Exhibit
4(f)
GENERAL
ELECTRIC CAPITAL CORPORATION
GE
CAPITAL AUSTRALIA FUNDING PTY. LTD. (A.B.N. 67 085 675
467)
GE
CAPITAL CANADA FUNDING COMPANY
GE
CAPITAL EUROPEAN FUNDING
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Euro
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Medium-Term Notes and Other Debt
Securities
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Due 9 Months or More from
Date of Issue
SEVENTH
AMENDED AND RESTATED
CREDIT
SUISSE FIRST BOSTON (EUROPE) LIMITED
92063 Paris La Défense Cedex
GOLDMAN
SACHS INTERNATIONAL
MERRILL
LYNCH INTERNATIONAL
Merrill Lynch
Financial Centre
Each of General Electric Capital Corporation, a
Delaware corporation (“GE Capital”), GE Capital
Australia Funding Pty Ltd (A.B.N. 67 085 675 467), a company
incorporated under the corporations laws of Australia (“GEC
Australia Funding”), GE Capital Canada Funding Company, a
company incorporated under the laws of the Province of Nova Scotia,
Canada (“GEC Canada Funding”), GE Capital European
Funding (“GECEF”) and GE Capital UK Funding
(“GECUKF” and, together with GECEF, the “Irish
Issuers” and each an “Irish Issuer”) each Irish
Issuer being incorporated with unlimited liability under the
Companies Acts 1963-2003 of Ireland (together with each Additional
Issuer (as defined herein) from time to time acceding to this
Agreement in accordance with Section 16 hereof, each an
“Issuer” and collectively, the “Issuers”)
hereby enters into this agreement with Barclays Bank PLC, Credit
Suisse First Boston (Europe) Limited (“Credit Suisse First
Boston”), GE Money Bank, Goldman Sachs International
(“Goldman Sachs”), Merrill Lynch International
(“Merrill Lynch”), and UBS Limited (“UBS”)
(each a “Dealer” and, collectively, the
“Dealers”) with respect to the issue and sale by each
of the Issuers of Euro Medium-Term Notes (“Medium Term
Notes”) and other debt securities (“Other Debt
Securities” and, collectively, with the Medium Term Notes,
the “Notes”) in an unlimited aggregate principal
amount. Notes issued by each Issuer other than GE Capital will be
issued with the benefit of the unconditional and irrevocable
guarantee (each, a “Guarantee”) of GE Capital (in such
capacity, the “Guarantor”) under which the Guarantor
will guarantee the payment of all amounts payable on or in respect
of such Notes. The Notes may be (i) admitted to the official
list of the Financial Services Authority in its capacity as U.K.
Listing Authority (the “UKLA”) and to the London Stock
Exchange plc for such Notes to be admitted to trading on the London
Stock Exchange’s Gilt Edged and Fixed Interest Market
(hereinafter referred to as the (“London Stock
Exchange”), (ii) listed on the Singapore Exchange
Securities Trading Limited (the “Singapore Stock
Exchange”), and/or (iii) listed on or by such other stock
exchange, competent authority and/or market, if any, as are
identified in the relevant Offering Document (as defined
below).
The Notes are to be issued pursuant to a seventh
amended and restated fiscal and paying agency agreement dated as of
July 1, 2005 among the Issuers (including GE Capital in its
capacity as Guarantor of Notes issued by an Issuer other than GE
Capital), JPMorgan Chase Bank, N.A., as fiscal agent (in such
capacity, the “Fiscal Agent”) and principal paying
agent (in such capacity, the “Principal Paying Agent”),
J.P. Morgan Bank Luxembourg S.A., as initial registrar and
Luxembourg transfer agent (such agreement, as further amended and
supplemented from time to time, being referred to herein as the
“Fiscal Agency Agreement”). The Issuers and (in the
case of Notes issued by an Issuer other than GE Capital) the
Guarantor have authorized the issuance of Notes to and through the
Dealers pursuant to the terms of this Agreement. Notes will be in
bearer or registered form. Notes issued in bearer form will be
represented initially by a temporary global Note without interest
coupons attached (each, a “Temporary Global Note”)
delivered to a common depositary on behalf of Euroclear Bank
S.A./N.V. as operator of the Euroclear System
(“Euroclear”) and Clearstream Banking,
société anonyme (“Clearstream,
Luxembourg”). Beneficial interests in a Temporary Global Note
will be exchangeable for beneficial interests in a permanent global
Note without interest coupons attached (each, a “Permanent
Global Note”) or for definitive Notes in bearer form
(“Definitive Notes”), with interest coupons attached
(such Temporary Global Notes, Permanent Global Notes or Definitive
Notes, together, “Bearer Notes”), or in registered form
without interest coupons (“Registered Notes”). As used
in this Agreement, the term “Note” includes any
Temporary Global Note, Permanent Global Note or Definitive Note
issued pursuant to the Fiscal Agency Agreement.
Subject to the terms and conditions stated
herein and further subject to the understanding that nothing in
this Agreement shall impair the right of an Issuer to sell
securities with terms similar or identical to any Note
independently of the continuous offering of Notes contemplated by
this Agreement, each Issuer hereby (i) appoints the Dealers as
agents of such Issuer for the purpose of soliciting purchases of
the Notes from such Issuer by others from time to time,
(ii) agrees that whenever such Issuer determines from time to
time to sell Notes directly to one or more of the
Dealers
as principal
for resale to others (such resale to be at fixed offering prices or
at varying prices related to prevailing market prices at the time
of resale or otherwise as determined by such Dealer), it will enter
into a Terms Agreement relating to such sale in accordance with the
provisions of Section 2(b) hereof, (iii) reserves the
right from time to time to sell Notes on its own behalf directly to
investors (other than broker-dealers) (as such reservation is
limited by any of the selling restrictions set forth in Exhibit D
hereto) and (iv) reserves the right from time to time to
appoint one or more additional firms either (A) to solicit
purchase of Notes from such Issuer by others or (B) to
purchase Notes directly from such Issuer as principal for resale to
others; provided, however, that such sales will be made on terms
substantially the same as those contained in this Agreement. Any
such additional firm designated by an Issuer pursuant to clause
(iv) above shall be considered a Dealer hereunder for all
purposes with respect to each transaction with respect to which
such appointment is made. In the case of each purchaser whose offer
to purchase Notes from an Issuer has been solicited by a Dealer as
agent and accepted by any such Issuer, such Dealer will make
reasonable efforts to assist such Issuer in obtaining performance
by such purchaser, but no Dealer shall have any liability to such
Issuer in the event any such purchase is not consummated for any
reason.
The Notes have not been and will not be
registered under the U.S. Securities Act of 1933, as amended (the
“Securities Act”) and may not be offered or sold within
the United States or to, or for the account or benefit of, U.S.
persons except in accordance with Regulation S under the Securities
Act or pursuant to an exemption from the registration requirements
of the Securities Act.
Pursuant to this Agreement, the Sixth Amended
and Restated Distribution Agreement dated May 17, 2005 (the
“Prior Distribution Agreement”) shall be amended and
restated on the terms of this Agreement. Any Notes issued on or
after the date of this Agreement shall be issued pursuant to this
Agreement, but this shall not affect any notes issued prior to the
date of this Agreement. Subject to such amendment and restatement,
the Prior Distribution Agreement shall continue in full force and
effect.
