Exhibit 1.1
INTERNATIONAL LEASE FINANCE CORPORATION
$1,000,000,000
ILFC NOTES
WITH MATURITIES OF 9 MONTHS OR MORE FROM DATE OF ISSUE
SELLING AGENT AGREEMENT
April 15, 2003
ABN AMRO Financial Services, Inc. Xxxxxx Xxxxxxx & Co. Incorporated
000 Xxxxx Xxxx, Xxxxx 000 0000 Xxxxxxxx, 0xx Xxxxx
Xxxx Xxxxx, XX 00000 Xxx Xxxx, XX 00000
Banc of America Securities LLC Prudential Securities Incorporated
NY-301-2M-01 One New York Plaza
0 Xxxx 00xx Xxxxxx Xxx Xxxx, XX 00000
Xxx Xxxx, XX 00000
Citigroup Global Markets Inc. UBS PaineWebber Inc.
000 Xxxxxxxxx Xxxxxx 000 Xxxxxx Xxxxxxxxx
Xxx Xxxx, XX 00000 Xxxxxxxxx, XX 00000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Wachovia Securities, Inc.
Incorporated One Wachovia Center
4 World Financial Center, Floor 15 000 Xxxxx Xxxxxxx Xxxxxx, XX-0
Xxx Xxxx, XX 00000 Xxxxxxxxx, XX 00000-0000
Dear Sirs:
International Lease Finance Corporation, a California corporation (the
"COMPANY"), proposes to issue and sell up to $1,000,000,000 aggregate principal
amount of its ILFC Notes (the "NOTES") with maturities of 9 months or more from
date of issue pursuant to the provisions of the Indenture, dated as of November
1, 2000, and as supplemented from time to time (the "INDENTURE"), between the
Company and The Bank of New York, as Trustee (the "Trustee"). The Notes shall
have the maturity ranges, interest rates and other terms set forth in the
Prospectus referred to below as it may be amended or supplemented from time to
time. The Notes will be issued, and the terms thereof established, from time to
time by the Company in accordance with the Indenture.
Subject to the terms and conditions contained in this Selling Agent
Agreement (the "AGREEMENT"), the Company hereby (1) appoints each of you as an
agent of the Company (individually, an "AGENT" and collectively the "AGENTS")
for the purpose of soliciting and receiving offers to purchase Notes from the
Company and you hereby agree to use your
reasonable best efforts to solicit and receive offers to purchase Notes upon
terms acceptable to the Company at such times and in such amounts as the Company
shall from time to time specify and in accordance with the terms hereof and (2)
agrees that whenever the Company determines to sell Notes pursuant to this
Agreement, such Notes shall be sold pursuant to a Terms Agreement (as defined in
Section IV(b) below) relating to such sale in accordance with the provisions of
Section IV(b) hereof between the Company and ABN AMRO Financial Services, Inc.
(the "PURCHASING AGENT"), with the Purchasing Agent purchasing such Notes as
principal for resale to others. This Agreement shall not be construed to create
either an obligation on the part of the Company to sell any Notes or an
obligation of any of the Agents to purchase Notes.
I.
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement on Form S-3 (No. 333-100340) relating to,
among other things, the Notes and the offering thereof, from time to time, in
accordance with Rule 415 under the Securities Act of 1933, as amended (the
"SECURITIES ACT"). Such registration statement, including all documents
incorporated therein by reference, as from time to time amended or supplemented,
is referred to herein as the "REGISTRATION STATEMENT". The Registration
Statement has been declared effective by the Commission, and the Indenture has
been qualified under the Trust Indenture Act of 1939, as amended (the "TRUST
INDENTURE ACT"). The Company has prepared or will promptly prepare for filing
with, or transmitted for filing to, the Commission, pursuant to Rule 424 under
the Securities Act, a prospectus supplement (the "PROSPECTUS SUPPLEMENT") and a
prospectus (the "BASE PROSPECTUS") for the purpose of supplying information in
respect of the public offering of the Notes. The Prospectus Supplement, together
with the Base Prospectus, including all documents incorporated therein by
reference, as from time to time amended or supplemented, and including any
supplement to the Prospectus that sets forth only the terms of a particular
issue of the Notes (a "PRICING SUPPLEMENT"), are referred to herein as the
"PROSPECTUS".
II.
Your obligations hereunder are subject to the following conditions, each
of which shall be met on such date as you and the Company shall subsequently fix
for the commencement of your obligations hereunder (the "COMMENCEMENT DATE"):
(a) (i) No litigation or proceeding shall be threatened or pending to
restrain or enjoin the issuance or delivery of the Notes, or which in any way
questions or affects the validity of the Notes, (ii) no stop order suspending
the effectiveness of the Registration Statement shall be in effect, and no
proceedings for such purpose shall be pending before or threatened by the
Commission and (iii) there shall have been no material adverse change in the
consolidated financial condition of the Company and its subsidiaries, considered
as a whole (a "MATERIAL ADVERSE CHANGE"), from that set forth in the
Registration Statement and the Prospectus; and you shall have received on the
Commencement Date a certificate of the Company dated such
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Commencement Date and signed by an executive officer of the Company to the
foregoing effect. The officer making such certificate may rely upon the best of
his knowledge as to proceedings.
(b) You shall have received a favorable opinion of the General Counsel of
the Company, dated the Commencement 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 result in a Material Adverse Change;
(ii) to the best knowledge of such counsel, the only domestic
subsidiaries of the Company are: Interlease Aviation Corporation; ILFC
Aircraft Holding Corporation; Interlease Management Corporation;
Interlease Aircraft Trading Corporation; Aircraft SPC-3, Inc.; Aircraft
SPC-4, Inc.; ILFC Aviation Consulting, Inc.; Aircraft SPC-8, Inc.;
Aircraft SPC-9, Inc.; Aircraft SPC-11, Inc.; Aircraft SPC-12, Inc.;
Aircraft SPC-14, Inc.; Platypus Leasing, Inc.; Euclid Aircraft; ILFC
Dover, Inc.; CABREA, Inc.; ILFC Volare, Inc., all wholly owned
subsidiaries of Aircraft SPC-3, Inc.; ILFC Rhino I LLC; and ILFC Rhino II
LLC;
(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 Securities Exchange Act
of 0000 (xxx "XXXXXXXX XXX"); and
(iv) to the best knowledge of such counsel, there is no pending or
threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator involving the Company or any
of its subsidiaries of a character required to be disclosed in the
Registration Statement which is not adequately disclosed in the
Prospectus.
