International Lease Finance Corporation Medium-Term Notes, Series R Due Nine Months or More From Date of Issue Amended and Restated Distribution Agreement1
Exhibit 1.1
International Lease Finance Corporation
Medium-Term Notes, Series R
Due Nine Months or More
From Date of Issue
Medium-Term Notes, Series R
Due Nine Months or More
From Date of Issue
Amended and Restated Distribution Agreement1
ABN AMRO Incorporated |
X.X. Xxxxxx Securities Inc. | |
00 Xxxx 00xx Xxxxxx |
000 Xxxx Xxxxxx, 9th Floor | |
| New York, New York 10017 | ||
Banc of America Securities LLC |
Xxxxxx Brothers Inc. | |
0 Xxxx 00xx Xxxxxx |
000 Xxxxxxx Xxxxxx | |
| New York, New York 10019 | ||
Barclays Capital Inc. |
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx | |
000 Xxxx Xxxxxx |
Xxxxxxxxxxxx | |
New York, New York 10166 |
4 World Financial Tower | |
| New York, New York 10080 | ||
BNP Paribas Securities Corp. |
Mitsubishi UFJ Securities International plc | |
000 Xxxxxxx Xxxxxx |
0 Xxxxxxxxx | |
New York, New York 10019 |
London EC2M 2AA | |
Citigroup Global Markets Inc. |
Scotia Capital (USA) Inc. | |
000 Xxxxxxxxx Xxxxxx |
Xxx Xxxxxxx Xxxxx | |
New York, New York 10013 |
New York, New York 10006 | |
Credit Suisse Securities (USA) LLC |
UBS Securities LLC | |
00 Xxxxxxx Xxxxxx |
000 Xxxxxxxxxx Xxxxxxxxx | |
New York, New York 10010 |
Stamford, Connecticut 06901 | |
Deutsche Bank Securities Inc. |
Wachovia Capital Markets, LLC | |
00 Xxxx Xxxxxx |
000 Xxxxx Xxxxxxx Xxxxxx | |
New York, New York 10005 |
Charlotte, North Carolina 28288 | |
HSBC Securities (USA) Inc. |
||
000 Xxxxx Xxxxxx, 0xx Floor |
||
New York, New York 10018 |
| 1 | In the event any preliminary Prospectus or supplement to a preliminary Prospectus is used in connection with the transactions contemplated by this Agreement, this Agreement shall be modified accordingly. |
Ladies & Gentlemen:
International Lease Finance Corporation, a California corporation (the “Company”), has entered
into a Distribution Agreement, dated August 22, 2006, as amended by the Letter Agreement dated July
11, 2007 (as amended, the “Original Distribution Agreement”), with respect to the issuance and sale
by the Company of up to an aggregate principal amount set forth in Schedule I hereto of its
Medium-Term Notes, Series R, Due Nine Months or More from Date of Issue (the “Notes”). The Company
desires to amend and restate the Original Distribution Agreement in its entirety effective as of
the date hereof (as amended and restated hereby, this “Agreement”) as set forth herein.
Accordingly, the Company confirms its agreement with each of you (together with your affiliates,
individually, an “Agent” and collectively, the “Agents”) with respect to the issue and sale by the
Company of the Notes. The Notes will be issued under an indenture (the “Indenture”) dated as of
August 1, 2006, between the Company and Deutsche Bank Trust Company Americas, a New York banking
corporation, as trustee (the “Trustee”), as may be amended from time to time. The Notes will be
issued in minimum denominations of $1,000 and in denominations exceeding such amount by integral
multiples of $1,000, will be issued only in fully registered form and will bear interest at rates
to be provided in a supplement to the Prospectus referred to below.
1. Representations and Warranties. The Company represents and warrants to you as of
the date hereof, as of each Closing Date and Settlement Date hereinafter referred to, and as of the
times referred to in Section 4(k) hereof, as follows:
(a) The Company meets the requirements for use of Form S-3 under the Securities Act of 1933,
as amended (the “Act”) and has prepared and filed with the Securities and Exchange Commission (the
“Commission”) an automatic shelf registration statement, as defined in Rule 405, on such Form (the
file number of which is set forth in Schedule I hereto), which became effective upon
filing, for the registration under the Act of the aggregate principal amount set forth in
Schedule I hereto of debt securities including the Notes (the “Securities”). Such
registration statement, as amended at the date of this Agreement, meets the requirements set forth
in Rule 415(a)(1)(x) under the Act and complies in all other material respects with said Rule. In
connection with the sale of Notes, the Company proposes to file with the Commission pursuant to
Rule 424 under the Act a supplement to the form of prospectus included in such registration
statement relating to the Notes and the plan of distribution thereof and has previously advised you
of all further information (financial and other) with respect to the Company to be set forth
therein. Such registration statement, including the exhibits thereto and information otherwise
deemed to be part of and included in the Registration Statement pursuant to regulations under the
Act, as amended to the date of this Agreement, is hereinafter called the “Registration Statement”;
such prospectus, as supplemented pursuant to the previous sentence and in the form in which it
shall be filed by the Company with the Commission pursuant to Rule 424 under the Act, is
hereinafter called the “Prospectus”. Any reference herein to the Registration Statement or the
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 date of the
Prospectus, as the case may be; and any reference herein to the terms “amend”, “amendment” or
“supplement” with respect to the Registration Statement or the Prospectus shall be deemed to refer
to and include (i) the filing of any document under the
2
Exchange Act after the date of this Agreement or the date of the Prospectus, as the case may
be, deemed to be incorporated therein by reference and (ii) with respect to the Registration
Statement, information otherwise deemed to be part of and included in the Registration Statement
pursuant to regulations under the Act after the date of this Agreement.
(b) On the date hereof, on each Effective Date (as defined below), on each date of filing of
any document incorporated by reference in the Registration Statement, when any supplement to the
Prospectus is filed with the Commission in accordance with Rule 424(b) and at the date of delivery
by the Company of any Notes sold hereunder (a “Closing Date”), (i) the Registration Statement, as
amended as of such time, the Prospectus as supplemented as of any such time, and the Indenture did
or will comply in all material respects with the applicable requirements of the Act, the Exchange
Act and the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”) and the respective
rules thereunder; (ii) the Registration Statement, as amended as of any such time, did not or will
not 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; (iii) the
Prospectus, as supplemented as of any such time, did not and will not include any untrue statement
of a material fact, or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or warranties as to
(x) that part of the Registration Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee or (y) the information
contained in or omitted from the Registration Statement or Prospectus in reliance upon and in
conformity with information furnished in writing to the Company by or on behalf of the Agents
specifically for inclusion in the Registration Statement and the Prospectus, it being understood
and agreed that the only such information furnished by or on behalf of any Agent is the information
in (A) the third, fourth and fifth sentences of the third paragraph, (B) the fourth paragraph,
(C) the fifth paragraph with respect to the Agents only, and (D) the second sentence of the eighth
paragraph, each under the caption “Plan of Distribution” in the supplement to the form of
prospectus described in the third sentence of Section 1(a) hereto. For purposes of this
Agreement, “Effective Date” shall mean each date and time that any part of the Registration
Statement and any post-effective amendment or amendments thereto became or become effective,
including, without limitation, any amendment filed for the purposes of complying with Section
10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report
filed pursuant to the Exchange Act, or form of prospectus pursuant to Rule 424(b)), and each date
and time any part of the Registration Statement is deemed to be effective pursuant to Rule
430B(f)(2) under the Act.
(c) 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 Registration Statement and
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.
(d) The Securities have been duly authorized and, when issued and delivered pursuant to this
Agreement and, if applicable, the Terms Agreement (as defined in Section 2(b)
3
hereof) or otherwise, will have been duly executed, authenticated, issued and delivered and
will constitute valid and legally binding obligations of the Company entitled to the benefits
provided by the Indenture, and the Securities will be substantially in the form filed as an exhibit
to the Registration Statement or a document incorporated by reference therein; the Indenture has
been duly authorized, executed and delivered by the Company and has been duly qualified under the
Trust Indenture Act and constitutes a valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or affecting creditors’ rights and to general
equity principles; and the Securities and the Indenture will conform to the descriptions thereof in
the Prospectus.
(e) The Notes have been rated by a “nationally recognized statistical rating agency” (as that
term is defined by the Commission for purposes of Rule 436(g)(2) under the Act), including one or
both of Xxxxx’x Investor Services (“Moody’s”) and Standard & Poor’s Ratings Services, a division of
The McGraw Hill Companies (“S&P”).
(f) The Company confirms as of the date hereof, and each acceptance by the Company of an offer
to purchase Notes will be deemed to be an affirmation, that the Company is in compliance with all
provisions of Section 1 of Laws of Florida, Chapter 92-198, An Act Relating to Disclosure of Doing
Business with Cuba, and the Company further agrees that if it commences engaging in business with
the government of Cuba or with any person or affiliate located in Cuba after the date the
Registration Statement becomes or has become effective with the Commission or with the Florida
Department of Banking and Finance (the “Department”), whichever date is later, or if the
information reported in the Prospectus, if any, concerning the Company’s business with Cuba or with
any person or affiliate located in Cuba changes in any material way, the Company will provide the
Department notice of such business or change, as appropriate, in a form acceptable to the
Department.
(g) This Agreement has been duly authorized, executed and delivered by the Company.
(h) The financial statements included in the Registration Statement and the Prospectus,
together with the related schedules and notes, present fairly, in all material respects, the
financial position of the Company and its consolidated subsidiaries at the dates indicated and the
statement of operations, stockholders’ equity and cash flows of the Company and its consolidated
subsidiaries for the periods specified; said financial statements have been prepared in conformity
with generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the
periods involved. The supporting schedules, if any, included in the Registration Statement present
fairly in accordance with GAAP the information required to be stated therein. The selected
financial data and the summary financial information included in the Prospectus present fairly, in
all material respects, the information shown therein and have been compiled on a basis consistent
with that of the audited financial statements included in the Registration Statement.
(i) As of the Applicable Time (as defined below) with respect to the offering of any
applicable Notes, the Disclosure Package (as defined below), will not contain any untrue statement
of a material fact, or omit to state any material fact necessary in order to make the
4
statements therein, in the light of the circumstances under which they were made, not
misleading. The preceding sentence does not apply to statements in or omissions from the
Disclosure Package based upon and in conformity with written information furnished to the Company
by any Agent specifically for use therein. For purposes of this Agreement, “Applicable Time” shall
mean the time set forth in the applicable Terms Agreement, or, if Notes are being sold to you as
principal and either the Applicable Time is not specified therein or no Terms Agreement is utilized
in connection therewith, the Applicable Time shall mean the time immediately prior to the time of
the first sale (including, without limitation, a contract of sale) of such Notes or with respect to
Notes sold by any of you as agent, the Applicable Time shall mean each time of sale (including,
without limitation, a contract of sale) of such Notes. For purposes of this Agreement, the term
“Disclosure Package” shall mean (i) the Prospectus, as amended and supplemented as of the
Applicable Time, (ii) any Permitted Free Writing Prospectus as defined in Section 4(g) hereto, and
(iii) any other “free writing prospectus”, as defined in Rule 405 under the Act (“Free Writing
Prospectus”), including any “issuer free writing prospectus”, as defined in Rule 433 under the Act
(“Issuer Free Writing Prospectus”), that the parties hereto shall hereafter expressly agree in
writing to treat as part of the Disclosure Package.
(j) (i) At the time of filing the Registration Statement, (ii) at the time of the most recent
amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such
amendment was by post-effective amendment, incorporated report filed pursuant to Sections 13 or
15(d) of the Exchange Act or form of prospectus), (iii) at the time the Company or any person
acting on its behalf (within the meaning, for this clause only, of Rule 163(c)) made any offer
relating to the Notes in reliance on the exemption in Rule 163, and (iv) as of the date of the
execution of this Agreement (with such date being used as the determination date for purposes of
this clause (iv)), the Company was, is or will be (as the case may be) a “well-known seasoned
issuer” as defined in Rule 405.
(k) (i) At the earliest time after the filing of the Registration Statement that the Company
or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of
the Notes and (ii) as of the execution of this Agreement (with such date being used as the
determination date for purposes of this clause (ii)), the Company was not and is not an “ineligible
issuer” as defined in Rule 405 (“Ineligible Issuer”).
(l) Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times
through the completion of the public offer and sale of the Notes to which such Issuer Free Writing
Prospectus relates or until any earlier date of which the Company provided or provides prior
notification to the Agents, did not, does not and will not include any information that conflicted,
conflicts or will conflict with information contained in the Registration Statement, including any
document incorporated therein and any prospectus supplement deemed to be a part thereof, in each
case, that has not been superseded or modified. The foregoing sentence does not apply to
statements in or omissions from the Disclosure Package based upon and in conformity with written
information furnished to the Company by any Agent specifically for use therein it being understood
and agreed that the only such information furnished by or on behalf of any Agent is the information
in (A) the third, fourth and fifth sentences of the third paragraph, (B) the fourth paragraph,
(C) the fifth paragraph with respect to the Agents only, and (D) the second sentence of the eighth
paragraph, each under the
5
caption “Plan of Distribution” in the supplement to the form of prospectus described in the
third sentence of Section 1(a) hereto.
2. Appointment of Agents; Purchases as Principals.
(a) Subject to the terms and conditions set forth herein, the Company hereby authorizes you to
act as its agents to solicit offers for the purchase of all or part of the Notes, upon the terms
set forth in the Prospectus, as supplemented, during a period beginning on the date hereof and
ending on the date the Company shall specify to you in writing. The Company agrees to pay each
Agent a commission, at the time of settlement of each sale of Notes by the Company as a result of a
solicitation made by such Agent, in an amount to be agreed to by the Company and such Agent at the
time of solicitation, it being understood and agreed that the commissions may not be the same for
each Agent. Such commissions shall be payable as specified in the Procedures (as defined in
Section 3). Offers for the purchase of Notes may be solicited by the Agents as agents for
the Company at such time and in such amounts as the Agents deem advisable. The Company may from
time to time offer Notes for sale otherwise than through the Agents. If any agent, other than an
Agent, is appointed during the term of this Agreement with respect to the Notes, the Company shall
promptly notify the Agents of such appointment.
(b) Each sale of Notes to you as principal shall be made in accordance with the terms of this
Agreement and a separate agreement which will provide for the sale of such Notes to, and the
purchase and reoffering thereof by, you. Each such separate agreement (which may be an oral
agreement confirmed in writing or which may be substantially in the form of Schedule II
hereto and which may take the form of an exchange of any standard form of written telecommunication
between you and the Company) is herein referred to as a “Terms Agreement”. Your commitment to
purchase Notes pursuant to any Terms Agreement shall be deemed to have been made on the basis of
the representations and warranties of the Company herein contained and shall be subject to the
terms and conditions herein set forth. Each Terms Agreement shall specify the principal amount of
Notes to be purchased by you pursuant thereto, the price to be paid to the Company for such Notes,
the initial public offering price, if any, at which the Notes are proposed to be reoffered, and the
time and place of delivery of and payment for such Notes (the “Settlement Date”). Such Terms
Agreement shall also specify any requirements for officers’ certificates and, if mutually agreed
upon in advance by the Company, on the one hand, and the Agents, on the other hand, any
requirements for opinions of counsel and/or letters from independent auditors pursuant to
Section 5 hereof.
3. Offering Procedure. The Agents shall communicate to the Company, orally or in
writing, each offer to purchase Notes on terms previously communicated by the Company to the
Agents, and the Company shall have the sole right to accept such offers to purchase Notes and may
refuse any proposed purchase of Notes in whole or in part for any reason. Each of the Agents shall
have the right, in its discretion reasonably exercised, to reject any proposed purchase of Notes on
different terms, as a whole or in part, and any such rejection shall not be deemed a breach of its
agreement contained herein. The Agents and the Company agree to perform the respective duties and
obligations specifically provided to be performed by them in the Medium-Term Notes Administrative
Procedures (attached hereto as Exhibit A) (the
6
“Procedures”), as amended from time to time. The Procedures may only be amended by written
agreement of the Company and the Agents after notice to, and with the approval of, the Trustee.
