
-------- -------
telegram, facsimile transmission or letter from a member of a national
securities exchange or a member of the NASD, or a commercial bank or trust
company in the United States shall only be effective if in such case, this Note
and form duly completed are received by the Company by such fifth Business Day.
Exercise of such repayment option by the holder hereof shall be irrevocable. In
the event of repayment of this Note in part only, a new Note or Notes for the
amount of the unpaid portion hereof shall be issued in the name of the holder
hereof upon cancellation hereof, but only in an authorized denomination.
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.
<PAGE>
8
This Note is unsecured and ranks pari passu with all other unsecured and
---- -----
unsubordinated indebtedness of the Company.
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.
The Chase Manhattan Bank has been appointed registrar for the Notes (the
"Registrar", which term includes any successor registrar appointed by the
Company), and the Registrar will maintain at its office in The City of New York
a register for the registration and transfer of Notes. This Note may be
transferred at the aforesaid office of the Registrar by surrendering this Note
for cancellation, accompanied by a written instrument of transfer in form
approved by the Registrar and duly executed by the registered holder hereof in
person or by the holder's attorney duly authorized in writing, and thereupon the
Registrar shall issue in the name of the transferee or transferees, in exchange
herefor, a new Note or Notes having identical terms and provisions for an equal
aggregate principal amount in authorized denominations, subject to the terms and
conditions set forth herein; provided, however, that the Registrar will not be
-------- -------
required to register the transfer of or exchange any Note that has been called
for redemption in whole or in part, or as to which the holder thereof has
elected to cause such Note to be repaid in whole or in part, except the
unredeemed or unpaid portion of Notes being redeemed or repaid in part, or to
register the transfer of or exchange Notes to the extent and during the period
so provided in the Indenture with respect to the redemption of Notes. Notes are
exchangeable at said office for other Notes of other authorized denominations of
equal aggregate principal amount having identical terms and provisions. All
such exchanges and transfers of Notes will be free of charge, but the Company
may require payment of a sum sufficient to cover any tax or other governmental
charge in connection therewith. All Notes surrendered for exchange shall be
accompanied by a written instrument of transfer in form approved by the
Registrar and executed by the registered holder in person or by the holder's
attorney duly authorized in writing. The date of registration of any Note
delivered upon any exchange or transfer of Notes shall be such that no gain or
loss of interest results from such exchange or transfer.
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
<PAGE>
9
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.
The Indenture permits the Company, when authorized by resolution of the
Board of Directors, and the Trustee, with the consent of the holders of not less
than 66-2/3% in aggregate principal amount of the notes of each series (each
series voting as a class) affected by such supplemental indenture at the time
outstanding, including the series of Global Medium-Term Series A, of which this
Note forms a part, to enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Indenture or of any supplemental
indenture or of modifying in any manner the rights of the holders of the notes
of each such series or the coupons appertaining to such notes; provided,
--------
however, that no such supplemental indenture shall (i) extend the fixed maturity
- -------
of any note, or reduce the rate or extend the time of payment of interest, if
any, thereon, or reduce the principal amount or premium, if any, thereof, or
make the principal thereof or premium, if any, or interest, if any, thereon
payable in any coin or currency other than that provided in any note, or reduce
the amount of the principal of an Original Issue Discount note that would be due
and payable upon an acceleration of the maturity thereof or adversely affect the
right of repayment, if any, at the option of the holder without the consent of
the holder of each note so affected, or (ii) reduce the aforesaid percentage of
notes of any series, the holders of which are required to consent to any such
supplemental indenture, without the consent of the holder of each note so
affected. A supplemental indenture which changes or eliminates any covenant or
other provision of the Indenture which has expressly been included solely for
the benefit of one or more particular series of notes, or which modifies the
rights of the holders of notes of such series or of coupons appertaining to such
notes with respect to such covenant or other provision, shall be deemed not to
affect the rights under the Indenture of the holders of notes of any other
series or of coupons appertaining to such notes.
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
<PAGE>
10
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
<PAGE>
11
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.
<PAGE>
12
ABBREVIATIONS
- -------------
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
UNIF GIFT MIN ACT- Custodian
---------------------------------------------------
(Cust) (Minor)
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.
<PAGE>
13
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.
<PAGE>
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/
-----
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.
- ------------------------------------
/1/Insert Principal Amount.
/2/Applies only if this Note is a Registered Global Security.