With respect to the offer and sale of the Notes
on a continuous basis from and after the Commencement Date (as
defined below), the Issuers and (in the case of Notes issued by an
Issuer other than GE Capital) the Guarantor have
prepared:
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(1)
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a prospectus,
constituting (in the case of Notes to be listed and/or admitted to
trading on a stock exchange, competent authority and/or market),
the Base Prospectus (as defined below) including with respect to
each tranche of Notes issued under the Fiscal Agency Agreement the
Final Terms (as defined below) relating to such tranche of Notes
(the prospectus, as the same may be revised, amended or updated
from time to time as described herein, together with the Final
Terms, any other applicable supplement to the prospectus and the
documents incorporated by reference therein, are hereinafter and as
the context may require together referred to as the
“Prospectus”); and
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(2)
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a registration
document, consitituting the Registration Document relating to the
Programme for the purposes of Article 5.3 of the Prospectus
Directive (as defined below) (the Registration Document, as the
same may be revised, amended or updated from time to time as
described herein, together with any Securities Note (as defined
below), any other applicable supplement to the Registration
Document and the documents incorporated by reference therein, are
hereinafter sometimes referred to as the “Registration
Document”). The Issuers and (in the case of Notes issued by
an Issuer other than GE Capital) the Guarantor will also prepare
from time to time Securities Notes being supplemental to the
Registration Document.
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The offer and sale of the Notes may be
documented by way of either (i) the Prospectus and an
accompanying Final Terms or (ii) the Registration Document and
a supplemental Securities Note, together in each case (as and when
so required) with any and all related supplements to such
Prospectus or Registration Document as the case may be.
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For the purposes of this Agreement, except where
the context requires otherwise:
“Base Prospectus” means the base
prospectus with regard to the issue of Notes (other than Notes that
are not listed and/or admitted to trading and/or which the relevant
Issuer does not have a continuing obligation to list or admit to
trading on a stock exchange, competent authority and/or market) and
which for the purposes of Article 5.4 of the Prospectus Directive
has been approved by the UK Listing Authority under the listing
rules made pursuant to part VI of the Financial Services and
Markets Act 2000 (or in the case of Notes which are, or are to be,
listed on or by any other stock exchange, competent authority
and/or market, the listing rules and regulations for the time being
in force for such stock exchange, competent authority and/or
market);
“Final Terms” means the applicable
(i) Wholesale Final Terms; (ii) the Retail Final Terms;
or (iii) the Unlisted Final Terms, as the case may
be;
“Offering Document” means
(i) the Prospectus including in relation to a tranche of
Notes, the relevant Final Terms relating to such tranche,
(ii) the Registration Document, including in relation to a
tranche of Notes, the relevant Securities Note (iii) a Summary
or translation thereof or (iv) such other Prospectus used in
connection with an issue of a tranche of Notes, each as revised,
supplemented, amended or updated from time to time by the Issuer in
accordance with Section 3(c) hereof, including any documents
which are from time to time incorporated by reference therein
except that in relation to a tranche of Notes, no Final Terms or
Securities Note (as the case may be) applicable to another tranche
of Notes shall be deemed to be included in the Prospectus or
Registration Document (as applicable);
“Prospectus Directive” means
Directive 2003/71/EC of the European Parliament and of the Council
of 4 November 2003;
“Retail Final Terms” means the final
terms applicable to the issuance of Notes with a denomination of
less than EUR50,000 (or its equivalent in any other Specified
Currency) and issued in relation to a tranche of Notes issued under
the Fiscal Agency Agreement (in, or substantially in, the form set
out in the Prospectus) as a supplement to the Prospectus and
setting out the particular contractual terms and other prescribed
information in respect of that tranche of Notes;
“Securities Note” means a securities
note relating to a tranche of Notes issued under the Fiscal Agency
Agreement for the purposes of Article 5.3 of the Prospectus
Directive and setting out the contractual terms and other
presecribed information in respect of such tranche of Notes and
being supplemental to the Registration Document;
“Summary” means a summary document
prepared in accordance with Article 25 (2) of Regulation (EC)
No 809/2004 of the Prospectus Directive;
“Terms Agreement” means a separate
agreement (which shall be substantially in the form of Exhibit A
hereto) and which may take the form of an exchange of any standard
form of written telecommunication between a Dealer or Dealers, the
relevant Issuer and (in the case of Notes issued by an Issuer other
than GE Capital) the Guarantor or may be an oral agreement and
confirmed by the relevant Dealer in writing (including facsimile
transmission) and containing the information specified in Exhibit A
hereto;
“Unlisted Final Terms” means the
final terms applicable for the issuances of Notes which are neither
listed nor admitted to trading on a regulated market and issued in
relation to each tranche of Notes issued under the Fiscal Agency
Agreement as a supplement to the Prospectus and setting out the
particular contractual terms and other prescribed information in
respect of that tranche of Notes; and
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“Wholesale Final Terms” means the
final terms applicable for the issuance of Notes with a
denomination of at least EUR50,000 (or its equivalent in any other
Specified Currency) and issued in relation to each tranche of Notes
issued under the Fiscal Agency Agreement (in, or substantially in,
the form set out in the Prospectus) as a supplement to the
Prospectus and setting out the particular contractual terms and
other prescribed information in respect of that tranche of
Notes.
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SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) Each Issuer
and (in the case of Notes issued by an Issuer other than GE
Capital) the Guarantor jointly and severally represents and
warrants to each Dealer as of the date of this Agreement (the
“Commencement Date”), as of the date of each acceptance
by each Issuer of an offer for the purchase of Notes whether
through a Dealer as agent or to a Dealer as principal (the
“Acceptance Date”), as of the date of each sale of
Notes whether through a Dealer as agent or to a Dealer as principal
(the date of each such sale to a Dealer as principal being referred
to herein as a “Settlement Date”), and as of the times
referred to in Sections 6(a) and 6(b) hereof (each of the times
referenced above being referred to herein as a
“Representation Date”), as follows:
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(i)
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each document
filed by GE Capital pursuant to the U.S. Securities Exchange Act of
1934, as amended (the “Exchange Act”) which is
incorporated by reference in the Offering Document complied when so
filed in all material respects with the Exchange Act and the rules
and regulations thereunder;
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(ii)
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the relevant
Offering Document is accurate in all material respects and does
not, and 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;
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(iii)
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there has been
no material adverse change in the condition of GE Capital and its
consolidated affiliates, taken as a whole, or, in the case of an
Issuer other than GE Capital, such Issuer and its consolidated
affiliates, if any, taken as a whole, from such condition set forth
in or incorporated by reference in the Offering Document (excluding
any amendments or supplements to the Offering Document since the
relevant Acceptance Date, if any);
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(iv)
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the aggregate
principal amount of each Issuer’s Notes outstanding at any
one time will not exceed any limitation thereon which may be in
effect by actions of the Board of Directors (or other appropriate
corporate governing body) of each such Issuer and (in the case of
Notes issued by an Issuer other than GE Capital) the
Guarantor;
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(v)
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the Notes have
been duly authorized and, if executed and authenticated in
accordance with the provisions of the Fiscal Agency Agreement and
delivered to and paid for by any purchaser of Notes sold through a
Dealer as agent or through a Dealer as principal pursuant to any
Terms Agreement (as defined in Section 2(b)), would be valid
and binding obligations of the relevant Issuer enforceable against
such Issuer in accordance with their respective terms and would be
entitled to the benefits of the Fiscal Agency Agreement;
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(vi)
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in the case of
Notes issued by an Issuer other than GE Capital, the Guarantees
have been duly authorized and, if the Guarantees endorsed on the
Notes are executed in accordance with the provisions of the Fiscal
Agency Agreement and the Notes are duly executed and authenticated
and delivered to and paid for by any purchaser of Notes sold
through a Dealer as agent or any Dealer as principal pursuant to
any Terms Agreement, such Guarantees would be valid and binding
obligations of the Guarantor, enforceable against the Guarantor in
accordance with their terms and would be entitled to the benefits
of the Fiscal Agency Agreement;
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(vii)
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no event exists
which would constitute an event of default under the Fiscal Agency
Agreement or the Notes;
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(viii)
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neither the
Issuers nor (in the case of Notes issued by an Issuer other than GE
Capital) the Guarantor, nor any of their affiliates, nor any person
acting on any of their behalf, have engaged in or will engage in
any directed selling efforts (within the meaning of Regulation S
under the Securities Act) with respect to the Notes, and they have
each complied with the offering restrictions requirement of
Regulation S under the Securities Act; and
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(ix)
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in the case of
Notes issued by an Issuer other than GE Capital, no stamp duty or
other similar taxes or duties are payable in the country of the
organization of such Issuer or any applicable political subdivision
thereof, in respect of the creation or issue by it of such Notes,
or by any holder of such Notes;
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except that the
representations and warranties set forth in paragraph (ii) of
this Section 1(a) do not apply to statements or omissions in
the Offering Document based upon information furnished to the
relevant Issuer or the Guarantor in writing by any Dealer expressly
for use therein.
