EXHIBIT 1
[Form of Underwriting Agreement]
International Lease Finance Corporation
Underwriting Agreement
November __, 0000
Xxx Xxxx, Xxx Xxxx
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxx Brothers Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
International Lease Finance Corporation, a California corporation
(including its predecessor identified in the Registration Statement (as defined
below), the "Company"), proposes to issue and sell to you (the "Underwriters")
1,000 shares of its Market Auction Preferred Stock (liquidation preference
$100,000 per share), consisting of 500 shares of Series G (the "Series G MAPS")
and 500 shares of Series H ((the "Series H MAPS") collectively together with the
Series G MAPS, the "Securities").
1. Representations and Warranties. The Company represents and
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warrants to, and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement, containing a preliminary prospectus, on such Form (Registration
Statement No. 33-______), for the registration under the Act of the
Securities. Such registration statement, including the exhibits thereto,
as amended at the date of this Agreement, is hereinafter called the
"Registration Statement"; such prospectus in the form first used to confirm
sales is hereinafter called the "Prospectus." Any reference herein to the
Registration Statement, the Prospectus or any preliminary prospectus shall
be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), on or
before the date of this Agreement, or the issue date of the Prospectus or
any preliminary prospectus, as the case may be; and any reference herein to
the terms "amend," "amendment" or "supplement" with respect to the
Registration Statement, the Prospectus or any preliminary prospectus shall
be deemed to refer to and include the filing of any document under the
Exchange Act after the date of this Agreement, or the issue date of the
Prospectus or any preliminary prospectus, as the case may be, deemed to be
incorporated therein by reference.
(b) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or, to the Company's
knowledge, threatened by the Commission.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of
property requires such qualification, with only such exceptions that would
not have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(d) Each of Interlease Management Corporation, Interlease Aviation
Corporation, Aircraft SPC-1, Inc., Aircraft SPC-2, Inc., Aircraft SPC-3,
Inc., Atlantic International Aviation Holdings, Inc., a wholly-owned
subsidiary of Interlease Management Corporation, and ILFC Aircraft Holding
Corporation, which are the only domestic subsidiaries of the Company, has
been duly incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to conduct its
business and is duly qualified to transact business and is in good standing
in each jurisdiction in which the conduct of its business or its ownership
or leasing of property requires such qualification, with only such
exceptions that would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(e) The Securities have been duly authorized and, when issued and
delivered by the Company, and paid for by the Underwriters, in accordance
with the terms of
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this Agreement, will be validly issued, fully paid and non-assessable, and
the issuance of the Securities is not subject to any preemptive rights.
(f) This Agreement has been duly authorized, executed and delivered by
the Company.
(g) The execution, filing and delivery, as the case may be, by the
Company of, and the performance by the Company of its obligations under,
this Agreement, the Auction Agent Agreement with Chemical Bank, the
certificates of determination establishing the Series G MAPS and the Series
H MAPS (collectively, the "Designation"), and the letter agreement among
the Company, the Auction Agent and The Depository Trust Company (together,
the "Basic Documents") will not contravene (i) any provision of applicable
law, (ii) the Restated Articles of Incorporation (the "Restated Articles")
or by-laws of the Company, (iii) any agreement or other instrument binding
upon the Company or any of its subsidiaries, or (iv) any judgment, order or
decree of any governmental body, agency or court having jurisdiction over
the Company or any subsidiary, with only such exceptions which, in the case
of clauses (i), (iii) and (iv) above only, would not be material to the
Company and its subsidiaries, taken as a whole, or would not materially
affect the performance of the Company's obligations under the Basic
Documents and no consent, approval or authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under the Basic Documents,
except (A) the filing of the Designation with the Secretary of State of the
State of California, (B) the registration of the Securities pursuant to the
Registration Statement under the Securities Act which has been declared
effective and (C) such consents, approvals, authorizations, registrations
or qualifications as may be required by the securities or Blue Sky laws of
any jurisdiction in connection with the offer and sale of the Securities.