(c) You shall have received a favorable opinion of O'Melveny & Xxxxx LLP,
special counsel for the Company, dated the Commencement Date, to the effect
that:
(i) each of the Company, Interlease Management Corporation,
Interlease Aviation Corporation, ILFC Aircraft Holding Corporation,
Interlease Aircraft Trading Corporation, Aircraft SPC-3, Inc., Aircraft
SPC-4, Inc., ILFC Aviation Consulting, Inc., Aircraft SPC-8, Inc.,
Aircraft SPC-9, Inc., Aircraft SPC-11, Inc., Aircraft SPC-12, Inc.,
Aircraft SPC-14, Inc., Platypus Leasing, Inc., Euclid Aircraft, ILFC
Dover, Inc., CABREA, Inc., ILFC Volare, Inc., ILFC Rhino I LLC; and ILFC
Rhino II LLC has been duly incorporated or organized and is existing and
in good standing under the laws of the jurisdiction in which it is
incorporated or organized;
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(ii) the Company has the corporate power to own its properties and
conduct its business as described in the Prospectus and to issue and sell
the Notes as contemplated by this Agreement;
(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 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 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 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 and the applicable Terms Agreement, will
be legally valid and binding obligations of the Company, 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 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 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;
(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 for the issuance and sale of the Notes, except such as have
been obtained under the Securities 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;
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(viii) 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 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 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 judgements;
(ix) the Registration Statement has been declared effective under
the Securities 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 Securities 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;
(xi) the documents incorporated by reference into the Prospectus
(the "INCORPORATED DOCUMENTS") appear on their face to comply in all
material respects with the requirements as to form for reports on Form
10-K, Form 10-Q and Form 8-K, as the case may be, under the Exchange Act,
and the rules and regulations thereunder in effect at the respective dates
of their filing, except that no opinion need be expressed concerning the
financial statements and other financial information contained or
incorporated by reference therein;
(xii) the statements in the Prospectus under the caption
"Description of Debt Securities", and in the Prospectus Supplement under
the caption "Description of the Notes", 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 Company is not an investment company required to register
under the Investment Company Act of 1940, as amended;
(xiv) 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; and
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(xv) 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 the provisions of Section 1 of Article XV of the Constitution of
the State of California.
Such counsel may state that such counsel has participated in conferences
in connection with the preparation of, and has reviewed, the Registration
Statement and the Prospectus, but has not independently verified the accuracy,
completeness or fairness of the statements in those documents. Such counsel may
also state that the limitations inherent in such participation and review, and
the knowledge available to such counsel, are such that such counsel is unable to
assume, and does not assume, any responsibility for such accuracy, completeness
or fairness (except as otherwise specifically stated in clause (xii) above).
However, such counsel shall state that, on the basis of such participation and
review, such counsel does 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 such counsel does not believe that the Prospectus and the
Incorporated Documents, considered as a whole on the date of the Prospectus,
contained any untrue statement of a material fact or omitted to state a material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. Such counsel need not express any
opinion or belief as to any document filed by the Company under the Exchange
Act, whether prior or subsequent to the effective date of the Registration
Statement, except to the extent that any such document is an Incorporated
Document read together with the Registration Statement or the Prospectus and
considered as a whole and as specifically stated in clause (xi) above, nor must
such counsel express any opinion or belief as to the Form T-1 filed by the
Trustee in connection with the Registration Statement or the financial
statements and other financial information included or incorporated by reference
in the Registration Statement, the Prospectus or the Incorporated Documents.
(d) You shall have received on the Commencement Date a letter dated the
Commencement Date from PricewaterhouseCoopers LLP, independent auditors,
containing statements and information of the type ordinarily included in
auditors' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in or incorporated by
reference into the Registration Statement and the Prospectus relating to the
Notes.
(e) You shall have received a favorable opinion of Xxxxxx, Xxxxx & Xxxxxxx
LLP, counsel for the Agents, dated such Commencement Date, to the effect set
forth in Section II(c) in clauses (iii), (iv), (vi), (ix), (x), (xi) and (xii)
and the paragraph following clause (xv).
(f) You shall have received a certificate of the secretary or assistant
secretary of the Company as to (i) the Articles of Incorporation of the Company,
(ii) the Bylaws of the Company and (iii) the resolutions authorizing the
issuance and sale of the Notes and certain related matters.
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The obligations of the Purchasing Agent to purchase Notes as principal,
both under this Agreement and under any Terms Agreement, are subject to the
conditions that (i) no litigation or proceeding shall be threatened or pending
to restrain or enjoin the issuance or delivery of the Notes, or which in any way
questions or affects the validity of the Notes, (ii) no stop order suspending
the effectiveness of the Registration Statement shall be in effect, and no
proceedings for such purpose shall be pending before or threatened by the
Commission and (iii) there shall have been no Material Adverse Change, each of
which conditions shall be met on the corresponding Settlement Date (as defined
in Section IV(b) hereof). Further, if specifically called for by any written
agreement by the Purchasing Agent to purchase Notes as principal, the Purchasing
Agent's obligations hereunder and under such agreement shall be subject to such
of the additional conditions set forth in clause (a), as it relates to the
executive officer's certificate, and clauses (b), (c), (d) and (e) above, as
agreed to by the parties, each of which such agreed conditions shall be met on
the corresponding Settlement Date.
III.
In further consideration of your agreements herein contained, the Company
covenants as follows:
(a) To furnish to you, without charge, a copy of (i) the Indenture, (ii)
the resolutions of the Board of Directors (or Executive Committee) of the
Company authorizing the issuance and sale of the Notes, certified by the
Secretary or Assistant Secretary of the Company as having been duly adopted,
(iii) the Registration Statement including exhibits but not including documents
incorporated by reference therein; and (iv) as many copies of the Prospectus,
any documents incorporated by reference therein and any supplements and
amendments thereto as you may reasonably request.
(b) Before amending or supplementing the Registration Statement or the
Prospectus (other than amendments or supplements to change interest rates and
other than amendments or supplements in the form of the Company's periodic
filings to be filed with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act that are incorporated by reference in the Prospectus),
to furnish you a copy of each such proposed amendment or supplement, and to
afford you a reasonable opportunity to comment on any such proposed amendment or
supplement.
(c) To furnish you copies of each amendment to the Registration Statement
and of each amendment and supplement to the Prospectus in such quantities as you
may from time to time reasonably request; and if at any time when the delivery
of a Prospectus shall be required by law in connection with sales of any of the
Notes, either (i) any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include any untrue statement of
a material fact, or omit to state any material fact necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading or (ii) for any other reason it shall be necessary to amend
or supplement the latest Prospectus, as then amended or supplemented, or to file
under the Exchange Act any document incorporated by reference in the Prospectus
in order to comply with the Securities Act or the Exchange Act, the Company will
(A) notify you to suspend the solicitation of offers to purchase Notes and if
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notified by the Company, you shall forthwith suspend such solicitation and cease
using the Prospectus as then amended or supplemented and (B), if the Company
notifies you that it would like you to resume the solicitation of offers to
purchase, promptly prepare and file with the Commission such document
incorporated by reference in the Prospectus or an amendment or supplement to the
Registration Statement or the Prospectus which will correct such statement or
omission or effect such compliance and will provide to you without charge a
reasonable number of copies thereof, which you shall use thereafter.
(d) To endeavor to qualify such Notes for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request and to pay all reasonable expenses (including fees and disbursements of
counsel) in connection with such qualification and in connection with the
determination of the eligibility of such Notes for investment under the laws of
such jurisdictions as you may designate; provided, that, in connection therewith
the Company shall not be required to qualify as a foreign corporation to do
business, or to file a general consent to service of process, in any
jurisdiction.
(e) The Company will make generally available to its security holders as
soon as practicable earning statements that satisfy the provisions of Section
11(a) of the Securities Act and the rules and regulations of the Commission
thereunder covering twelve month periods beginning, in each case, not later than
the first day of the Company's fiscal quarter next following the "effective
date" (as defined in Rule 158 under the Securities Act) of the Registration
Statement with respect to each sale of Notes.
(f) (i) If the Company and the Purchasing Agent mutually agree to list
Notes on any stock exchange (a "STOCK Exchange"), to use its reasonable efforts,
in cooperation with the Purchasing Agent, to cause such Notes to be accepted for
listing on any such Stock Exchange, in each case as the Company and the
Purchasing Agent shall deem to be appropriate. In connection with any such
agreement to list Notes on a Stock Exchange, the Company shall use its
reasonable efforts to obtain such listing promptly and shall furnish any and all
documents, instruments, information and undertakings that may be reasonably
necessary or advisable in order to obtain and maintain the listing.