/3/Insert Optional Payment Amount if the Note has a dual-currency feature.
<PAGE>
2
GENERAL ELECTRIC CAPITAL CORPORATION
GLOBAL MEDIUM-TERM NOTE, SERIES A
(FLOATING RATE)
<TABLE>
<S> <C> <C> <C>
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:
</TABLE>
- --------------------------------------
/4/If Note has dual currency feature.
/5/If Note has index feature.
<PAGE>
3
CALCULATION AGENT: IF INTEREST RATE BASIS IS LIBOR:
INDEX CURRENCY:
-------------------
DESIGNATED LIBOR PAGE:
[ ] Reuters Page:
------------
[ ] Telerate Page:
----------
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:
General Electric Capital Corporation, a New York corporation (together with
its successors and assigns, the "Company"), for value received, hereby promises
to pay to , or registered assignees, the principal sum (or Face
------------
Amount, if the Note has a dual-currency or index feature) of on
----------------
the Maturity Date specified above (except to the extent redeemed or repaid prior
to the Maturity Date) and to pay interest thereon from the Original Issue Date
specified above at a rate per annum equal to the Initial Interest Rate specified
above until the first Interest Reset Date next succeeding the Original Issue
Date specified above, and thereafter at a rate per annum determined in
accordance with the provisions specified on the reverse hereof until the
principal hereof is paid or duly made available for payment (except as provided
below). The Company will pay interest in arrears monthly, quarterly,
semiannually, or annually as specified above as the Interest Payment Period on
each Interest Payment Date (as specified above), commencing with the first
Interest Payment Date next succeeding the Original Issue Date specified above,
and on the Maturity Date (or any redemption or repayment date); provided,
--------
however, that if the Original Issue Date occurs between a Record Date, as
- -------
defined below, and the next succeeding Interest Payment Date, interest payments
will commence on the second Interest Payment Date succeeding the Original Issue
Date to the registered holder of this Note on the Record Date with respect to
such second Interest Payment Date; and provided, further, that if an Interest
-------- -------
Payment Date or the Maturity Date or redemption or repayment date would fall on
a day that is not a Business Day (this and certain other capitalized terms used
herein are defined on the reverse of this Note), such Interest Payment Date,
Maturity Date or redemption or repayment date shall be the following day that is
a Business Day, except that if the Base Rate Specified above is LIBOR and such
next Business Day falls in the next calendar month, the Interest Payment Date,
Maturity Date or redemption or repayment date shall be the immediately preceding
day that is a Business Day.
[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")
<PAGE>
4
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 an Interest Payment Date (whether or not a
Business Day) (each such date a "Record Date"); provided, however, that interest
-------- -------
payable on the Maturity Date (or any redemption or repayment date) will be
payable to the person to whom the principal hereof shall be payable.
If the Specified Currency indicated on the face hereof is other than U.S.
dollars, any payment on this Note on an Interest Payment Date or the Maturity
Date (or any redemption or repayment date) will be made in U.S. dollars, as
provided below, unless the holder hereof elects by written request (which
request shall also include appropriate wire transfer instructions) to the Paying
Agent at its corporate trust office in The City of New York received on or prior
to the Record Date relating to an Interest Payment Date or at least 10 days
prior to the Maturity Date (or any redemption or repayment date), as the case
may be, to receive such payment in such Specified Currency except as provided on
the reverse hereof; provided, that any U.S. dollar amount to be received by a
--------
holder of this Note will be based on the highest bid quotation in New York City
received by the Exchange Rate Agent, as defined on the reverse hereof, at
approximately 11:00 A.M., New York City time, on the second Business Day (this
and certain other
- --------------------------------------
/6/Use if Note has dual-currency feature.
<PAGE>
5
capitalized terms used herein are defined on the reverse of this Note) preceding
the applicable payment date from three recognized foreign exchange dealers (one
of which may be the Exchange Rate Agent) for the purchase by the quoting dealer
of such Specified Currency for U.S. dollars for settlement on such payment date
in the aggregate amount of such Specified Currency payable to all holders of
Notes having the same terms as this Note (including Original Issue Date)
scheduled to receive U.S. dollar payments and at which the applicable dealer
commits to execute a contract; provided, further, that if such bid quotations
-------- -------
are not available, such payments shall be made in such Specified Currency. All
currency exchange costs will be borne by the holder of this Note by deductions
from such payments. The holder hereof may elect to receive payment in such
Specified Currency for all such payments and need not file a separate election
for each such payment, and such election shall remain in effect until revoked by
written notice to the Paying Agent at its corporate trust office in The City of
New York received on a date prior to the Record Date for the relevant Interest
Payment Date or at least 10 days prior to the Maturity Date (or any redemption
or repayment date), as the case may be; provided, however, that such election is
-------- -------
irrevocable as to the next succeeding payment to which it relates; if such
election is made as to full payment on this Note, such election may thereafter
be revoked so long as the Paying Agent is notified of the revocation within the
time period set forth above.
