International Lease Finance Corporation
Underwriting Agreement
December 5, 0000
Xxx Xxxx, Xxx Xxxx
To the Representatives named
in Schedule I hereto of
the Underwriters named
in Schedule II hereto
Dear Sirs:
International Lease Finance Corporation, a California
corporation (including its predecessor identified in the
Registration Statement (as defined below), the "Company"),
proposes to sell to the underwriters named in Schedule II hereto
(the "Underwriters"), for whom you are acting as representatives
(the "Representatives"), the principal amount of its securities
identified in Schedule I hereto (the "Securities"), to be issued
under an indenture (the "Indenture") dated as of November 1,
1991, between the Company and Continental Bank, National
Association, as trustee (the "Trustee"). If the firm or firms
listed in Schedule II hereto include only the firm or firms
listed in Schedule I hereto, then the terms "Underwriters" and
"Representatives," as used herein, shall each be deemed to refer
to such firm or firms.
1. Representations and Warranties. The Company represents
and warrants to, and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Act"), and
has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on such Form (the file
number of which is set forth in Schedule I hereto), which has
become effective, for the registration under the Act of 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. 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 Securities 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, as amended at the date of this
Agreement, is hereinafter called the "Registration Statement";
such prospectus in the form in which it appears in the
Registration Statement is hereinafter called the "Basic
Prospectus"; and such supplemented form of prospectus, in the
form in which it shall be filed with the Commission pursuant
to Rule 424 (including the Basic Prospectus as so
supplemented) is hereinafter called the "Final Prospectus."
Any preliminary form of the Final Prospectus which has
heretofore been filed pursuant to Rule 424 is hereinafter
called the "Preliminary Final Prospectus." Any reference
herein to the Registration Statement, the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus shall
be deemed to refer to and include the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 which
were filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), on or before the date of this
Agreement, or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the
case may be; and any reference herein to the terms "amend,"
"amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to
and include the filing of any document under the Exchange Act
after the date of this Agreement, or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be, deemed to be
incorporated therein by reference.
(b) As of the date hereof, when the Final Prospectus is
first filed pursuant to Rule 424 under the Act, when, prior to
the Closing Date (as hereinafter defined), any amendment to
the Registration Statement becomes effective (including the
filing of any document incorporated by reference in the
Registration Statement), when any supplement to the Final
Prospectus is filed with the Commission and at the Closing
Date, (i) the Registration Statement, as amended as of any
such time, and the Final Prospectus, as amended or
supplemented as of any such time, and the Indenture will
comply in all material respects with the applicable
requirements of the Act, the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and the Exchange Act and
the respective rules thereunder and (ii) neither the
Registration Statement, as amended as of any such time, nor
the Final Prospectus, as supplemented as of any such time,
will contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or
necessary in order to make the statements therein not
misleading; provided, however, that the Company makes no
representations or warranties as to (i) 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 (ii) the information contained
in or omitted from the Registration Statement or the Final
Prospectus or any amendment thereof or supplement thereto in
reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of any Underwriter
through the Representatives specifically for use in connection
with the preparation of the Registration Statement and the
Final Prospectus.
(c) Subsequent to the respective dates as of which
information is given in the Registration Statement and Final
Prospectus, and except as set forth or contemplated in the
Final 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
the Underwriters' Securities (as defined in Section 2 hereof)
are issued and delivered pursuant to this Agreement and, in
the case of any Contract Securities (as defined in Section 2
hereof), pursuant to Delayed Delivery Contracts (as defined in
Section 2 hereof) with respect to such Contract Securities,
such Securities 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, which 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 and 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 Final Prospectus.
2. Purchase and Sale. Subject to the terms and conditions
and in reliance upon the representations and warranties herein
set forth, the Company agrees to sell to each Underwriter and
each Underwriter agrees, severally and not jointly, to purchase
from the Company, at the purchase price set forth in Schedule I
hereto, the principal amount of the Securities set forth opposite
such Underwriter's name in Schedule II hereto, except that, if
Schedule I hereto provides for the sale of Securities pursuant to
delayed delivery arrangements, the respective principal amounts
of Securities to be purchased by Underwriters shall be as set
forth in Schedule II hereto less the respective amounts of
Contract Securities determined as provided below. Securities to
be purchased by the Underwriters are herein sometimes called the
"Underwriters' Securities" and Securities to be purchased
pursuant to Delayed Delivery Contracts hereinafter provided are
herein called "Contract Securities."