(b)
Additional Certifications . Any certificate signed by any
officer of the relevant Issuer or (in the case of Notes issued by
an Issuer other than GE Capital) the Guarantor and delivered to the
Dealers or to counsel for the Dealers in connection with an
offering of Notes shall be deemed a representation and warranty by
such Issuer or the Guarantor to each Dealer as to the matters
covered thereby.
SECTION 2.SOLICITATIONS AS AGENT; PURCHASES AS
PRINCIPAL .
(a)
Solicitations as Agent . On the basis of the representations
and warranties herein contained, but subject to the terms and
conditions herein set forth, each Dealer individually agrees, as
agent of each Issuer, to use its best efforts to solicit offers to
purchase the Notes upon the terms and conditions set forth in the
Offering Document.
Each Issuer and (in the case of Notes issued by
an Issuer other than GE Capital) the Guarantor reserves the right,
in its sole discretion, to suspend solicitation by any one or more
of the Dealers of purchases of the Notes of the relevant Issuer
commencing at any time for any period of time or permanently. Upon
receipt of instructions from an Issuer or the Guarantor, as the
case may be, each Dealer will forthwith suspend solicitation of
purchases from such Issuer until such time as such Issuer or the
Guarantor has advised such Dealer or Dealers that such solicitation
may be resumed.
Each Dealer shall have the right to suspend
solicitations, commencing at any time such Dealer reasonably
believes that there has occurred a material adverse change in the
condition of (i) GE Capital and its consolidated affiliates,
taken as a whole, or (ii) in the case of an Issuer other than
GE Capital, such Issuer and its consolidated affiliates, if any,
taken as a whole, from such condition then set forth in the
Offering Document, and ending at the time such Dealer has been
reasonably satisfied that adequate and full disclosure of such
adverse change has been made (including without limitation any
necessary amendments or supplements to the Offering Document);
provided, however, that any such Dealer shall notify the relevant
Issuer and (in the case of Notes issued by an Issuer other than GE
Capital) the Guarantor of its belief prior to or concurrently with
any such suspension of solicitations.
Each Issuer agrees to pay each Dealer a
commission, by means of a deduction from the proceeds of a sale of
Notes of such Issuer or otherwise, equal to the applicable
percentage of the public offering price of each Note sold by such
Issuer as a result of a solicitation made by such Dealer, as such
Issuer and such Dealer may agree. It is understood that no
commission will be payable with respect to any offer to purchase
Notes accepted by an Issuer where such Issuer tenders such Note and
delivery of such Note is not accepted by the purchaser.
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As agent, each Dealer is authorized to solicit
orders for the Notes at a purchase price which shall be agreed upon
by the relevant Issuer and such Dealer and set forth in the
applicable Final Terms or Securities Note (as the case may be) and
in such denominations as may be agreed, subject to compliance with
all applicable laws and regulations. Each Dealer shall communicate
to the relevant Issuer, orally or in writing, each reasonable offer
to purchase Notes received by such Dealer as agent. Such Issuer
shall have the sole right to accept offers to purchase the Notes
and may reject any such offer in whole or in part. Each Dealer
shall have the right to reject any offer that is not a reasonable
offer to purchase the Notes received by it in whole or in part, and
any such rejection shall not be deemed a breach of such
Dealer’s agreement contained herein. “Reasonable”
with respect to an offer shall be determined by such Dealer by
reference to then-prevailing interest rates and the interest rates
then posted by the relevant Issuer with respect to offers to sell
the Notes.
(b)
Purchases as Principal . Each sale of Notes to one or more
Dealers as principal shall be made in accordance with the terms of
this Agreement and a separate Terms Agreement which will provide
for the sale of such Notes to, and the purchase and reoffering
thereof by, such Dealer or Dealers. Any Dealer’s commitment
to purchase Notes pursuant to any Terms Agreement shall be deemed
to have been made on the basis of the representations and
warranties of the relevant Issuer and (in the case of Notes issued
by an Issuer other than GE Capital) the Guarantor herein contained
and shall be subject to the terms and conditions herein set forth.
Each Dealer shall notify the Fiscal Agent promptly after its last
sale of Notes purchased under a Terms Agreement of its completion
of the distribution thereof.
In the event that two or more Dealers purchase
Notes as principal pursuant to a Terms Agreement, the obligation of
the Dealers to purchase the Notes subject to such Terms Agreement
shall be joint and several. In the event that any Dealer or Dealers
(which term as used herein shall include any person signing a Terms
Agreement with respect to a particular tranche of Notes, including
those signing by power-of-attorney or otherwise) purchasing Notes
as principal pursuant to a Terms Agreement desires to use any
dealer or selling group to distribute any portion of its allotment
of such tranche of Notes, then any such Dealer or Dealers shall
cause such dealer or selling group member to agree, in writing, for
the benefit of the relevant Issuer and (in the case of Notes issued
by an Issuer other than GE Capital) the Guarantor, to comply with
all applicable terms of this Agreement and such Terms Agreement
relating to the distribution of such Notes.
(c)
Administrative Procedures . Administrative procedures
regarding the sale of Notes (the “Administrative
Procedures”) shall be agreed upon from time to time by the
Dealers and each Issuer (including GE Capital in its capacity as
Guarantor of Notes issued by any Issuer other than itself). The
Dealers, each such Issuer and GE Capital (in its capacity as
Guarantor of Notes issued by any Issuer other than itself) agree to
perform the respective duties and obligations specifically provided
to be performed by them herein and in the written Administrative
Procedures. The Administrative Procedures as in effect on the
Commencement Date are attached as Exhibit B hereto. The
Administrative Procedures may be amended from time to time only by
written agreement of the Dealers, the relevant Issuer, the
Guarantor (in the case of Notes issued by an Issuer other than GE
Capital) and the Fiscal Agent and Principal Paying Agent (in the
case of amendments which affect the rights, duties or obligations
of the Fiscal Agent and the Principal Paying Agent). To the extent
the Administrative Procedures in effect from time to time conflict
with any provision of this Agreement, the provisions of this
Agreement shall govern. Each Issuer will furnish a copy of the
Administrative Procedures from time to time in effect to the Fiscal
Agent and the Principal Paying Agent, each authenticating agent (an
“Authenticating Agent”) or paying agent designated
pursuant to the Fiscal Agency Agreement and the common depositary
for Euroclear and Clearstream, Luxembourg.
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(d) Delivery
of Documents . The documents required to be delivered by
Section 5 hereof shall be delivered at the offices of the
Dealer (or, if one or more Dealers is participating in any such
sale, the Lead Manager (as defined in the applicable Terms
Agreement)), or at such other location as shall be specified in the
relevant Terms Agreement, on the date required for such delivery
set forth in Section 5 hereof.
(e)
Obligations Several . Each Issuer and (in the case of Notes
issued by an Issuer other than GE Capital) the Guarantor
acknowledge that the obligations of the Dealers are several (except
as otherwise provided in Section 2(b) hereof) and, subject to
the provisions of this Section 2, Section 7 and
Section 10 hereof, each Dealer shall have complete discretion
as to the manner in which it solicits purchasers for the Notes and
as to the identity thereof.