4. Agreements. The Company agrees with you that:
(a) Prior to the termination of the offering of the Notes, the Company will not file any
amendment of the Registration Statement (other than as a result of a filing under the Exchange Act)
or supplement to the Prospectus unless the Company has furnished you with copies for your review
prior to filing and will not file any such proposed amendment or supplement to which you reasonably
object. Subject to the foregoing sentence, the Company will cause each supplement to the
Prospectus to be timely filed (or transmitted for filing) with the Commission as required pursuant
to Rule 424. The Company will promptly advise you (i) when each supplement to the Prospectus shall
have been filed (or transmitted for filing) with the Commission pursuant to Rule 424, (ii) when any
amendment of the Registration Statement 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) 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 or of any notice objecting to the use of the Registration
Statement and (v) of the receipt by the Company of any notification with respect to the suspension
of the qualification of the Notes 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 or the occurrence of any such suspension and, upon such issuance, occurrence or
notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from
such occurrence or objection, including, if necessary, by filing an amendment to the Registration
Statement or a new registration statement and using its best efforts to have such amendment or new
registration statement declared effective as soon as practicable.
(b) If there occurs an event or development as a result of which, prior to the delivery of a
supplement to the Prospectus containing final pricing terms in respect of an offering of Notes to
the Agents, the Disclosure Package relating to such Notes would include an untrue statement of a
material fact, or would omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances then prevailing, not misleading, the Company promptly
will (1) notify the Agents, including stating whether any use of the Disclosure Package should
cease until it is amended or supplemented to correct such statement or omission (and, if so
notified by the Company, the Agents shall forthwith suspend using the Disclosure Package as then
amended or supplemented), (2) subject to the first sentence of paragraph (a) of this
Section 4 and the first sentence of paragraph (g) of this Section 4,
prepare an amendment or supplement to the Disclosure Package and, if applicable, file with the
Commission an amendment or supplement to the Disclosure Package, which will correct such statement
or omission, and (3) supply any supplemented Disclosure Package to you in such quantities as you
may reasonably request.
(c) If, at any time when a prospectus relating to the Notes is required to be delivered under
the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172),
any event occurs as a result of which the Registration Statement, as then amended, or the
Prospectus, as then supplemented, would include any untrue statement of a
7
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, or if it shall be
necessary to amend the Registration Statement or to supplement the Prospectus to comply with the
Act or the Exchange Act or the respective rules thereunder, the Company promptly will (i) notify
the Agents to suspend solicitation of offers to purchase Notes (and, if so notified by the Company,
the Agents shall forthwith suspend such solicitation and cease using the Prospectus as then amended
or supplemented), (ii) prepare and file with the Commission, subject to the first sentence of
paragraph (a) of this Section 4, an amendment or supplement or new registration
statement which will correct such statement or omission or an amendment or supplement or new
registration statement which will effect such compliance, (iii) use its best efforts to have any
amendment to the Registration Statement or new registration statement declared effective as soon as
practicable in order to avoid any disruption in use of the Prospectus and (iv) will supply any such
amended or supplemented Prospectus or prospectus included in a new registration statement to the
Agents in such quantities as the Agents may reasonably request. If such amendment or supplement is
satisfactory in all respects to the Agents, the Agents will, upon the filing of such amendment or
supplement with the Commission and upon the effectiveness of an amendment to the Registration
Statement or new registration statement if such an amendment or new registration statement is
required, resume their obligation to solicit offers to purchase Notes hereunder.
(d) As soon as practicable, the Company will make generally available to its security holders
and to you 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 and, not later than
45 days after the end of the 12-month period beginning at the end of each fiscal quarter of the
Company (other than the last fiscal quarter of any fiscal year) during which an Effective Date
occurs, not later than 90 days after the end of the fiscal year beginning at the end of each last
fiscal quarter of any fiscal year of the Company during which an Effective Date occurs, and not
later than 90 days after the end of each fiscal year of the Company during which any Notes were
issued, the Company will make generally available to its security holders an earnings statement
covering such 12-month period or such fiscal year, as the case may be, that will satisfy the
provisions of such Section 11(a) and Rule 158.
(e) The Company will furnish to you and your counsel, without charge, copies of the
Registration Statement (including exhibits thereto) and each amendment thereto and, so long as
delivery of a prospectus may be required by the Act (including in circumstances where such
requirement may be satisfied pursuant to Rule 172), as many copies of any preliminary Prospectus
and the Prospectus and any amendments thereof and supplements thereto as you may reasonably
request.
(f) The Company will arrange for the qualification of the Notes for sale under the laws of
such jurisdictions as you may reasonably designate, will maintain such qualifications in effect so
long as required for the distribution of the Notes, and, if requested by the Agents, will arrange
for the determination of the legality of the Notes for purchase by institutional investors.
(g) The Company hereby agrees that, until each Agent agrees otherwise in writing, no
communication that would constitute an Issuer Free Writing Prospectus or that would
8
otherwise constitute a Free Writing Prospectus has been, or will be, used by the Company,
other than a final pricing term sheet in the form of Annex A attached hereto, prepared and to be
filed by the Company pursuant to Section 4(h) and containing a description of the final terms of
Notes being sold and the offering thereof (the “Final Term Sheet”). Any Free Writing Prospectus
that the Company is permitted to use pursuant to the preceding sentence of this Section 4(g) is
hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that it has
complied and will comply, as the case may be, with the filing and other requirements of Rules 164
and 433 applicable to any such Permitted Free Writing Prospectus. Each of you, as Agents,
severally and not jointly, hereby agree that, until the Company agrees otherwise, no communication
that would constitute a Free Writing Prospectus has been, or will be, used by you in connection
with the offer and sale of the Notes, other than (i) one or more written communications containing
customary information relating to the terms of the Notes that do not require the Company to file
any material pursuant to Rule 433(d) under the Act other than the Final Term Sheet and/or (ii) any
Permitted Free Writing Prospectus. Each of you, severally and not jointly, also agrees not to
issue any communication pursuant to Rule 134 promulgated under the Act with respect to the Notes.
Nothing in this Section 4(g) shall be deemed to require the approval by any Agent of any filings by
the Company under the Exchange Act.
(h) The Company agrees to prepare and file a Final Term Sheet with respect to the sale of any
Notes and to file that Final Term Sheet pursuant to Rule 433(d) promulgated under the Act within
the time required by such Rule.
(i) The Company shall, whether or not any sale of the Notes is consummated, (i) pay all
expenses incident to the performance of its obligations under this Agreement, including the fees
and disbursements of its accountants and counsel, the cost of printing and delivery of the
Registration Statement, any preliminary Prospectus, the Prospectus, any Issuer Free Writing
Prospectus, all amendments thereof and supplements thereto, the Indenture and all other documents
relating to the offering, the cost of preparing, printing, packaging and delivering the Notes, the
fees and disbursements, including fees of counsel incurred in connection with the qualification of
the Notes for sale and determination of eligibility for investment of the Notes under the
securities or Blue Sky laws of each such jurisdiction as you may reasonably designate, the fees and
disbursements of the Trustee and the fees of any agency that rates the Notes, and (ii) reimburse
the Agents on a monthly basis for all out-of-pocket expenses (including without limitation
advertising expenses) incurred by the Agents and approved by the Company in advance, in connection
with the offering and the sale of the Notes, and (iii) be responsible for the reasonable fees of
counsel for the Agents incurred in connection with the offering and sale of the Notes.
(j) Each acceptance by the Company of an offer to purchase Notes, and each sale of Notes to
you pursuant to a Terms Agreement, will be deemed to be an affirmation that the representations and
warranties of the Company contained in this Agreement and in any certificate theretofore delivered
to you pursuant hereto are true and correct at and as of such date and a representation and
warranty to you that (i) neither the Registration Statement nor the Prospectus, as then amended or
supplemented, fails to reflect any facts or events which, individually or in the aggregate,
represent a fundamental change in the information set forth in the Registration Statement or the
Prospectus, as then amended or supplemented, (ii) the Registration Statement, as amended, at each
Effective Date, did not include any untrue statement
9
of a material fact, or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, (iii) the Prospectus, as amended or
supplemented, does not include any untrue statement of a material fact, or omit to state any
material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and (iv) the Disclosure Package, as amended or
supplemented as of the Applicable Time with respect to the applicable Notes, did not include any
untrue statement of a material fact, or omit to state any material fact necessary in order to make
the statements therein, in light of the circumstances under which they were made, not misleading,
except that the foregoing does not apply to (x) that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act
of the Trustee or (y) the information contained in or omitted from the Registration Statement, the
Prospectus or the Disclosure Package or any amendment thereof or supplement thereto in reliance
upon and in conformity with information furnished in writing to the Company by you or on your
behalf specifically for use in connection with the preparation of the Registration Statement and
the Prospectus or any amendments thereof or supplements thereto, it being understood and agreed
that the only such information furnished by or on behalf of any Agent is the information in (A) the
third, fourth and fifth sentences of the third paragraph, (B) the fourth paragraph, (C) the fifth
paragraph with respect to the Agents only, and (D) the second sentence of the eighth paragraph,
each under the caption “Plan of Distribution” in the supplement to the form of prospectus described
in the third sentence of Section 1(a) hereto.
(k) Each time that the Registration Statement or the Prospectus is amended or supplemented
(other than by an amendment or supplement providing solely for a change in the interest rates
offered on the Notes), or there is filed with the Commission a Form 10-K, Form 10-Q or Form 8-K
that contains financial information that is incorporated by reference into the Prospectus or, if so
indicated in the applicable Terms Agreement, the Company sells Notes to you pursuant to a Terms
Agreement, the Company will deliver or cause to be delivered forthwith to you a certificate of the
Company signed by the Chairman or Vice Chairman of the Board, the President or a Vice President and
the principal financial or accounting officer of the Company, dated the date of the effectiveness
of such amendment, the date of filing of such supplement or document or the date of such sale, in
form reasonably satisfactory to you, to the effect that the statements contained in the certificate
that was last furnished to you pursuant to either Section 5(f) or this Section 4(k)
are true and correct at the time of the effectiveness of such amendment, the filing of such
supplement or document or of such sale, as though made at and as of such time (except that (i) the
last day of the fiscal quarter for which financial statements of the Company were last filed with
the Commission shall be substituted for the corresponding date in such certificate and (ii) such
statements shall be deemed to relate to the Registration Statement and the Prospectus as amended
and supplemented to such time) or, in lieu of such certificate, a certificate of the same tenor as
the certificate referred to in Section 5(f) but modified to relate to the last day of the
fiscal quarter for which financial statements of the Company were last filed with the Commission
and to the Registration Statement and the Prospectus as amended and supplemented to such time.
(l) Each time that the Registration Statement or the Prospectus is amended or supplemented or
there is filed with the Commission a Form 10-K or Form 10-Q that is incorporated by reference into
the Prospectus (other than an amendment or supplement providing solely the terms of an issue of
Notes in a pricing supplement), or, if so agreed upon by the
10
Company and the Agents, as indicated in the applicable Terms Agreement, the Company sells
Notes to you pursuant to a Terms Agreement, the Company shall furnish or cause to be furnished
forthwith to you a written opinion or opinions of counsel to the Company satisfactory to you, dated
the date of the effectiveness of such amendment, the date of filing of such supplement or document
or the date of such sale, of the same tenor as the opinions referred to in Sections 5(c)
and 5(d) but modified to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such opinion or, in lieu of such opinions, counsel last
furnishing such an opinion to you may furnish you with a letter to the effect that you 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 will be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of delivery of such letter
authorizing reliance).
(m) Each time that (i) the Registration Statement or the Prospectus is amended or supplemented
by a filing under the Act to include additional financial information, (ii) there is filed with the
Commission under the Exchange Act any document incorporated by reference into the Prospectus as
amended and supplemented which contains additional financial information (other than any
information in a Current Report on Form 8-K responsive to Item 2.02 of such Form 8-K and relating
exclusively to quarterly or annual financial results of the Company) or (iii) if so agreed upon by
the Company and the Agents, as indicated in the applicable Terms Agreement, the Company sells Notes
to you pursuant to a Terms Agreement, the Company shall cause PricewaterhouseCoopers LLP, the
independent registered public accounting firm which has audited the financial statements of the
Company and its subsidiaries included or incorporated by reference in the Prospectus as amended and
supplemented, forthwith to furnish you a letter, dated the date of filing with the Commission of
such supplement or document, the date of effectiveness of such amendment, or the date of such sale,
as the case may be, in form satisfactory to you in your reasonable judgment, of the same tenor as
the letter referred to in Section 5(g) hereof, but modified to relate to the Registration
Statement and the Prospectus as amended and supplemented to the date of such letter, with such
changes as may be necessary to reflect changes in the financial statements and other information
derived from the accounting records of the Company; provided, however, that where such amendment or
supplement only sets forth unaudited quarterly financial information, the scope of such letter may
be limited to relate to such unaudited financial information unless any other accounting or
financial information included in the Registration Statement or the Prospectus as so amended or
supplemented is of a character that, in your reasonable judgment, such other information should be
addressed by such letter.
(n) Between the date of any Terms Agreement and the Settlement Date with respect to such Terms
Agreement, the Company will not, without your prior consent, offer or sell, or enter into any
agreement to sell, any debt securities of the Company that have a substantially similar maturity
and the same currency as the Notes being offered or sold pursuant to such Terms Agreement, except
as may otherwise be provided in any such Terms Agreement.
5. Conditions to Obligations. Your obligations as Agents to solicit offers to
purchase the Notes and your obligations to purchase Notes pursuant to any Terms Agreement or
otherwise shall be subject to the accuracy of the representations and warranties on the part of the
Company contained in this Agreement as of the date hereof, and the accuracy of the
11
representations and warranties on the part of the Company contained herein as of each
Effective Date, as of each date of filing of any document incorporated by reference in the
Registration Statement, as of the date any supplement to the prospectus is filed with the
Commission, as of each Closing Date and as of each Settlement Date with respect to any applicable
Terms Agreement, 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) The Prospectus, and any supplement thereto, has been filed in a manner and within the time
period required by Rule 424(b); the final term sheet contemplated by Section 4(g) hereof, and any
other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall
have been filed with the Commission within the applicable time periods prescribed for such filings
by Rule 433.
(b) No stop order suspending the effectiveness of the Registration Statement, as amended from
time to time, or any notice objecting to its use shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(c) The Company shall have furnished to you the opinion of corporate counsel for the Company,
dated such Settlement Date, if applicable, to the effect that:
(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, however, that the Company may
not be so qualified in certain jurisdictions, the effect of which would not have a material adverse
effect on the Company.
(ii) 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.
(iii) 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.
(d) The Company shall have furnished to you the opinion of O’Melveny & Xxxxx LLP, special
counsel for the Company, dated such Settlement Date, if applicable, to the effect that:
(i) The Company has been duly incorporated and is validly existing in good standing under the
laws of the State of California and has the corporate power to own its properties and conduct its
business as described in the Prospectus.
(ii) The Indenture has been duly authorized by all necessary corporate action on the part of
the Company, has been duly executed and delivered by the Company and is a legally valid and binding
obligation of the Company, enforceable against the Company in accordance with its terms, except as
may be limited by bankruptcy, insolvency, reorganization,
12
moratorium or similar laws relating to or affecting creditors’ rights generally (including,
without limitation, fraudulent conveyance laws), and by 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, and, if applicable, is subject to provisions of law
which may require that a judgment for money damages rendered by a court in the United States be
expressed in United States dollars.
(iii) The Notes have been duly authorized by all necessary corporate action on the part of the
Company and when the final terms of a particular Note and of its issuance and sale have been duly
established in conformity with the Indenture, and when such Note has been duly executed,
authenticated and issued in accordance with the provisions of the Indenture and upon payment for
and delivery of the Notes in accordance with the terms of this Agreement, will be legally valid and
binding obligations of the Company, entitled to the benefits of the Indenture and enforceable
against the Company in accordance with their terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or affecting creditors’ rights
generally (including, without limitation, fraudulent conveyance laws), and by 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, and, if applicable, is subject to
provisions of law which may require that a judgment for money damages rendered by a court in the
United States be expressed in United States dollars.
(iv) The Indenture has been duly qualified under the Trust Indenture Act.