(h) Each of the Basic Documents (except for this Agreement) has been
duly authorized by all necessary corporate action of the Company and,
assuming due authorization, execution and delivery by each of the other
parties thereto, when executed and delivered by the Company at or before
the Closing, will be a valid and binding obligation of the Company
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency and similar laws affecting
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creditors' rights generally and subject, as to enforceability, to general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
(i) As of the date hereof, when the Prospectus is first filed pursuant
to Rule 424 under the Act, when, prior to the Closing Date (as hereinafter
defined), any amendment to the Registration Statement becomes effective
(including the filing of any document incorporated by reference in the
Registration Statement) and when any supplement to the Prospectus is filed
with the Commission and at the Closing Date, (i) the Registration
Statement, as amended as of any such time, and the Prospectus, as amended
or supplemented as of any such time, will comply in all material respects
with the applicable requirements of the Act, and the Exchange Act and the
respective rules thereunder and (ii) neither the Registration Statement, as
amended as of any such time, nor the Prospectus, as supplemented as of any
such time, will contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order
to make the statements therein not misleading; provided, however, that the
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Company makes no representations or warranties as to the information
contained in or omitted from the Registration Statement or the Prospectus
or any amendment thereof or supplement thereto in reliance upon and in
conformity with information furnished in writing to the Company by or on
behalf of any Underwriter specifically for use in connection with the
preparation of the Registration Statement and the Prospectus.
(j) Subsequent to the respective dates as of which information is
given in the Registration Statement and Prospectus, and except as set forth
or contemplated in the Prospectus, neither the Company nor any of its
subsidiaries has incurred any material liabilities or obligations, direct
or contingent, nor entered into any material transactions not in the
ordinary course of business, and there has not been any material adverse
change in the condition (financial or otherwise), business, prospects or
results of operations of the Company and its subsidiaries, considered as a
whole.
2. Purchase and Sale. Subject to the terms and conditions and in
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reliance upon the representations and warranties herein set forth, the Company
agrees to sell to
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each Underwriter and each Underwriter agrees, severally and not jointly, to
purchase from the Company, at the purchase price per share of $_________, the
amount of the Securities set forth opposite such Underwriter's name in Schedule
I hereto.
3. Delivery and Payment. Delivery of and payment for the Securities
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shall be made at the office of O'Melveny & Xxxxx, 000 Xxxxx Xxxx Xxxxxx, Xxx
Xxxxxxx, Xxxxxxxxxx at 7:00 a.m. Los Angeles time on __________ __, 1995 (or
such later date not later than five business days after such specified date as
the Underwriters shall designate), which date and time may be postponed by
agreement between the Underwriters and the Company or as provided in Section 8
hereof (such date and time of delivery and payment for the Securities being
herein called the "Closing Date"). Delivery of the Securities shall be made to
the several Underwriters against payment by the several Underwriters of the
purchase price thereof to or upon the order of the Company by certified or
official bank check or checks payable in same day funds.
On the Closing Date the Company shall deliver in respect of each
series of Securities one certificate evidencing all of the shares of such series
of Securities being sold on the Closing Date registered in the name of Cede &
Co., as nominee for The Depository Trust Company ("DTC"). Interests in the
Securities will be represented by book entries on the records of DTC as the
Underwriters may request not less than three full business days in advance of
the Closing Date. The Company agrees to have such certificates available for
inspection by the Underwriters in New York, New York, not later than 1:00 p.m.
on the business day prior to the Closing Date.
4. Agreements. The Company agrees with the several Underwriters
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that:
(a) Prior to the termination of the offering of the Securities, the
Company will not file any amendment of the Registration Statement or
supplement to the Prospectus unless the Company has furnished you a copy
for your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object. The Company will
promptly advise the Underwriters (i) when the Prospectus shall have been
filed (or transmitted for filing) with the
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Commission, (ii) when any amendment to the Registration Statement relating
to the Securities shall have become effective, (iii) of any request by the
Commission for any amendment of the Registration Statement or amendment of
or supplement to the Prospectus or for any additional information, (iv)
upon learning of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (v) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of
any such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then amended or supplemented would include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, or if it shall be necessary to amend or supplement the
Prospectus to comply with the Act or the Exchange Act or the respective
rules thereunder, the Company promptly will prepare and file with the
Commission, subject to the first sentence of paragraph (a) of this Section
4, an amendment or supplement which will correct such statement or omission
or an amendment which will effect such compliance.