SECTION 3.COVENANTS OF EACH ISSUER AND THE
GUARANTOR . Each Issuer
and (in the case of Notes issued by an Issuer other than GE
Capital) the Guarantor covenant with each Dealer as
follows:
(a) Notice
of Certain Events . Each Issuer or (in the case of Notes issued
by an Issuer other than GE Capital) the Guarantor will notify each
Dealer promptly (i) of the filing with the Securities and
Exchange Commission (the “Commission”) of any document
pursuant to the Exchange Act which will be incorporated by
reference in the Offering Document, in each case other than filings
relating solely to securities other than the Notes and (ii) of
the issuance by any non-U.S. regulatory authority of any request
for information relating to the Notes or suspension or
qualification of (A) the offer and sale of the Notes under the
laws of such non-U.S. jurisdiction or (B) the listing of the
Notes on a stock exchange or exchanges. With respect to subclause
(i) of this paragraph, the delivery to each Dealer of the
documents referred to in such subclause shall constitute valid
notice to the Dealers.
(b) Copies of Offering Document . The
relevant Issuer will furnish to each Dealer as many copies of the
Offering Document (as amended or supplemented) as such Dealer shall
reasonably request in connection with sales or solicitations of
offers to purchase Notes hereunder.
(c)
Revisions of Offering Document - Material Changes . If,
during such period after the first date of the public offering of
the Notes as in the opinion of counsel to the relevant Issuer and
(in the case of Notes issued by an Issuer other than GE Capital)
the Guarantor, a prospectus, offering circular or other offering
document is required by law to be delivered or made available in
connection with sales of the Notes by a Dealer as agent or sales of
Notes by a Dealer as principal, any event shall occur as a result
of which it is necessary to amend or supplement the Offering
Document in order that the Offering Document will not include an
untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time
it is delivered to a purchaser, or if it shall be necessary at any
such time to amend or supplement the Offering Document in order to
comply with applicable law, prompt notice shall be given, and
confirmed in writing, to each Dealer to cease the solicitation of
offers to purchase the Notes in such Dealer’s capacity as
agent and to cease sales of any Notes such Dealer may then own as
principal. If the relevant Issuer and the Guarantor shall determine
that solicitation of purchases of the Notes shall be resumed, or if
on the date of the occurrence of the event necessitating an
amendment of or supplement to the Offering Document a Dealer holds
Notes that were issued by the relevant Issuer less than 90 days
prior to such date, then, prior to the relevant Issuer and the
Guarantor authorizing the Dealers to resume solicitations of
purchases of the Notes or prior to sales of any such Notes, the
relevant Issuer and the Guarantor will promptly prepare (or cause
to be prepared) and make available to the Dealers such amendment or
supplement as may be necessary to correct such untrue statement or
omission.
(d) Offering
Document Revisions - Periodic Financial Information . Promptly
after the filing with the Commission of GE Capital’s
quarterly reports on Form 10-Q with respect to each of the first
three
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quarters of any
fiscal year, GE Capital shall furnish copies of such reports to
each Dealer; provided, however, that if on the date of such filing
the Dealers shall have suspended solicitation of purchases of the
Notes in their capacity as agents pursuant to a request from the
relevant Issuer and (in the case of Notes issued by an Issuer other
than GE Capital) the Guarantor and if no Dealer shall then hold any
Notes as principal purchased pursuant to a Terms Agreement, GE
Capital shall not be obligated to furnish copies of such reports
until such time as the relevant Issuer and the Guarantor shall
determine that solicitation of purchases of the Notes should be
resumed or shall subsequently enter into a new Terms Agreement with
one or more of the Dealers.
(e) Offering
Document Revisions - Audited Financial Information . Promptly
after the filing with the Commission of GE Capital’s annual
report on Form 10-K including the audited financial statements of
GE Capital for the preceding fiscal year, GE Capital shall furnish
copies of such report to each Dealer; provided, however, that if on
the date of such filing the Dealers shall have suspended
solicitation of purchases of Notes in their capacity as agents
pursuant to a request from GE Capital and if no Dealer shall then
hold any Notes as principal purchased pursuant to a Terms
Agreement, GE Capital shall not be obligated to furnish copies of
such reports until such time as GE Capital shall determine that
solicitation of purchases of Notes should be resumed or shall
subsequently enter into a new Terms Agreement with one or more of
the Dealers.
(f) Copies
of Current Reports . GE Capital will furnish to each Dealer,
promptly after the filing thereof with the Commission, copies of GE
Capital’s reports on Form 8-K (other than reports relating
solely to securities other than the Notes).
(g) Exchange
Act Filings . GE Capital will timely file all documents
required to be filed with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act.
(h)
Indemnification for Documentary, Stamp or Similar Transfer of
Issue Tax . Each Issuer and (in the case of Notes issued by an
Issuer other than GE Capital) the Guarantor will jointly and
severally indemnify and hold the Dealers harmless against any
documentary, stamp or similar transfer or issue tax, including any
interest and penalties, on the issue of the Notes in accordance
with the terms of this Agreement, on the execution and delivery of
the Fiscal Agency Agreement and this Agreement and on the exchange
of the Temporary Global Notes for Definitive Notes or Permanent
Global Notes that are or may be required to be paid under the laws
of the United Kingdom, the United States, or the country of
incorporation or organization of each Issuer other than GE Capital
or any political subdivision or taxing authority thereof or
therein.
(i) Copies
of Listing Documentation . In connection with the listing of
any Notes on the Official List of the UKLA and the admission of
such Notes to trading by the London Stock Exchange, or the listing
of such Notes on the Singapore Stock Exchange or on or by any other
stock exchange, competent authority and/or market, the relevant
Issuer and (in the case of Notes issued by an Issuer other than GE
Capital) the Guarantor will furnish from time to time any and all
documents, instruments, information and undertakings and publish
all advertisements or other material that may be necessary in order
to maintain such listing and will maintain such listing until none
of such Notes is outstanding or until such time as payment in
respect of principal, premium, if any, and interest in respect of
all such Notes has been duly provided for, whichever is earlier;
provided, however, that if the relevant Issuer and/or the Guarantor
can no longer reasonably maintain such listing, it will use its
reasonable efforts to obtain and maintain the listing of, such
Notes on or by such other stock exchange, competent authority
and/or market as the Dealers shall reasonably request. In addition,
for so long as any Notes are listed or admitted to trading on or by
any stock exchange, competent authority and/or market and the rules
of any such stock exchange, competent authority and/or market so
require, each Issuer and the Guarantor will maintain a paying agent
in respect of such Notes in such jurisdiction(s) as may be required
in order to comply with the rules and regulations of such stock
exchange, competent authority and/or market on a list which Notes
may be listed and/or admitted to trading.
9
(j) UK
Commercial Paper . In respect of each Tranche of Notes which
has a maturity of less than one year from the date of its issue and
for which the issue proceeds are accepted by the relevant Issuer in
the United Kingdom, the relevant Issuer will issue such Notes only
if the following conditions apply (or the Notes can otherwise be
issued without contravention of Section 19 of the United
Kingdom’s Financial Services and Markets Act 2000 (the
“FSMA”)):
(i) the relevant Dealer covenants in the terms
set out in paragraph 2 of the United Kingdom selling restrictions
set out in Exhibit D hereto; and
(ii) the redemption value of each Note is not
less than £100,000 (or an amount of equivalent value
denominated wholly or partly in a currency other than pounds
sterling), and no part of any Note may be transferred unless the
redemption value of that part is not less than £100,000 (or
such an equivalent amount).