(v) This Agreement (and if the opinion is being furnished on a Settlement Date, the applicable
Terms 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.
(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 Notes, except such as have been
obtained under the Act, the Trust Indenture 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) Neither the execution and delivery of the Indenture nor the issuance of the Notes will
violate, result in a breach by the Company of, or constitute a default under, the Articles of
Incorporation or Bylaws 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 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 debt securities and the violation of, breach
of or default under which would have a material adverse effect on the Company and its subsidiaries
considered as a whole, except that no opinion need be
13
expressed regarding the effect, if any, of the issuance of the Notes 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 or
any notice objecting to its use 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 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 which is not filed as required.
(xi) The documents incorporated by reference into the Prospectus 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 information contained or
incorporated by reference therein.
(xii) The statements in the Prospectus under the captions “Description of Debt Securities” and
“Description of Medium-Term Notes, Series R”, insofar as such statements constitute a summary of
provisions of the Indenture or the Notes, fairly present the information required therein by
Form S-3.
(xiii) The execution and delivery of this Agreement, the purchase and sale of the Notes in
accordance with the terms and provisions of this Agreement and the consummation of the transactions
contemplated under this Agreement, the Indenture and the Notes will not violate any current federal
or State of California or New York law, rule or regulation that such counsel has, in the exercise
of customary professional diligence, recognized as applicable to the Company or to the transactions
of the type contemplated by this Agreement or the Indenture, except that such counsel need express
no opinion regarding any federal securities laws, any Blue Sky or state securities laws or the
provisions of Section 7 of this Agreement.
(xiv) The Company is not, and upon the issuance of the Notes and the application of proceeds
therefrom as described in the Prospectus will not become, an investment company required to
register under the Investment Company Act of 1940, as amended.
(xv) The statements contained in the Prospectus under the caption “Certain United States
Federal Income Tax Considerations” insofar as they purport to describe
14
the material tax consequences under the United States federal income tax laws of an investment
in the Notes, constitute a fair summary thereof in all material respects.
Such counsel may state that, as counsel to the Company, such counsel reviewed the
Registration Statement, the Disclosure Package, the Prospectus and the documents incorporated
therein by reference and participated in conferences with representatives of the Agents and
representatives of the Company, its independent public accountants and counsel of the Agents at
which the contents of the Registration Statement, the Disclosure Package, the Prospectus and the
documents incorporated therein by reference and related matters were discussed.
Such counsel may state that the purpose of such counsel’s professional engagement was not to
establish or confirm factual matters set forth in the Registration Statement, the Disclosure
Package or the Prospectus and such counsel has not undertaken any obligation to verify
independently any of the factual matters set forth in the Registration Statement, the Disclosure
Package or the Prospectus. Such counsel may state that, moreover, many of the determinations
required to be made in the preparation of the Registration Statement, the Disclosure Package and
the Prospectus involve matters of a non-legal nature.
Subject to the foregoing, such counsel shall confirm to you that, on the basis of the
information such counsel gained in the course of performing the services referred to above, nothing
came to such counsel’s attention that caused it to believe that (i) the Registration Statement, at
its effective date (or if later, the date the Company’s latest Annual Report on Form 10-K was filed
with the Commission) and, if such counsel is providing a legal opinion pursuant to a Terms
Agreement, on the Effective Date, pursuant to Rule 430B(f)(2) under the Act, of the part of the
Registration Statement relating to the offering of the Notes subject to such Terms Agreement for
purposes of liability of any Agent under Section 11 of the Act, 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, (ii) the Disclosure Package, as of the date of such
opinion (or, if such opinion is to be delivered pursuant to Section 2(b) in accordance with
the provisions of a Terms Agreement, at the Applicable Time) contains any untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made, not misleading and
(iii) the Prospectus on the date of the prospectus supplement included in the Prospectus and on the
date of the opinion, contained or contains any untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however, that such counsel need
not assume any responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement, the Disclosure Package or the Prospectus (except for the
statements described in paragraphs (xii) and (xv) above), and such counsel need not
express any belief (A) except as specifically stated in paragraph (xi) above, with respect
to any document filed by the Company under the Exchange Act, whether before or after an Effective
Date, except to the extent that such document is a document incorporated by reference (1) in the
Registration Statement as of its effective date (or if later, the date the Company’s latest Annual
Report on Form 10-K was filed with the Commission) and, if such counsel is providing a legal
opinion pursuant to a Terms Agreement, as of the Effective Date, pursuant to Rule 430B(f)(2) under
the Act, of the part of the Registration Statement relating to the offering of the Notes subject to
such Terms Agreement for purposes of liability of any Agent under Section 11
15
of the Act, read together with the Registration Statement and considered as a whole as of such
date, or (2) in the Prospectus as of the date of the prospectus supplement included in the
Prospectus, as of the Applicable Time (if applicable) or the date of the opinion; (B) with respect
to the Form T-1 filed by the Trustee in connection with the Registration Statement; (C) with
respect to the financial statements or other financial or accounting data contained in or omitted
from the Registration Statement, the Disclosure Package or the Prospectus; or (D) with respect to
the representations and warranties contained in the exhibits to the Registration Statement or in
the exhibits to the documents incorporated by reference in the Registration Statement or the
Prospectus.
(e) You shall have received from Xxxxxx, Xxxxx & Xxxxxxx LLP, your counsel, such opinion or
opinions, dated such Settlement Date, if applicable, with respect to the issuance and sale of the
Notes, the Indenture, the Registration Statement, the Disclosure Package, the Prospectus and other
related matters as you 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.
(f) The Company shall have furnished to you a certificate of the Company, signed by the
Chairman of the Board, the President or a Vice President and the principal financial or accounting
officer of the Company, dated such Settlement Date, if applicable, to the effect that the signers
of such certificate have carefully examined the Registration Statement, the Disclosure Package, 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 such Settlement Date, if applicable, with the same effect as
if made on such Settlement Date, if applicable, 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 as a condition to your obligation as Agents to solicit offers to purchase the Notes, or
your obligation to purchase Notes pursuant to any Terms Agreement;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice
objecting to its use 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.
16
(g) At such Settlement Date, if applicable,, PricewaterhouseCoopers LLP shall have furnished
to you a letter (which may refer to a letter or letters previously delivered to you), dated as of
such Settlement Date, if applicable, in form and substance satisfactory to you, stating in effect
that:
(i) They are an independent registered public accounting firm with respect to the Company and
its subsidiaries within the meaning of the Act and the applicable rules and regulations thereunder
adopted by the Commission;
(ii) In their opinion, the financial statements and financial statement schedules audited by
them and included or incorporated by reference in the Registration Statement or the Prospectus
comply as to form in all material respects with the applicable accounting requirements of the Act
or the Exchange Act, as applicable, and the related rules and regulations thereunder adopted by the
Commission;
(iii) The unaudited selected financial information with respect to the consolidated results of
operations and financial position of the Company for the five most recent fiscal years included in
the Prospectus and included or incorporated by reference in Item 6 of the Company’s Annual Report
on Form 10-K for the most recent fiscal year agrees with the corresponding amounts (after
restatement where applicable) in the audited consolidated financial statements for five such fiscal
years which were included or incorporated by reference in the Company’s Annual Reports on Form 10-K
for such fiscal years;
(iv) On the basis of limited procedures, not constituting an audit in accordance with
generally accepted auditing standards, consisting of a review, in accordance with standards
established under Statement on Auditing Standards No. 100, of the unaudited condensed consolidated
statements of income, consolidated balance sheets, and consolidated statements of cash flows,
included in the Prospectus and/or included in the Company’s quarterly report on Form 10-Q
incorporated by reference into the Prospectus, a reading of the latest available interim financial
statements of the Company and its subsidiaries, inspection of the minute books of the Company and
its subsidiaries since the date of the latest audited financial statements included or incorporated
by reference in the Prospectus, inquiries of officials of the Company and its subsidiaries
responsible for financial and accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused them to believe that:
(1) (i) any unaudited financial statements included and/or incorporated by reference in the
Prospectus do not comply as to form in all material respects with the applicable accounting
requirements of the Exchange Act and the related rules and regulations adopted by the Commission,
or (ii) any material modifications should be made to the unaudited condensed consolidated
statements of income, consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus or included in the Company’s Quarterly Reports on Form 10-Q incorporated
by reference in the Prospectus for them to be in conformity with generally accepted accounting
principles;
(2) any other unaudited income statement data and balance sheet items included in the
Prospectus do not agree with the corresponding items in the
17
unaudited consolidated financial statements from which such data and items were derived, and
any such unaudited data and items were not determined on a basis substantially consistent with the
basis for the corresponding amounts in the audited consolidated financial statements included or
incorporated by reference in the Company’s Annual Report on Form 10-K for the most recent fiscal
year;
(3) any unaudited financial statements which were not included in the Prospectus but from
which were derived unaudited condensed financial statements included in the Prospectus and any
unaudited income statement data and balance sheet items included in the Prospectus and referred to
in clause (2) were not determined on a basis substantially consistent with the basis for the
audited financial statements included or incorporated by reference in the Company’s Annual Report
on Form 10-K for the most recent fiscal year;
(4) any unaudited pro forma consolidated condensed financial statements included or
incorporated by reference in the Prospectus do not comply as to form in all material respects with
the applicable accounting requirements of the Act and the published rules and regulations
thereunder or the pro forma adjustments have not been properly applied to the historical amounts in
the compilation of those statements;
(5) as of a specified date not more than five days prior to the date of such letter, there
have been any changes in the consolidated capital stock (other than issuances of capital stock upon
exercise of options and stock appreciation rights, upon earn-outs of performance shares and upon
conversions of convertible securities, in each case which were outstanding on the date of the
latest balance sheet included or incorporated by reference in the Prospectus) or any increase in
the consolidated long-term debt of the Company and its subsidiaries, or as of the end of the latest
period for which financial statements are available, any decreases in consolidated net assets, in
each case as compared with amounts shown in the latest balance sheet included or incorporated by
reference in the Prospectus, except in each case for changes, increases or decreases which the
Prospectus as amended and supplemented discloses have occurred or may occur or which are described
in such letter; and
(6) for the period from the date of the latest financial statements included or incorporated
by reference in the Prospectus to a specified date not more than five days prior to the date of
such letter, there were any decreases in consolidated net revenues or the total or per share
amounts of income before extraordinary items or net income, in each case as compared with the
comparable period of the preceding year, except in each case for increases or decreases which the
Prospectus as amended and supplemented discloses have occurred or may occur or which are described
in such letter; and
(v) In addition to the audit referred to in their report(s) included or incorporated by
reference in the Prospectus and the limited procedures, inspection of minute books, inquiries and
other procedures referred to in paragraph (iv) above, they have carried out certain
specified procedures, not constituting an audit in accordance with generally accepted auditing
standards, with respect to certain amounts, percentages and financial information specified by the
Agents which are derived from the general accounting records of the Company and its subsidiaries,
which appear in the Prospectus (excluding documents incorporated by
18
reference), or in Part II of, or in exhibits and schedules to, the Registration Statement
specified by the Agents or in documents incorporated by reference in the Prospectus specified by
the Agents, and have compared certain of such amounts, percentages and financial information with
the accounting records of the Company and its subsidiaries and have found them to be in agreement.
All references in this paragraph (g) to the Prospectus shall be deemed to refer to the
Prospectus (including the documents incorporated by reference therein) as of the applicable date
referred to in Section 4(m) hereof and to the Prospectus as amended or supplemented
(including the documents incorporated by reference therein) as of the date of the amendment,
supplement, incorporation or the Settlement Date relating to the Terms Agreement requiring the
delivery of such letter under Section 4(m) hereof.
(h) 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, increase or decrease
specified in the letter referred to in paragraph (g) 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 your judgment, so material and adverse as to make it impractical
or inadvisable to proceed with the purchase or soliciting of offers to purchase the Notes as
contemplated by the Registration Statement and the Prospectus.
(i) Prior to such Settlement Date, if applicable, the Company shall have furnished you such
further information, certificates and documents as you may reasonably request.
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 you and your counsel, this Agreement and all of
your obligations hereunder may be canceled at any time by you. Notice of such cancellation shall
be given to the Company in writing or by telephone or telecopy confirmed in writing.
The documents required to be delivered by this Section 5 shall be delivered at the
office of O’Melveny & Xxxxx LLP at 000 Xxxxx Xxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx, on such
Settlement Date.
6. Reimbursement of Expenses. If any condition to your obligations set forth in
Section 5 hereof is not satisfied, if any termination pursuant to Section 8 hereof
shall occur or in the case 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 you, the Company will reimburse you upon demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that you shall have incurred in connection with this
Agreement.
19
7. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each of you, each of your directors,
officers, employees and agents and each person, if any, who controls each of you within the meaning
of Section 15 of the Act as follows:
(i) against any and all loss, liability, claim, damage and expense whatsoever arising out of
any untrue statement or alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of material fact contained in the
Prospectus or any Issuer Free Writing Prospectus (whether or not a Permitted Free Writing
Prospectus) or any other Permitted Free Writing Prospectus (or any amendment or supplement to any
such Free Writing Prospectus) or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading, unless such untrue statement or such alleged untrue statement or
omission was made in reliance upon and in conformity with written information furnished to the
Company by you expressly for use in the Registration Statement (or any amendment thereto), the
Prospectus (or any amendment or supplement thereto) or any Issuer Free Writing Prospectus or other
Permitted Free Writing Prospectus; provided, however, that the foregoing indemnity agreement with
respect to the Prospectus or any Permitted Free Writing Prospectus shall not inure to the benefit
of any Agent from whom the person asserting any such loss, liability, claim, damage or expense
purchased Notes, or any person controlling such Agent, if the Company provides a copy of an
amendment or supplement to the Prospectus or to a Permitted Free Writing Prospectus as theretofore
provided to such Agent by the Company (with notice that such amendment or supplement contains
additional or different material information from that previously provided) within a reasonable
amount of time in advance of the Applicable Time in order to enable such Agent to convey such
amendment or supplement to the purchaser of the Notes, and such amendment or supplement (x) was not
conveyed to such person at or prior to the entry into the contract of sale of the Notes by such
person, and (y) such loss, liability, claim, damage or expense would not have occurred had the
Agent delivered the amendment or supplement to such person at or prior to the entry into of the
contract of sale of the Notes;
(ii) against any and all loss, liability, claim, damage and expense whatsoever to the extent
of the aggregate amount paid in settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or omission (except as made
in reliance upon and in conformity with information furnished by you as aforesaid) if such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever as incurred (including the fees and disbursements
of counsel chosen by you) reasonably incurred in investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission (except as made in
20
reliance upon and in conformity with information furnished by you as aforesaid), to the extent
that any such expense is not paid under (i) or (ii) above.
(b) Each Agent severally and not jointly agrees to indemnify and hold harmless the Company,
its directors, each of its officers who signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of the Act against any and all loss,
liability, claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, but only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any amendment thereto), the
Prospectus (or any amendment or supplement thereto) or any Permitted Free Writing Prospectus (or
any amendment or supplement to any such Permitted Free Writing Prospectus) in reliance upon and in
conformity with written information furnished to the Company by such Agent expressly for use in the
Registration Statement (or any amendment thereto), the Prospectus (or any amendment or supplement
thereto) or Permitted Free Writing Prospectus. For purposes of this Agreement, the written
information furnished by or on behalf of any Agent to the Company is the information in (A) the
third, fourth and fifth sentences of the third paragraph, (B) the fourth paragraph, (C) the fifth
paragraph with respect to the Agents only, and (D) the second sentence of the eighth paragraph,
each under the caption “Plan of Distribution” in the supplement to the form of prospectus described
in the third sentence of Section 1(a) hereto.