If the Specified Currency indicated on the face hereof is U.S. dollars,
payment of the principal of and premium, if any, and interest on this Note will
be made in such coin or currency of the United States as at the time of payment
is legal tender for payment of public and private debts; provided, however, that
-------- -------
payments of interest, other than interest due at maturity (or any redemption or
repayment date) will be made by United States dollar check mailed to the address
of the person entitled thereto as such address shall appear in the Note
register. A holder of U.S.$5,000,000 or more in aggregate principal amount of
Notes having the same Interest Payment Date will be entitled to receive payments
of interest, other than interest due at maturity or any date of redemption or
repayment, by wire transfer of immediately available funds to an account
maintained by the holder of this Note if appropriate wire transfer instructions
in writing have been received by the Paying Agent not less than 10 days prior to
the applicable Interest Payment Date.
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.
<PAGE>
6
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
<PAGE>
7
[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.
Unless otherwise indicated on the face of this Note, this Note shall not be
subject to repayment at the option of the holder prior to the Maturity Date. If
so indicated on the face of this Note, this Note may be subject to repayment at
the option of the holder on the Optional Repayment Date or Dates specified on
the face hereof on the terms set forth herein. On any Optional Repayment Date,
this Note will be repayable in whole or in part in increments of 1,000 units of
the Specified Currency indicated on the face hereof (provided that any remaining
principal amount hereof shall not be less than the minimum authorized
denomination hereof) at the option of the holder hereof at a price equal to 100%
of the principal amount to be repaid, together with interest hereon payable to
the date of repayment. For this Note to be repaid in whole or in part at the
option of the holder hereof, the Company must receive at the corporate trust
office of the Paying Agent in the Borough of Manhattan, The City of New York, at
least 30 days but not more than 60 days prior to the repayment, (i) this Note
with the form entitled "Option to Elect Repayment" on the reverse hereof duly
completed or (ii) a telegram, facsimile transmission or a letter from a member
of a national securities exchange or a member of the National Association of
Securities Dealers, Inc. (the "NASD") or a commercial bank or trust company in
the United States which must set forth the name of the holder of the Note, the
principal amount of this Note, the principal amount of this Note to be repaid,
the certificate number or a description of the tenor and terms of this Note, a
statement that the option to elect repayment is being exercised thereby and a
guarantee that this Note to be repaid, together with the duly completed form
entitled "Option to Elect Repayment" on the reverse hereof, will be received by
the Principal Paying Agent not later than the fifth Business Day after the date
of such telegram, facsimile transmission or letter; provided, however, that such
-------- -------
telegram, facsimile transmission or letter from a member of a national
securities exchange or a member of the NASD or a commercial bank or trust
company in the United States shall only be effective if in such case, this Note
and form duly completed are received by the Company by such fifth Business Day.
Exercise of such repayment option by the holder hereof shall be irrevocable. In
the event of repayment of this Note in part only, a new Note or Notes for the
amount of the unpaid portion hereof shall be issued in the name of the holder
hereof upon cancellation hereof, but only in an authorized denomination.
<PAGE>
8
This Note will bear interest at the rate determined as follows:
1. If this Note is designated as a Regular Floating Rate Note on the
face hereof, then, except as described below, this Note shall bear interest
at the rate determined by reference to the applicable Interest Rate Basis
shown on the face hereof (i) plus or minus the applicable Spread, if any,
and/or (ii) multiplied by the applicable Spread Multiplier, if any,
specified and applied in the manner described on the face hereof.
Commencing on the Initial Interest Reset Date, the rate at which interest
on this Note is payable shall be reset as of each Interest Reset Date
specified on the face hereof; provided, however, that (i) the interest rate
-------- -------
in effect for the period from the Original Issue Date to the Initial
Interest Reset Date will be the Initial Interest Rate, and (ii) unless
otherwise specified on the face hereof, the interest rate in effect hereon
for the ten calendar days immediately prior to a Maturity Date shall be
that in effect on the tenth calendar day preceding such Maturity Date.