(c) As soon as practicable, the Company will make generally available
to its security holders and to the Underwriters an earnings statement or
statements of the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Underwriters and counsel for the
Underwriters, without charge, both executed and conformed copies of the
Registration Statement (including exhibits thereto) and each amendment
thereto which shall become effective on or prior to the Closing Date and,
so long as delivery of a prospectus by an Underwriter or dealer may be
required
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by the Act, as many copies of any preliminary prospectus and the Prospectus
and any amendments thereof and supplements thereto as the Underwriters may
reasonably request. The Company will pay the expenses of printing or other
production of all documents relating to the offering.
(e) The Company will arrange for, and be responsible for expenses
incurred in connection with, the qualification of the Securities for sale
under the laws of such jurisdictions as the Underwriters may reasonably
designate, will maintain such qualifications in effect so long as required
for the distribution of the Securities, and, if requested by the
Underwriters, will arrange for the determination of the legality of the
Securities for purchase by institutional investors.
(f) From the date hereof until 30 days following the Closing Date, the
Company will not, without the consent of the Underwriters, offer, sell or
contract to sell, or announce the offering of, any shares of its preferred
stock or any securities convertible into or exercisable or exchangeable for
its preferred stock covered by a Registration Statement filed under the
Act, other than the Securities sold hereunder.
5. Conditions to the Obligations of the Underwriters. The
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obligations of the Underwriters to purchase the Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the date hereof, as of the date of the effectiveness of
any amendment to the Registration Statement filed prior to the Closing Date
(including the filing of any document incorporated by reference therein) and as
of the Closing Date, to the accuracy of the statements of the Company made in
any certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Underwriters the opinion
of corporate counsel for the Company, dated the Closing Date, to the effect
that:
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(i) The Company is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each
jurisdiction in which the ownership or leasing of its property or the
conduct of its business requires it to be so qualified; provided,
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however, that the Company may not be so qualified in certain
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jurisdictions, the effect of which would not have a material adverse
effect on the Company.
(ii) To the best knowledge of such counsel, Interlease
Management Corporation, Interlease Aviation Corporation, Atlantic
International Aviation Holdings, Inc., Aircraft SPC-1, Inc., Aircraft
SPC-2, Inc., Aircraft SPC-3, Inc. and ILFC Aircraft Holding
Corporation are the only domestic subsidiaries of the Company.
(iii) No subsidiary of the Company nor all of the
subsidiaries of the Company taken as a whole is a "significant
subsidiary" as defined in Rule 1-02 of Regulation S-X promulgated
under the Exchange Act.
(iv) To the best knowledge of such counsel, there is no
pending or threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries of a character required to be
disclosed in the Registration Statement which is not adequately
disclosed in the Prospectus.
(c) The Company shall have furnished to the Underwriters the opinion
of O'Melveny & Xxxxx, special counsel for the Company, dated the Closing
Date, to the effect that:
(i) Each of the Company and Interlease Management Corporation,
Interlease Aviation Corporation, Atlantic International Aviation
Holdings, Inc., Aircraft SPC-1, Inc., Aircraft SPC-2, Inc., Aircraft
SPC-3 and ILFC Aircraft Holding Corporation has been duly incorporated
and is existing and in good standing under the laws of the
jurisdiction in which it is incorporated.
(ii) The Company has the corporate power to own its properties
and conduct its business as described in the Prospectus.
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(iii) The Securities have been duly authorized by all
necessary corporate action on the part of the Company and when issued,
paid for and delivered in accordance with the terms of this Agreement,
will be validly issued, fully paid and non-assessable, and the
issuance of the Securities is not subject to any preemptive rights.
(iv) This Agreement has been duly authorized by all necessary
corporate action on the part of the Company and has been duly executed
and delivered by the Company.
(v) Each of the Basic Documents (other than this Agreement,
and the Designation) has been duly authorized, executed and delivered
by the Company and is a valid and binding obligation of the Company
enforceable in accordance with its respective terms, except as limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally, and except that the
enforceability of such Basic Documents is subject to the effect of
general principles of equity including, without limitation, concepts
of materiality, reasonableness, good faith and fair dealing and the
possible unavailability of specific performance or injunctive relief,
regardless of whether considered in a proceeding in equity or at law.
(vi) No consent, authorization, order or approval of any
California, New York or federal court or governmental agency or body
is required on the part of the Company for the execution and delivery
of this Agreement or for the issuance and sale of the Securities,
except such as have been obtained under the Act and such as may be
required under the Blue Sky or securities laws of any jurisdiction and
such other approvals (specified in such opinion) as have been
obtained.