(c) Each indemnified party shall give prompt notice to each indemnifying party of any action
commenced against it in respect of which indemnity may be sought hereunder, but failure to so
notify an indemnifying party shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. 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 (i) 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, or (ii) the use of
counsel chosen by the indemnifying party would present such counsel with a conflict of interest,
the indemnified party or parties shall have the right to select separate counsel to assert such
legal defense or represent it 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 (A) 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 or because a conflict of interest of counsel chosen
by the indemnifying party (it being understood, however, that the indemnifying parties shall not be
liable for the fees and expenses of more than one counsel (other than local counsel), approved by
the Agents, for all indemnified parties in connection with any one action or separate but similar
or related actions in the same jurisdiction arising out of the
21
same general allegations or circumstances), (B) 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 (C) 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 (A) or (C) is applicable, such liability shall be only in respect
of the counsel referred to in such clause (A) or (C). No indemnifying party shall (I) without the
prior written consent of the indemnified parties (which consent shall not be unreasonably
withheld), settle or compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or potential parties to
such claim or action) unless such settlement, compromise or consent (x) includes an unconditional
release of each indemnified party from all liability arising out of such claim, action, suit or
proceeding and (y) does not include a statement as to or an admission of fault, culpability or
failure to act by or on behalf of any indemnified party, or (II) be liable for any settlement of
any such action effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss or liability by reason of such
settlement or judgment.
(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 Agent whose claim is
subject to contribution, on the other, from the offering of the Notes 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 such Agent, 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 Agents, 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 Notes (before deducting expenses) received by the Company bear to the total discounts and
commissions received by any Agent 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 Agent, 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 Agents 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 Agents 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
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
22
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 Agent shall be required to contribute any amount in excess of the amount by which the
total price at which the Notes sold through such Agent and distributed to the public were offered
to the public exceeds the amount of any damages which such Agent 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 Agents’ obligations under this Section 7(d) to contribute are
several in proportion to the respective principal amounts of Notes purchased by each such Agent in
such offering and not joint.
8. Termination. This Agreement may be terminated for any reason, at any time by any
party hereto, with respect to such party, upon the giving of 30 days written notice of such
termination to the other parties hereto. You may also terminate any Terms Agreement, immediately
upon notice to the Company, at any time prior to the Settlement Date if 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 your
reasonable judgment, makes it impracticable to market the Notes or enforce contracts for the sale
of Notes, (ii) a suspension or material limitation in trading in securities generally on the New
York Stock Exchange if the effect of any such event, in your reasonable judgment, is to make it
impracticable or inadvisable to proceed with the solicitation of offers to purchase the Notes or
the purchase of the Notes from the Company, as principal on the terms and in the manner
contemplated by the Prospectus, as amended or supplemented; (iii) a general moratorium on
commercial banking activities in New York declared by either Federal or New York State authorities;
(iv) any material disruption in commercial banking, securities settlement or clearance services,
(v) the outbreak or escalation of hostilities involving the United States or the declaration by the
United States of a national emergency or war, other than any such outbreak, escalation or
declaration that does not represent a significant departure from the conditions that exist on the
date of such Terms Agreement, if the effect of any such event in your reasonable judgment is to
make it impracticable or inadvisable to proceed with the solicitation of offers to purchase the
Notes or the purchase of the Notes from the Company as principal on the terms and in the manner
contemplated by the Prospectus, as amended or supplemented; (vi) the suspension in trading in the
securities of the Company on any national securities exchange or quotation system on which they are
listed or quoted if the effect of such event in your reasonable judgment is to make it
impracticable or inadvisable to proceed with the solicitation of offers to purchase the Notes or
the purchase of the Notes from the Company as principal on the terms and in the manner contemplated
by the Prospectus, as amended or supplemented; or (vii) any downgrading in the rating accorded the
Company’s senior debt securities by any “nationally recognized statistical rating organization”, as
that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act. In the event
of any such termination, neither party will have any liability to the other party hereto, except
that (a) the Agents shall be entitled to any commissions earned in accordance with Section
2(a) hereof, (b) if at the time of termination (1) the Agent shall own any of the Notes
acquired pursuant to a Terms Agreement with the
23
intention of reselling them or (2) an offer to purchase any of the Notes has been accepted by the
Company but the time of delivery to the purchaser or his agent of the Note or Notes relating
thereto has not occurred, the covenants set forth in Sections 3, 4 and 6
hereof shall remain in effect until such Notes are so resold or delivered, as the case may be, and
(c) the covenants set forth in Sections 4(d) and 4(i) hereof, the indemnity
agreement set forth in Section 7 hereof, and the provisions of Sections 9,
13 and 14 hereof shall remain in effect.
The Company also agrees to offer to any person who has agreed to purchase Notes as a result of
an offer to purchase solicited by any Agent the right to refuse to purchase and pay for such Notes
if, on the related Settlement Date fixed pursuant to the Procedures, any of the following events
has 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, which materially impairs the investment quality of the Notes; (ii) any
downgrading in the rating accorded the Company’s senior debt securities by any “nationally
recognized statistical rating organization”, as that term is defined by the Commission for purposes
of Rule 436(g)(2) under the Act; (iii) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange; (iv) a material disruption in commercial banking,
securities settlement or clearance services, (v) the suspension in trading in the securities of the
Company on any national securities exchange or quotation system on which they are listed or quoted;
(vi) a banking moratorium shall have been declared either by federal or New York state authorities;
or (vii) any outbreak or escalation of hostilities or other national or international calamity or
crises, if the effect of any such event specified in clauses (iii), (iv), (v), (vi) or (vii) make
it impracticable to proceed with the sale or delivery of the Notes on the terms and in the manner
contemplated in the Prospectus.
9. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company, its officers and you
set forth in or made pursuant to this Agreement or any Terms Agreement will remain in full force
and effect, regardless of any investigation made by you or on your behalf or the Company or any of
the officers, directors, employees, agents or controlling persons referred to in Section 7
hereof, and will survive delivery of and payment for the Notes. The provisions of Sections
6 and 7 hereof shall survive the termination or cancellation of this Agreement.
10. Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) In connection with the offerings contemplated hereby, each Agent is and has been acting
solely as a principal in connection with the sale of the Notes and no fiduciary, advisory or
(except to the extent expressly set forth herein) agency relationship between the Company and any
Agent has been created in respect of any of the transactions contemplated by this Agreement,
irrespective of whether such Agent has advised or is advising the Company on other matters;
(b) The purchase and sale of the Notes pursuant to this Agreement, including the determination
of the public offering price of the Notes and any related discounts and commissions, are
arms-length transactions between the Company, on the one hand, and the
24
Agents, on the other hand, and the Company is capable of evaluating and understanding and
understands and accepts the terms, risks and conditions of the transactions contemplated by this
Agreement;
(c) The Company has been advised that the Agents and their affiliates are engaged in a broad
range of transactions which may involve interests that differ from those of the Company and that
the Agents have no obligation to disclose such interests and transactions to the Company by virtue
of any fiduciary, advisory or agency relationship; and
(d) The Company waives, to the fullest extent permitted by law, any claims it may have against
the Agents for breach of fiduciary duty or alleged breach of fiduciary duty and agrees that the
Agents shall have no liability (whether direct or indirect) to the Company in respect of such a
fiduciary duty claim or (to the extent such an agreement by the Company is enforceable) to any
person asserting a fiduciary duty claim on behalf of or in right of the Company, including
stockholders, employees or creditors of the Company.
11. Notices. All communications hereunder will be in writing and effective only on
receipt, and, if sent to you, will be mailed, delivered or telecopied and confirmed to you, at the
addresses specified in Schedule I hereto; or, if sent to the Company, will be mailed,
delivered or telecopied and confirmed to International Lease Finance Corporation, 00000
Xxxxxxxxxxxxx Xxxxxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000, Attention: Treasurer.
12. Integration. This Agreement supersedes all prior agreements and understandings
(whether written or oral) between the Company and the Agents, or any of them, with respect to the
subject matter hereof.
13. Successors. This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and the officers, directors, employees, agents and
controlling persons referred to in Section 7 hereof, and no other person will have any
right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and construed in accordance
with the laws of the State of New York.
25
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 you and the Company.
| Very truly yours, | ||||||
| INTERNATIONAL LEASE FINANCE CORPORATION | ||||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||||
| Name: | Xxxxxx X. Xxxxxx | |||||
| Title: | Senior Vice President, Treasurer and | |||||
| Assistant Secretary | ||||||
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above written:
hereby confirmed and accepted
as of the date first above written:
| ABN AMRO INCORPORATED | BNP PARIBAS SECURITIES CORP. | |||||||||||||
By:
|
/s/ Xxxxx XxXxxx | By: | /s/ Xxx Xxxxxxxxx | |||||||||||
Name:
|
Xxxxx XxXxxx | Name: | Xxx Xxxxxxxxx | |||||||||||
Title:
|
Managing Director | Title: | Managing Director | |||||||||||
| BANC OF AMERICA SECURITIES LLC | CITIGROUP GLOBAL MARKETS INC. | |||||||||||||
By:
|
/s/ Xxxxx X. Xxxxxxxx | By: | /s/ Xxxx X. XxXxxxxxx | |||||||||||
Name:
|
Xxxxx X. Xxxxxxxx | Name: | Xxxx X. XxXxxxxxx | |||||||||||
Title:
|
Vice President | Title: | Managing Director | |||||||||||
| BARCLAYS CAPITAL INC. | CREDIT SUISSE SECURITIES (USA) LLC | |||||||||||||
By:
|
/s/ Xxxxxx Xxxxxxx | By: | /s/ Xxxxxx Xxxxxxxx | |||||||||||
Name:
|
Xxxxxx Xxxxxxx | Name: | Xxxxxx Xxxxxxxx | |||||||||||
Title:
|
Director | Title: | Director | |||||||||||
| DEUTSCHE BANK SECURITIES INC. | XXXXXXX XXXXX, XXXXXX, XXXXXX & | |||||||||||||
| XXXXX INCORPORATED | ||||||||||||||
By:
|
/s/ Xxxxx Xxxxxxxxx | By: | /s/ [Illegible] | |||||||||||
Name:
|
Xxxxx Xxxxxxxxx | Name: | [Illegible] | |||||||||||
Title:
|
Director | Title: | [Illegible] | |||||||||||
By: |
/s/ Xxxx Xxxxxxxxxx | |||||||||||||
Name: |
Xxxx Xxxxxxxxxx | |||||||||||||
Title: |
Managing Director | |||||||||||||
| HSBC SECURITIES (USA) INC. | MITSUBISHI UFJ SECURITIES INTERNATIONAL PLC | |||||||||||||
By:
|
/s/ Xxxxx X. Xxxxx | By: | /s/ Xxxxxxxx Xxxxxxx | |||||||||||
Name:
|
Xxxxx X. Xxxxx | Name: | Xxxxxxxx Xxxxxxx | |||||||||||
Title:
|
Vice President | Title: | Managing Director | |||||||||||
| X.X. XXXXXX SECURITIES INC. | SCOTIA CAPITAL (USA) INC. | |||||||||||||
By:
|
/s/ Xxxxx Xxxxxx | By: | /s/ Xxxx Xxxxxxxxx | |||||||||||
Name:
|
Xxxxx Xxxxxx | Name: | Xxxx Xxxxxxxxx | |||||||||||
Title:
|
Executive Director | Title: | Managing Director | |||||||||||
| XXXXXX BROTHERS INC. | UBS SECURITIES LLC | |||||||||||||
By:
|
/s/ Xxxxxxx Xxxxxxxx | By: | /s/ Xxxxxxx Xxxxxx | |||||||||||
Name:
|
Xxxxxxx Xxxxxxxx | Name: | Xxxxxxx Xxxxxx | |||||||||||
Title:
|
Managing Director | Title: | Executive Director | |||||||||||
| By: | /s/ Xxxxxxxxxxx Xxxxxxxx | |||||||||||||
| Name: | Xxxxxxxxxxx Xxxxxxxx | |||||||||||||
| Title: | Associate Director | |||||||||||||
| WACHOVIA CAPITAL MARKETS, LLC | ||||||||||||||
By: |
/s/ Xxxxxx Xxxxxxx | |||||||||||||
Name: |
Xxxxxx Xxxxxxx | |||||||||||||
Title: |
Director | |||||||||||||
SCHEDULE I
Registration Statement No. 333-136681
Amount of the Notes: $10,000,000,000
Amount of the Securities: Indeterminate
Address for Notice to Agents:
ABN AMRO Incorporated
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxx, Medium-Term Note Department
Telecopy number: (000) 000-0000
Telephone number: (000) 000-0000
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxx, Medium-Term Note Department
Telecopy number: (000) 000-0000
Telephone number: (000) 000-0000
Banc of America Securities LLC
NY1-040-27-03
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: High Grade Transaction Management
Telecopy number: (000) 000-0000
Telephone number: (000) 000-0000
NY1-040-27-03
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: High Grade Transaction Management
Telecopy number: (000) 000-0000
Telephone number: (000) 000-0000
Barclays Capital Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: MTN Trading
Telecopy number: (000) 000-0000
Telephone number: (000) 000-0000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: MTN Trading
Telecopy number: (000) 000-0000
Telephone number: (000) 000-0000
BNP Paribas Securities Corp.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: MTN Desk
Telecopy number: (000) 000-0000
Telephone number: (000) 000-0000
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: MTN Desk
Telecopy number: (000) 000-0000
Telephone number: (000) 000-0000
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Transaction Execution Group
Telecopy number: (000) 000-0000
Telephone number: (000) 000-0000
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Transaction Execution Group
Telecopy number: (000) 000-0000
Telephone number: (000) 000-0000
Credit Suisse Securities (USA) LLC
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn : Xxxxxxx, Medium-Term Note Department
Telecopy number: (000) 000-0000
Telephone number: (000) 000-0000
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn : Xxxxxxx, Medium-Term Note Department
Telecopy number: (000) 000-0000
Telephone number: (000) 000-0000
Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Medium-Term Note Desk
Telecopy number: (000) 000-0000
Telephone number: (000) 000-0000
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Medium-Term Note Desk
Telecopy number: (000) 000-0000
Telephone number: (000) 000-0000
HSBC Securities (USA) Inc.
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx
Telecopy number: (000) 000-0000
Telephone number: (000) 000-0000
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx
Telecopy number: (000) 000-0000
Telephone number: (000) 000-0000
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Transaction Execution Group
Telecopy number: (000) 000-0000
Telephone number: (000) 000-0000
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Transaction Execution Group
Telecopy number: (000) 000-0000
Telephone number: (000) 000-0000
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Debt Capital Markets, Financial Institutions Group
Telecopy number: (000) 000-0000
Telephone number: (000) 000-0000
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Debt Capital Markets, Financial Institutions Group
Telecopy number: (000) 000-0000
Telephone number: (000) 000-0000
with a copy to the General Counsel at the same address
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated
4 World Financial Center, Floor 00
Xxx Xxxx, Xxx Xxxx 10080
Attn: MTN Product Management
Telecopy number: (000) 000-0000
Telephone number: (000) 000-0000
4 World Financial Center, Floor 00
Xxx Xxxx, Xxx Xxxx 10080
Attn: MTN Product Management
Telecopy number: (000) 000-0000
Telephone number: (000) 000-0000
Mitsubishi UFJ Securities International plc
0 Xxxxxxxxx
Xxxxxx XX0X 0XX
Attn: Legal Dept — Transaction Management
Telecopy number: (00 000) 000-0000
Telephone number: (00 000) 000-0000
0 Xxxxxxxxx
Xxxxxx XX0X 0XX
Attn: Legal Dept — Transaction Management
Telecopy number: (00 000) 000-0000
Telephone number: (00 000) 000-0000
Scotia Capital (USA) Inc.
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Fixed Income Syndicate
Telecopy number: (000) 000-0000
Telephone number: (000) 000-0000
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Fixed Income Syndicate
Telecopy number: (000) 000-0000
Telephone number: (000) 000-0000
UBS Securities LLC
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: Fixed Income Syndicate
Telecopy number: (000) 000-0000
Telephone number: (000) 000-0000
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: Fixed Income Syndicate
Telecopy number: (000) 000-0000
Telephone number: (000) 000-0000
Wachovia Capital Markets, LLC
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Transaction Management Group
Telecopy number: (000) 000-0000
Telephone number: (000) 000-0000
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Transaction Management Group
Telecopy number: (000) 000-0000
Telephone number: (000) 000-0000
Securities to be delivered by book-entry transfer.