2. If this Note is designated as a Floating Rate/Fixed Rate Note on
the face hereof, then, except as described below, this Note shall initially
bear interest at the rate determined by reference to the applicable
Interest Rate Basis shown on the face hereof (i) plus or minus the
applicable Spread, if any, and/or (ii) multiplied by the applicable Spread
Multiplier, if any, specified and applied in the manner described on the
face hereof. Commencing on the Initial Interest Reset Date, the rate at
which interest on this Note is payable shall be reset as of each Interest
Reset Date specified on the face hereof; provided, however, that (i) the
-------- -------
interest rate in effect for the period from the Original Issue Date to the
Initial Interest Reset Date will be the Initial Interest Rate; (ii) unless
otherwise specified on the face hereof, the interest rate in effect hereon
for the ten calendar days immediately prior to the Fixed Rate Commencement
Date shall be that in effect on the tenth calendar day preceding the Fixed
Rate Commencement Date; and (iii) the interest rate in effect commencing
on, and including, the Fixed Rate Commencement Date to the Maturity Date
shall be the Fixed Interest Rate, if such a rate is specified on the face
hereof, or if no such Fixed Interest Rate is so specified, the interest
rate in effect hereon on the day immediately preceding the Fixed Rate
Commencement Date.
3. If this Note is designated as an Inverse Floating Rate Note on the
face hereof, then, except as described below, this Note will bear interest
equal to the Fixed Interest Rate indicated on the face hereof minus the
rate determined by reference to the applicable Interest Rate Basis shown on
the face hereof (i) plus or minus the applicable Spread, if any, and/or
(ii) multiplied by the applicable Spread Multiplier, if any, specified and
applied in the manner described on the face hereof; provided, however, that
-------- -------
the interest rate hereon will not be less than zero. Commencing on the
Initial Interest Reset Date, the rate at which interest on this Note is
payable shall be reset as of each Interest Rate Reset Date specified on the
face hereof; provided, however, that (i) the interest rate in effect for
-------- -------
the period from the Original Issue Date to the Initial Interest Reset Date
will be the Initial Interest Rate, and (ii) unless otherwise specified on
the face hereof, the interest rate in effect hereon for the ten calendar
days immediately prior to a Maturity Date shall be that in effect on the
tenth calendar day preceding such Maturity Date.
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.
<PAGE>
9
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 Interest Determination Date pertaining to an Interest Reset Date for
Notes bearing interest calculated by reference to the CD Rate, Commercial Paper
Rate, Federal Funds Rate and Prime Rate will be the second Business Day next
preceding such Interest Reset Date. The Interest Determination Date with
respect to the Eleventh District Cost of Funds Rate will be the last working day
of the month immediately preceding each Interest Reset Date on which the Federal
Home Loan Bank of San Francisco (the "FHLB of San Francisco") publishes the
Index (as defined below). The Interest Determination Date pertaining to an
Interest Reset Date for Notes bearing interest calculated by reference to LIBOR
shall be the second London Business Day preceding such Interest Reset Date. The
Interest Determination Date pertaining to an Interest Reset Date for Notes
bearing interest calculated by reference to the Treasury Rate shall be the day
of the week in which such Interest Reset Date falls on which Treasury bills
normally would be auctioned; provided, however, that if an auction is held on
-------- -------
the Friday of the week preceding such Interest Reset Date, the related Interest
Determination Date shall be such preceding Friday; and provided, further, that
-------- -------
if an auction shall fall on any Interest Reset Date, then the Interest Reset
Date shall instead be the first Business Day following the date of such auction.
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.
DETERMINATION OF CD RATE. If the Base Rate specified on the face hereof is
------------------------
the CD Rate, the CD Rate with respect to this Note shall be determined on each
Interest Determination Date and shall be the rate on such date for negotiable
certificates of deposit having the Index Maturity specified on the face hereof
as published by the Board of Governors of the Federal Reserve System in
"Statistical Release H.15(519), Selected Interest Rates," or any successor
publication ("H.15(519)"), under the heading "CDs (Secondary Market)," or, if
not so published by 3:00 p.m., New York City time, on the Calculation Date
pertaining to such Interest Determination Date, the CD Rate will be the rate on
such Interest Determination Date for negotiable certificates of deposit of the
Index Maturity specified on the face hereof as published by the Federal Reserve
Bank of New York in its daily statistical release "Composite 3:30 P.M.