(vii) The issuance of the Securities will not conflict with,
result in a breach by the Company of, or constitute a default under,
the Restated Articles or by-laws of the Company or the terms of any of
the agreements, instruments, contracts, orders, injunctions or
judgments identified to such counsel in an Officer's Certificate of
the Company (a copy of which will be delivered with
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the opinion of such counsel) as agreements, instruments, contracts,
orders, injunctions or judgments binding on the Company which have
provisions relating to the issuance by the Company of equity
securities and the breach of or default under or a conflict with which
would have a material adverse effect on the Company and its
subsidiaries considered as a whole, except that no opinion need be
expressed regarding the effect, if any, of the issuance of the
Securities upon the Company's compliance with any of the financial
covenants contained in any of said agreements, instruments, contracts,
orders, injunctions or judgments.
(viii) The Registration Statement has been declared effective
under the Act and, to such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has been
issued or threatened by the Commission.
(ix) The Registration Statement, on the date it was filed,
appeared on its face to comply in all material respects with the
requirements as to form for registration statements on Form S-3 under
the Act and the rules and regulations of the Commission thereunder,
except that no opinion need be expressed concerning the financial
statements and other financial and statistical information contained
or incorporated by reference therein.
(x) Such counsel does not know of any contract or other
document of a character required to be filed as an exhibit to the
Registration Statement or required to be described in the Registration
Statement or the Prospectus which is not filed or described as
required.
(xi) The documents incorporated by reference into the
Prospectus (the "Incorporated Documents") appear on their face to
comply in all material respects with the requirements as to form for
reports on Form 10-K, Form 10-Q and Form 8-K, as the case may be,
under the Exchange Act, and the rules and regulations thereunder in
effect at the respective dates of their filing, except that no opinion
need be expressed concerning the financial statements and other
financial and statistical information contained or incorporated by
reference therein.
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(xii) The statements in the Prospectus under the caption
"Description of MAPS," insofar as such statements constitute a summary
of provisions of or the Securities, fairly present the information
required therein by Form S-3.
(xiii) The Company is not an "investment company" within the
meaning of the Investment Company Act of 1940.
Such counsel shall also state that on the basis of their review of the
Registration Statement, the documents incorporated therein on the effective date
of the Registration Statement, the Prospectus and the Incorporated Documents,
and their participation in conferences in connection with the preparation of the
Registration Statement and the Prospectus, they do not believe that the
Registration Statement and the documents incorporated therein on the date the
Registration Statement became effective considered as a whole as of such date,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and they do not believe that the Prospectus and the Incorporated
Documents, considered as a whole on the date of the Prospectus and on the date
of the opinion, contain any 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, in light of the circumstances under which they were made,
not misleading. Such counsel need not express any opinion or belief as to any
document filed by the Company under the Exchange Act, whether prior or
subsequent to the effective date of the Registration Statement, except to the
extent that any such document is an Incorporated Document read together with the
Registration Statement or the Prospectus and considered as a whole and as
specifically stated in clause (xi) above, nor must such counsel express any
opinion or belief as to the financial statements and other financial and
statistical information included or incorporated by reference in the
Registration Statement, the Prospectus or the Incorporated Documents.
Such counsel shall also confirm its opinion to the Company, dated
_________ __, 1995, and authorize the Underwriters to rely upon it as though it
were addressed to them.
(d) The Underwriters shall have received from Milbank, Tweed, Xxxxxx &
XxXxxx, counsel for the Underwriters, such opinion or opinions, dated the
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Closing Date, with respect to the issuance and sale of the Securities, the
Registration Statement, the Prospectus and other related matters as the
Underwriters may reasonably require, and the Company shall have furnished
to such counsel such documents as they request for the purpose of enabling
them to pass upon such matters.
(e) The Company shall have furnished to the Underwriters a certificate
of the Company, signed by the Chairman of the Board or the President and
the principal financial or accounting officer of the Company, dated the
Closing Date, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Prospectus and this
Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date
and the Company has, in all material respects, complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included in the Prospectus, there has been no material adverse change
in the condition (financial or other), earnings, business or
properties of the Company and its subsidiaries, whether or not arising
from transactions in the ordinary course of business, except as set
forth or contemplated in the Prospectus.