(i) So long as any Note remains outstanding and listed on a Stock
Exchange, if the Prospectus as then amended or supplemented would include
any untrue statement of a material fact or omit to state any material fact
relating to any matter described in the Prospectus the inclusion of which
was required by the listing rules and regulations of such Stock Exchange
on which any Notes are listed (the "LISTING RULES") or by such Stock
Exchange, to provide to the Purchasing Agent information about the change
or matter and to amend or supplement the Prospectus in order to comply
with the Listing Rules or as otherwise requested by the Stock Exchange.
(ii) To use reasonable efforts to comply with any undertakings given
by it from time to time to any Stock Exchange on which any Notes are
listed.
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(g) To notify the Purchasing Agent promptly in writing in the event that
the Company does not have a security listed on the New York Stock Exchange of
equal rank with or junior to the Notes.
(h) The Company will notify the Agents immediately, and confirm such
notice in writing, of any change in the rating assigned by any nationally
recognized statistical rating organization, as such term is defined in Rule
436(g)(2) under the Securities Act, to the Medium-Term Note Program under which
the Notes are issued (the "PROGRAM") or any debt securities (including the
Notes) of the Company, or the public announcement by any nationally recognized
statistical rating organization that it has under surveillance or review, with
possible negative implications, its rating of the Program or any such debt
securities, or the withdrawal by any nationally recognized statistical rating
organization of its rating of the Program or any such debt securities.
IV.
(a) Solicitations as Agent. You hereby agree, as Agents hereunder, to use
your reasonable best efforts to solicit and receive offers to purchase Notes
upon the terms and conditions set forth herein and in the Prospectus and upon
the terms communicated to you from time to time by the Company. For the purpose
of such solicitation you will use the Prospectus as then amended or supplemented
which has been most recently distributed to you by the Company, and you will
solicit offers to purchase only as permitted or contemplated thereby and herein
and will solicit offers to purchase Notes only as permitted by the Securities
Act and the applicable securities laws or regulations of any jurisdiction. The
Company reserves the right, in its sole discretion, to suspend solicitation of
offers to purchase Notes commencing at any time for any period of time or
permanently. Upon receipt of instructions (which may be given orally) from the
Company, you will as soon as practicable, but in any event no later than one
business day after receipt of such instructions, suspend solicitation of offers
to purchase until such time as the Company has advised you that such
solicitation may be resumed.
You are authorized to solicit orders for the Notes only in denominations
of $1,000 or more (in multiples of $1,000). You are not authorized to appoint
subagents or to engage the service of any other broker or dealer in connection
with the offer or sale of the Notes without the consent of the Company;
provided, however, the Purchasing Agent may engage the service of any other
broker or dealer without the consent of the Company. The Purchasing Agent will,
however, on a periodic basis, provide the Company with a listing of those
brokers or dealers so engaged. In addition, unless otherwise instructed by the
Company, the Purchasing Agent shall communicate to the Company, orally or in
writing, each offer to purchase Notes. The Company shall have the sole right to
accept offers to purchase Notes offered through you and may reject any proposed
purchase of Notes as a whole or in part. You shall have the right, in your
discretion reasonably exercised, to reject any proposed purchase of Notes, as a
whole or in part, and any such rejection shall not be deemed a breach of your
agreements contained herein.
The Company agrees to pay the Purchasing Agent, as consideration for
soliciting the sale of the Notes, a concession in the form of a discount equal
to the percentages of the principal
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amount of each Note sold not in excess of the concession set forth in Exhibit A
hereto (the "Concession"). Notwithstanding the foregoing, for Notes that bear a
zero interest rate and are issued at a substantial discount from the principal
amount payable at the Maturity Date (a "Zero-Coupon Note"), the Company agrees
to pay the Purchasing Agent, as consideration for soliciting the sale of the
Zero-Coupon Notes, a Concession in the form of a discount equal to the
percentages of the initial offering price of each Zero-Coupon Note sold not in
excess of the Concession set forth in Exhibit A hereto. The Purchasing Agent and
the other Agents will share the Concession in such proportions as they may
agree.
Except as provided in Section IV(b) hereof, in soliciting offers to
purchase Notes from the Company, you are acting solely as agent for the Company
and not as principal. If acting on behalf of the Company on an agency basis, you
will make reasonable efforts to assist the Company in obtaining performance by
each purchaser whose offer to purchase Notes has been accepted by the Company,
but you shall not have any liability to the Company in the event such purchase
is not consummated for any reason, other than to repay to the Company any
Concession with respect thereto.
(b) Purchases as Principal. Each sale of Notes to an Agent as principal
shall be made in accordance with the terms of this Agreement and a separate
agreement, substantially in the form of Exhibit C hereto, to be entered into on
behalf of such Agent(s) by the Purchasing Agent, which will provide for the sale
of such Notes to, and the purchase and reoffering thereof by, the Purchasing
Agent as principal. Each such separate agreement (which may be an oral agreement
and confirmed in writing as described below between the Purchasing Agent and the
Company) is herein referred to as a "TERMS AGREEMENT". A Terms Agreement may
also specify certain provisions relating to the reoffering of such Notes by the
Purchasing Agent. The Purchasing Agent's agreement to purchase Notes pursuant to
any Terms Agreement shall be deemed to have been made on the basis of the
representations, warranties and agreements of the Company herein contained and
shall be subject to the terms and conditions herein set forth. Except pursuant
to a Terms Agreement, under no circumstances shall you be obligated to purchase
any Notes for your own account. Each Terms Agreement, whether oral (and
confirmed in writing which may be by facsimile transmission) or in writing,
shall describe the Notes to be purchased pursuant thereto by the Purchasing
Agent as principal, and may specify, among other things, the principal amount of
Notes to be purchased, the interest rate or formula and maturity date or dates
of such Notes, the interest payment dates, if any, the price to be paid to the
Company for such Notes, the initial public offering price 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"), whether the Notes provide for a survivor's
option or for optional redemption by the Company and on what terms and
conditions, and any other relevant terms. Terms Agreements may take the form of
an exchange of any standard form of written telecommunication between the
Purchasing Agent and the Company.
In connection with the resale of the Notes purchased, without the consent
of the Company, you are not authorized to appoint subagents or to engage the
service of any other broker or dealer, nor may you reallow any portion of the
discount paid to you by the Company in excess of the designated reallowance
portion; provided, however, that the Purchasing Agent may engage the service of
any other broker or dealer without the consent of the Company. The
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Purchasing Agent will however, on a periodic basis, provide the Company with a
listing of those brokers or dealers so engaged. Unless authorized by the
Purchasing Agent in each instance, each Agent agrees not to purchase and sell
Notes for which an order from a client has not been received.
Each purchase of Notes by the Purchasing Agent from the Company shall be
at a discount from the principal amount of each such Note on the date of issue
not in excess of the applicable Concession set forth in Exhibit A hereto.
Notwithstanding the foregoing, except as mutually agreed upon by the parties,
for Zero-Coupon Notes, each purchase of Zero-Coupon Notes by the Purchasing
Agent from the Company shall be at a discount from the initial offering price of
each such Note on the date of issue not in excess of the applicable Concession
set forth in Exhibit A hereto.