Quotations for U.S. Government Securities" or any successor publication
("Composite Quotations") under the heading "Certificates of Deposit." If such
rate is not yet published in either H.15(519) or the Composite Quotations by
3:00 P.M., New York City time, on such Calculation Date pertaining to such
Interest Determination Date, then the CD Rate on such Interest Determination
Date will be calculated by the Calculation Agent referred to on the face hereof
and will be the arithmetic mean of the secondary market offered rates as of
10:00 a.m., New York City time, on such Interest Determination Date, for
negotiated certificates of deposit of major United States money market banks
with a remaining maturity closest to the Index Maturity specified on the face
hereof in an amount that is representative for a single
<PAGE>
10
transaction in that market at that time as quoted by three leading nonbank
dealers in negotiable U.S. dollar certificates of deposit in The City of New
York selected by the Calculation Agent; provided, however, that if the dealers
-------- -------
selected as aforesaid by the Calculation Agent are not quoting as mentioned in
this sentence, the CD Rate with respect to such Interest Determination Date
shall be the CD Rate as in effect on such Interest Determination Date.
DETERMINATION OF COMMERCIAL PAPER RATE. If the Base Rate specified on the
--------------------------------------
face hereof is the Commercial Paper Rate, the Commercial Paper Rate with respect
to this Note shall be determined on each Interest Determination Date and shall
be the Money Market Yield (as defined herein) of the rate on such date for
commercial paper having the Index Maturity specified on the face hereof, as such
rate shall be published in H.15(519) under the heading "Commercial Paper-
Nonfinancial," or if not so published prior to 3:00 p.m., New York City time, on
the Calculation Date pertaining to such Interest Determination Date, the
Commercial Paper Rate shall be the Money Market Yield of the rate on such
Interest Determination Date for commercial paper of the Index Maturity specified
on the face hereof as published in Composite Quotations under the heading
"Commercial Paper" (with an Index Maturity of one month or three months being
deemed to be equivalent to an Index Maturity of 30 days or 90 days,
respectively). If such rate is not yet available in either H.15(519) or
Composite Quotations by 3:00 p.m., New York City time, on such Calculation Date,
then the Commercial Paper Rate on such Interest Determination Date shall be
calculated by the Calculation Agent and shall be the Money Market Yield of the
arithmetic mean of the offered rates as of 11:00 a.m., New York City time, on
such Interest Determination Date for commercial paper of the Index Maturity
specified on the face hereof, placed for an industrial issuer whose bond rating
is "AA," or the equivalent, from a nationally recognized rating agency, as
quoted by three leading dealers in commercial paper in The City of New York
selected by the Calculation Agent; provided, however, that if the dealers
-------- -------
selected as aforesaid by the Calculation Agent are not quoting offered rates as
set forth above, the Commercial Paper Rate with respect to such Interest
Determination Date shall be the Commercial Paper Rate in effect on such Interest
Determination Date.
"MONEY MARKET YIELD" shall be a yield (expressed as a percentage)
calculated in accordance with the following formula:
Money Market Yield = D x 360 x 100
-------------
360 - (D x M)
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 OF ELEVENTH DISTRICT COST OF FUNDS RATE. If an Interest Rate
-----------------------------------------------------
Basis for this Note is the Eleventh District Cost of Funds Rate, as indicated
above, the Eleventh District Cost of Funds Rate shall be determined on each
applicable Interest Determination Date and shall be the rate equal to the
monthly weighted average cost of funds for the calendar month preceding such
Interest Determination Date as set forth under the caption "11th District" on
Telerate Page 7058 as of 11:00 a.m., San Francisco time, on such Interest
Determination Date. If such rate does not appear on Telerate Page 7058 on any
Interest Determination Date, the Eleventh District Cost of Funds Rate for such
Interest Determination Date shall be the monthly weighted average cost of funds
paid by member institutions of the Eleventh Federal Home Loan Bank District that
was most recently announced (the "Index") by the FHLB of San Francisco as such
cost of funds for the calendar month preceding the date of such announcement.
If the FHLB of San Francisco fails to announce such rate for the calendar month
next preceding such Interest
<PAGE>
11
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.