If so provided in Schedule I hereto, the Underwriters are
authorized to solicit offers to purchase Securities from the
Company pursuant to delayed delivery contracts ("Delayed Delivery
Contracts"), substantially in the form of Schedule III hereto but
with such changes therein as the Company may authorize or
approve. The Underwriters will endeavor to make such
arrangements and, as compensation therefor, the Company will pay
to the Representatives, for the account of the Underwriters, on
the Closing Date, the percentage set forth in Schedule I hereto
of the principal amount of the Securities for which Delayed
Delivery Contracts are made. Delayed Delivery Contracts are to
be with institutional investors including commercial and savings
banks, insurance companies, pension funds, investment companies
and educational and charitable institutions. The Company will
enter into Delayed Delivery Contracts in all cases where sales of
Contract Securities arranged by the Underwriters have been
approved by the Company but, except as the Company may otherwise
agree, each such Delayed Delivery Contract must be for not less
than the minimum principal amount set forth in Schedule I hereto
and the aggregate principal amount of Contract Securities may not
exceed the maximum aggregate principal amount set forth in
Schedule I hereto. The Underwriters will not have any
responsibility in respect of the validity or performance of
Delayed Delivery Contracts. The principal amount of Securities
to be purchased by each Underwriter as set forth in Schedule II
hereto shall be reduced by an amount which shall bear the same
proportion to the total principal amount of Contract Securities
as the principal amount of Securities set forth opposite the name
of such Underwriter bears to the aggregate principal amount set
forth in Schedule II hereto, except to the extent that you
determine that such reduction shall be otherwise than in such
proportion and so advise the Company in writing; provided,
however, that the total principal amount of Securities to be
purchased by all Underwriters shall be the aggregate principal
amount set forth in Schedule II hereto less the aggregate
principal amount of Contract Securities.
3. Delivery and Payment. Delivery of and payment for the
Underwriters' Securities shall be made at the office, on the date
and at the time specified in Schedule I hereto (or such later
date not later than five business days after such specified date
as the Representatives shall designate), which date and time may
be postponed by agreement between the Representatives and the
Company or as provided in Section 8 hereof (such date and time of
delivery and payment for the Underwriters' Securities being
herein called the "Closing Date"). Delivery of the Underwriters'
Securities shall be made to the Representatives for the
respective accounts of the several Underwriters against payment
by the several Underwriters through the Representatives of the
purchase price thereof to the Company in immediately available funds.
The Company and the Underwriters shall mutually determine if
the Underwriters' Securities shall be delivered in certificated
form or by book-entry transfer. If the Underwriters' Securities
are to be delivered in certificated form, (a) certificates for
the Underwriters' Securities shall be registered in such names
and in such denominations as the Representatives may request not
less than three full business days in advance of the Closing Date
and (b) the Company agrees to have the Underwriters' Securities
available for inspection, checking and packaging by the
Representatives in New York, New York, not later than 1:00 p.m.
on the business day prior to the Closing Date. If the Under-
writers' Securities are to be delivered by book-entry transfer,
one or more global certificates representing the Underwriters'
Securities shall be delivered to The Depositary Trust Company
("DTC"). Interests in the Underwriters' Securities will be
represented by book entries on the records of DTC as the
Representatives may request not less than three full business
days in advance of the Closing Date. The Company agrees to have
the global certificate(s), if any, available for inspection by
the Representatives in New York, New York, not later than 1:00
p.m. on the business day prior to the Closing Date.
4. Agreements. The Company agrees with the several
Underwriters that:
(a) Prior to the termination of the offering of the
Securities, the Company will not file any amendment of the
Registration Statement or supplement (including the Final
Prospectus) to the Basic Prospectus unless the Company has
furnished you a copy for your review prior to filing and will
not file any such proposed amendment or supplement to which
you reasonably object. Subject to the foregoing sentence, the
Company will cause the Final Prospectus to be filed (or
transmitted for filing) with the Commission pursuant to Rule
424. The Company will promptly advise the Representatives
(i) when the Final Prospectus shall have been filed (or
transmitted for filing) with the Commission pursuant to Rule
424, (ii) when any amendment to the Registration Statement
relating to the Securities shall have become effective,
(iii) of any request by the Commission for any amendment of
the Registration Statement or amendment of or supplement to
the Final 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 and (v) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction
or the initiation or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as
soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any
event occurs as a result of which the Final Prospectus as then
amended or supplemented would include any untrue statement of
a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made,
not misleading, or if it shall be necessary to amend or
supplement the Final Prospectus to comply with the Act or the
Exchange Act or the respective rules thereunder, the Company
promptly will prepare and file with the Commission, subject to
the first sentence of paragraph (a) of this Section 4, an
amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives
an earnings statement or statements of the Company and its
subsidiaries which will satisfy the provisions of Section
11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, both executed
and conformed copies of the Registration Statement (including
exhibits thereto) and each amendment thereto which shall
become effective on or prior to the Closing Date and, so long
as delivery of a prospectus by an Underwriter or dealer may be
required by the Act, as many copies of any Preliminary Final
Prospectus and the Final Prospectus and any amendments thereof
and supplements thereto as the Representatives may reasonably
request. The Company will pay the expenses of printing or
other production of all documents relating to the offering.