(f) On the date hereof and at the Closing Date, Ernst & Young shall
have furnished to the Underwriters letters, dated as of the date hereof and
the Closing Date, in form and substance satisfactory to the Underwriters,
confirming that they are independent accountants within the meaning of the
Act and the Exchange Act and the respective applicable published
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rules and regulations thereunder and stating in effect that:
(i) in their opinion the audited financial statements and
financial statement schedules included or incorporated in the
Registration Statement and the Prospectus and reported on by them
comply in form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related published
rules and regulations;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company and its
subsidiaries; carrying out certain specified procedures (but not an
examination in accordance with generally accepted auditing standards)
which would not necessarily reveal matters of significance with
respect to the comments set forth in such letter; a reading of the
minutes of the meetings of the shareholders, directors and audit
committee of the Company and its subsidiaries; and inquiries of
certain officials of the Company who have responsibility for financial
and accounting matters of the Company and its subsidiaries as to
transactions and events subsequent to the date of the most recent
audited financial statements in or incorporated in the Prospectus,
nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements included or
incorporated in the Registration Statement and the Prospectus
do not comply in form in all material respects with applicable
accounting requirements and with the published rules and
regulations of the Commission with respect to financial
statements included or incorporated in quarterly reports on
Form 10-Q under the Exchange Act; and said unaudited financial
statements are not in conformity with generally accepted
accounting principles applied on a basis substantially
consistent with that of the audited financial statements
included or incorporated in the Registration Statement and the
Prospectus;
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(2) with respect to the period subsequent to the date of the
most recent financial statements (other than any capsule
information), audited or unaudited, in or incorporated in the
Registration Statement and the Prospectus, there were any
changes, at a specified date not more than five business days
prior to the date of each letter, in the long-term debt of the
Company and its subsidiaries or capital stock of the Company
or decreases in the shareholders' equity of the Company as
compared with the amounts shown on the most recent
consolidated balance sheet included or incorporated in the
Registration Statement and the Prospectus, or for the period
from the date of the most recent financial statements included
or incorporated in the Registration Statement and the
Prospectus to such specified date there were any decreases, as
compared with the corresponding period in the preceding year,
in consolidated revenues or in total amounts of net income of
the Company and its subsidiaries, except in all instances for
changes or decreases set forth in such letter, in which case
the letter shall be accompanied by an explanation by the
Company as to the significance thereof unless said explanation
is not deemed necessary by the Underwriters; or
(3) the amounts included in any unaudited "capsule"
information included or incorporated in the Registration
Statement and the Prospectus do not agree with the amounts set
forth in the unaudited financial statements for the same
periods or were not determined on a basis substantially
consistent with that of the corresponding amounts in the
audited financial statements included or incorporated in the
Registration Statement and the Prospectus;
(iii) they have performed certain other specified procedures
as a result of which they determined that certain information of an
accounting, financial or statistical nature (which
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is limited to accounting, financial or statistical information derived
from the general accounting records of the Company and its
subsidiaries) set forth in the Registration Statement and the
Prospectus and in Exhibit 12 to the Registration Statement, including
the information included or incorporated in Items 1, 2, 6, 7 and 11 of
the Company's Annual Report on Form 10-K, incorporated in the
Registration Statement and the Prospectus, and the information
included in the "Management's Discussion and Analysis of Financial
Condition and Results of Operations" included or incorporated in the
Company's Quarterly Reports on Form 10-Q, incorporated in the
Registration Statement and the Prospectus, agrees with the accounting
records of the Company and its subsidiaries, excluding any questions
of legal interpretation; and
References to the Registration Statement and the Prospectus in this
paragraph (f) are to such documents as amended and supplemented at the date of
the letter.
(g) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, there shall not
have been (i) any change or decrease specified in the letter or letters
referred to in paragraph (f) of this Section 5 or (ii) any change, or any
development involving a prospective change, in or affecting the business or
properties of the Company and its subsidiaries the effect of which, in any
case referred to in clause (i) or (ii) above, is, in the judgment of the
Underwriters, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or the delivery of the Securities
as contemplated by the Registration Statement and the Prospectus.
(h) Subsequent to the execution of this Agreement, there shall not
have been any decrease in the ratings of any of the Company's debt
securities by Xxxxx'x Investors Service, Inc. or Standard & Poor's
Corporation and neither of said organizations shall have publicly announced
that it has under consideration or review with negative implications any of
the Company's debt securities.