DETERMINATION OF FEDERAL FUNDS RATE. If the Base Rate specified on the
-----------------------------------
face hereof is the Federal Funds Rate, the Federal Funds Rate with respect to
this Note shall be determined on each Interest Determination Date and shall be
the rate on such date for Federal Funds as published in H.15(519) under the
heading "Federal Funds (Effective)," or, if not so published by 3:00 p.m., New
York City time, on the Calculation Date pertaining to such Interest
Determination Date, the Federal Funds Rate will be the rate on such Interest
Determination Date as published in Composite Quotations under the heading
"Federal Funds/Effective Rate." If such rate is not yet published in either
H.15(519) or the Composite Quotations by 3:00 p.m., New York City time, on such
Calculation Date, the Federal Funds Rate for such Interest Determination Date
will be calculated by the Calculation Agent and will be the arithmetic mean of
the rates for the last transaction in overnight United States dollar Federal
funds as of 9:00 a.m., New York City time, on such Interest Determination Date
arranged by three leading brokers of Federal funds transactions in The City of
New York selected by the Calculation Agent; provided, however, that if the
-------- -------
brokers selected as aforesaid by the Calculation Agent are not quoting as
mentioned in this sentence, the Federal Funds Rate with respect to such Interest
Determination Date shall be the Federal Funds Rate in effect on such Interest
Determination Date.
DETERMINATION OF LIBOR. If the Base Rate specified on the face hereof is
----------------------
LIBOR, LIBOR with respect to this Note shall be determined on each Interest
Determination Date as follows:
(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.,
<PAGE>
12
London time, on such Interest Determination Date and in a principal amount
that is representative for a single transaction in such Index Currency in
such market at such time. If at least two such quotations are provided,
LIBOR determined on such Interest Determination Date will be the arithmetic
mean of such quotations. If fewer than two quotations are provided, LIBOR
determined on such Interest Determination Date will be the arithmetic mean
of the rates quoted at approximately 11:00 a.m. (or such other time
specified on the face hereof) in the applicable Principal Financial Center
(as defined below), on such Interest Determination Date for loans in the
Index Currency to leading European banks having the Index Maturity
designated in the applicable Pricing Supplement and in a principal amount
that is representative for a single transaction in such Index Currency in
such market at such time by three major banks in such Principal Financial
Center selected by the Calculation Agent; provided, however, that if the
-------- -------
banks so selected by the Calculation Agent are not quoting as mentioned in
---
this sentence, LIBOR with respect to such Interest Determination Date will
be LIBOR in effect on such Interest Determination Date.
"INDEX CURRENCY" means the currency (including composite currencies)
--------------
specified on the face hereof as the currency with respect to which LIBOR shall
be calculated. If no such currency is specified on the face hereof, the Index
Currency shall be U.S. dollars.
"DESIGNATED LIBOR PAGE" means the display on the Dow Jones Telerate Service
---------------------
for the purpose of displaying the London interbank rates of major banks for the
applicable Index Currency, unless "LIBOR Reuters" is designated on the face
hereof, in which case the Designated LIBOR Page shall be the display on the
Reuters Monitor Money Rates Service for the purpose of displaying the London
interbank rates of major banks for the applicable Index Currency.
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.
DETERMINATION OF PRIME RATE. If the Base Rate specified on the face hereof
---------------------------
is the Prime Rate, the Prime Rate with respect to this Note shall be determined
on each Interest Determination Date and shall be the arithmetic mean of the
prime rates of interest publicly announced by each of three major banks in The
City of New York as its United States dollar prime rate or base lending rate as
in effect for that day. For purposes of making the foregoing determination,
each change in the prime rate or base lending rate of any bank so announced by
such bank will be effective as of the effective date of the announcement or, if
no effective date is specified, as of the date of the announcement. If fewer
than three such quotations are provided, the Prime Rate will be calculated by
the Calculation Agent and will be determined as the arithmetic mean on the basis
of the prime rates or base lending rates quoted in The City of New York by three
substitute banks or trust companies organized and doing business under the laws
of the United States or any state thereof, each having total equity capital of
at least $500 million and being subject to supervision or examination by a
federal or state authority, selected by the Calculation Agent to quote such rate
or rates; provided, however, that if the banks or trust companies so selected by
-------- -------
the Calculation Agent are not quoting bid rates as mentioned in this sentence,
the Prime Rate with respect to such Interest Determination Date will be the
Prime Rate in effect on such Interest Determination Date.