(c) Public Offering Price. Unless otherwise authorized by the Company, all
Notes shall be sold to the public at a purchase price not to exceed 100% of the
principal amount thereof, plus accrued interest, if any, with the exception of
Zero-Coupon Notes. Zero-Coupon Notes shall be sold to the public at a purchase
price no greater than an amount, expressed as a percentage of the principal face
amount of such Notes, equal to (i) the net proceeds to the Company on the sale
of such Notes, plus (ii) the Concession, plus (iii) accrued interest, if any.
Such purchase price shall be set forth in the confirmation statement of the
Selling Group (as defined in Exhibit B) member responsible for such sale, and
delivered to the purchaser along with a copy of the Prospectus (if not
previously delivered) and Pricing Supplement.
(d) Procedures. Procedural details relating to the issue and delivery of,
and the solicitation of offers to purchase and payment for, the Notes , whether
under Section IV(a) or IV(b) of this Agreement, are set forth in the
Administrative Procedures attached hereto as Exhibit B, as amended from time to
time (the "PROCEDURES"). The provisions of the Procedures shall apply to all
transactions contemplated hereunder. You and the Company each agree to perform
the respective duties and obligations specifically provided to be performed by
each in the Procedures. The Procedures may only be amended by written agreement
of the Company and each of you.
(e) Prospectus Delivery. You shall, as required by applicable law, furnish
to each person to whom you sell or deliver Notes a copy of the Prospectus (as
then amended or supplemented) or, if delivery of the Prospectus is not required
by applicable law, inform each such person that a copy thereof (as then amended
or supplemented) will be made available upon request. You are not authorized to
give any information or to make any representation not contained in the
Prospectus or the documents incorporated by reference or specifically referred
to therein in connection with the offer and sale of the Notes. You will not use
any marketing materials other than the Prospectus in connection with any offer
or sale of the Notes except for marketing materials prepared by the Company, if
any, and furnished to you together with written authorization from the Company
to the Purchasing Agent to use the same hereunder. If you elect to distribute
these additional marketing materials under the so called "free writing"
exemption embodied in Section 2(10)(a) of the Securities Act (any such marketing
materials, "FREE WRITING MATERIALS"), you will use your best efforts to ensure
that any intended recipients of
11
such Free Writing Materials receive a Prospectus either prior to or concurrently
with their receipt of the Free Writing Materials.
(f) Compliance With Laws. The Purchasing Agent is aware, and has informed
the other Agents, that other than registering the Notes under the Securities
Act, no action has been or will be taken by the Company that would permit the
offer or sale of the Notes or possession or distribution of the Prospectus or
any other offering material relating to the Notes in any jurisdiction where
action for that purpose is required. Accordingly, the Purchasing Agent agrees
that it will observe all applicable laws and regulations in each jurisdiction in
or from which it may directly or indirectly acquire, offer, sell or deliver
Notes or have in its possession or distribute the Prospectus or any other
offering material relating to the Notes, and the Purchasing Agent will obtain
any consent, approval or permission required for the purchase, offer or sale by
it of Notes under the laws and regulations in force in any such jurisdiction to
which it is subject or in which it makes such purchase, offer or sale.
V.
The Company represents and warrants to the Agents that as of the date
hereof, as of each date on which the Company accepts an offer to purchase Notes
(including any purchase by the Purchasing Agent as principal, pursuant to a
Terms Agreement or otherwise), as of each date the Company issues and sells
Notes and as of each date the Registration Statement or the Prospectus is
amended or supplemented:
(a) (i) each document, if any, filed, or to be filed, pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied when so
filed, or will comply, in all material respects with such Act and the rules and
regulations thereunder; (ii) the Registration Statement (including the documents
incorporated by reference therein), filed with the Commission pursuant to the
Securities Act relating to the Notes, when it became effective, did not 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 not
misleading; (iii) each Prospectus, if any, filed pursuant to Rule 424 under the
Securities Act, complied when so filed in all material respects with such Act
and the applicable rules and regulations thereunder; (iv) the Registration
Statement and each Prospectus comply and, as amended or supplemented, if
applicable, will comply in all material respects with the Securities Act and the
applicable rules and regulations thereunder; and (v) the Registration Statement
and each Prospectus relating to the Notes do not and, as amended or
supplemented, if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(b) the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, with corporate power and authority to own its properties and
conduct its business as described in the Prospectus, and has been duly qualified
as a foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases properties,
or
12
conducts any business so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so qualified in
any such jurisdiction;
(c) the Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid and
non-assessable;
(d) the Notes have been duly authorized and, when the terms thereof have
been established in accordance with the Indenture and when executed,
authenticated, issued and delivered in the manner provided for in the Indenture
against payment therefor, will constitute legal, valid and binding obligations
of the Company, enforceable against the Company in accordance with their terms,
subject, as to enforcement of remedies, to bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally, general equitable principles and the discretion of courts in granting
equitable remedies; the Indenture has been duly authorized, executed and
delivered by the Company and constitutes a legal, valid and binding agreement of
the Company, enforceable against the Company in accordance with its terms,
subject, as to enforcement of remedies, to bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally, general equitable principles and the discretion of courts in granting
equitable remedies; and the Indenture has been duly qualified under the Trust
Indenture Act; and the Indenture conforms and the Notes of any particular
issuance of Notes will conform in all material respects to the descriptions
thereof contained in the Prospectus as amended or supplemented that relate to
such issuance of Notes;
(e) other than as set forth in the Prospectus, the Company and each of its
subsidiaries have conducted their businesses and are in compliance in all
material respects with all applicable federal and state laws and regulations,
except for any noncompliance which would not result in a Material Adverse
Change;
(f) the issue and sale of the Notes, the compliance by the Company with
all of the provisions of the Notes, the Indenture, this Agreement and any Terms
Agreement, and the consummation of the transactions herein and therein
contemplated will not result in a breach or violation of any of the terms or
provisions of, or constitute a default under, (i) any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which the Company
or any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the Company
or any of its subsidiaries is subject, or (ii) any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company or any of its properties, except for such breaches, violations or
defaults under subsections (i) or (ii) immediately above that would not result
in a Material Adverse Change, nor will such action result in any violation of
the provisions of the Articles of Incorporation or Bylaws of the Company; and no
consent, approval, authorization, order, registration or qualification of or
with any court or governmental agency or body is required for the issuance and
sale of the Notes or the consummation by the Company of the other transactions
contemplated by this Agreement, any Terms Agreement or the Indenture, except
such as have been, or will have been prior to the Commencement Date, obtained
under the Securities Act or the Trust Indenture Act and such consents,
approvals, authorizations,
13
registrations or qualifications as may be required under state securities or
Blue Sky laws in connection with the solicitation by you of offers to purchase
Notes from the Company and with purchases of Notes by you as principal, as the
case may be, in each case in the manner contemplated hereby;
(g) other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending or, to the Company's knowledge, threatened to
which the Company or any of its subsidiaries is a party or to which any property
of the Company or any of its subsidiaries is subject, which are of a character
that are required to be disclosed in the Prospectus which have not been properly
disclosed therein;
(h) immediately after any sale of Notes by the Company hereunder and under
any Terms Agreement, the aggregate amount of Notes which shall have been issued
and sold by the Company hereunder and under any Terms Agreement and of any debt
securities of the Company (other than such Notes) that shall have been issued
and sold pursuant to the Registration Statement will not exceed the amount of
debt securities registered under the Registration Statement;
(i) the Company is not, and, after giving effect to the offering and sale
of the Notes and the application of the proceeds thereof as described in the
Prospectus, the Company will not be, required to register as an "investment
company" as such term is defined in the Investment Company Act of 1940, as
amended; and
(j) the program under which the Notes are issued is rated A1 by Xxxxx'x
Investors Service, Inc. ("Moody's"), AA- by Standard & Poor's, a division of the
XxXxxx-Xxxx Companies, Inc. ("Standard & Poor's") and AA- by Fitch Inc.