(e) The Company will arrange for, and be responsible for
expenses incurred in connection with, the qualification of the
Securities for sale under the laws of such jurisdictions as
the Representatives may reasonably designate, will maintain
such qualifications in effect so long as required for the
distribution of the Securities, and, if requested by the
Representatives, will arrange for the determination of the
legality of the Securities for purchase by institutional
investors.
(f) Until the business day following the Closing Date, the
Company will not, without the consent of the Representatives,
offer, sell or contract to sell, or announce the offering of,
any debt securities covered by the Registration Statement or
any other registration statement filed under the Act.
5. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwriters'
Securities shall be subject to the accuracy of the representa-
tions and warranties on the part of the Company contained herein
as of the date hereof, as of the date of the effectiveness of any
amendment to the Registration Statement filed prior to the
Closing Date (including the filing of any document incorporated
by reference therein) and as of the Closing Date, to the accuracy
of the statements of the Company made in any certificates
pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following
additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall
have been issued and no proceedings for that purpose shall
have been instituted or threatened.
(b) The Company shall have furnished to the Representatives
the opinion of corporate counsel for the Company, dated the
Closing Date, 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) To the best knowledge of such counsel, Interlease
Aviation Corporation, ILFC Aircraft Holding Corporation,
Interlease Management Corporation, Aircraft SPC-1, Inc.,
Aircraft SPC-2, Inc., Aircraft SPC-3, Inc. and Atlantic
International Aviation Holdings, Inc., a wholly owned
subsidiary of Interlease Management Corporation, are the
only domestic subsidiaries of the Company.
(iii) No subsidiary of the Company nor all of the
subsidiaries of the Company taken as a whole is a
"significant subsidiary" as defined in Rule 1-02 of
Regulation S-X promulgated under the Exchange Act.
(iv) To the best knowledge of such counsel, there is no
pending or threatened action, suit or proceeding before any
court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries
of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Final
Prospectus.
(c) The Company shall have furnished to the Representatives
the opinion of O'Melveny & Xxxxx, special counsel for the
Company, dated the Closing Date, to the effect that:
(i) Each of the Company and Interlease Management
Corporation, Interlease Aviation Corporation and ILFC
Aircraft Holding Corporation has been duly incorporated and
is existing and in good standing under the laws of the
jurisdiction in which it is incorporated.
(ii) The Company has the corporate power to own its
properties and conduct its business as described in the
Final Prospectus.
(iii) 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 limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting
creditors' rights generally, and except that such counsel
may advise that the enforceability of the Indenture is
subject to the effect of general principles of equity
including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing and the possible
unavailability of specific performance or injunctive relief,
regardless of whether considered in a proceeding in equity
or at law, 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 Securities have been duly authorized by all
necessary corporate action on the part of the Company and
when executed and authenticated in accordance with the
provisions of the Indenture and upon payment for and
delivery of the Underwriters' Securities in accordance with
the terms of this Agreement, and, if applicable, upon
payment for and delivery of the Contract Securities in
accordance with the terms of the Delayed Delivery Contracts,
will be legally valid and binding obligations of the
Company, enforceable against the Company in accordance with
their terms, except as limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting
creditors' rights generally, and except that such counsel
may advise that the enforceability of the Securities is
subject to the effect of general principles of equity
including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing and the possible
unavailability of specific performance or injunctive relief,
regardless of whether considered in a proceeding in equity
or at law, 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.
(v) The Indenture has been duly qualified under the
Trust Indenture Act.
(vi) This Agreement and, if applicable, any Delayed
Delivery Contracts have been duly authorized by all
necessary corporate action on the part of the Company and
have been duly executed and delivered by the Company.
(vii) 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, if applicable,
any Delayed Delivery Contracts or for the issuance and sale
of the Securities, 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.
(viii) Neither the execution and delivery of the Indenture
nor the issuance of the Securities will conflict with,
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 breach of or default
under or a conflict with which would have a material adverse
effect on the Company and its subsidiaries considered as a
whole, except that no opinion need be expressed regarding
the effect, if any, of the issuance of the Securities upon
the Company's compliance with any of the financial covenants
contained in any of said agreements, instruments, contracts,
orders, injunctions or judgments.