DETERMINATION OF TREASURY RATE. If the Base Rate specified on the face
------------------------------
hereof is the Treasury Rate, the Treasury Rate with respect to this Note shall
be determined on each Interest Determination Date
<PAGE>
13
and shall be the rate applicable to the most recent auction of direct
obligations of the United States ("Treasury Bills") having the Index Maturity
specified on the face hereof, as published in H.15(519) under the heading "U.S.
Government Securities--auction average (investment)," or if not so published by
3:00 p.m., New York City time, on the Calculation Date pertaining to such
Interest Determination Date, the auction average rate on such Interest
Determination Date (expressed as a bond equivalent, on the basis of a year of
365 or 366 days, as applicable, and applied on a daily basis) as otherwise
announced by the United States Department of the Treasury. In the event that the
results of the auction of Treasury Bills having the Index Maturity specified on
the face hereof are not published or reported as provided above by 3:00 P.M.,
New York City time, on such Calculation Date, or if no such auction is held in
the five Business Days preceding such Interest Determination Date, then the
Treasury Rate shall be calculated by the Calculation Agent and shall be a yield
to maturity (expressed as a bond equivalent, on the basis of a year of 365 or
366 days, as applicable, and applied on a daily basis) of the arithmetic mean of
the secondary market bid rates, as of approximately 3:30 P.M., New York City
time, on such Interest Determination Date, of three leading primary United
States government securities dealers selected by the Calculation Agent for the
issue of Treasury Bills with a remaining maturity closest to the Index Maturity
specified on the face hereof; provided, however, that if the dealers selected as
-------- -------
aforesaid by the Calculation Agent are not quoting bid rates as mentioned in
this sentence, the Treasury Rate with respect to such Interest Determination
Date will be the Treasury Rate in effect on such Interest Determination Date.
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.
Interest payments on this Note will equal the amount of interest accrued
from and including the next preceding Interest Payment Date in respect of which
interest has been paid (or from and including the date of issue, if no interest
has been paid) to but excluding the related Interest Payment Date; provided,
--------
however, that if the Interest Reset Period with respect to this Note is daily or
- -------
weekly, each interest payment will include interest accrued from and including
the date of issue or from but excluding the last Regular Record Date to which
interest has been paid, as the case may be, through and including the Regular
Record Date next preceding the applicable Interest Payment Date, unless
otherwise specified on the face hereof; and provided, further, that the interest
-------- -------
payment with respect to this Note made on the Maturity Date will include
interest accrued to but excluding such Maturity 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.
<PAGE>
14
All percentages resulting from any calculation will be to the nearest one
hundred-thousandth of a percentage point, with five one millionths of a
percentage point rounded upwards (e.g., 9.9876545% (or .09876545) would be
----
rounded to 9.87655% (or.0987655), and all dollar amounts used in or resulting
from such calculation will be rounded to the nearest cent (with one-half cent
being rounded upward).
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 is unsecured and ranks pari passu with all other unsecured and
---- -----
unsubordinated indebtedness of the Company.
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.
The Chase Manhattan Bank has been appointed registrar for the Notes (the
"Registrar", which term includes any successor registrar appointed by the
Company), and the Registrar will maintain at its office in The City of New York
a register for the registration and transfer of Notes. This Note may be
transferred at the aforesaid office of the Registrar by surrendering this Note
for cancellation, accompanied by a written instrument of transfer in form
approved by the Registrar and duly executed by the registered holder hereof in
person or by the holder's attorney duly authorized in writing, and thereupon the
Registrar shall issue in the name of the transferee or transferees, in exchange
herefor, a new Note or Notes having identical terms and provisions for an equal
aggregate principal amount in authorized denominations, subject to the terms and
conditions set forth herein; provided, however, that the Registrar will not be
-------- -------
required to register the transfer of or exchange any Note that has been called
for redemption in whole or in part, or as to which the holder thereof has
elected to cause such Note to be repaid in whole or in part, except the
unredeemed or unpaid portion of Notes being redeemed or repaid in part, or to
register the transfer of or exchange Notes to the extent and during the period
so provided in the Indenture with respect to the redemption of Notes. Notes are
exchangeable at said office for other Notes of other authorized denominations of
equal aggregate principal amount having identical terms and provisions. All
such exchanges and transfers of Notes will be free of charge, but the Company
may require payment of a sum sufficient to cover any tax or other governmental
charge in connection therewith. All Notes surrendered for exchange shall be
accompanied by a written instrument of transfer in form approved by the
Registrar and executed by the registered holder in person or by the holder's
attorney duly authorized in writing. The date of registration of any Note
delivered upon any exchange or transfer of Notes shall be such that no gain or
loss of interest results from such exchange or transfer.