(k) Irish
Commercial Paper . Notes issued by any of the Irish Issuers
with a maturity of less than one year constitute commercial paper
for the purposes of, and are issued in accordance with, an
exemption granted by the Irish Financial Services Regulatory
Authority as a constituent part of the Central Bank and Financial
Services Authority of Ireland (“IFSRA”) under section
8(2) of the Central Bank Act, 1971 of Ireland, as inserted by
section 31 of the Central Bank Act, 1989 of Ireland, as amended by
section 70(d) of the Central Bank Act, 1997 of Ireland. The Irish
Issuers are not and will not be regulated by IFSRA arising from the
issue of Notes. An investment in Notes issued by an Irish Issuer
with a maturity of less than one year will not have the status of a
bank deposit and is not within the scope of the Deposit Protection
Scheme operated by IFSRA.
Each Bearer or
Registered Note issued by an Irish Issuer with a maturity of less
than one year shall carry the title “ Commercial
Paper ”, include a statement to the effect that it
is guaranteed and identify the Guarantor by name and bear the
following legend:
“This
Note is issued in accordance with an exemption granted by IFSRA
under section 8(2) of the Central Bank Act, 1971 of Ireland, as
inserted by section 31 of the Central Bank Act, 1989 of Ireland, as
amended by section 70(d) of the Central Bank Act, 1997 of Ireland.
[ Insert name of relevant Irish Issuer ] is not regulated by
IFSRA arising from the issue of Notes. An investment in Notes
issued by [ insert name of relevant Irish Issuer ] with a
maturity of less than one year does not have the status of a bank
deposit and is not within the scope of the Deposit Protection
Scheme operated by IFSRA.
Minimum
denominations for Notes Issued by Irish Issuers
. Notes issued by an Irish Issuer
will be subject to a minimum denomination of €1,000 (or the
equivalent in another Specified Currency). Notes issued by an Irish
Issuer with a maturity of less than one year will be further
subject to a minimum denomination of €125,000 or its foreign
currency equivalent. Notes issued by an Irish Issuer will, if
unlisted, have a minimum denomination of £300,000 or its
foreign currency equivalent.
SECTION 4.PAYMENT OF EXPENSES
. Each Issuer and (in the case of
Notes issued by an Issuer other than GE Capital) the Guarantor will
(unless otherwise agreed with a Dealer or Dealers with respect to
an issuance of Notes) pay all expenses incident to the performance
of their respective obligations under this Agreement, including:
(i) the preparation of the Offering Document and any
amendments or supplements thereto; (ii) the preparation,
issuance and delivery of the Notes; (iii) the fees and
disbursements of the accountants of each Issuer and the Guarantor;
(iv) the fees and disbursements of the Fiscal Agent and its
counsel; (v) the reasonable fees and disbursements of U.S.
counsel for the Dealers (“US Counsel”), together with
counsel for the Dealers in each other country where an Issuer of
Notes other than GE Capital is incorporated (“Local
Counsel”); provided, however, that in any sale of Notes to
one or more Dealers acting as principal, the obligations of each
Issuer and the Guarantor, if any, to pay the reasonable fees and
disbursements of US Counsel and Local Counsel,
10
if any, shall
be as agreed upon by such Issuer, the Guarantor and the Dealer(s)
participating in such transaction and reflected in the applicable
Terms Agreement; (vi) the printing and delivery to the Dealers
in quantities as hereinabove stated of the Offering Document and
any amendments or supplements thereto in connection with
solicitations or confirmations of sales of the Notes;
(vii) the printing and delivery to the Dealers of copies of
the Fiscal Agency Agreement; (viii) any fees charged by rating
agencies for the rating of the Notes; (ix) any advertising and
other out-of-pocket expenses incurred with the approval of the
relevant Issuer or the Guarantor and (x) the fees and expenses
incurred with respect to listing of any of the Notes on the
Official List of the UKLA and the admission of such Notes to
trading by the London Stock Exchange, the Singapore Stock Exchange
or on or by another stock exchange competent authority and/or
market.
SECTION 5.CONDITIONS OF OBLIGATIONS
. Each Dealer’s obligations to
solicit offers to purchase the Notes as agent of each Issuer and
(in the case of Notes issued by an Issuer other than GE Capital)
the Guarantor, the obligation of any purchaser to purchase Notes
sold through a Dealer as agent, and any Dealer’s obligations
to purchase Notes as principal pursuant to any Terms Agreement will
be subject at all times to the accuracy of the representations and
warranties on the part of each such Issuer and the Guarantor herein
and to the accuracy of the statements of the officers of each such
Issuer and the Guarantor made in any certificate furnished pursuant
to the provisions hereof, to the performance and observance by each
such Issuer and the Guarantor of all covenants and agreements
herein contained on its part to be performed and observed and to
the following additional conditions precedent:
(a) Legal
Opinions . At the Commencement Date and at each Settlement Date
with respect to any applicable Terms Agreement, if called for by
such Terms Agreement, the Dealers shall have received the following
documents:
(1) Opinion of
United States Counsel to each Issuer and the Guarantor. The opinion
of Craig T. Beazer, Senior Counsel, Treasury Operations and
Assistant Secretary of GE Capital or such other counsel
satisfactory to the Dealer(s), dated as of such Commencement Date
or Settlement Date, in form and substance satisfactory to the
Dealers and counsel to the Dealers, to the effect that:
(i) GE Capital has been duly incorporated and is
validly existing in good standing under the laws of the State of
Delaware.
(ii) GE Capital is duly qualified to transact
business and is in good standing in each jurisdiction in which the
conduct of its business or the ownership of its property requires
such qualification.
(iii) The Fiscal Agency Agreement has been duly
authorized, executed and delivered by GE Capital and, assuming due
authorization, execution and delivery by each Issuer other than GE
Capital, is a valid and binding agreement of the relevant Issuer
and GE Capital in its capacity as Guarantor.
(iv) The Notes have been duly authorized by GE
Capital and, if (a) authorized by the Issuer thereof (in the
case of Notes issued by an Issuer other than GE Capital),
(b) executed and authenticated in accordance with the
provisions of the Fiscal Agency Agreement and (c) delivered to
and paid for by any purchaser of Notes sold through a Dealer as
agent or through a Dealer as principal pursuant to any Terms
Agreement, would be valid and binding obligations of the relevant
Issuer enforceable against such Issuer in accordance with their
respective terms and would be entitled to the benefits of the
Fiscal Agency Agreement.
11
(v) In the case of Notes issued by an Issuer
other than GE Capital, the Guarantees have been duly authorized
and, if the Guarantees endorsed on the Notes are executed in
accordance with the provisions of the Fiscal Agency Agreement and
the Notes are duly executed and authenticated and delivered to and
paid for by any purchaser of Notes sold through a Dealer as agent
or any Dealer as principal pursuant to any Terms Agreement, such
Guarantees would be valid and binding obligations of the Guarantor
enforceable against the Guarantor in accordance with their terms
and would be entitled to the benefits of the Fiscal Agency
Agreement;
(vi) This Agreement (and, if the opinion is
being given pursuant to Section 6(c) hereof as a result of the
relevant Issuer’s and (in the case of Notes issued by an
Issuer other than GE Capital) the Guarantor’s having entered
into a Terms Agreement requiring such opinion, the applicable Terms
Agreement) has been duly authorized, executed and delivered by GE
Capital and, assuming due authorization, execution and delivery by
the relevant Issuer (in the case of Notes issued by an Issuer other
than GE Capital), is a valid and binding agreement of the relevant
Issuer and the Guarantor enforceable against such Issuer and the
Guarantor in accordance with its terms, except as rights to
contribution and indemnity hereunder (or thereunder) may be limited
under applicable law.