(ix) The Registration Statement has been declared
effective under the Act and, to such counsel's knowledge, no
stop order suspending the effectiveness of the Registration
Statement has been issued or threatened by the Commission.
(x) The Registration Statement, on the date it was
filed, appeared on its face to comply in all material
respects with the requirements as to form for registration
statements on Form S-3 under the Act and the rules and
regulations of the Commission thereunder, except that no
opinion need be expressed concerning the financial
statements and other financial and statistical information
contained or incorporated by reference therein.
(xi) Such counsel does not know of any material contract or
other material document of a character required to be filed as
an exhibit to the Registration Statement or required to be described
in the Registration Statement or the Prospectus which is not
filed or described as required.
(xii) The documents incorporated by reference into the
Prospectus (the "Incorporated Documents") appear on their
face to comply in all material respects with the
requirements as to form for reports on Form 10-K, Form 10-Q
and Form 8-K, as the case may be, under the Exchange Act,
and the rules and regulations thereunder in effect at the
respective dates of their filing, except that no opinion
need be expressed concerning the financial statements and
other financial and statistical information contained or
incorporated by reference therein.
(xiii) The statements in the Final Prospectus under the
caption "Description of Debt Securities," and in
"Description of Notes," insofar as such statements
constitute a summary of provisions of the Indenture or the
Securities, fairly present the information required therein
by Form S-3.
(xiv) The purchase and sale of the Securities in
accordance with the terms and provisions of this Agreement
and the consummation of the transactions contemplated under
this Agreement and, if applicable the Delayed Delivery
Contracts, the Indenture and the Securities will not violate
the provisions of Section 1 of Article XV of the
Constitution of the State of California.
(xv) The Company is not an "investment company" within
the meaning of the Investment Company Act of 1940.
Such counsel shall also state that on the basis of their
review of the Registration Statement, the documents incorporated
therein on the effective date of the Registration Statement, the
Final Prospectus and the Incorporated Documents, and their
participation in conferences in connection with the preparation
of the Registration Statement and the Final Prospectus, they do
not believe that the Registration Statement and the documents
incorporated therein on the date the Registration Statement
became effective (or if later, the date the Company's latest
Annual Report on Form 10-K was filed with the Commission),
considered as a whole as of such date, contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and they do not believe that the Final
Prospectus and the Incorporated Documents, considered as a whole
on the date of the Final Prospectus and on the date of the
opinion, contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. Such
counsel need not express any opinion or belief as to any document
filed by the Company under the Exchange Act, whether prior or
subsequent to the effective date of the Registration Statement,
except to the extent that any such document is an Incorporated
Document read together with the Registration Statement or the
Prospectus and considered as a whole and as specifically stated
in clause (xii) above, nor must such counsel express any opinion
or belief as to the Form T-1 filed by the Trustee in connection
with the Securities or the financial statements and other
financial and statistical information included or incorporated by
reference in the Registration Statement, the Prospectus or the
Incorporated Documents.
(d) The Representatives shall have received from Milbank,
Tweed, Xxxxxx & XxXxxx, counsel for the Underwriters, such
opinion or opinions, dated the Closing Date, with respect to
the issuance and sale of the Securities, the Indenture, any
Delayed Delivery Contracts, the Registration Statement, the
Final Prospectus and other related matters as the
Representatives may reasonably require, and the Company shall
have furnished to such counsel such documents as they request
for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives
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 the Closing
Date, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Final Prospectus
and this Agreement and that:
(i) the representations and warranties of the Company in
this Agreement are true and correct in all material respects
on and as of the Closing Date with the same effect as if
made on the Closing Date and the Company has, in all
material respects, complied with all the agreements and
satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the Company's
knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Final 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 Final Prospectus.