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
<PAGE>
15
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.
The Indenture permits the Company, when authorized by resolution of the
Board of Directors, and the Trustee, with the consent of the holders of not less
than 66% in aggregate principal amount of the notes of each series (each series
voting as a class) affected by such supplemental indenture at the time
outstanding, including the series of Global Medium-Term Series A, of which this
Note forms a part, to enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Indenture or of any supplemental
indenture or of modifying in any manner the rights of the holders of the notes
of each such series or the coupons appertaining to such notes; provided,
--------
however, that no such supplemental indenture shall (i) extend the fixed maturity
- -------
of any note, or reduce the rate or extend the time of payment of interest, if
any, thereon, or reduce the principal amount or premium, if any, thereof, or
make the principal thereof or premium, if any, or interest, if any, thereon
payable in any coin or currency other than that provided in any note, or reduce
the amount of the principal of an Original Issue Discount note that would be due
and payable upon an acceleration of the maturity thereof or adversely affect the
right of repayment, if any, at the option of the holder without the consent of
the holder of each note so affected, or (ii) reduce the aforesaid percentage of
notes of any series, the holders of which are required to consent to any such
supplemental indenture, without the consent of the holder of each note so
affected. A supplemental indenture which changes or eliminates any covenant or
other provision of the Indenture which has expressly been included solely for
the benefit of one or more particular series of notes, or which modifies the
rights of the holders of notes of such series or of coupons appertaining to such
notes with respect to such covenant or other provision, shall be deemed not to
affect the rights under the Indenture of the holders of notes of any other
series or of coupons appertaining to such notes.
<PAGE>
16
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.
<PAGE>
17
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
<PAGE>
18
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;
<PAGE>
19
(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.
<PAGE>
20
ABBREVIATIONS
- -------------
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
UNIF GIFT MIN ACT- Custodian
---------------------------------------------------
(Cust) (Minor)
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.
<PAGE>
21
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.
<PAGE>
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
<PAGE>
2
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.
____________________________________
[Name]
[Title]
____________________________________
Nancy E. Barton
Secretary
<PAGE>
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.
________________________________
[Name]
[Title]
___________________________
Nancy E. Barton
Secretary
Subscribed and sworn to
before me this ____ day
of July, 1998
___________________________
Notary Public
<PAGE>
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 __.
<PAGE>
2
A. DESIGNATION.
-----------
There is hereby created one series of the Preferred Stock,
consisting of ____ shares to be designated the "Preferred Stock,
Series __" (the "Series __ Shares").
B. DIVIDENDS.
---------
The initial Dividend Rate for the Series __ Shares shall be ___%
per annum. The Initial Dividend Period shall end for the Series
__ Shares on ____________.
C. CERTAIN REDEMPTION DATES AND PRICES.
-----------------------------------
[insert applicable redemption provisions, if any]
D. DIVIDEND RATE.
--------------
[insert applicable dividend rate]
E. VOTING RIGHTS.
--------------
[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_.
___________________________________
[Name]
[Title]
___________________________________
Nancy E. Barton
Secretary
<PAGE>
3
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_.
___________________________________
[Name]
[Title]
___________________________________
Nancy E. Barton
Secretary
Subscribed and sworn to
before me this ____ day of
____, 199_
_______________________________
Notary Public
<PAGE>
EXHIBIT 5
---------
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
<PAGE>
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,
<PAGE>
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
<PAGE>
EXHIBIT 23
----------
CONSENT
-------
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
<PAGE>
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
<PAGE>
2
/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
<PAGE>
-------------------------------------------------------------------
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
___________________________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
________________________________________
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)
_____________________________________________
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)
---------------------
DEBT SECURITIES
(Title of the indenture securities)
-------------------------------------------------------------------
<PAGE>
GENERAL
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.
<PAGE>
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
<PAGE>
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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<PAGE>
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
--------
TOTAL LIABILITIES AND EQUITY CAPITAL............... $298,734
========
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.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
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