(i) Prior to the Closing Date, the Company shall have furnished to the
Underwriters such further information, certificates and documents as the
Underwriters may reasonably request.
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If any of the conditions specified in this Section 5 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Underwriters and their counsel, this Agreement and all
obligations of the Underwriters hereunder may be cancelled at, or at any time
prior to, the Closing Date by the Underwriters. Notice of such cancellation
shall be given to the Company in writing or by telephone or telegraph confirmed
in writing.
6. Reimbursement of Expenses. (a) If the sale of the Securities
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provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 5 hereof is not satisfied, because of
any termination pursuant to Section 9 hereof or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally upon
demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Securities.
(b) If the sale of the Securities provided for herein is consummated
as provided in Section 2, the Underwriters shall, on the Closing Date,
reimburse the Company for its expenses in connection with the offering of
the Securities up to an amount equal to [$125,000.]
7. Indemnification and Contribution. (a) The Company agrees to
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indemnify and hold harmless each Underwriter and each person who controls any
Underwriter within the meaning of either the Act or the Exchange Act against any
and all losses, claims, damages or liabilities (including but not limited to the
amount paid in settlement of any litigation, or investigation or proceeding by
any governmental agency or body, commenced or threatened), joint or several, to
which they or any of them may become subject under the Act, the Exchange Act or
other federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement as
originally filed or in any amendment thereof, or in any
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preliminary prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to reimburse
each such indemnified party, as incurred, for any and all expenses (including
the fees and disbursements of counsel) incurred by them in connection with
investigating, preparing or defending any such loss, claim, damage, liability,
action, investigation or proceeding; provided, however, that (i) the Company
-------- -------
will not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter expressly for use in connection with the preparation
thereof, and (ii) such indemnity with respect to any preliminary prospectus
shall not inure to the benefit of any Underwriter (or any person controlling
such Underwriter) from whom the person asserting any such loss, claim, damage or
liability purchased the Securities which are the subject thereof if such person
did not receive a copy of the Prospectus (or the Prospectus as amended or
supplemented) excluding documents incorporated therein by reference at or prior
to the confirmation of the sale of such Securities to such person in any case
where such delivery is required by the Act and the untrue statement or omission
of a material fact contained in any preliminary prospectus was corrected in the
Prospectus (or the Prospectus as amended or supplemented). This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to
the Company by such Underwriter expressly for use in the preparation of the
documents referred to in the foregoing indemnity.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made
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against the indemnifying party under this Section 7, notify the
indemnifying party in writing of the commencement thereof; but the omission
so to notify the indemnifying party will not relieve it from any liability
which it may have to any indemnified party otherwise than under this
Section 7. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof,
the indemnifying party will be entitled to participate therein, and to the
extent that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified
party, to assume the defense thereof, with counsel satisfactory to such
indemnified party; provided, however, that if the defendants in any such
-------- -------
action include both the indemnified party and the indemnifying party and
the indemnified party shall have reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party,
the indemnified party or parties shall have the right to select separate
counsel to assert such legal defense and to otherwise participate in the
defense of such action on behalf of such indemnified party or parties.
Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval
by the indemnified party of counsel, the indemnifying party will not be
liable to such indemnified party under this Section 7 for any legal or
other expenses subsequently incurred by such indemnified party in
connection with the defense thereof unless (i) the indemnified party shall
have employed separate counsel in connection with the assertion of legal
defenses in accordance with the proviso to the next preceding sentence (it
being understood, however, that the indemnifying party shall not be liable
for the expenses of more than one separate counsel, approved by the
Underwriters in the case of paragraph (a) of this Section 7, representing
the indemnified parties under such paragraph (a) who are parties to such
action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the action or
(iii) the indemnifying party has authorized the employment of counsel for
the indemnified party at the expense of the indemnifying party; and except
that, if clause (i) or (iii) is
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applicable, such liability shall be only in respect of the counsel referred
to in such clause (i) or (iii).