SCHEDULE II
INTERNATIONAL LEASE FINANCE CORPORATION
(a California corporation)
(a California corporation)
Medium-Term Notes, Series R
TERMS AGREEMENT
, 20__
International Lease Finance Corporation
International Lease Finance Corporation
00000 Xxxxxxxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: President
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: President
Re:
Amended and Restated Distribution Agreement dated February 21, 2008
International Lease Finance Corporation, a California corporation (the “Company”), has
previously entered into the Amended and Restated Distribution
Agreement, dated February 21, 2008
(the “Amended and Restated Distribution Agreement”), by and among the Company and the Agents
referenced therein, with respect to the issue and sale by the Company of its Medium-Term Notes,
Series R. This Terms Agreement (this “Agreement”) relates to $[ ] principal amount of the
Medium-Term Notes, Series R (the “Notes”).
[The undersigned] [Each of the purchasers identified on Schedule I attached hereto] ([the]
[each a] “Purchaser”) agrees[, severally and not jointly,] to purchase, at the purchase price set
forth below, [$ principal amount] [the principal amount] of the Notes [set forth next
to such Purchaser’s name on Schedule I attached hereto]. The Notes have the terms set forth below:
Interest Rate:
Date of Maturity:
Redemption Date:
Purchase Price: ___%
Settlement Date and Time:
Interest Payment Dates:
[Redemption Provisions:]
[Call date and price:
[Make-whole call:
[Other Provisions:]
Denominations:
Date of Maturity:
Redemption Date:
Purchase Price: ___%
Settlement Date and Time:
Interest Payment Dates:
[Redemption Provisions:]
[Call date and price:
[Make-whole call:
[Other Provisions:]
Denominations:
Exceptions, if any, to Section 4(n) of the Amended and Restated Distribution
Agreement:
The certificate referred to in Section 4(k) of the Amended and Restated Distribution
Agreement will be required pursuant to Section 5 of the Amended and Restated Distribution
Agreement. [The opinions referred to in Section 4(l) of the Amended and Restated
Distribution Agreement and the accountants’ letter referred to in Section 4(m) of the
Amended and Restated Distribution Agreement will be required pursuant to Section 5 of the
Amended and Restated Distribution Agreement.]
Pursuant to Section 1(i) of the Amended and Restated Distribution Agreement,
“Applicable Time” shall mean [ ]:00 [a/p]m (Eastern Time) on [INSERT DATE].
This Agreement shall be subject to the termination provisions of Section 8 of the
Amended and Restated Distribution Agreement.
If one or more of the Purchasers shall fail at the Settlement Date to purchase the Notes which
it or they are obligated to purchase (the “Defaulted Notes”), then the non-defaulting Purchasers
(the “non-defaulting Purchasers”) shall have the right, within 24 hours thereafter, to make
arrangements for one or more of them to purchase all, but not less than all, of the Defaulted Notes
in such amounts as may be agreed upon and upon the terms herein set forth; provided, however, that
if such arrangements shall not have been completed within such 24-hour period, then:
(A) if the aggregate principal amount of the Defaulted Notes does not exceed 9.09% of
the aggregate principal amount of Notes to be so purchased hereunder on the Settlement Date,
the non-defaulting Purchasers shall be obligated, severally and not jointly, to purchase the
full amount thereof in the proportions that their respective initial underwriting
obligations bear to the underwriting obligations of all non-defaulting Purchasers; or
(B) if the aggregate principal amount of the Defaulted Notes exceeds 9.09% of the
aggregate principal amount of Notes to be so purchased hereunder on the Settlement Date,
this Agreement shall terminate without liability on the part of any non-defaulting
Purchaser.
No action taken pursuant to this paragraph shall relieve any defaulting Purchasers from liability
in respect of its default. In the event of any such default which does not result in a termination
of this Agreement, either the non-defaulting Purchasers or the Company shall have the right to
postpone the Settlement Date for a period not exceeding seven days in order to effect any required
changes in the Registration Statement, any supplement to the Prospectus or any other documents or
arrangements.
This Agreement will be governed by and construed in accordance with the laws of the State of
New York. This Agreement may be executed in one or more counterparts and the executed counterparts
taken together shall constitute one and the same agreement.
| By: | ||||||
| Name: | ||||||
| Title: |
Accepted:
International Lease Finance
Corporation
Corporation
By: |
||||
Name:
|
||||
Title: |
Exhibit A
MEDIUM-TERM NOTE ADMINISTRATIVE
PROCEDURES FOR FIXED RATE AND FLOATING RATE NOTES
(Dated as of February 21, 2008)
PROCEDURES FOR FIXED RATE AND FLOATING RATE NOTES
(Dated as of February 21, 2008)
Medium-Term Notes, Series R (the “Notes”), in the aggregate principal amount of up to U.S.
$10,000,000,000 are to be offered on a continuing basis by International Lease Finance Corporation
(the “Company”) through ABN AMRO Incorporated, Banc of America Securities LLC, Barclays Capital
Inc., BNP Paribas Securities Corp., Citigroup Global Markets Inc., Credit Suisse Securities (USA)
LLC, Deutsche Bank Securities Inc., HSBC Securities (USA) Inc., X.X. Xxxxxx Securities Inc., Xxxxxx
Brothers Inc., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Mitsubishi UFJ Securities
International plc, Scotia Capital (USA) Inc., UBS Securities LLC and Wachovia Capital Markets, LLC,
who, as agents (each an “Agent,” and, collectively, the “Agents”), have agreed to use their best
efforts to solicit offers to purchase the Notes from the Company. The Agents may also purchase
Notes as principal for resale.
The Notes are being sold pursuant to the Amended and Restated Distribution Agreement, dated
February 21, 2008 (the “Distribution Agreement”), by and between the Company and the Agents. The
Notes will be issued pursuant to an Indenture (the “Indenture”), dated as of August 1, 2006,
between the Company and Deutsche Bank Trust Company Americas, a New York banking corporation, as
trustee (the “Trustee”), as may be amended from time to time. A Registration Statement (the
“Registration Statement”, which term shall include any additional registration statements filed in
connection with the Notes as provided in the introductory paragraph of the Distribution Agreement)
with respect to the Notes has been filed with the Securities and Exchange Commission (the
“Commission”). The most recent basic Prospectus included in the Registration Statement, as
supplemented with respect to the Notes, is herein referred to as the “Prospectus Supplement.” The
most recent supplement to the Prospectus with respect to the specific terms of the Notes is herein
referred to as the “Pricing Supplement.”
The Notes will either be issued (a) in book-entry form and represented by one or more fully
registered Notes (each, a “Book-Entry Note”) delivered to the Trustee, as agent for The Depository
Trust Company (“DTC”), and recorded in the book-entry system maintained by DTC, or (b) in
certificated form delivered to the purchaser thereof or a person designated by such purchaser.
Owners of beneficial interests in Notes issued in book-entry form will be entitled to
physical delivery of Notes in certificated form equal in principal amount to their respective
beneficial interests only upon certain limited circumstances described in the Prospectus.
General procedures relating to the issuance of all Notes are set forth in Part I hereof.
Additionally, Notes issued in book-entry form will be issued in accordance with the procedures set
forth in Part II hereof and Notes issued in certificated form will be issued in accordance with the
procedures set forth in Part III hereof. Capitalized terms used herein that are not otherwise
defined shall have the meanings ascribed thereto in the Indenture or the Notes, as the case may be.
A notice provided pursuant to Rule 173 of the Securities Act of 1933, as amended (the “Act”) in
lieu of a Prospectus Supplement (including the Pricing Supplement) is herein referred to as the
“Rule 173 Notice.”
2
| PART I: | PROCEDURES OF GENERAL APPLICABILITY | |||
| Date of Issuance/ Authentication: | Each Note will be dated as of the date of its authentication by the Trustee. Each Note shall also bear an original issue date (the “Original Issue Date”). The Original Issue Date shall remain the same for all Notes subsequently issued upon transfer, exchange or substitution of an original Note regardless of their dates of authentication. | |||
| Maturities: | Each Note will mature on a date selected by the purchaser and agreed to by the Company which is not less than nine months from its Original Issue Date; provided, however, that Notes bearing interest at rates determined by reference to selected indices (“Floating Rate Notes”) will mature on an Interest Payment Date. | |||
| Registration: | Notes will be issued only in fully registered form. | |||
| Calculation of Interest: | In the case of Notes bearing interest at fixed rates (“Fixed Rate Notes”) interest (including payments for partial periods) will be calculated and paid on the basis of a 360-day year of twelve 30-day months. In the case of Floating Rate Notes, interest will be calculated and paid on the basis of the actual number of days in the interest period divided by 360 for CD Rate, Commercial Paper Rate, Eleventh District Cost of Funds Rate, Federal Funds Rate, Prime Rate or LIBOR Notes and on the basis of the actual number of days in the interest period divided by the actual number of days in the year for CMT Rate or Treasury Rate Notes. | |||
| Acceptance and Rejection of Offers: | The Company shall have the sole right to accept offers to purchase Notes from the Company and may reject any such offer in whole or in part. Each Agent shall communicate to the Company, orally or in writing, each reasonable offer to purchase Notes from the Company received by it. Each Agent shall have the right, in its discretion reasonably exercised, without notice to the Company, to reject any offer to purchase Notes through it in whole or in part. | |||
| Preparation of Pricing Supplement: | If any offer to purchase a Note is accepted by the Company, the Company, with the assistance of the Agent which presented such offer (the “Presenting Agent”), will prepare a Pricing Supplement reflecting the terms of such Note and file such Pricing Supplement relating to the Notes and the | |||
3
| plan of distribution thereof, if changed (the “Supplemented Prospectus”), with the Commission in accordance with Rule 424 under the Act. The Presenting Agent will cause a stickered Supplemented Prospectus or a Rule 173 Notice to be delivered to the purchaser of the Note. | ||||
| In addition, the Company shall deliver each completed Pricing Supplement, via next day mail or telecopy to arrive no later than 11:00 A.M. on the Business Day following the trade date, to the Presenting Agent at the following locations: | ||||
| If to ABN AMRO Incorporated: | ||||
| ABN AMRO Incorporated | ||||
| 00 Xxxx 00xx Xxxxxx | ||||
| New York, New York 10055 | ||||
| Attention: Xxxxx Xxxxxx, Medium-Term Note Department | ||||
| Telecopy number: (000) 000-0000 | ||||
| Telephone number: (000) 000-0000 | ||||
| If to Banc of America Securities LLC: | ||||
| Banc of America Securities LLC | ||||
| NY1-040-27-03 | ||||
| 00 Xxxx 00xx Xxxxxx | ||||
| New York, New York 10019 | ||||
| Attention: High Grade Transaction Management | ||||
| Telecopy number: (000) 000-0000 | ||||
| Telephone number: (000) 000-0000 | ||||
4
| If to Barclays Capital Inc.: | ||||
| Barclays Capital Inc. | ||||
| 000 Xxxx Xxxxxx | ||||
| New York, New York 10166 | ||||
| Attention: U.S. Transaction Mgmt. | ||||
| Telecopy number: (000) 000-0000 | ||||
| Telephone number: (000) 000-0000 | ||||
| with a copy to: | ||||
| Barclays Capital Inc. | ||||
| c/o Broadridge Prospectus | ||||
| 0000 Xxxx Xxxxxx Xxxxxx | ||||
| Edgewood, New York 11717 | ||||
| Telecopy number: (000) 000-0000 | ||||
| If to BNP Paribas Securities Corp.: | ||||
| BNP Paribas Securities Corp. | ||||
| 000 Xxxxxxx Xxxxxx | ||||
| New York, New York 10019 | ||||
| Attention: MTN Desk | ||||
| Telecopy number: (000) 000-0000 | ||||
| Telephone number: (000) 000-0000 | ||||
| If to Citigroup Global Markets Inc: | ||||
| Citigroup Global Markets Inc. | ||||
| 000 Xxxxxxxxx Xxxxxx | ||||
| New York, New York 10013 | ||||
| Attention: Transaction Execution Group | ||||
| Telecopy number: (000) 000-0000 | ||||
| Telephone number: (000) 000-0000 | ||||
5
| If to Credit Suisse Securities (USA) LLC: | ||||
| Credit Suisse Securities (USA) LLC | ||||
| 00 Xxxxxxx Xxxxxx | ||||
| New York, New York 10010 | ||||
| Attention: Xxxxxx Xxxxxxx, Medium-Term Note Department | ||||
| Telecopy number: (000) 000-0000 | ||||
| Telephone number: (000) 000-0000 | ||||
| If to Deutsche Bank Securities Inc.: | ||||
| Deutsche Bank Securities Inc. | ||||
| 00 Xxxx Xxxxxx | ||||
| New York, New York 10005 | ||||
| Attention: Medium-Term Note Desk | ||||
| Telecopy number: (000) 000-0000 | ||||
| Telephone number: (000) 000-0000 | ||||
| If to HSBC Securities (USA) Inc.: | ||||
| HSBC Securities (USA) Inc. | ||||
| 000 Xxxxx Xxxxxx, 0xx Floor | ||||
| New York, New York 10018 | ||||
| Attention: Xxxxxx X. Xxxxxxx | ||||
| Telecopy number: (000) 000-0000 | ||||
| Telephone number: (000) 000-0000 | ||||
| also, for record keeping purposes, please send a copy to: | ||||
| Broadridge Financial Solutions | ||||
| c/o HSBC Securities (USA), Inc. | ||||
| 0000 Xxxx Xxxxxx Xxxxxx, Xxx 0-0 | ||||
| Edgewood, New York 11717 | ||||
| Attention: Xxxxxxx Xxxxxxxx | ||||
| Telecopy number: (000) 000-0000 | ||||
| Telephone number: (000) 000-0000 | ||||
6
| If to X.X. Xxxxxx Securities Inc.: | ||||
| X.X. Xxxxxx Securities Inc. | ||||
| 000 Xxxx Xxxxxx, 0xx Floor | ||||
| New York, New York 10017 | ||||
| Attention: Transaction Execution Group | ||||
| Telecopy number: (000) 000-0000 | ||||
| Telephone number: (000) 000-0000 | ||||
| If to Xxxxxx Brothers Inc.: | ||||
| Xxxxxx Brothers Inc. | ||||
| 000 Xxxxxxx Xxxxxx | ||||
| New York, New York 10019 | ||||
| Attention: Debt Capital Markets, Financial Institutions Group | ||||
| Telecopy number: (000) 000-0000 | ||||
| Telephone number: (000) 000-0000 | ||||
| also, for record keeping purposes, please send a copy to: | ||||
| Broadridge Financial Solutions | ||||
| For Xxxxxx Brothers Inc. | ||||
| 0000 Xxxx Xxxxxx Xxxxxx | ||||
| Edgewood, New York 11717 | ||||
| Attention: Client Services Desk | ||||
| Telecopy number: (000) 000-0000 | ||||
| If to Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated: | ||||
| Broadridge Integrated Distribution Services | ||||
| For Xxxxxxx Xxxxx | ||||
| 0000 Xxxx Xxxxxx Xxxxxx | ||||
| Edgewood, New York 11717’ | ||||
| Attention: Debt/Medium-Term Notes | ||||
| Email: xxxxxxxxxxxxxxxxx@xxxxxxxxxx.xxx | ||||
| Telecopy number: (000) 000-0000 | ||||
| Telephone number: (000) 000-0000 | ||||
| If to Mitsubishi UFJ Securities International plc: | ||||
| Mitsubishi UFJ Securities International plc 0 Xxxxxxxxx |
||||
7
| London EC2M 2AA | ||||
| Attention: Legal Dept – Transaction Management | ||||
| Telecopy number: (00 000) 000-0000 | ||||
| Telephone number: (00 000) 000-0000 | ||||
| If to Scotia Capital (USA) Inc.: | ||||
| Scotia Capital (USA) Inc. | ||||
| One Liberty Plaza | ||||
| New York, New York 10006 | ||||
| Attention: Fixed Income Syndicate | ||||
| Telecopy number: (000) 000-0000 | ||||
| Telephone number: (000) 000-0000 | ||||
| If to UBS Securities LLC: | ||||
| UBS Securities LLC | ||||
| 000 Xxxxxxxxxx Xxxxxxxxx | ||||
| Stamford, Connecticut 06901 | ||||
| Attention: Fixed Income Syndicate | ||||
| Telecopy number: (000) 000-0000 | ||||
| Telephone number: (000) 000-0000 | ||||
| If to Wachovia Capital Markets, LLC: | ||||
| Wachovia Capital Markets, LLC | ||||
| One Wachovia Center | ||||
| 000 Xxxxx Xxxxxxx Xxxxxx | ||||
| Charlotte, North Carolina 28202 | ||||
| Attention: Transaction Management Group | ||||
| Telecopy number: (000) 000-0000 | ||||
| Telephone number: (000) 000-0000 | ||||
| In each instance that a Pricing Supplement is prepared, the Agents will affix the Pricing Supplement to Supplemented Prospectuses prior to their use. Outdated Pricing Supplements, and the Supplemented Prospectuses to which they are attached (other than those retained for files) will be destroyed. | ||||
| Settlement: | The receipt of immediately available funds by the Company in payment for a Note and the authentication and delivery of such Note shall, with respect to such Note, constitute “settlement.” Offers accepted by the Company will be settled from three to five Business Days after the Company’s acceptance of the offer, or at a time as the | |||
8