(f) At the Closing Date, Ernst & Young shall have furnished
to the Representatives a letter or letters, dated as of the
Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent
accountants within the meaning of the Act and the Exchange Act
and the respective applicable published rules and regulations
thereunder and stating in effect that:
(i) in their opinion the audited financial statements
and financial statement schedules included or incorporated
in the Registration Statement and the Final Prospectus and
reported on by them comply in form in all material respects
with the applicable accounting requirements of the Act and
the Exchange Act and the related published rules and
regulations;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company and its
subsidiaries; carrying out certain specified procedures (but
not an examination in accordance with generally accepted
auditing standards) which would not necessarily reveal
matters of significance with respect to the comments set
forth in such letter; a reading of the minutes of the
meetings of the shareholders, directors and audit committee
of the Company and the subsidiaries; and inquiries of
certain officials of the Company who have responsibility for
financial and accounting matters of the Company and its
subsidiaries as to transactions and events subsequent to the
date of the most recent audited financial statements in or
incorporated in the Final Prospectus, nothing came to their
attention which caused them to believe that:
(1) any unaudited financial statements included or
incorporated in the Registration Statement and the Final
Prospectus do not comply in form in all material respects
with applicable accounting requirements and with the
published rules and regulations of the Commission with
respect to financial statements included or incorporated
in quarterly reports on Form 10-Q under the Exchange Act;
and said unaudited financial statements are not in
conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of
the audited financial statements included or incorporated
in the Registration Statement and the Final Prospectus;
(2) with respect to the period subsequent to the date
of the most recent financial statements (other than any
capsule information), audited or unaudited, in or
incorporated in the Registration Statement and the Final
Prospectus, there were any changes, at a specified date
not more than five business days prior to the date of the
letter, in the long-term debt of the Company and its
subsidiaries or capital stock of the Company or decreases
in the shareholders' equity of the Company as compared
with the amounts shown on the most recent consolidated
balance sheet included or incorporated in the
Registration Statement and the Final Prospectus, or for
the period from the date of the most recent financial
statements included or incorporated in the Registration
Statement and the Final Prospectus to such specified date
there were any decreases, as compared with the
corresponding period in the preceding year, in
consolidated revenues or in total amounts of net income
of the Company and its subsidiaries, except in all
instances for changes or decreases set forth in such
letter, in which case the letter shall be accompanied by
an explanation by the Company as to the significance
thereof unless said explanation is not deemed necessary
by the Representatives; or
(3) the amounts included in any unaudited "capsule"
information included or incorporated in the Registration
Statement and the Final Prospectus do not agree with the
amounts set forth in the unaudited financial statements
for the same periods or were not determined on a basis
substantially consistent with that of the corresponding
amounts in the audited financial statements included or
incorporated in the Registration Statement and the
Prospectus;
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical
nature (which is limited to accounting, financial or
statistical information derived from the general accounting
records of the Company and its subsidiaries) set forth in
the Registration Statement and the Final Prospectus and in
Exhibit 12 to the Registration Statement, including the
information included or incorporated in Items 1, 2, 6, 7 and
11 of the Company's Annual Report on Form 10-K, incorporated
in the Registration Statement and the Final Prospectus, and
the information included in the "Management's Discussion and
Analysis of Financial Condition and Results of Operations"
included or incorporated in the Company's Quarterly Reports
on Form 10-Q, incorporated in the Registration Statement and
the Final Prospectus, agrees with the accounting records of
the Company and its subsidiaries, excluding any questions of
legal interpretation; and
(iv) if pro forma financial statements are included or
incorporated in the Registration Statement and the Final
Prospectus, on the basis of a reading of the unaudited pro
forma financial statements, carrying out certain specified
procedures, inquiries of certain officials of the Company
and the acquired company who have responsibility for
financial and accounting matters, and proving the arithmetic
accuracy of the application of the pro forma adjustments to
the historical amounts in the pro forma financial
statements, nothing came to their attention which caused
them to believe that the pro forma financial statements do
not comply in form in all material respects with the
applicable accounting requirements of Rule 11-02 of
Regulation S-X or that the pro forma adjustments have not
been properly applied to the historical amounts in the
compilation of such statements.
References to the Registration Statement and the Final
Prospectus in this paragraph (f) are to such documents as amended
and supplemented at the date of the letter.
(g) Subsequent to the respective dates as of which
information is given in the Registration Statement and the
Final Prospectus, there shall not have been (i) any change or
decrease specified in the letter or letters referred to in
paragraph (f) of this Section 5 or (ii) any change, or any
development involving a prospective change, in or affecting
the business or properties of the Company and its subsidiaries
the effect of which, in any case referred to in clause (i) or
(ii) above, is, in the judgment of the Representatives, so
material and adverse as to make it impractical or inadvisable
to proceed with the offering or the delivery of the Securities
as contemplated by the Registration Statement and the Final
Prospectus.
(h) Subsequent to the execution of this Agreement, there
shall not have been any decrease in the ratings of any of the
Company's debt securities by Xxxxx'x Investors Service, Inc.
or Standard & Poor's Corporation and neither of said
organizations shall have publicly announced that it has under
consideration or review with negative implications any of the
Company's debt securities.
(i) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information,
certificates and documents as the Representatives may
reasonably request.