("Fitch"), or, after the Commencement Date, such other rating as to which the
Company shall have most recently notified the Agents pursuant to Section III(h)
hereof.
The above representations and warranties shall not apply to any statements
or omissions made in the Prospectus in reliance upon and in conformity with
information furnished in writing to the Company by you expressly for use
therein. Each acceptance by the Company of an offer for the purchase of Notes
and each issuance of Notes shall be deemed an affirmation by the Company that
the foregoing representations and warranties are true and correct at the time,
as the case may be, of such acceptance or of such issuance, in each case as
though expressly made at such time. The representations, warranties and
covenants of the Company shall survive the execution and delivery of this
Agreement and the issuance and sale of the Notes.
Unless the Company has suspended the solicitation of offers to purchase
Notes pursuant to paragraph (a) of Article IV, each time the Registration
Statement shall be amended by the filing of a post-effective amendment with the
Commission, or the filing by the Company of a Form 10-K or Form 10-Q pursuant to
Section 13 of the Exchange Act, or, if so agreed in connection with a particular
transaction, the Company shall furnish the Agents with (1) a letter, dated the
date of such amendment, filing or as otherwise agreed, of PricewaterhouseCoopers
LLP, independent auditors, in substantially the form previously delivered under
Section II(d), but
14
modified, as necessary, to relate to the Registration Statement and the
Prospectus as amended or supplemented at such date; (2) a certificate, dated the
date of such amendment, filing or as otherwise agreed and signed by an executive
officer of the Company, in substantially the form previously delivered under
Section II(a), but modified, as necessary, to relate to the Registration
Statement and the Prospectus as amended or supplemented at such date; and (3) a
favorable opinion of O'Melveny & Xxxxx LLP to the effect set forth in the
paragraph following clause (xv) of Section II(c) but modified, as necessary, to
relate to the Registration Statement and the Prospectus as amended or
supplemented at such date. Unless the Company has suspended the solicitation of
offers to purchase Notes pursuant to paragraph (a) of Article IV, each time the
Registration Statement shall be amended by the filing of a post-effective
amendment with the Commission, or the filing by the Company of a Form 10-K
pursuant to Section 13 of the Exchange Act, or, if so agreed in connection with
a particular transaction, the Company shall furnish the Agents with written
opinions, dated the date of such amendment, filing or as otherwise agreed, of
counsel to the Company, in substantially the form previously delivered under
Sections II(b) and II(c), but modified, as necessary, to relate to the
Registration Statement and the Prospectus as amended or supplemented at such
date.
VI.
(a) The Company agrees to indemnify and hold harmless you, each person, if
any, who controls (within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act) you and each of your and such controlling
person's officers and directors against any and all losses, liabilities, costs
or claims (or actions in respect thereof) to which any of them may become
subject (including all reasonable legal and other costs of investigating,
disputing or defending any such claim or action), insofar as such losses,
liabilities, costs or claims (or actions in respect thereof) arise out of or in
connection with any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or any Prospectus (including any
preliminary prospectus), or any amendment or supplement thereto, or any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading provided,
however: (i) that the Company shall not be liable for any such loss, liability,
cost, action or claim arising from any statements or omissions made in reliance
on and in conformity with written information provided by you to the Company
expressly for use in the Registration Statement or Prospectus (including any
preliminary prospectus) or any amendment or supplement thereto; and (ii) that
the Company shall not be liable to you or any person controlling you with
respect to the Prospectus to the extent any such loss, liability, cost, action
or claim to you or such controlling person results from the fact that you sold
Notes to a person to whom there was not sent or given, at or prior to the
earlier of either the mailing or delivery of the written confirmation of such
sale or the delivery of such Notes to such person, a copy of the Prospectus as
then amended or supplemented, if the Company has previously furnished a
sufficient number of copies thereof to you.
(b) Each Agent severally agrees to indemnify and hold harmless the
Company, each person, if any, who controls (within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the
Company's and such controlling person's officers and directors from and against
any and all losses, liabilities, costs or claims (or actions in respect thereof)
to which any of them may become subject (including all reasonable legal and
15
other costs of investigating, disputing or defending any such claim or action),
insofar as such losses, liabilities, costs or claims (or actions in respect
thereof) arise out of or in connection with any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement or
Prospectus (including any preliminary prospectus), or any amendment or
supplement thereto, or any omission or alleged omission to state therein a
material fact necessary to make the statements therein not misleading, in each
case only to the extent that such untrue statement or alleged untrue statement
or omission or alleged omission was made in reliance on and in conformity with
written information furnished to the Company by such Agent expressly for use
therein.
(c) If any claim, demand, action or proceeding (including any governmental
investigation) shall be brought or alleged against an indemnified party in
respect of which indemnity is to be sought against an indemnifying party
pursuant to the preceding paragraphs, the indemnified party shall, promptly
after receipt of notice of the commencement of any such claim, demand, action or
proceeding, notify the indemnifying party in writing of the commencement of such
claim, demand, action or proceeding, enclosing a copy of all papers served, if
any; provided, that, the omission to so notify such indemnifying party will not
relieve the indemnifying party from any liability that it may have to any
indemnified party under the foregoing provisions of this Section VI unless, and
only to the extent that, such omission results in the forfeiture of substantive
rights or defenses by the indemnifying party. 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 wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified party
under this Article VI for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the reasonable fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel,
(ii) the indemnifying party has assumed the defense of such proceeding and has
failed within a reasonable time to retain counsel reasonably satisfactory to
such indemnified party or (iii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential conflicts of interests between them.
It is agreed that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate law firm (in addition to
local counsel where reasonably necessary) for all such indemnified parties. Such
firm shall be designated in writing by the indemnified party. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent, the indemnifying party
agrees to indemnify the indemnified party from and against any loss or liability
by reason of such settlement. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending
or threatened proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such
16
settlement includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in this Section VI is unavailable
to or insufficient to hold harmless an indemnified party under the preceding
paragraphs of this Section VI in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and each Agent on the
other from the offering of the Notes to which such loss, claim, damage or
liability (or action in respect thereof) relates. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law, then each indemnifying party shall contribute to such amount paid or
payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company on the one hand and each Agent on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and each Agent on the other shall be deemed to be in the same
proportion as the total net proceeds from the sale of Notes (before deducting
expenses) received by the Company bear to the total commissions or discounts
received by such Agent in respect thereof. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact required to be stated therein or necessary in order to make the
statements therein not misleading relates to information supplied by the Company
on the one hand or by any Agent on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and each Agent agree that it would not be
just and equitable if contribution pursuant to this subsection (d) of Section VI
were determined by per capita allocation (even if all Agents were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d) of Section VI. The amount paid or payable by an indemnified party
as a result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d) of Section VI shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d) of Section VI, no Agent
shall be required to contribute any amount in excess of the amount by which the
total public offering price at which the Notes purchased by it in the offering
giving rise to the damages were sold exceeds the amount of any damages which
such Agent has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission, and no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of each of the
Agents under this subsection (d) of Section VI to contribute are several in
proportion to the respective purchases made by or through it to which such loss,
claim, damage or liability (or action in respect thereof) relates and are not
joint.