| purchaser and the Company shall agree, pursuant to the timetable for settlement set forth in Parts II and III hereof under “Settlement Procedures” with respect to Book-Entry Notes and Certificated Notes, respectively. If procedures A and B of the applicable Settlement Procedures with respect to a particular offer are not completed on or before the time set forth under the applicable “Settlement Procedures Timetable,” such offer shall not be settled until the Business Day following the completion of settlement procedures A and B or such later date as the purchaser and the Company shall agree. | ||||
| In the event of a purchase of Notes by any Agent as principal, appropriate settlement details will be as agreed between the Agent and the Company pursuant to the applicable Terms Agreement. | ||||
| Procedure for Changing Rates or Other Variable Terms: |
When a decision has been reached to change the interest rate or any other variable term on any Notes being sold by the Company, the Company will promptly advise the Agents and the Agents will forthwith suspend solicitation of offers to purchase such Notes. The Agents will telephone the Company with recommendations as to the changed interest rates or other variable terms. At such time as the Company advises the Agents of the new interest rates or other variable terms, the Agents may resume solicitation of offers to purchase such Notes. Until such time only “indications of interest” may be recorded. Immediately after acceptance by the Company of an offer to purchase at a new interest rate or new variable term, the Company, the Presenting Agent and the Trustee shall follow the procedures set forth under the applicable “Settlement Procedures.” | |||
| Suspension of Solicitation; Amendment or Supplement: | The Company may instruct the Agents to suspend solicitation of purchases at any time. Upon receipt of such instructions the Agents will forthwith suspend solicitation of offers to purchase from the Company until such time as the Company has advised them that solicitation of offers to purchase may be resumed. If the Company decides to amend the Registration Statement (including incorporating any documents by reference therein) or supplement any of such documents (other than to change rates or other variable terms), it will promptly advise the Agents and will furnish the Agents and their counsel with copies of the proposed amendment (including any document proposed to be incorporated by reference therein) or supplement. One | |||
9
| copy of such filed document, along with a copy of the cover letter sent to the Commission, will be delivered or mailed to the Agents at the following respective addresses: | ||||
| ABN AMRO Incorporated | ||||
| 00 Xxxx 00xx Xxxxxx | ||||
| New York, New York 10055 | ||||
| Attention: Medium-Term-Note Department | ||||
| Banc of America Securities LLC | ||||
| NY1-040-27-03 | ||||
| 00 Xxxx 00xx Xxxxxx | ||||
| New York, New York 10019 | ||||
| Attention: High Grade Transaction Management | ||||
| Barclays Capital Inc. | ||||
| 000 Xxxx Xxxxxx | ||||
| New York, New York 10166 | ||||
| Attention: MTN Trading | ||||
| BNP Paribas Securities Corp. | ||||
| 000 Xxxxxxx Xxxxxx | ||||
| New York, New York 10019 | ||||
| Attention: MTN Desk | ||||
| Telecopy number: (000) 000-0000 | ||||
| Telephone number: (000) 000-0000 | ||||
| Citigroup Global Markets Inc. | ||||
| 000 Xxxxxxxxx Xxxxxx | ||||
| New York, New York 10013 | ||||
| Attention: Transaction Execution Group | ||||
| Credit Suisse Securities (USA) LLC | ||||
| 00 Xxxxxxx Xxxxxx | ||||
| New York, New York 10010 | ||||
| Attention: Xxxxxx Xxxxxxx, Medium-Term Note Department | ||||
| Deutsche Bank Securities Inc. | ||||
| 00 Xxxx Xxxxxx | ||||
| New York, New York 10005 | ||||
| Attention: Medium-Term Note Desk | ||||
| HSBC Securities (USA) Inc. | ||||
| 000 Xxxxx Xxxxxx, 0xx Floor | ||||
| New York, New York 10018 | ||||
10
| Attention: Xxxxxx X. Xxxxxxx | ||||
| also, for record keeping purposes, please send a copy to: | ||||
| Broadridge Financial Solutions | ||||
| c/o HSBC Securities (USA), Inc. | ||||
| 0000 Xxxx Xxxxxx Xxxxxx, Xxx 0-0 | ||||
| Edgewood, New York 11717 | ||||
| Attention: Xxxxxxx Xxxxxxxx | ||||
| Telecopy number: (000) 000-0000 | ||||
| Telephone number: (000) 000-0000 | ||||
| X.X. Xxxxxx Securities Inc. | ||||
| 000 Xxxx Xxxxxx, 0xx Floor | ||||
| New York, New York 10017 | ||||
| Attention: Transaction Execution Group | ||||
| Xxxxxx Brothers Inc. | ||||
| 000 Xxxxxxx Xxxxxx | ||||
| New York, New York 10019 | ||||
| Attention: Attention: Debt Capital Markets, Financial Institutions Group |
||||
| Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated | ||||
| Tritech Services | ||||
| 00-X Xxxxxxxx Xxxxx | ||||
| Piscataway, New Jersey 08854 | ||||
| Attention: Final Prospectus Unit/ | ||||
| Xxxxxxx Xxxxxxxxx | ||||
| Telephone number: (000) 000-0000 | ||||
| Telecopy number: (000) 000-0000/2775/2776 | ||||
| also, for record keeping purposes, | ||||
| please send a copy to: | ||||
| Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated | ||||
| 4 World Financial Center, Floor 15 | ||||
| New York, New York 10080 | ||||
| Attention: MTN Product Management | ||||
| Mitsubishi UFJ Securities International plc | ||||
| 0 Xxxxxxxxx | ||||
| London EC2M 2AA | ||||
| Attention: Legal Dept – Transaction Management | ||||
| Telecopy number: (00 000) 000-0000 | ||||
| Telephone number: (00 000) 000-0000 |
11
| Scotia Capital (USA) Inc. | ||||
| One Liberty Plaza | ||||
| New York, New York 10006 | ||||
| Attention: Fixed Income Syndicate | ||||
| Telecopy number: (000) 000-0000 | ||||
| Telephone number: (000) 000-0000 | ||||
| UBS Securities LLC | ||||
| 000 Xxxxxxxxxx Xxxxxxxxx | ||||
| Stamford, Connecticut 06901 | ||||
| Attention: Fixed Income Syndicate | ||||
| Telecopy number: (000) 000-0000 | ||||
| Telephone number: (000) 000-0000 | ||||
| Wachovia Capital Markets, LLC | ||||
| One Wachovia Center | ||||
| 000 Xxxxx Xxxxxxx Xxxxxx | ||||
| Charlotte, North Carolina 28202 | ||||
| Attention: Transaction Management Group | ||||
| Telecopy number: (000) 000-0000 | ||||
| Telephone number: (000) 000-0000 | ||||
| In the event that at the time the solicitation of offers to purchase from the Company is suspended (other than to change interest rates or other variable terms) there shall be any orders outstanding which have not been settled, the Company will promptly advise the Agents and the Trustee whether such orders may be settled and whether copies of the Prospectus as theretofore amended and/or supplemented as in effect at the time of the suspension or, in lieu thereof, Rule 173 Notices may be delivered in connection with the settlement of such orders. The Company will have the sole responsibility for such decision and for any arrangements which may be made in the event that the Company determines that such orders may not be settled or that copies of such Prospectus or, in lieu thereof, Rule 173 Notices may not be so delivered. | ||||
| Delivery of Prospectus or Rule 173 Notice: | A copy of the most recent Prospectus, Prospectus Supplement and Pricing Supplement or, in lieu thereof, the Rule 173 Notice, must be provided to a customer or his agent not later than two business days following settlement (which, for the purposes of this paragraph, is on the earlier of the second day following the date of settlement on which | |||
12
| the offices of the Securities and Exchange Commission are open or the second “Business Day,” as defined below, following the date of settlement). | ||||
| Authenticity of Signatures: | The Agents will have no obligations or liability to the Company or the Trustee in respect of the authenticity of the signature of any officer, employee or agent of the Company or the Trustee on any Note. | |||
| Documents Incorporated by Reference: |
The Company shall supply the Agents with an adequate supply of all documents incorporated by reference in the Registration Statement. | |||
| Business Day: | “Business Day” means any day that is not a Saturday or Sunday, and that, in The City of New York (and with respect to LIBOR Notes, the City of London), is neither a legal holiday nor a day on which banking institutions are authorized or required by law to close. For Notes the payment of which is to be made in a currency other than U.S. dollars or composite currencies (such currency or composite currency in which a Note is denominated is the “Specified Currency”), a Business Day will not be a day on which banking institutions are authorized or required by law, regulation or executive order to close in the Principal Financial Center (as defined below) of the country issuing such Specified Currency (or, in the case of EUROs), is not a day that the TARGET System (as defined below) is not open. However, with respect to Notes for which LIBOR is an applicable Interest Rate Basis, the day must be also be a London Business Day (as defined below). “London Business Day” means (i) if the currency (including composite currencies) specified in the applicable Pricing Supplement as the currency (the “Index Currency”) for which LIBOR is calculated is other than any day on which dealings in the Index Currency are transacted in the London interbank market or (ii) if the Index Currency is the EURO, is not a day on which payments in EURO cannot be settled in the TARGET System. If no currency or composite currency is specified in the applicable Pricing Supplement, the Index Currency shall be U.S. dollars. “Principal Financial Center” means the capital city of the country issuing the currency or composite currency in which any payment in respect of the Notes is to be made or, solely with respect to the calculation of LIBOR, the Index Currency. “TARGET System” means the Trans-European Automated Real-time Gross Settlement Express Transfer System. | |||
13
| PART II: | PROCEDURES FOR NOTES ISSUED IN BOOK-ENTRY FORM | |||
In connection with the qualification of Notes issued in book-entry form for eligibility in the
book-entry system maintained by DTC, the Trustee will perform the custodial, document control and
administrative functions described below, in accordance with its respective obligations under a
Letter of Representation from the Company and the Trustee to DTC (the “Certificate Agreement”), and
its obligations as a participant in DTC, including DTC’s Same-Day Funds Settlement System (“SDFS”).
| Issuance: | All Fixed Rate Notes issued in book-entry form having the same Original Issue Date, interest rate and Stated Maturity (collectively, the “Fixed Rate Terms”) will be represented initially by a single global security in fully registered form without coupons (each, a “Book-Entry Note”); and all Floating Rate Notes issued in book-entry form having the same Original Issue Date, base rate upon which interest may be determined (each, a “Base Rate”), which may be the Commercial Paper Rate, the Treasury Rate, LIBOR, the CD Rate, the CMT Rate, the Eleventh District Cost of Funds Rate, the Federal Funds Rate, the Prime Rate, any other rate set forth by the Company, Initial Interest Rate, Index Maturity, Spread or Spread Multiplier, if any, the minimum interest rate, if any, the maximum interest rate, if any, and the Stated Maturity (collectively, “Floating Rate Terms”) will be represented initially by a single Book-Entry Note. | |||
| Each Book-Entry Note will be dated and issued as of the date of its authentication by the Trustee. Each Book-Entry Note will bear an Interest Accrual Date, which will be (a) with respect to an original Book-Entry Note (or any portion thereof), its Original Issue Date and (b) with respect to any Book-Entry Note (or portion thereof) issued subsequently upon exchange of a Book-Entry Note or in lieu of a destroyed, lost or stolen Book-Entry Note, the most recent Interest Payment Date to which interest has been paid or duly provided for on the predecessor Book-Entry Note or Notes (or if no such payment or provision has been made, the Original Issue Date of the predecessor Book-Entry Note or Notes), regardless of the date of authentication of such subsequently issued Book-Entry Note. No Book-Entry Note shall represent any Note issued in certificated form. | ||||
| Identification: | The Company has arranged with the CUSIP Service Bureau of Standard & Poor’s Corporation (the “CUSIP Service | |||
14
| Bureau”) for the reservation of approximately 900 CUSIP numbers which have been reserved for and relating to Book-Entry Notes and the Company has delivered to the Trustee and DTC such list of such CUSIP numbers. The Company will assign CUSIP numbers to Book-Entry Notes as described below under Settlement Procedure B. DTC will notify the CUSIP Service Bureau periodically of the CUSIP numbers that the Company has assigned to Book-Entry Notes. The Trustee will notify the Company at any time when fewer than 100 of the reserved CUSIP numbers remain unassigned to Book-Entry Notes, and, if it deems necessary, the Company will reserve additional CUSIP numbers for assignment to Book-Entry Notes. Upon obtaining such additional CUSIP numbers, the Company will deliver a list of such additional numbers to the Trustee and DTC. Book-Entry Notes having an aggregate principal amount in excess of $500,000,000 (or the equivalent thereof in one or more foreign or composite currencies) and otherwise required to be represented by the same Global Certificate will instead be represented by two or more Global Certificates which shall all be assigned the same CUSIP number. | ||||
| Registration: | Each Book-Entry Note will be registered in the name of Cede & Co., as nominee for DTC, on the register maintained by the Trustee under the Indenture. The beneficial owner of a Note issued in book-entry form (i.e., an owner of a beneficial interest in a Book-Entry Note) (or one or more indirect participants in DTC designated by such owner) will designate one or more participants in DTC (with respect to such Note issued in book-entry form, the “Participants”) to act as agent for such beneficial owner in connection with the book-entry system maintained by DTC, and DTC will record in book-entry form, in accordance with instructions provided by such Participants, a credit balance with respect to such Note issued in book-entry form in the account of such Participants. The ownership interest of such beneficial owner in such Note issued in book-entry form will be recorded through the records of such Participants or through the separate records of such Participants and one or more indirect participants in DTC. | |||
| Transfers: | Transfers of a Book-Entry Note will be accomplished by book entries made by DTC and, in turn, by Participants (and in certain cases, one or more indirect participants in DTC) acting on behalf of beneficial transferors and transferees of such Book-Entry Note. | |||
15
| Exchanges: | The Trustee may deliver to DTC and the CUSIP Service Bureau at any time a written notice specifying (a) the CUSIP numbers of two or more Book-Entry Notes Outstanding on such date that represent Book-Entry Notes having the same Fixed Rate Terms or Floating Rate Terms, as the case may be, (other than Original Issue Dates) and for which interest has been paid to the same date; (b) a date, occurring at least 30 days after such written notice is delivered and at least 30 days before the next Interest Payment Date for the related Notes issued in book-entry form, on which such Book-Entry Notes shall be exchanged for a single replacement Book-Entry Note; and (c) a new CUSIP number, obtained from the Company, to be assigned to such replacement Book-Entry Note. Upon receipt of such a notice, DTC will send to its participants (including the Trustee) a written reorganization notice to the effect that such exchange will occur on such date. Prior to the specified exchange date, the Trustee will deliver to the CUSIP Service Bureau written notice setting forth such exchange date and the new CUSIP number and stating that, as of such exchange date, the CUSIP numbers of the Book-Entry Notes to be exchanged will no longer be valid. On the specified exchange date, the Trustee will exchange such Book-Entry Notes for a single Book-Entry Note bearing the new CUSIP number and the CUSIP numbers of the exchanged Book-Entry Notes will, in accordance with CUSIP Service Bureau procedures, be cancelled and not immediately reassigned. Notwithstanding the foregoing, if the Book-Entry Notes to be exchanged exceed $500,000,000 (or the equivalent thereof in one or more foreign or composite currencies) in aggregate principal amount, one replacement Book-Entry Note will be authenticated and issued to represent $500,000,000 of principal amount of the exchanged Book-Entry Notes and an additional Book-Entry Note or Notes will be authenticated and issued to represent any remaining principal amount of such Book-Entry Notes (See “Denominations” below). | |||
| Denominations: | All Notes issued in book-entry form will be denominated in U.S. dollars. Notes issued in book-entry form will be issued in denominations of $1,000 and any larger denomination which is an integral multiple of $1,000. Book-Entry Notes will be denominated in principal amounts not in excess of $500,000,000 (or the equivalent | |||
16