(vii) Neither the execution, delivery and
performance of this Agreement nor the issuance and sale of the
Notes and (in the case of Notes issued by an Issuer other than GE
Capital) the Guarantees as provided herein will contravene the
certificate of incorporation or by-laws of GE Capital or result in
any violation of any of the terms or provisions of any law, rule or
regulation of the United States or of any indenture, mortgage or
other agreement or instrument known to such counsel by which GE
Capital or any of its subsidiaries is bound or any judgment, order
or decree of any governmental body, agency or court having
jurisdiction over GE Capital or any of its subsidiaries.
(viii) To the best of such counsel’s
knowledge, no authorization, consent or approval of, or
registration or filing with, any governmental or public body or
authority in the United States or any state or other political
subdivision thereof will be required for the offer and sale of the
Notes in the manner contemplated by the Offering Document, this
Agreement (including the offering restrictions contained in Exhibit
D hereto) and the Fiscal Agency Agreement.
(ix) The statements contained in the Offering
Document under the captions “Description of Notes”,
“Description of the Guarantee” and “Plan of
Distribution” fairly present the matters referred to
therein.
(x) Each document incorporated by reference in
the Offering Document which was filed pursuant to the Exchange Act
(except for the financial statements and schedules and other
financial and statistical material included therein or omitted
therefrom, as to which such counsel need not express any opinion)
complied when so filed as to form in all material respects with the
Exchange Act and the applicable rules and regulations of the
Commission thereunder.
(xi) Registration of the Notes and the
Guarantees under the Securities Act and qualification of an
indenture under the United States Trust Indenture Act of 1939, as
amended, will not be required for the offer and sale of the Notes
in the manner contemplated by the Offering Document, this Agreement
(including the offering restrictions contained in Exhibit D hereto)
and the Fiscal Agency Agreement.
12
(xii) Such counsel believes that (except for the
financial statements and schedules and other financial and
statistical material included therein or omitted therefrom, as to
which counsel need not express any belief) the Offering Document,
as of the Commencement Date or the Settlement Date, as the case may
be, 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 light of the circumstances under which they
were made, not misleading.
(2) Opinion of
United States Tax Counsel to each Issuer and the Guarantor. The
opinion of U.S. Tax Counsel to each Issuer and (in the case of
Notes issued by an Issuer other than GE Capital) the Guarantor,
dated as of such Commencement Date, confirming the information as
set forth under the caption “United States Tax
Considerations” in the Offering Document.
(3) Opinion of
United States Counsel to the Dealers. The opinion of US Counsel,
dated as of such Commencement Date, covering the matters referred
to in subparagraph (1) under the subheadings (i), (iii), (iv),
(v), (vi), (ix), (xi) and (xii).
(4) Opinion of
Local Counsel to the Dealers. In the case of Notes issued by an
Issuer other than GE Capital, the opinion of Local Counsel to the
Dealers, dated as of such Commencement Date or Settlement Date, in
a form reasonably satisfactory to each Dealer participating in a
particular issue of Notes.
(5) In
rendering the opinion referred to in subparagraph (1) above,
such counsel may state that with respect to (xii) of
subparagraph (1), such counsel’s opinion and belief are based
upon his participation in the preparation of the Offering Document
and any amendments and supplements thereto (including documents
incorporated therein by reference) and review and discussion of the
contents thereof, but are without independent check or verification
except as stated therein. In rendering the opinion referred to in
subparagraph (1) above, such counsel may state that, with
respect to (xi) of subparagraph (1), such counsel need not
express any opinion as to when and under what circumstances the
Notes and the Guarantees may be re-offered and resold within the
United States or to U.S. persons, as such terms are defined in
Regulation S under the Securities Act. In rendering the opinions
referred to in subparagraph (3) above, such counsel may state
that with respect to (xii) of subparagraph (1) above,
such counsel’s opinion and belief are based upon their
participation in the preparation of the Offering Document 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 therein by
reference), but are without independent check or verification
except as stated therein. In rendering the opinions referred to in
subparagraphs (1) and (3) above, such counsel may state
that with respect to (iv), (v) and (vi) of subparagraph
(1) above, such counsels’ opinions, insofar as such
opinions relate to enforceability, are subject to the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors’ rights generally and to the
effect of general equitable principles (regardless of whether the
issue of enforceability is considered in a proceeding in equity or
at law). In rendering the opinions referred to in subparagraphs
(1) and (3) above, such counsel may, in the case of Notes
issued by an Issuer other than GE Capital, rely on the opinion of
Local Counsel as to matters of the laws of the country or
organization of the relevant Issuer. In rendering their opinions
referred to in subparagaph (4) above, such counsel may rely on
the opinion of Craig T. Beazer, Senior Counsel, Treasury Operations
and Assistant Secretary of GE Capital, or such other counsel
satisfactory to the Dealer(s) and US Counsel to the Dealers, as to
matters of New York State Law, the General Corporation Law of the
State of Delaware and the federal law of the United
States.
13
(b)
Officers’ Certificates . At the Commencement Date and
at each Settlement Date with respect to any Terms Agreement, there
shall have been no material adverse change in the condition of
(i) GE Capital and its consolidated affiliates, taken as a
whole, and (ii) the relevant Issuer (in the case of Notes
issued by an Issuer other than GE Capital) and its consolidated
affiliates, if any, taken as a whole, from that set forth in the
Offering Document (excluding any amendments or supplements to the
Offering Document since the relevant Acceptance Date, if any); and
the Dealers shall have received on the Commencement Date and, if
called for by the applicable Terms Agreement, at each Settlement
Date, certificates dated the Commencement Date or such Settlement
Date and signed by an executive officer of the relevant Issuer and
(in the case of Notes issued by an Issuer other than GE Capital)
the Guarantor to the foregoing effect.
(c)
Accountant’s Letter . The Dealers shall have received
at the Commencement Date and at each Settlement Date with respect
to any Terms Agreement, if called for by such Terms Agreement, a
letter from KPMG LLP, independent public accountants, dated as of
the Commencement Date or such Settlement Date, in form and
substance satisfactory to the Dealers, with respect to the
financial statements of GE Capital and certain financial
information contained in or incorporated by reference in the
Offering Document.
(d) Listing
on the London Stock Exchange . On the Commencement Date, the
listing of the Programme on the Official List of the UKLA and the
admission to trading of Notes issued under the Programme by the
London Stock Exchange shall have been granted subject only to
delivery to the UKLA and the London Stock Exchange of the Offering
Document as most recently amended or supplemented.
(e) Other
Documents . On the Commencement Date and at each Settlement
Date with respect to any applicable Terms Agreement, US Counsel to
the Dealers and Local Counsel to the Dealers (in the case of Notes
issued by an Issuer other than GE Capital) shall have been
furnished with such documents and opinions as such counsel may
reasonably require for the purpose of enabling such counsel to pass
upon the issuance and sale of Notes and (in the case of Notes
issued by an Issuer other than GE Capital) the endorsement thereon
of the Guarantees as herein contemplated and related proceedings,
or in order to evidence the accuracy and completeness of any of the
representations and warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the
relevant Issuer and the Guarantor in connection with the issuance
and sale of Notes and the execution and delivery of the Guarantee
as herein contemplated shall be satisfactory in form and substance
to the Dealers, US Counsel to the Dealers and Local Counsel to the
Dealers.
(h) If any
condition specified in this Section shall not have been fulfilled
as of the relevant date required, this Agreement and any Terms
Agreement may be terminated as to any Dealer by notice by such
Dealer to the relevant Issuer and the Guarantor at any time at or
prior to the Commencement Date or the applicable Settlement Date,
and such termination shall be without liability of any party to any
other party, except that the provisions of Section 4 hereof,
the indemnity and contribution agreements set forth in Sections 8
and 9 hereof, and the provisions of Sections 11 and 15 hereof,
shall remain in effect.