(j) The Company shall have accepted Delayed Delivery
Contracts in any case where sales of Contract Securities
arranged by the Underwriters have been approved by the
Company.
If any of the conditions specified in this Section 5 shall
not have been fulfilled in all material respects when and as
provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall
not be in all material respects reasonably satisfactory in form
and substance to the Representatives and its counsel, this
Agreement and all obligations of the Underwriters hereunder may
be cancelled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to
the Company in writing or by telephone or telegraph confirmed in
writing.
6. Reimbursement of Underwriter's Expenses. If the sale
of the Securities provided for herein is not consummated because
any condition to the obligations of the Underwriters set forth in
Section 5 hereof is not satisfied, because of any termination
pursuant to Section 9 hereof or because of any refusal, inability
or failure on the part of the Company to perform any agreement
herein or comply with any provision hereof other than by reason
of a default by any of the Underwriters, the Company will
reimburse the Underwriters severally upon demand for all out-of-
pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been incurred by them in connection with
the proposed purchase and sale of the Securities.
7. Indemnification and Contribution. (a) The Company
agrees to indemnify and hold harmless each Underwriter and each
person who controls any Underwriter within the meaning of either
the Act or the Exchange Act against any and all losses, claims,
damages or liabilities (including but not limited to the amount
paid in settlement of any litigation, or investigation or
proceeding by any governmental agency or body, commenced or
threatened), joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or other federal
or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement as originally filed or in
any amendment thereof, or in the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statements therein not misleading, and agrees to reimburse
each such indemnified party, as incurred, for any and all
expenses (including the fees and disbursements of counsel)
incurred by them in connection with investigating, preparing or
defending any such loss, claim, damage, liability, action,
investigation or proceeding; provided, however, that (i) the
Company will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement
or omission or alleged omission made therein in reliance upon and
in conformity with written information furnished to the Company
by any Underwriter through the Representatives expressly for use
in connection with the preparation thereof, and (ii) such
indemnity with respect to the Basic Prospectus or any Preliminary
Final Prospectus shall not inure to the benefit of any
Underwriter (or any person controlling such Underwriter) from
whom the person asserting any such loss, claim, damage or
liability purchased the Securities which are the subject thereof
if such person did not receive a copy of the Final Prospectus (or
the Final Prospectus as amended or supplemented) excluding
documents incorporated therein by reference at or prior to the
confirmation of the sale of such Securities to such person in any
case where such delivery is required by the Act and the untrue
statement or omission of a material fact contained in the Basic
Prospectus or any Preliminary Final Prospectus was corrected in
the Final Prospectus (or the Final Prospectus as amended or
supplemented). This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers
who signs the Registration Statement, and each person who
controls the Company within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from
the Company to each Underwriter, but only with reference to
written information relating to such Underwriter furnished to the
Company by such Underwriter through the Representatives expressly
for use in the preparation of the documents referred to in the
foregoing indemnity.
(c) Promptly after receipt by an indemnified party under
this Section 7 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section 7, notify
the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not
relieve it from any liability which it may have to any
indemnified party otherwise than under this Section 7. In case
any such action is brought against any indemnified party and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and
to the extent that it may elect by written notice delivered to
the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense
thereof, with counsel satisfactory to such indemnified party;
provided, however, that if the defendants in any such action
include both the indemnified party and the indemnifying party and
the indemnified party shall have reasonably concluded that there
may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available
to the indemnifying party, the indemnified party or parties shall
have the right to select separate counsel to assert such legal
defense and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon
receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and
approval by the indemnified party of counsel, the indemnifying
party will not be liable to such indemnified party under this
Section 7 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof
unless (i) the indemnified party shall have employed separate
counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it
being understood, however, that the indemnifying party shall not
be liable for the expenses of more than one separate counsel,
approved by the Representatives in the case of paragraph (a) of
this Section 7, representing the indemnified parties under such
paragraph (a) who are parties to such action), (ii) the
indemnifying party shall not have employed counsel satisfactory
to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the
action or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of
the indemnifying party; and except that, if clause (i) or (iii)
is applicable, such liability shall be only in respect of the
counsel referred to in such clause (i) or (iii).