| thereof in one or more foreign or composite currencies). If one or more Notes issued in book-entry form having an aggregate principal amount in excess of $500,000,000 would, but for the preceding sentence, be represented by a single Book-Entry Note, then one Book-Entry Note will be issued to represent $500,000,000 principal amount of such Note or Notes issued in book-entry form and an additional Book-Entry Note or Notes will be issued to represent any remaining principal amount of such Note or Notes issued in book-entry form. In such a case, each of the Book-Entry Notes representing such Note or Notes issued in book-entry form shall be assigned the same CUSIP number. | ||||
| Interest: | General. Interest on each Note issued in book-entry form will accrue from the Interest Accrual Date of the Book-Entry Note representing such Note. Each payment of interest on a Note issued in book-entry form will include interest accrued through and including the day preceding, as the case may be, the Interest Payment Date (provided that in the case of Floating Rate Notes which reset daily or weekly, interest payments will include interest accrued to and including the Regular Record Date immediately preceding the Interest Payment Date), or the Stated Maturity (the date on which the principal of a Note becomes due and payable as provided in the Indenture, whether at the Stated Maturity or by declaration of acceleration, redemption, repayment or otherwise is referred to herein as the “Maturity”). Interest payable at Maturity of a Note issued in book-entry form will be payable to the Person to whom the principal of such Note is payable. DTC will arrange for each pending deposit message described under Settlement Procedure C below to be transmitted to Standard & Poor’s, a division of the XxXxxx-Xxxx Companies (“Standard & Poor’s”) which will use the information in the message to include certain terms of the related Book-Entry Note in the appropriate daily bond report published by Standard & Poor’s. | |||
| Regular Record Dates. Unless otherwise specified in the applicable Pricing Supplement, the Regular Record Date with respect to any Interest Payment Date for a Fixed Rate Note or a Floating Rate Note shall be the close of business on the date 15 calendar days (whether or not a Business Day) preceding such Interest Payment Date. | ||||
17
| Interest Payment Dates. Interest payments will be made on each Interest Payment Date commencing with the first Interest Payment Date following the Original Issue Date; provided, however, the first payment of interest on any Book-Entry Note originally issued between a Regular Record Date and an Interest Payment Date will occur on the Interest Payment Date following the next Regular Record Date. | ||||
| If an Interest Payment Date with respect to any Floating Rate Note issued in book-entry form would otherwise fall on a day that is not a Business Day with respect to such Note, such Interest Payment Date will be the following day that is a Business Day with respect to such Note, except that in the case of a LIBOR Note, if such day falls in the next calendar month, such Interest Payment Date will be the preceding day that is a London Business Day. | ||||
| Fixed Rate Notes. Unless otherwise specified in the applicable Pricing Supplement, interest payments on Fixed Rate Notes issued in book-entry form will be made semi-annually on April 15 and October 15 of each year and at Maturity. | ||||
| Floating Rate Notes. Interest payments on Floating Rate Notes issued in book-entry form will be made as specified in the Floating Rate Note. | ||||
| Notice of Interest Payments and Regular Record Dates. On the first Business Day of March, June, September and December of each year, the Trustee will deliver to the Company and DTC a written list of Regular Record Dates and Interest Payment Dates that will occur during the six-month period beginning on such first Business Day with respect to Floating Rate Notes issued in book-entry form. Promptly after each Interest Determination Date for Floating Rate Notes issued in book-entry form, the Trustee will notify Standard & Poor’s of the interest rates determined on such Interest Determination Date. | ||||
| Payments of Principal and Interest: | Payments of Interest Only. Promptly after each Regular Record Date, the Trustee will deliver to the Company and DTC a written notice specifying by CUSIP number the amount of interest to be paid on each Book-Entry Note on the following Interest Payment Date (other than an Interest Payment Date coinciding with Maturity) and the total of such amounts. DTC will confirm the amount payable on each Book-Entry Note on such Interest Payment Date by referring to the daily bond reports published by Standard & | |||
18
| Poor’s. On such Interest Payment Date, the Company will pay to the Trustee, and the Trustee in turn will pay to DTC, such total amount of interest due (other than at Maturity), at the times and in the manner set forth below under “Manner of Payment”. | ||||
| Payments at Maturity. On or about the first Business Day of each month, the Trustee will deliver to the Company and DTC a written list of principal, interest and premium, if any, to be paid on each Book-Entry Note maturing either at Stated Maturity or on a Redemption Date in the following month. The Trustee, the Company and DTC will confirm the amounts of such principal and interest payments with respect to a Book-Entry Note on or about the fifth Business Day preceding the Maturity of such Book-Entry Note. At such Maturity the Company will pay to the Trustee, and the Trustee in turn will pay to DTC, the principal amount of such Note, together with interest and premium, if any, due at such Maturity, at the times and in the manner set forth below under “Manner of Payment”. If any Maturity of a Book-Entry Note is not a Business Day, the payment due on such day shall be made on the next succeeding Business Day and no interest shall accrue on such payment for the period from and after such Maturity. Promptly after payment to DTC of the principal, interest and premium, if any, due at the Maturity of such Book-Entry Note, the Trustee will cancel such Book-Entry Note and deliver it to the Company with an appropriate debit advice. On the first Business Day of each month, the Trustee will deliver to the Company a written statement indicating the total principal amount of Outstanding Book-Entry Notes as of the immediately preceding Business Day. | ||||
| Manner of Payment. The total amount of any principal, premium, if any, and interest due on Book-Entry Notes on any Interest Payment Date or at Maturity shall be paid by the Company to the Trustee in funds available for use by the Trustee as of 9:30 a.m., New York City time, on such date. The Company will make such payment on such Book-Entry Notes by instructing the Trustee to withdraw funds from an account maintained by the Company at the Trustee. The Company will confirm such instructions in writing to the Trustee. Prior to 10:00 a.m., New York City time, on such date or as soon as possible thereafter, the Trustee will pay by separate wire transfer (using Fedwire message entry instructions in a form previously specified by DTC) to an account at the Federal Reserve Bank of New | ||||
19
| York previously specified by DTC, in funds available for immediate use by DTC, each payment of interest, principal and premium, if any, due on a Book-Entry Note on such date. Thereafter on such date, DTC will pay, in accordance with its SDFS operating procedures then in effect, such amounts in funds available for immediate use to the respective Participants in whose names such Notes are recorded in the book-entry system maintained by DTC. Neither the Company nor the Trustee shall have any responsibility or liability for the payment by DTC of the principal of, or interest on, the Book-Entry Notes to such Participants. | ||||||||||||
| Withholding Taxes. The amount of any taxes required under applicable law to be withheld from any interest payment on a Note will be determined and withheld by the Participant, indirect participant in DTC or other Person responsible for forwarding payments and materials directly to the beneficial owner of such Note. | ||||||||||||
| Settlement Procedures: | Settlement Procedures with regard to each Note in book-entry form sold by each Agent, as agent of the Company, will be as follows: | |||||||||||
| A. | The Presenting Agent will advise the Company by telephone of the following Settlement Information: | |||||||||||
| 1. | Taxpayer identification number of the purchaser. | |||||||||||
| 2. | Principal amount of the Note. | |||||||||||
| 3. | Fixed Rate Notes: | |||||||||||
| a) | interest rate; and | |||||||||||
| b) | redemption or optional repayment dates, if any | |||||||||||
| Floating Rate Notes: | ||||||||||||
| a) | designation (which may be “Regular Floating Rate Note,” Floating Rate/Fixed Rate Note” or “Inverse Floating Rate Note;” | |||||||||||
| b) | interest rate basis or bases; | |||||||||||
| c) | initial interest rate; | |||||||||||
| d) | spread or spread multiplier, if any; | |||||||||||
| e) | interest rate reset dates; | |||||||||||
20
| f) | interest rate reset period; | |||||||||||
| g) | interest payment dates; | |||||||||||
| h) | interest rate payment period; | |||||||||||
| i) | index maturity; | |||||||||||
| j) | calculation agent; | |||||||||||
| k) | interest payment dates, if any; | |||||||||||
| l) | minimum interest rate, if any; | |||||||||||
| m) | calculation date; | |||||||||||
| n) | interest determination dates; | |||||||||||
| o) | redemption or optional repayment dates, if any; and | |||||||||||
| p) | fixed rate (for Floating Rate/Fixed Rate Notes and Inverse Floating Rate Notes) and fixed rate commencement date (for Floating Rate/Fixed Rate Notes). | |||||||||||
| 4. | Price to public of the Note. | |||||||||||
| 5. | Trade date. | |||||||||||
| 6. | Settlement Date (Original Issue Date). | |||||||||||
| 7. | Stated Maturity. | |||||||||||
| 8. | Overdue rate (if any). | |||||||||||
| 9. | Extension periods, if any, and final maturity date. | |||||||||||
| 10. | Optional reset dates, if any. | |||||||||||
| 11. | Net proceeds to the Company. | |||||||||||
| 12. | Agent’s commission. | |||||||||||
| B. | The Company will assign a CUSIP number to the Book-Entry Note representing such Note and then advise the Trustee by electronic transmission of the above settlement information received from the Presenting Agent, such CUSIP number and the name of the Agent. | |||||||||||
21
| C. | The Trustee will communicate to DTC and the Agent through DTC’s Participant Terminal System, a pending deposit message specifying the following settlement information: | |||||||||||
| 1. | The information set forth in Settlement Procedure A. | |||||||||||
| 2. | Identification numbers of the participant accounts maintained by DTC on behalf of the Trustee and the Agent. | |||||||||||
| 3. | Identification as a Fixed Rate Book-Entry Note or Floating Rate Book-Entry Note. | |||||||||||
| 4. | Initial Interest Payment Date for such Note, number of days by which such date succeeds the related record date for DTC purposes (or, in the case of Floating Rate Notes which reset daily or weekly, the date five calendar days preceding the Interest Payment Date) and, if then calculable, the amount of interest payable on such Interest Payment Date (which amount shall have been confirmed by the Trustee). | |||||||||||
| 5. | CUSIP number of the Book-Entry Note representing such Note. | |||||||||||
| 6. | Whether such Book-Entry Note represents any other Notes issued or to be issued in book-entry form. | |||||||||||
| 7. | The Trustee will advise the Presenting Agent by telephone of the CUSIP number as soon as possible. | |||||||||||
| D. | The Company will complete and deliver to the Trustee a Book-Entry Note representing such Note in a form that has been approved by the Company, the Agents and the Trustee. | |||||||||||
| E. | The Trustee will authenticate the Book-Entry Note representing such Note. | |||||||||||
| F. | DTC will credit such Note to the participant account of the Trustee maintained by DTC. | |||||||||||
22
| G. | The Trustee will enter an SDFS deliver order through DTC’s Participant Terminal System instructing DTC (i) to debit such Note to the Trustee’s participant account and credit such Note to the participant account of the Presenting Agent maintained by DTC and (ii) to debit the settlement account of the Presenting Agent and credit the settlement account of the Trustee maintained by DTC, in an amount equal to the price of such Note less such Agent’s commission. Any entry of such a deliver order shall be deemed to constitute a representation and warranty by the Trustee to DTC that (i) the Book-Entry Note representing such Note has been issued and authenticated and (ii) the Trustee is holding such Book-Entry Note pursuant to the Medium Term Note Certificate Agreement between the Trustee and DTC. | |||||||||||
| H. | The Presenting Agent will enter an SDFS deliver order through DTC’s Participant Terminal System instructing DTC (i) to debit such Note to the Presenting Agent’s participant account and credit such Note to the participant account of the Participants maintained by DTC and (ii) to debit the settlement accounts of such Participants and credit the settlement account of the Presenting Agent maintained by DTC, in an amount equal to the initial public offering price of such Note. | |||||||||||
| I. | Transfers of funds in accordance with SDFS deliver orders described in Settlement Procedures G and H will be settled in accordance with SDFS operating procedures in effect on the Settlement Date. | |||||||||||
| J. | The Trustee will credit to an account of the Company maintained at the Trustee funds available for immediate use in the amount transferred to the Trustee in accordance with Settlement Procedure G. | |||||||||||
| K. | The Trustee will send a copy of the Book-Entry Note by first class mail to the Company together with a statement setting forth the principal amount of Notes Outstanding as of the related Settlement Date after giving effect to such transaction and all other offers to purchase Notes of which the | |||||||||||
23
| Company has advised the Trustee but which have not yet been settled. | ||||
| L. | The Agent will confirm the purchase of such Note to the purchaser either by transmitting to the Participant with respect to such Note a confirmation order through DTC’s Participant Terminal System or by mailing a written confirmation to such purchaser. | |||
| Settlement Procedures Timetable: | For orders of Notes accepted by the Company, Settlement Procedures “A” through “L” set forth above shall be completed as soon as possible but not later than the respective times (New York City time) set forth below: | |||
| Settlement | ||
| Procedure | Time | |
A-B |
11:00 a.m. on the trade date | |
C |
2:00 p.m. on the trade date | |
D |
3:00 p.m. on the Business Day before Settlement Date | |
E |
9:00 a.m. on Settlement Date | |
F |
10:00 a.m. on Settlement Date | |
G-H |
No later than 2:00 p.m. on Settlement Date | |
I |
4:45 p.m. on Settlement Date | |
X-X |
5:00 p.m. on Settlement Date |
| If a sale is to be settled more than one Business Day after the sale date, Settlement Procedures A, B and C may, if necessary, be completed at any time prior to the specified times on the first Business Day after such sale date. In connection with a sale which is to be settled more than one Business Day after the trade date, if the initial interest rate for a Floating Rate Note is not known at the time that Settlement Procedure A is completed, Settlement Procedures B and C shall be completed as soon as such rates have been determined, but no later than 11:00 a.m. and 2:00 p.m., New York City time, respectively, on the second Business Day before the Settlement Date. Settlement Procedure I is subject to extension in accordance with any extension of Fedwire closing deadlines and in the other events specified in the SDFS operating procedures in effect on the Settlement Date. | ||||
24
| If settlement of a Note issued in book-entry form is rescheduled or cancelled, the Trustee will deliver to DTC, through DTC’s Participant Terminal system, a cancellation message to such effect by no later than 2:00 p.m., New York City time, on the Business Day immediately preceding the scheduled Settlement Date. | ||||