SECTION 6.ADDITIONAL COVENANTS OF EACH ISSUER
AND THE GUARANTOR . Each
Issuer and (in the case of Notes issued by an Issuer other than GE
Capital) the Guarantor covenants and agrees that:
(a)
Reaffirmation of Representations and Warranties . Each
acceptance by it of an offer for the purchase of Notes, and each
sale of Notes to any Dealer pursuant to a Terms Agreement, shall be
deemed to be an affirmation that the representations and warranties
of the relevant Issuer and (in the case of Notes issued by an
Issuer other than GE Capital) the Guarantor contained in this
Agreement and in any certificate theretofore delivered to the
Dealers pursuant hereto are true and correct at the
14
time of such
acceptance or sale, as the case may be, and an undertaking that
such representations and warranties will be true and correct at the
time of delivery to the purchaser or his agent, or to the Dealers,
of the Note or Notes relating to such acceptance or sale, as the
case may be, as though made at and as of each such time (and it is
understood that such representations and warranties shall relate to
the Offering Document as amended and supplemented to each such
time);
(b)
Subsequent Delivery of Certificates . Each time that
(i) the Offering Document shall be amended or supplemented, or
there is filed with the Commission any annual report on Form 10-K
incorporated by reference into the Offering Document; (ii) an
Issuer sells Notes to any Dealer pursuant to a Terms Agreement and
the Dealer so requests; and (iii) there is filed with the
Commission any quarterly report on Form 10-Q or current report on
Form 8-K incorporated by reference into the Offering Document and
any Dealer reasonably requests, such Issuer and (in the case of
Notes issued by an Issuer other than GE Capital) the Guarantor
shall furnish or cause to be furnished to such Dealer (in the case
of clause (i)), the Dealer(s) party to the Terms Agreement (in the
case of clause (ii)) or the requesting Dealer(s) (in the case of
clause (iii)) promptly a certificate in form satisfactory to such
Dealer(s) to the effect that the statements contained in the
certificates referred to in Section 5(b) hereof which were
last furnished to the Dealers are true and correct at the time of
such amendment or supplement or filing, as the case may be, as
though made at and as of such time (except that such statements
shall be deemed to relate to the Offering Document as amended and
supplemented to such time) or, in lieu of such certificate,
certificates of the same tenor as the certificates referred to in
said Section 5(b), modified as necessary to relate to the
Offering Document as amended and supplemented to the time of
delivery of such certificates; provided, however, that the relevant
Issuer and the Guarantor shall not be required to furnish any
certificates to any Dealers pursuant to this paragraph at a time
when the Dealers shall have suspended solicitation of purchases of
Notes in their capacity as agents pursuant to instructions of such
Issuer or the Guarantor, unless a Dealer shall then hold any Notes
as principal purchased under a Terms Agreement;
(c)
Subsequent Delivery of Legal Opinions . Each time that the
Offering Document shall be amended or supplemented with respect to
the Notes (other than pursuant to the applicable Final Terms or
Securities Note (as the case may be) describing the terms of a
particular tranche of Notes), or there is filed with the Commission
any annual report on Form 10-K incorporated by reference into the
Offering Document or, if so indicated in the applicable Terms
Agreement, an Issuer sells Notes to a Dealer pursuant to a Terms
Agreement, such Issuer and (in the case of Notes issued by an
Issuer other than GE Capital) the Guarantor shall furnish or cause
to be furnished promptly to the Dealers a written opinion of Craig
T. Beazer, Senior Counsel, Treasury Operations and Assistant
Secretary of GE Capital or such other counsel satisfactory to the
Dealers and U.S. Counsel; in the case of Notes issued by an Issuer
other than GE Capital, a written opinion of Local Counsel; and/or
other counsel satisfactory to the Dealers, dated the date of
delivery of such opinion, in form satisfactory to the Dealers, of
the same tenor as the opinions referred to in Section 5(a)
hereof but modified, as necessary, to relate to the Offering
Document as amended and supplemented to the time of delivery of
such opinion or, in lieu of such opinion, counsel last furnishing
such opinion to the Dealers shall furnish the Dealers with a letter
to the effect that the Dealers may rely on such last opinion to the
same extent as though it were dated the date of such letter
authorizing reliance (except that statements in such last opinion
shall be deemed to relate to the Offering Document as amended and
supplemented to the time of delivery of such letter authorizing
reliance); and
(d)
Subsequent Delivery of Accountant’s Letters . Each
time that the Offering Document shall be amended or supplemented to
include additional financial information relating to GE Capital or
there is filed with the Commission any document incorporated by
reference into the Offering Document which contains additional
financial information relating to GE Capital or, if so indicated in
the applicable Terms Agreement, an Issuer sells Notes to a Dealer
pursuant to a Terms Agreement, such Issuer and (in the case of
Notes issued by an Issuer other than GE Capital) the Guarantor
shall cause KPMG LLP promptly to furnish the Dealers a letter,
dated the date of such amendment or supplement, or the
date
15
of the filing
of such document with the Commission, or the date of such sale, as
the case may be, in form satisfactory to the Dealers, of the same
tenor as the letter referred to in Section 5(c) hereof;
provided, however, that if the Offering Document is amended or
supplemented solely to include financial information as of and for
a fiscal quarter, KPMG LLP may limit the scope of such letter to
the unaudited financial statements included in such amendment or
supplement unless any other information included therein of an
accounting, financial or statistical nature is of such a nature
that, in the Dealers’ reasonable judgment, such letter should
cover such other information.
SECTION 7.ADDITIONAL COVENANTS OF THE
DEALERS . Each Dealer
agrees that:
(a)
Advertising . It will not place advertisements or publish
notices of any kind in any jurisdiction relating to any Notes, the
offering of any Notes or any other matter relating to this
Agreement without the prior written consent of the relevant Issuer
and (in the case of Notes issued by an Issuer other than GE
Capital) the Guarantor.
(b)
Calculation Agent . If requested by the relevant Issuer and
(in the case of Notes issued by an Issuer other than GE Capital)
the Guarantor and agreed by such Dealer with respect to any Notes
offered through such Dealer as agent or to such Dealer as
principal, such Dealer will act as calculation agent (the
“Calculation Agent”) with respect to such Notes for all
purposes. Unless otherwise agreed by such Issuer, the Guarantor and
the relevant Dealer, the rights and obligations of such Issuer, the
Guarantor and such Dealer shall, with respect to each instance in
which such Dealer is requested to so act, be governed by the Master
Calculation Agent Agreement set forth as Exhibit C
hereto.
(c) Offering
Materials and Information . In connection with its solicitation
of purchases of the Notes, such Dealer will use only (i) the
Offering Document and the documents incorporated therein by
reference and (if such solicitation involves a particular tranche
of Notes, from and after the Acceptance Date with respect thereto)
the applicable Final Terms or Securities Note (as the case may be)
and (ii) information taken from the documents referred to in
the preceding clause; provided, however, that each Dealer agrees
that it has and will have sole responsibility for the completeness
and accuracy of all such information, written or oral, furnished by
such Dealer and its agents and employees to purchasers and
prospective purchasers of the Notes to the extent that such
information differs in any material way from the presentation of
such information in the documents referred to in clause
(i) above.
(i) In connection with the distribution of any
Notes, if the Dealer (if any) designated as Stabilizing Manager in
the applicable Final Terms or Securities Note (as the case may be)
undertakes any action in repect of Notes which falls within the
definition of “stabilisation” and/or “ancillary
stabilisation” set out in the Handbook published by the
Financial Services Authority, then such Dealer shall not be deemed
to act as agent of the relevant Issuer or (in the case of Notes
issued by an Issuer other than GE Capital) the Guarantor. Such
stabilizing, if commenced, may be discontinued at any time. Any
loss resulting from over-allotment and stabilization shall be
borne, and any net profit arising therefrom shall be retained, by
the Stabilizing Manager for its own account.