(d) If the indemnification provided for in this Section 7 shall for
any reason be unavailable to an indemnified party under Section 7(a) or
7(b) hereof in respect of any loss, claim, damage or liability, or any
action in respect thereof, referred to therein, then each indemnifying
party shall, in lieu of indemnifying such indemnified party, contribute to
the amount paid or payable by such indemnified party as a result of such
loss, claim, damage or liability, or action in respect thereof, (i) in such
proportion as shall be 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 Securities or (ii) if the allocation
provided by clause (i) above 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 but also the relative fault of the Company,
on the one hand, and the Underwriters, on the other, with respect to the
statements or omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, 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, with respect to such
offering shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Securities (before deducting expenses)
received by the Company bear to the total discounts and commissions
received by any Underwriter with respect to such offering. The relative
fault shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company or any
Underwriter, the intent of the parties and their relative 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 contributions pursuant to this Section 7(d) were to be
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 into account the equitable considerations referred to herein.
The amount paid or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof, referred to above
in this
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Section 7(d) shall be deemed to include, for purposes of this Section 7(d),
any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim to
the extent not already paid or payable pursuant to another provision of
this Section 7. Notwithstanding the provisions of this Section 7(d), no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Securities sold through such
Underwriter and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise paid
or become liable to pay by reason of any 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 under this
Section 7(d) to contribute are several in proportion to the respective
principal amounts of Securities purchased by each such Underwriter and not
joint.
8. Default by an Underwriter. If any one or more Underwriters shall
-------------------------
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
-------- -------
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule I hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in this
Section 8, the Closing Date shall be postponed for such period, not exceeding
seven days, as the Underwriters shall determine in order that the required
changes in the
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Registration Statement and the Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
9. Termination. This Agreement shall be subject to termination in
-----------
the absolute discretion of the Underwriters, by notice given to the Company
prior to delivery of and payment for the Securities, if prior to such time any
of the following shall have occurred: (i) since the respective dates as of which
information is given in the Registration Statement, any material adverse change
in the condition, financial or otherwise, of the Company and its subsidiaries
considered as one enterprise, or in the earnings, affairs or business prospects
of the Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, except as set forth or contemplated
in the Prospectus, which, in the Underwriters' judgement, makes it impracticable
to market the Securities or enforce contracts for the sale of the Securities,
(ii) trading in any securities of the Company has been suspended by the
Commission or a national securities exchange, or trading generally on either the
New York Stock Exchange or the American Stock Exchange shall have been
suspended, or minimum or maximum prices for trading shall have been fixed, or
maximum ranges for prices for securities shall have been required, by either of
said exchanges or by order of the Commission or any other governmental
authority, (iii) a banking moratorium shall have been declared either by Federal
or New York State authorities, or (iv) any outbreak or escalation of hostilities
or other national or international calamity or crisis, if the effect of such
outbreak, escalation, calamity or crisis would, in the Underwriters' reasonable
judgment, make the offering or delivery of the Securities impracticable.
10. Representations and Indemnities to Survive. The respective
------------------------------------------
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in Section 7 hereof,
and will survive delivery of and payment for the Securities. The provisions of
Sections 6 and 7 hereof shall survive the termination or cancellation of this
Agreement.
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11. Notices. All communications hereunder will be in writing and
-------
effective only on receipt, and will be mailed, delivered or telegraphed and
confirmed to the Underwriters or the Company, as the case may be, at their
respective addresses set forth below:
Xxxxxx Xxxxxxx & Co. Incorporated
1221 Avenue of the Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Debt Syndicate Department
Xxxxxx Brothers
Xxxxxx Brothers Inc.
American Express Tower - World Financial Center
Xxx Xxxx, Xxx Xxxx 00000
International Lease Finance Corporation
1999 Avenue of the Stars, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Chief Financial Officer
12. Successors. This Agreement will inure to the benefit of and be
----------
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7 hereof, and no
other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and construed
--------------
in accordance with the laws of the State of New York.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
International Lease Finance
Corporation
By: ______________________
The foregoing Agreement is
hereby confirmed and accepted.
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxx Brothers Inc.
By Xxxxxx Xxxxxxx & Co. Incorporated
By: _____________________________
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SCHEDULE I
Market Auction Market Auction
Preferred Stock Preferred Stock
Underwriters Series G Series H
------------ --------------- ---------------
Xxxxxx Xxxxxxx & Co.
Incorporated.......................... 250 shares 250 shares
Xxxxxx Brothers Inc. ................... 250 shares 250 shares
Total.............................. 500 shares 500 shares
-1-