| Failure to Settle: | If the Trustee fails to enter an SDFS deliver order with respect to a Book-Entry Note issued in book-entry form pursuant to Settlement Procedure G, the Trustee may deliver to DTC, through DTC’s Participant Terminal System, as soon as practicable a withdrawal message instructing DTC to debit such Note to the participant account of the Trustee maintained at DTC. DTC will process the withdrawal message, provided that such participant account contains a principal amount of the Book-Entry Note representing such Note that is at least equal to the principal amount to be debited. If withdrawal messages are processed with respect to all the Notes represented by a Book-Entry Note, the Trustee will mark such Book-Entry Note “cancelled,” make appropriate entries in its records and send such cancelled Book-Entry Note to the Company. The CUSIP number assigned to such Book-Entry Note shall, in accordance with CUSIP Service Bureau procedures, be cancelled and not immediately reassigned. If withdrawal messages are processed with respect to a portion of the Notes represented by a Book-Entry Note, the Trustee will exchange such Book-Entry Note for two Book-Entry Notes, one of which shall represent the Book-Entry Notes for which withdrawal messages are processed and shall be cancelled immediately after issuance, and the other of which shall represent the other Notes previously represented by the surrendered Book-Entry Note and shall bear the CUSIP number of the surrendered Book-Entry Note. | |||
| If the purchase price for any Book-Entry Note is not timely paid to the Participants with respect to such Note by the beneficial purchaser thereof (or a person, including an indirect participant in DTC, acting on behalf of such purchaser), such Participants and, in turn, the related Agent may enter SDFS deliver orders through DTC’s Participant Terminal System reversing the orders entered pursuant to Settlement Procedures G and H, respectively. Thereafter, the Trustee will deliver the withdrawal message and take the related actions described in the preceding paragraph. If such failure shall have occurred for any reason other than | ||||
25
| default by the applicable Agent to perform its obligations hereunder or under the Distribution Agreement, the Company will reimburse such Agent on an equitable basis for its loss of the use of funds during the period when the funds were credited to the account of the Company. | ||||
| Notwithstanding the foregoing, upon any failure to settle with respect to a Book-Entry Note, DTC may take any actions in accordance with its SDFS operating procedures then in effect. In the event of a failure to settle with respect to a Note that was to have been represented by a Book-Entry Security also representing other Notes, the Trustee will provide, in accordance with Settlement Procedures D and E, for the authentication and issuance of a Book-Entry Note representing such remaining Notes and will make appropriate entries in its records. | ||||
26
| PART III: | PROCEDURES FOR NOTES ISSUED IN CERTIFICATED FORM | |||
| Denominations: | The Notes will be issued in denominations of U.S. $1,000 and integral multiples of U.S. $1,000 in excess thereof. | |||
| Interest: | Each Note will bear interest in accordance with its terms. Interest will begin to accrue on the Original Issue Date of a Note for the first interest period and on the most recent interest payment date to which interest has been paid for all subsequent interest periods. Each payment of interest shall include interest accrued to, but excluding, the date of such payment. Unless otherwise specified in the applicable Pricing Supplement, interest payments in respect of Fixed Rate Notes will be made semi-annually on April 15 and October 15 of each year and at Maturity. However, the first payment of interest on any Note issued between a Record Date and an Interest Payment Date will be made on the Interest Payment Date following the next succeeding Record Date. Unless otherwise specified in the applicable Pricing Supplement, the Record Date for any payment of interest shall be the close of business 15 calendar days prior to the applicable Interest Payment Date. Interest at Maturity will be payable to the person to whom the principal is payable. | |||
| Notwithstanding the above, in the case of Floating Rate Notes which reset daily or weekly, interest payments shall include accrued interest from, and including, the date of issue or from, but excluding, the last date in respect of which interest has been accrued and paid, as the case may be, through, and including, the record date which is 15 calendar days immediately preceding such Interest Payment Date (the “Record Date”), except that at Maturity the interest payable will include interest accrued to, but excluding, the Maturity date. For additional special provisions relating to Floating Rate Notes, see the Prospectus Supplement. | ||||
27
| Payments of Principal and Interest: | Upon presentment and delivery of the Note, the Trustee will pay the principal amount of each Note at Maturity and the final installment of interest in immediately available funds received from the Company. All interest payments on a Note, other than interest due at Maturity, will be made by check drawn on the Trustee and mailed by the Trustee to the person entitled thereto as provided in the Note. However, holders of ten million dollars or more in aggregate principal amount of Notes (whether having identical or different terms and provisions) shall be entitled to receive payments of interest, other than at Maturity, by wire transfer in immediately available funds to a designated account maintained in the United States upon receipt by the Trustee of written instructions from such a holder not later than the regular Record Date for the related Interest Payment Date. Any payment of principal or interest required to be made on an Interest Payment Date or at Maturity of a Note which is not a Business Day need not be made on such day, but may be made on the next succeeding Business Day with the same force and effect as if made on the Interest Payment Date or at Maturity, as the case may be, and no interest shall accrue for the period from and after such Interest Payment Date or Maturity. | |||
| The Trustee will provide monthly to the Company a list of the principal and interest to be paid on Notes maturing in the next succeeding month. The Trustee will be responsible for withholding taxes on interest paid as required by applicable law, but shall be relieved from any such responsibility if it acts in good faith and in reliance upon an opinion of counsel. | ||||
| Notes presented to the Trustee at Maturity for payment will be cancelled by the Trustee. All cancelled Notes held by the Trustee shall be destroyed, and the Trustee shall furnish to the Company a certificate with respect to such destruction. | ||||
28
| Settlement Procedures: | Settlement Procedures with regard to each Note purchased through any Agent, as agent, shall be as follows: | |||||||||
| A. | The Presenting Agent will advise the Company by telephone of the following Settlement information with regard to each Note: | |||||||||
| 1. | Exact name in which the Note is to be registered (the “Registered Owner”). | |||||||||
| 2. | Exact address or addresses of the Registered Owner for delivery, notices and payments of principal and interest. | |||||||||
| 3. | Taxpayer identification number of the Registered Owner. | |||||||||
| 4. | Principal amount of the Note. | |||||||||
| 5. | Denomination of the Note. | |||||||||
| 6. | Fixed Rate Notes: | |||||||||
| a) | interest rate; and | |||||||||
| b) | redemption or optional repayment dates, if any. | |||||||||
| Floating Rate Notes: | ||||||||||
| a) | designation (which may be “Regular Floating Rate Note,” “Floating Rate/Fixed Note” or “Inverse Floating Rate Note;” | |||||||||
| b) | interest rate basis or bases; | |||||||||
| c) | initial interest rate; | |||||||||
| d) | spread or spread multiplier, if any; | |||||||||
| e) | interest rate reset dates; | |||||||||
| f) | interest rate reset period; | |||||||||
| g) | interest payment dates; | |||||||||
| h) | interest payment period; | |||||||||
| i) | index maturity; | |||||||||
| j) | calculation agent; | |||||||||
| k) | maximum interest rate, if any; | |||||||||
| l) | minimum interest rate, if any; | |||||||||
| m) | calculation date; | |||||||||
| n) | interest determination date; | |||||||||
| o) | redemption or optional repayment dates, if any; and | |||||||||
29
| p) | fixed rate (for Floating Rate/Fixed Rate Notes and Inverse Floating Rate Notes) and fixed rate commencement date (for Floating Rate/Fixed Rate Notes). | |||||||||
| 7. | Price to public of the Note. | |||||||||
| 8. | Settlement date (Original Issue Date). | |||||||||
| 9. | Stated Maturity. | |||||||||
| 10. | Overdue rate (if any). | |||||||||
| 11. | Extension periods, if any, and final maturity date. | |||||||||
| 12. | Optional reset dates, if any. | |||||||||
| 13. | Net proceeds to the Company. | |||||||||
| 14. | Agent’s Commission. | |||||||||
| B. | The Company shall provide to the Trustee the above Settlement information received from the Agent and shall cause the Trustee to issue, authenticate and deliver Notes. The Company also shall provide to the Trustee and/or Agent a copy of the applicable Pricing Supplement. | |||||||||
| C. | The Trustee will complete the preprinted 4-ply Note packet containing the following documents in forms approved by the Company, the Presenting Agent and the Trustee: | |||||||||
| 1. | Note with Agent’s customer confirmation. | |||||||||
| 2. | Stub 1 - for Trustee. | |||||||||
| 3. | Stub 2 - for Agent. | |||||||||
| 4. | Stub 3 - for the Company. | |||||||||
| D. | With respect to each trade, the Trustee will deliver the Notes and Stub 2 thereof to the Presenting Agent at the following applicable address: | |||||||||
30
| If to ABN AMRO Incorporated: | ||||||||||
| ABN AMRO Incorporated | ||||||||||
| 00 Xxxx 00xx Xxxxxx | ||||||||||
| New York, New York 10055 | ||||||||||
| If to Banc of America Securities LLC: | ||||||||||
| c/o The Bank of New York | ||||||||||
| 0 Xxxx Xxxxxx, 3rd Floor, Window B | ||||||||||
| New York, New York 10286 | ||||||||||
| Attention: Xxx Xxxxxxxx | ||||||||||
| Account #: 076854/NationsBanc Xxxxxxxxxx Securities LLC | ||||||||||
| If to Barclays Capital Inc.: | ||||||||||
| Barclays Capital Inc. | ||||||||||
| c/o The Bank of New York | ||||||||||
| 0 Xxxx Xxxxxx | ||||||||||
| 3rd Floor — Dealer Clearance | ||||||||||
| New York, New York 10286 | ||||||||||
| If to BNP Paribas Securities Corp.: | ||||||||||
| BNP Paribas Securities Corp. | ||||||||||
| 000 Xxxxxxx Xxxxxx | ||||||||||
| New York, New York 10019 | ||||||||||
| Attention: MTN Desk | ||||||||||
| Telecopy number: (000) 000-0000 | ||||||||||
| Telephone number: (000) 000-0000 | ||||||||||
| If to Citigroup Global Markets Inc.: | ||||||||||
| Citigroup Global Markets Inc. | ||||||||||
| 000 Xxxxxxxxx Xxxxxx | ||||||||||
| New York, New York 10013 | ||||||||||
| Attention: Transaction Execution Group | ||||||||||
| Telecopy number: (000) 000-0000 | ||||||||||
| Telephone number: (000) 000-0000 | ||||||||||
| If to Credit Suisse Securities (USA) LLC: | ||||||||||
| Credit Suisse Securities (USA) LLC | ||||||||||
| 00 Xxxxxxx Xxxxxx | ||||||||||
| New York, New York 10010 | ||||||||||
31
| If to Deutsche Bank Securities Inc.: | ||||||||||
| Deutsche Bank Securities Inc. | ||||||||||
| 00 Xxxx Xxxxxx | ||||||||||
| New York, New York 10005 | ||||||||||
| If to HSBC Securities (USA) Inc.: | ||||||||||
| HSBC Securities (USA) Inc. | ||||||||||
| 000 Xxxxx Xxxxxx, Xxxxx 00 | ||||||||||
| New York, New York 10018 | ||||||||||
| Telephone number: (000) 000-0000 | ||||||||||
| Attention: MTN Desk | ||||||||||
| If to X.X. Xxxxxx Securities Inc.: | ||||||||||
| X.X. Xxxxxx Securities Inc. | ||||||||||
| 00 Xxxxxxxx Xxxxx | ||||||||||
| 4th Floor, Xxxxx 0 | ||||||||||
| Jersey City, New Jersey 07311 | ||||||||||
| Attention: Xxx Xxxxxxxxx | ||||||||||
| Telephone number: (000) 000-0000 | ||||||||||
| Attention: Xxxxx Xxxxxxxx | ||||||||||
| Telephone number: (000) 000-0000 | ||||||||||
| If to Xxxxxx Brothers Inc.: | ||||||||||
| Xxxxxx Brothers Inc. | ||||||||||
| 000 Xxxxxxx Xxxxxx | ||||||||||
| New York, New York 10019 | ||||||||||
| Attention: Debt Capital Markets, Financial Institutions Group | ||||||||||
| Telephone number: (000) 000-0000 | ||||||||||
| If to Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated: | ||||||||||
| Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx | ||||||||||
| Money Markets Clearance | ||||||||||
| Concourse Level, N.S.C.C. Window | ||||||||||
| 00 Xxxxx Xxxxxx – South Building | ||||||||||
| New York, New York 10041 | ||||||||||
| Attention: Xx Xxxxxxxx | ||||||||||
| Telephone number: (000) 000-0000 | ||||||||||
32
| If to Mitsubishi UFJ Securities International plc: | ||||||||||
| Mitsubishi UFJ Securities International plc | ||||||||||
| 0 Xxxxxxxxx | ||||||||||
| London EC2M 2AA | ||||||||||
| Attention: Legal Dept – Transaction Management | ||||||||||
| Telecopy number: (00 000) 000-0000 | ||||||||||
| Telephone number: (00 000) 000-0000 | ||||||||||
| If to Scotia Capital (USA) Inc.: | ||||||||||
| Scotia Capital (USA) Inc. | ||||||||||
| 0 Xxxxxxx Xxxxx, 00xx Floor | ||||||||||
| New York, New York 10006 | ||||||||||
| Attention: Fixed Income Syndicate | ||||||||||
| Telecopy number: (000) 000-0000 | ||||||||||
| Telephone number: (000) 000-0000 | ||||||||||
| If to UBS Securities LLC: | ||||||||||
| UBS Securities LLC | ||||||||||
| 000 Xxxxxxxxxx Xxxxxxxxx | ||||||||||
| Stamford, Connecticut 06901 | ||||||||||
| Attention: Fixed Income Syndicate | ||||||||||
| Telecopy number: (000) 000-0000 | ||||||||||
| Telephone number: (000) 000-0000 | ||||||||||
| If to Wachovia Capital Markets, LLC: | ||||||||||
| Wachovia Capital Markets, LLC | ||||||||||
| One Wachovia Center | ||||||||||
| 000 Xxxxx Xxxxxxx Xxxxxx | ||||||||||
| Charlotte, North Carolina 28202 | ||||||||||
| Attention: Transaction Management Group | ||||||||||
| Telecopy number: (000) 000-0000 | ||||||||||
| Telephone number: (000) 000-0000 | ||||||||||
| The Trustee will keep Stub 1. The Presenting Agent will acknowledge receipt of the Note through a broker’s receipt and will keep Stub 2. Delivery of the Note will be made only against such acknowledgement of receipt. Upon determination that the Note has been authorized, delivered and completed as aforementioned, the Presenting Agent will wire the net proceeds of the Note after deduction of its applicable commission to the Company pursuant to standard wire instructions given by the Company. | ||||||||||
33
| E. | The Presenting Agent will deliver the Note (with confirmations) to the purchaser against payment in immediately available funds. The Presenting Agent will deliver a copy of the Prospectus and any applicable Prospectus Supplement or Supplements received from the Trustee or, in lieu thereof, a Rule 173 Notice within two business days after settlement (which, for the purposes of this paragraph, is on the earlier of the second day following the date of settlement on which the offices of the Securities and Exchange Commission are open or the second Business Day following the date of settlement). | |||||||
| F. | The Trustee will send Stub 3 to the Company. | |||||||
| Settlement Procedures Timetable: | For offers accepted by the Company, Settlement Procedures “A” through “F” set forth above shall be completed on or before the respective times set forth below: |
|||||||
| Settlement | ||
| Procedure | Time | |
A-B |
3:00 PM on Business Day prior to settlement | |
C-D |
2:15 PM on day of settlement | |
E |
3:00 PM on day of settlement | |
F |
5:00 PM on day of settlement |
| Failure to Settle: | In the event that a purchaser of a Note from the Company shall either fail to accept delivery of or make payment for a Note on the date fixed for settlement, the Presenting Agent will forthwith notify the Trustee and the Company by telephone, confirmed in writing, and return the Note to the Trustee. | |||||||
34
| Company has received notice on the same day. If such failure shall have occurred for any reason other than failure by such Agent to perform its obligations hereunder or under the Distribution Agreement, the Company will reimburse such Agent on an equitable basis for its loss of the use of funds during the period when the funds were credited to the account of the Company. Immediately upon receipt of the Note in respect of which the failure occurred, the Trustee will cancel and destroy the Note, make appropriate entries in its records to reflect the fact that the Note was never issued, and accordingly notify in writing the Company. | ||||||||
35
ANNEX A
Filed Pursuant to Rule 433
Registration Statement No. 333-136681
, 20__
, 20__
PRICING TERM SHEET
Issuer:
Issue of Securities:
Principal Amount:
Coupon:
Interest Payment Dates:
Maturity:
Initial Price to Public:
Principal Amount:
Coupon:
Interest Payment Dates:
Maturity:
Initial Price to Public:
Optional Redemption:
Minimum Denomination:
Settlement Date:
CUSIP:
Underwriters:
The
issuer has filed a registration statement (including a prospectus) with the SEC for the offering to which this communication relates. Before you invest, you should read the
prospectus in that registration statement, the documents incorporated by reference therein
and other documents the issuer has filed with the SEC for more complete information about
the issuer and this offering. You may get these documents for free by visiting XXXXX on the
SEC Web site at xxx.xxx.xxx. Alternatively, the issuer, any underwriter or any dealer
participating in the offering will arrange to send you the prospectus if you request it by
calling toll-free at .