(ii) Each Issuer confirms that it has been
informed of the existence of the informational guidance published
by the United Kingdom Financial Services Authority in relation to
stabilization.
(iii) In relation to any Notes for which the
Dealer is named as Stabilizing Manager in the applicable Final
Terms or Securities Note (as the case may be), the Issuer has not
issued and will not issue, without the prior consent of that
Dealer, any press or other
16
public
announcement referring to the proposed issue of Notes unless the
announcement adequately discloses the fact that stabilizing action
may take place in relation to the Notes to be issued.
(e) Each of the
Dealers undertakes to, and agrees with, each Irish Issuer that, on
request by an Irish Issuer, to the extent which it is lawfully able
to do so, it will provide any information it has available to it in
order to assist the relevant Irish Issuer in complying with any
obligations it may have, in relation to the prevention of money
laundering, under the Criminal Justice Act, 1994 of Ireland or any
code of best practice in such regard.
(f) USA PATRIOT
Act compliance. Each Dealer hereby certifies that such Dealer has
anti-money laundering and sanctions-compliance policies and
procedures in place in accordance with the requirements imposed by
the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT
Act) Act of 2001, Pub. L, 107-56, 115 Stat. 380 (October 26, 2001),
or any rules or regulations promulgated thereunder, and legal
measures administered by the Office of Foreign Assets Control of
the United States Department of the Treasury, in each case to the
extent applicable to such Dealer. Each Dealer also certifies that
such Dealer has implemented an anti-money laundering compliance
program pursuant to NASD Rule 3011, to the extent applicable to
such Dealer.
SECTION 8.INDEMNIFICATION
.
(a)
Indemnification of the Dealers . The relevant Issuer and (in
the case of Notes issued by an Issuer other than GE Capital) the
Guarantor agrees to jointly and severally indemnify and hold
harmless each Dealer, each Dealer’s respective directors and
officers and each person, if any, who controls any Dealer 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 Offering Document (if used within the period set
forth in Section 3(c) and as amended or supplemented if the
relevant Issuer or the Guarantor 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 such Issuer or the Guarantor by any Dealer
expressly for use therein; provided, however, that the foregoing
indemnity agreement with respect to any preliminary offering
document (including, without limitation, any preliminary offering
document supplement) shall not inure to the benefit of any Dealer
from whom the person asserting any such losses, claims, damages or
liabilities purchased Notes, or any person controlling such Dealer,
if a copy of the Offering Document (as then amended or supplemented
if such Issuer or the Guarantor shall have furnished any amendments
or supplements thereto) was not sent or given by or on behalf of
such Dealer to such person at or prior to the written confirmation
of the sale of the Notes to such person, and if the Offering
Document (as so amended or supplemented) would have cured the
defect giving rise to such loss, claim, damage or
liability.
(b)
Indemnification of the Issuers and the Guarantor . Each
Dealer agrees, severally and not jointly, to indemnify and hold
harmless each Issuer, the Guarantor, each of their respective
directors and officers and any person controlling such Issuer or
the Guarantor to the same extent as the foregoing indemnity from
such Issuer or the Guarantor to each Dealer, but only with
reference to information relating to such Dealer furnished in
writing by such Dealer expressly for use in the Offering
Document.
(c)
General . In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect
of which indemnity may be sought pursuant to Sections 8(a) or 8(b)
hereof, such person (the “indemnified party”) shall
promptly notify the person against whom such
17
indemnity may
be sought (the “indemnifying party”) in writing and the
indemnifying party, upon request of the indemnified party, shall
retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying
party may designate in such proceeding and shall pay the reasonable
fees and expenses of such counsel related to such proceeding. In
any such proceeding, any indemnified party shall have the right to
retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless
(i) the indemnifying party and the indemnified party shall
have mutually agreed to the retention of such counsel or
(ii) the named parties to any proceeding (including any
impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the indemnifying
party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable
fees and expenses of more than one separate firm (in addition to
local counsel) for all such indemnified parties and that all such
fees and expenses shall be reimbursed as they are incurred. Such
firm shall be designated in writing by the Dealers in the case of
parties indemnified pursuant to Section 8(a) and by GE Capital
in the case of parties indemnified pursuant to Section 8(b).
The indemnifying party shall not be liable for any settlement of
any proceeding effected without its written consent but if settled
with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason
of such settlement or judgment.
SECTION 9.CONTRIBUTION . If the indemnification provided for in
Section 8 is unavailable to an indemnified party in respect of
any losses, claims, damages or liabilities referred to therein,
then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims,
damages or liabilities (i) if the indemnifying party is an
Issuer or (in the case of Notes issued by an Issuer other than GE
Capital) the Guarantor, in such proportion as is appropriate to
reflect the relative benefits received by the relevant Issuer on
the one hand and the Dealers on the other from the issue and sale
of the Notes, (ii) if the indemnifying party is a Dealer, in
such proportion as is appropriate to reflect the relative fault of
such Dealer on the one hand and the relevant Issuer or the
Guarantor on the other hand in connection with the statements or
omissions which resulted in such losses, claims, damages or
liabilities, or (iii) if the allocation provided by clause
(i) or clause (ii) above, as the case may be, is not
permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause
(i) above or the relative fault referred to in clause
(ii) above, as the case may be, but also such relative fault
(in cases covered by clause (i)) or such relative benefits (in
cases covered by clause (ii)) as well as any other relevant
equitable considerations. The relative benefits received by the
relevant Issuer on the one hand and the Dealers on the other hand
shall be deemed to be in the same proportion as the total sales
price received by such Issuer from the sale of Notes that are the
subject of the claim for indemnification (before deducting
expenses) bears to the total underwriting discounts and commissions
received by the Dealers from sales of Notes that are the subject of
the claim for indemnification. The relative fault of the relevant
Issuer or the Guarantor on the one hand and of the Dealers on the
other shall be determined by reference to, among other things,
whether the untrue statement of a fact or the omission to state a
fact relates to information supplied by such Issuer or the
Guarantor or statements made or furnished by the Dealers and the
parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or
omission.
Each Issuer, the Guarantor and the Dealers agree
that it would not be just and equitable if contribution pursuant to
this Section 9 were determined by pro rata allocation (even if
the Dealers were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the
equitable considerations provided for, in the respective cases, in
clauses (i), (ii) and (iii) of the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to
in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such
18
action or
claim. Notwithstanding the provisions of this Section 9, no
Dealer shall be required to contribute any amount in excess of the
amount by which the sum of (i) the total price at which any
Notes, the purchase of which is the subject of the claim for
indemnification and which was solicited by such Dealer, were sold
by the relevant Issuer and (ii) the total price at which any
Notes, the purchase of which is the subject of the claim for
indemnification and which such Dealer purchased as principal and
distributed to the public, were offered to the public, exceeds the
amount of any damages which such Dealer 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
Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The
Dealers’ obligations to contribute pursuant to this
Section 9 are several, in proportion to the respective amounts
of Notes solicited or purchased by each of such Dealers, and not
joint.
SECTION 10.OFFERING RESTRICTIONS
.
(a) Each Dealer
hereby represents and warrants that it will observe the
restrictions included in Exhibit D hereto on offers and sales of
the Notes and the distribution of documents relating to the Notes;
the terms of Exhibit D are hereby incorporated by reference with
the same effect as if set forth herein in full. Each Issuer and (in
the case of Notes issued by an Issuer other than GE Capital) the
Guarantor may from time to time amend, modify or supplement the
offering restrictions contained in Exhibit D pursuant to the
procedures set forth in Section 17 hereof.
(b) Without
prejudice to the provisions of this Section 10 and subject to
the obligations of each Issuer and the Guarantor set forth in
Section 3 of this Agreement, each Issuer and the Guarantor
shall have no responsibility for, and each Dealer will
ob
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