(d) If the indemnification provided for in this Section 7
shall for any reason be unavailable to an indemnified party under
Section 7(a) or 7(b) hereof in respect of any loss, claim, damage
or liability, or any action in respect thereof, referred to
therein, then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such
loss, claim, damage or liability, or action in respect thereof,
(i) in such proportion as shall be appropriate to reflect the
relative benefits received by the Company, on the one hand, and
the Underwriters, on the other, from the offering of the 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 the Underwriters, on the other, with respect to the
statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any
other relevant equitable considerations. The relative benefits
received by the Company, on the one hand, and the Underwriters,
on the other, with respect to such offering shall be deemed to be
in the same proportion as the total net proceeds from the
offering of the Notes (before deducting expenses) received by the
Company bear to the total discounts and commissions received by
any Underwriter with respect to such offering. The relative
fault shall be determined by reference to whether the untrue or
alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information
supplied by the Company or any Underwriter, the intent of the
parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just
and equitable if contributions pursuant to this Section 7(d) were
to be determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other
method of allocation which does not take into account the
equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim,
damage or liability, or action in respect thereof, referred to
above in this Section 7(d) shall be deemed to include, for
purposes of this Section 7(d), any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim to the extent
not already paid or payable pursuant to another provision of this
Section 7. Notwithstanding the provisions of this Section 7(d),
no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Notes
sold through such Underwriter and distributed to the public were
offered to the public exceeds the amount of any damages which
such Underwriter has otherwise paid or become liable to pay by
reason of any untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The
Underwriters' obligations under this Section 7(d) to contribute
are several in proportion to the respective principal amounts of
Securities purchased by each such Underwriter and not joint.
8. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the
Securities agreed to be purchased by such Underwriter or
Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters
shall be obligated severally to take up and pay for (in the
respective proportions which the amount of Securities set forth
opposite their names in Schedule II hereto bears to the aggregate
amount of Securities set forth opposite the names of all the
remaining Underwriters) the Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase;
provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase shall exceed 10% of the aggregate
amount of Securities set forth in Schedule II hereto, the
remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Underwriters do not
purchase all the Securities, this Agreement will terminate
without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter as set
forth in this Section 8, the Closing Date shall be postponed for
such period, not exceeding seven days, as the Representatives
shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. Nothing contained in
this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company and any nondefaulting
Underwriter for damages occasioned by its default hereunder.
9. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by
notice given to the Company prior to delivery of and payment for
the Securities, if prior to such time any of the following shall
have occurred: (i) since the respective dates as of which
information is given in the Registration Statement, any material
adverse change in the condition, financial or otherwise, of the
Company and its subsidiaries considered as one enterprise, or in
the earnings, affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, except as set forth
or contemplated in the Prospectus, which, in the Representatives'
judgement, makes it impracticable to market the Securities or
enforce contracts for the sale of the Securities, (ii) trading in
any securities of the Company has been suspended by the
Commission or a national securities exchange, or trading
generally on either the New York Stock Exchange or the American
Stock Exchange shall have been suspended, or minimum or maximum
prices for trading shall have been fixed, or maximum ranges for
prices for securities shall have been required, by either of said
exchanges or by order of the Commission or any other governmental
authority, (iii) a banking moratorium shall have been declared
either by Federal or New York State authorities, or (iv) any
outbreak or escalation of hostilities or other national or
international calamity or crisis, if the effect of such outbreak,
escalation, calamity or crisis would, in the Representatives'
reasonable judgment, make the offering or delivery of the
Securities impracticable.
10. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities
and other statements of the Company or its officers and of the
Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in
Section 7 hereof, and will survive delivery of and payment for
the Securities. The provisions of Sections 6 and 7 hereof shall
survive the termination or cancellation of this Agreement.
11. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to the
Representatives, will be mailed, delivered or telecopied and
confirmed to them, at the address specified in Schedule I hereto;
or, if sent to the Company, will be mailed, delivered or
telecopied and confirmed to International Lease Finance
Corporation at the address specified in Schedule I.
12. Successors. This Agreement will inure to the benefit
of and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling persons
referred to in Section 7 hereof, and no other person will have
any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed
duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement among the Company and the several
Underwriters.
Very truly yours,
International Lease Finance Corporation
_/s/ Xxxx X. Lund__________________
By: Xxxx X. Xxxx
Executive Vice President,
Co-Chief Operating Officer
and Chief Financial Officer
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
BA Securities, Inc.
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation
Prudential Securities Incorporated
First Union Brokerage Services, Inc.