17
(e) The indemnity and contribution agreements contained in this Section VI
and the representations and warranties of the Company and you in this Agreement
shall remain operative and in full force and effect regardless of: (i) any
termination of this Agreement; (ii) any investigation made by or on behalf of
the Agents; (iii) any investigation by an indemnified party or on such party's
behalf or any person controlling an indemnified party or by or on behalf of the
indemnifying party, its directors or officers or any person controlling the
indemnifying party; and (iv) acceptance of and payment for any of the Notes.
VII.
This Agreement may be terminated at any time by either party hereto upon
the giving of five business days written notice of such termination to the other
party hereto. In the event of any such termination, neither party shall have any
liability to the other party hereto, except for obligations hereunder which
expressly survive the termination of this Agreement and except that, if at the
time of termination an offer for the purchase of Notes shall have been accepted
by the Company but the time of delivery to the purchaser or his agent of the
Note or Notes relating thereto shall not yet have occurred, the Company shall
have the obligations provided herein with respect to such Note or Notes.
Subsequent to the execution of a Terms Agreement, (i) the Purchasing Agent
may terminate such Terms Agreement, and (ii), if the Purchasing Agent does not
elect to terminate such Terms Agreement pursuant to clause (i) of this sentence,
upon the request of an Agent with respect to Notes to be purchased through the
Purchasing Agent by such Agent, the Purchasing Agent shall terminate such Terms
Agreement to the extent of the Notes that were to be purchased through the
Purchasing Agent by such requesting Agent, in each case immediately upon notice
to the Company, at any time prior to the Settlement Date relating thereto, if
there shall have occurred:
(A) since the respective dates as of which information is given in
the Prospectus, as amended or supplemented (but exclusive of any
amendments or supplements thereto subsequent to the execution of the
applicable Terms Agreement), any material adverse change in or affecting
the business, properties or financial condition of the Company and its
subsidiaries considered as one enterprise which, in the reasonable
judgment of the Purchasing Agent or such requesting Agent, materially
impairs the investment quality of the Notes or makes it impracticable to
enforce contracts for the sale of Notes;
(B) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange if the effect of any such event,
in the reasonable judgment of the Purchasing Agent or such requesting
Agent, is to make it impracticable or inadvisable to proceed with the
solicitation by the Purchasing Agent or such requesting Agent, as the case
may be, of offers to purchase the Notes or the purchase by the Purchasing
Agent or such requesting Agent, as the case may be, of the Notes from the
Company as principal on the terms and in the manner contemplated by the
Prospectus, as amended or supplemented;
18
(C) a general moratorium on commercial banking activities in New
York declared by either Federal or New York State authorities or in any
country in whose currency any Notes (that are subject to such Terms
Agreement) are to be denominated declared by the authorities of such
country;
(D) an attack on or outbreak or escalation of hostilities involving
the United States or any country in whose currency any Notes (that are the
subject of such Terms Agreement) are denominated or the declaration by the
United States of a national emergency or war, other than any such attack,
outbreak, escalation or declaration that does not represent a significant
departure from the conditions that exist on the date of such Terms
Agreement, any material adverse change in financial markets or any other
substantial national or international calamity or emergency, if the effect
of any such event in the reasonable judgment of the Purchasing Agent or
such requesting Agent is to make it impracticable or inadvisable to
proceed with the solicitation by the Purchasing Agent or such requesting
Agent, as the case may be, of offers to purchase the Notes or the purchase
of the Notes by the Purchasing Agent or such requesting Agent, as the case
may be, from the Company as principal on the terms and in the manner
contemplated by the Prospectus, as amended or supplemented;
(E) 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 or a material disruption in commercial banking or
securities settlement or clearing services in the United States or any
country in whose currency any Notes (that are the subject of such Terms
Agreement) are denominated if the effect of such event in the reasonable
judgment of the Purchasing Agent or such requesting Agent is to make it
impracticable or inadvisable to proceed with the solicitation by the
Purchasing Agent or such requesting Agent, as the case may be, of offers
to purchase the Notes or the purchase of the Notes by the Purchasing Agent
or such requesting Agent, as the case may be, from the Company as
principal on the terms and in the manner contemplated by the Prospectus,
as amended or supplemented; or
(F) any downgrading in the rating accorded the Company's senior debt
securities by Moody's, Standard & Poor's or Fitch, or any public
announcement by Moody's, Standard & Poor's or Fitch that it has under
surveillance or review, with possible negative implications, its rating of
such senior debt securities.
If this Agreement is terminated, the last sentence of the second paragraph
of Section IV(a), Section III(c), (d) and (e), Section VI, and the first
paragraph of Section XII shall survive; provided, that, if at the time of
termination of this Agreement an offer to purchase Notes has been accepted by
the Company but the time of delivery to the purchaser or its agent of such Notes
has not occurred, the provisions of Section III(a) and (b), and Section IV(b)
and (d) shall also survive until time of delivery.
VIII.
19
Except as otherwise specifically provided herein, all statements,
requests, notices and advices hereunder shall be in writing, or by telephone if
promptly confirmed in writing, and if to you shall be sufficient in all respects
if delivered in person or sent by telex, facsimile transmission (confirmed in
writing), or registered mail to you at your address, telex or telecopier number
set forth below by your signature and if to the Company shall be sufficient in
all respects if delivered or sent by telex, telecopier or registered mail to the
Company at 1999 Avenue of the Stars, 00xx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000,
Attention: President, telecopier number (000) 000-0000. All such notices shall
be effective on receipt.
IX.
This Agreement shall be binding upon you and the Company, and inure solely
to the benefit of you and the Company and any other person expressly entitled to
indemnification hereunder and the respective personal representatives,
successors and assigns of each, and no other person shall acquire or have any
rights under or by virtue of this Agreement.
X.
This Agreement shall be governed by and construed in accordance with the
substantive laws of the State of New York.
XI.
If this Agreement is executed by or on behalf of any party, such person
hereby states that at the time of the execution of this Agreement he has no
notice of revocation of the power of attorney by which he has executed this
Agreement as such attorney.
XII.
The Company will pay the expenses incident to the performance of its
obligations under this Agreement, including: (i) the preparation and filing of
the Registration Statement; (ii) the preparation, issuance and delivery of the
Notes; (iii) the fees and disbursements of the Company's counsel and auditors,
of the Trustee and its counsel and of any paying or other agents appointed by
the Company; (iv) the printing and delivery to you in quantities as hereinabove
stated of copies of the Registration Statement and the Prospectus; (v) the
reasonable fees and disbursements of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for
the Agents (including "Blue Sky" fees and disbursements, if any); (vi) if the
Company lists Notes on a securities exchange, the costs and fees of such
listing; and (vii) any fees charged by rating agencies for the rating of the
Notes.
This Agreement may be executed by each of the parties hereto in any number
of counterparts, and by each of the parties hereto on separate counterparts,
each of which counterparts, when so executed and delivered, shall be deemed to
be an original, but all such counterparts shall together constitute but one and
the same instrument.
20
As used herein, "business day" means any day other than a Saturday,
Sunday or any day on which banking institutions are authorized or required by
law, regulation or executive order to be closed in the City of New York.
[the remainder of this page is intentionally left blank]
21
If the foregoing is in accordance with your understanding, please sign and
return to us a counterpart hereof, and upon acceptance hereof by you, this
letter and such acceptance hereof shall constitute a binding agreement between
the Company and you.
Very truly yours,
INTERNATIONAL LEASE FINANCE
CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Treasurer
Confirmed and accepted
as of the date first above written:
ABN AMRO FINANCIAL SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
ABN AMRO Financial Services, Inc.
000 Xxxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Fax: (000) 000-0000
BANC OF AMERICA SECURITIES LLC
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
Banc of America Securities LLC
NY-301-2M-01
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Fax: (000) 000-0000
CITIGROUP GLOBAL MARKETS INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
Citigroup Global Markets Inc.
Medium-Term Note Department
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Authorized Signatory
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Global Transaction Management Group
4 World Financial Xxxxxx, Xxxxx 00
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx
Fax: (000) 000-0000
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxxxx X. Xxxxxxxxxx III
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx III
Title: Executive Director
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Manager -- Continuously Offered Products
Fax: (000) 000-0000
With a copy to:
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxx, Investment Banking Information Center
Fax: (000) 000-0000
PRUDENTIAL SECURITIES INCORPORATED
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
Prudential Securities Incorporated
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxx/Xxxxx X. Xxxxxxx
Fax: (000) 000-0000/4556
UBS PAINEWEBBER INC.
By: /s/ Xxxxx XxXxxxx
---------------------------------
Name: Xxxxx XxXxxxx
Title: Senior Vice President
UBS PaineWebber Inc.
Taxable Fixed Income Department
Attention: Corporate Desk
000 Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
With a copy to:
UBS PaineWebber Inc.
Transaction Management Group
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxxx
WACHOVIA SECURITIES, INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President 4/14/03
Wachovia Securities, Inc.
One Wachovia Center 000 Xxxx Xxxx Xxxxxx
301 South College Street, DC-8 Xxxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000-0000 0xx Xxxxx, Xxxx Xxxxx
Xxxxxxxxx: Corporate Desk Xxxxxxxx, XX 00000
Telecopier: (000) 000-0000 Fax: 000-000-0000
EXHIBIT A
ILFC Notes
International Lease Finance Corporation
DEALER AGENT PROGRAM
The following Concessions are payable as a percentage of the Price to Public of
each note sold to or through the Purchasing Agent and will not exceed the
amounts listed below.
9 months to less than 13 months......................................... 0.25%
13 months to less than 25 months........................................ 0.625%
25 months to less than 49 months........................................ 1.00%
49 months to less than 85 months........................................ 1.50%
85 months to less than 121 months....................................... 1.75%
121 months to less than 181 months...................................... 2.50%
181 months to 360 months................................................ 3.00%
A-1
EXHIBIT B
INTERNATIONAL LEASE FINANCE CORPORATION
$1,000,000,000
ILFC NOTES
WITH MATURITIES OF 9 MONTHS OR MORE FROM DATE OF ISSUE
ADMINISTRATIVE PROCEDURES
ILFC Notes with maturities of 9 months or more from date of issue (the "NOTES")
are offered on a continuing basis by International Lease Finance Corporation
(the "COMPANY"). The Notes will be offered by ABN AMRO Financial Services, Inc.
(the "PURCHASING AGENT") and Banc of America Securities LLC, Citigroup Global
Markets Inc., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxx Xxxxxxx
& Co. Incorporated, Prudential Securities Incorporated, UBS PaineWebber Inc. and
Wachovia Securities, Inc. (collectively, the "AGENTS") pursuant to a Selling
Agent Agreement among the Company and the Agents dated as of the date hereof
(the "SELLING AGENT AGREEMENT") and one or more terms agreements substantially
in the form attached to the Selling Agent Agreement as Exhibit C (each a "TERMS
AGREEMENT"). The Notes are being resold by the Purchasing Agent (and by any
Agent that purchases them from the Purchasing Agent) to (i) customers of the
Agents or (ii) selected broker-dealers (the "SELLING GROUP") for distribution to
their customers pursuant to a Master Selected Dealers Agreement (a "DEALERS
AGREEMENT") attached hereto as Exhibit E. The Agents have agreed to use their
reasonable best efforts to solicit offers to purchase Notes. The Notes will be
unsecured and unsubordinated debt and have been registered with the Securities
and Exchange Commission (the "COMMISSION"). The Bank of New York is trustee (the
"TRUSTEE") under an Indenture, dated as of November 1, 2000, as further amended
or supplemented from time to time, between the Company and the Trustee (the
"INDENTURE") covering the Notes. Pursuant to the terms of the Indenture, The
Bank of New York also will serve as authenticating agent, issuing agent and
paying agent.
Each tranche of Notes will be issued in book-entry form and represented by one
or more fully registered global notes without coupons (each, a "GLOBAL NOTE")
held by the Trustee, as agent for The Depository Trust Corporation ("DTC") and
recorded in the book-entry system maintained by DTC. Each Global Note will have
the annual interest rate, maturity and other terms set forth in the relevant
Pricing Supplement (as defined in the Selling Agent Agreement). Owners of
beneficial interests in a Global Note will be entitled to physical delivery of
Notes issued in certificated form equal in principal amount to their respective
beneficial interests only upon certain limited circumstances described in the
Indenture.
Administrative procedures and specific terms of the offering are explained
below. The Company will advise the Agents and the Trustee in writing of those
persons handling administrative responsibilities with whom the Agents and the
Trustee are to communicate regarding offers to purchase Notes and the details of
their delivery.
B-1
Notes will be issued in accordance with the administrative procedures set forth
herein. To the extent the procedures set forth below conflict with or omit
certain of the provisions of the Notes, the Indenture, the Selling Agent
Agreement or the Prospectus and the Pricing Supplement (together, the
"PROSPECTUS"), the relevant provisions of the Notes, the Indenture, the Selling
Agent Agreement and the Prospectus shall control. Capitalized terms used herein
that are not otherwise defined shall have the meanings ascribed thereto in the
Selling Agent Agreement, the Prospectus in the form most recently filed with the
Commission pursuant to Rule 424 of the Securities Act, or the Indenture.
ADMINISTRATIVE PROCEDURES FOR NOTES
In connection with the qualification of Notes 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
obligations under a Letter of Representations from the Company and the Trustee
to DTC, dated April 15, 2003, and a Medium-Term Note Certificate Agreement
between the Trustee and DTC (the "CERTIFICATE AGREEMENT"), dated August 17,
1989, and its obligations as a participant in DTC, including DTC's Same-Day
Funds Settlement System ("SDFS"). The procedures set forth below may be modified
in compliance with DTC's then applicable procedures and upon agreement by the
Company, the Trustee and the Purchasing Agent.
Maturities: Each Note will mature on a date (the "MATURITY DATE")
not less than nine months after the date of delivery by
the Company of such Note. Notes will mature on any date
selected by the initial purchaser and agreed to by the
Company. "MATURITY" when used with respect to any Note
means the date on which the outstanding principal amount
of such Note becomes due and payable in full in
accordance with its terms, whether at its Maturity Date
or by declaration of acceleration, call for redemption,
repayment or otherwise.
Issuance: Unless otherwise specified in an applicable pricing
supplement, all Notes having the same terms will be
represented initially by a single Global Note. Each
Global Note will be dated and issued as of the date of
its authentication by the Trustee.
All Discount Notes which have the same terms
(collectively, the "ZERO-COUPON TERMS") will be
represented initially by a single Global Certificate in
fully registered form without coupons.