By: Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
By: _/s/ Xxxx X. Schulte_____
Name: Xxxx X. Xxxxxxx
Title: Authorized Signatory
SCHEDULE I
Underwriting Agreement dated: December 5, 1995
Registration Statement No.: 33-62649
Representatives: Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Title, Purchase Price and Description of Securities:
Title: 5-3/4% Notes due December 15, 1999
Principal amount: $150,000,000
Purchase price (include accrued
interest or amortization, if any):
99.433% plus accrued interest, if any, from December 8, 1995
Closing Date, Time and Location:
December 8, 1995, 7:00 a.m. Los Angeles time, at the offices
of O'Melveny & Xxxxx, 000 Xxxxx Xxxx Xxxxxx, Xxx Xxxxxxx,
Xxxxxxxxxx
Modification of items to be covered by the letter
from Ernst & Young delivered pursuant to
Section 5(f) at the time this Agreement is
executed: None
Addresses for Notices to Representatives and the Company:
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
World Financial Center
000 Xxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
International Lease Finance Corporation
1999 Avenue of the Stars, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Chief Financial Officer
Securities to be delivered in certificated form.
SCHEDULE II
Principal Amount
of Securities to
Underwriters be Purchased
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx $ 30,000,000
Incorporated
BA Securities, Inc. 30,000,000
Xxxxxxxxx, Lufkin & Xxxxxxxx 30,000,000
Securities Corporation
Prudential Securities Incorporated 30,000,000
First Union Brokerage Services, Inc. 30,000,000
Total . . . . . . . . . . . . . . . . . .$150,000,000
============
SCHEDULE III
Delayed Delivery Contract
__________, 19___
[Insert name and address
of lead Representative]
Dear Sirs:
The undersigned hereby agrees to purchase from International
Lease Finance Corporation (the "Company"), and the Company agrees
to sell to the undersigned, on ________, 19 __, (the "Delivery
Date"), $_________ principal amount of the Company's
__________________ (the "Securities") offered by the Company's
Prospectus dated _________, 19___, and related Prospectus
Supplement dated __________, 19___, receipt of a copy of which is
hereby acknowledged, at a purchase price of ___% of the principal
amount thereof, plus accrued interest, if any, thereon from
__________, 19___, to the date of payment and delivery, and on
the further terms and conditions set forth in this contract.
Payment for the Securities to be purchased by the
undersigned shall be made on or before 11:00 A.M., New York City
time, on the Delivery Date to or upon the order of the Company in
______________________________ funds, at your office or at such
other place as shall be agreed between the Company and the
undersigned, upon delivery to the undersigned of the Securities
in definitive fully registered form and in such authorized
denominations and registered in such names as the undersigned may
request by written or telegraphic communication addressed to the
Company not less than five full business days prior to the
Delivery Date. If no request is received, the Securities will be
registered in the name of the undersigned and issued in a
denomination equal to the aggregate principal amount of
Securities to be purchased by the undersigned on the Delivery
Date.
The obligation of the undersigned to take delivery of and
make payment for Securities on the Delivery Date, and the
obligation of the Company to sell and deliver Securities on the
Delivery Date, shall be subject to the conditions (and neither
party shall incur any liability by reason of the failure thereof)
that (1) the purchase of Securities to be made by the
undersigned, which purchase the undersigned represents is not
prohibited on the date hereof, shall not on the Delivery Date be
prohibited under the laws of the jurisdiction to which the
undersigned is subject, and (2) the Company, on or before the
Delivery Date, shall have sold to certain underwriters (the
"Underwriters") such principal amount of the Securities as is to
be sold to them pursuant to the Underwriting Agreement referred
to in the Prospectus and Prospectus Supplement mentioned above.
Promptly after completion of such sale to the Underwriters, the
Company will mail or deliver to the undersigned at its address
set forth below notice to such effect, accompanied by a copy of
the opinion of counsel for the Company delivered to the
Underwriters in connection therewith. The obligation of the
undersigned to take delivery of and make payment for the
Securities, and the obligation of the Company to cause the
Securities to be sold and delivered, shall not be affected by the
failure of any purchaser to take delivery of and make payment for
the Securities pursuant to other contracts similar to this
contract.
This contract will inure to the benefit of and be binding
upon the parties hereto and their respective successors, but will
not be assignable by either party hereto without the written
consent of the other.
It is understood that acceptance of this contract and other
similar contracts is in the Company's sole discretion and,
without limiting the foregoing, need not be on a first come,
first served basis. If this contract is acceptable to the
Company, it is required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts
hereof to the undersigned at its address set forth below. This
will become a binding contract between the Company and the
undersigned, as of the date first above written, when such
counterpart is so mailed or delivered.
This agreement shall be governed by and construed in
accordance with the laws of the State of New York.
Very truly yours,
______________________________
(Name of Purchaser)
By: _________________________
(Signature and Title
of Officer)
_________________________
(Address)
Accepted:
International Lease Finance
Corporation
By: __________________________
(Authorized Signature)
International Lease
Finance Corporation