Each Global Note will bear an original issue date (the
"ORIGINAL ISSUE DATE"). The Original Issue Date shall
remain the same for all Notes subsequently issued upon
registration of transfer, exchange or substitution of an
original Note regardless of their dates of
authentication.
B-2
Identification
Numbers: The Company has received from the CUSIP Service Bureau
(the "CUSIP SERVICE BUREAU") of Standard & Poor's
Corporation ("STANDARD & POOR'S") one series of CUSIP
numbers consisting of approximately 900 CUSIP numbers
for future assignment to Global Notes. The Company will
provide DTC and the Trustee with a list of such CUSIP
numbers. The Company will assign CUSIP numbers 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 Global
Notes. The Company will reserve additional CUSIP numbers
when necessary for assignment to Global Notes and will
provide the Trustee and DTC with the list of additional
CUSIP numbers so obtained.
Registration: Unless otherwise specified by DTC, Global Notes will be
issued only in fully registered form without coupons.
Each Global Note will be registered in the name of Cede
& Co., as nominee for DTC, on the Note Register
maintained under the Indenture by the Trustee. The
beneficial owner of a 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, the "PARTICIPANTS") to act as agent or
agents for such 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 beneficial owner of such Note in the
account of such Participants. The ownership interest of
such beneficial owner in such Note 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 interests in a Global 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
interests.
Exchanges: The Trustee, at the Company's request, may deliver to
DTC and the CUSIP Service Bureau at any time a written
notice of consolidation specifying (a) the CUSIP numbers
of two or more Global Notes outstanding on such date
that represent Notes having the same terms (except that
Issue Dates need not be the same) and for which
interest, if any, has been paid to the same date and
which otherwise constitute Notes of the same series and
tenor under the Indenture, (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,
if any, for the related Notes, on which such Global
Notes shall be exchanged for a single replacement Global
Note; and (c) a new CUSIP number, obtained from the
Company, to be assigned to such replacement Global Note.
Upon receipt of such a
B-3
notice, DTC will send to its Participants (including the
Issuing Agent) and 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 Global Notes to be exchanged
will no longer be valid. On the specified exchange date,
the Trustee will exchange such Global Notes for a single
Global Note bearing the new CUSIP number and the CUSIP
numbers of the exchanged Global Notes will, in
accordance with CUSIP Service Bureau procedures, be
cancelled and not immediately reassigned.
Notwithstanding the foregoing, if the Global Notes to be
exchanged exceed $500,000,000 in aggregate principal or
face amount, one replacement Global Note will be
authenticated and issued to represent each $500,000,000
of principal or face amount of the exchanged Global
Notes and an additional Global Note will be
authenticated and issued to represent any remaining
principal amount of such Global Notes (See
"Denominations" below).
Denominations: Notes will be issued in denominations of $1,000 or more
(in multiples of $1,000). Global Notes will be
denominated in principal or face amounts not in excess
of $500,000,000. If one or more Notes having an
aggregate principal or face amount in excess of
$500,000,000 would, but for the preceding sentence, be
represented by a single Global Note, then one Global
Note will be issued to represent each $500,000,000
principal or face amount of such Note or Notes and an
additional Global Note will be issued to represent any
remaining principal amount of such Note or Notes. In
such case, each of the Global Notes representing such
Note or Notes shall be assigned the same CUSIP number.
Issue Price: Unless otherwise specified in an applicable Pricing
Supplement, each Note will be issued at the percentage
of principal amount specified in the Prospectus relating
to such Note.
Interest: Unless otherwise specified in an applicable pricing
supplement, each Note will bear interest at a fixed
rate, which may be zero during all or any part of the
term in the case of certain Notes issued at a price
representing a substantial discount from the principal
amount payable at Maturity. Interest on each Note will
accrue from the Issue Date of such Note for the first
interest period and from the most recent Interest
Payment Date to which interest has been paid for all
subsequent interest periods. Except as set forth
hereafter, each payment of interest on a Note will
include interest accrued to but excluding, as the case
may be, the Interest Payment Date or the date of
Maturity (other than a Maturity Date of a Note occurring
on the 31st day of a month in which case such payment of
interest will include interest accrued to but excluding
the 30th day of such month). Any payment of principal,
premium or interest
B-4
required to be made on a day that is not a Business Day
(as defined below) may be made on the next succeeding
Business Day and no interest shall accrue as a result of
any such delayed payment.
Each pending deposit message described under Settlement
Procedure "C" below will be routed to Standard & Poor's,
which will use the message to include certain
information regarding the related Notes in the
appropriate daily bond report published by Standard &
Poor's.
Each Note will bear interest from and including its
Issue Date at the rate per annum set forth thereon and
in the applicable Pricing Supplement until the principal
amount thereof is paid, or made available for payment,
in full. Unless otherwise specified in the applicable
Pricing Supplement, interest on each Note (other than a
Zero-Coupon Note) will be payable either monthly,
quarterly, semi-annually or annually on each Interest
Payment Date and at Maturity (or on the date of
redemption or repayment if a Note is repurchased by the
Company prior to maturity pursuant to mandatory or
optional redemption provisions or the Survivor's
Option). Interest will be payable to the person in whose
name a Note is registered at the close of business on
the Regular Record Date next preceding each Interest
Payment Date; provided, however, that interest payable
at Maturity, on a date of redemption or in connection
with the exercise of the Survivor's Option, will be
payable to the person to whom principal shall be
payable.
Any payment of principal, and premium, if any, or
interest required to be made on a Note on a day 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 such day, and no
additional interest shall accrue as a result of such
delayed payment. Unless otherwise specified in the
applicable Pricing Supplement, any interest on the Notes
will be computed on the basis of a 360-day year of
twelve 30-day months. The interest rates the Company
will agree to pay on newly-issued Notes are subject to
change without notice by the Company from time to time,
but no such change will affect any Notes already issued
or as to which an offer to purchase has been accepted by
the Company.
The Interest Payment Dates for a Note that provides for
monthly interest payments shall be the fifteenth day of
each calendar month (or the next Business Day if not a
Business Day), commencing in the calendar month that
next succeeds the month in which the Note is issued. In
the case of a Note that provides for quarterly interest
payments, the Interest Payment Dates shall be the
fifteenth day of each third month (or the next Business
Day if not a Business Day), commencing in the third
succeeding calendar month following the month in which
the Note is issued. In the case of a Note that provides
for semi-annual interest payments, the Interest Payment
dates shall be the fifteenth day of each sixth month (or
the next
B-5
Business Day if not a Business Day), commencing in the
sixth succeeding calendar month following the month in
which the Note is issued. In the case of a Note that
provides for annual interest payments, the Interest
Payment Date shall be the fifteenth day of every twelfth
month (or the next Business Day if not a Business Day),
commencing in the twelfth succeeding calendar month
following the month in which the Note is issued. The
Regular Record Date with respect to any Interest Payment
Date shall be the date fifteen calendar days prior to
such Interest Payment Date, whether or not such date
shall be a Business Day; provided, however, that
interest payable at Maturity will be payable to the
person to whom principal shall be payable.
Each payment of interest on a Note shall include accrued
interest from and including the Issue Date or from and
including the last day in respect of which interest has
been paid (or duly provided for), as the case may be,
to, but excluding, the Interest Payment Date or Maturity
Date, as the case may be.
Calculation
of Interest: Unless otherwise specified in the applicable Pricing
Supplement, interest on the Notes (including interest
for partial periods) will be calculated on the basis of
a 360-day year of twelve 30-day months. (Examples of
interest calculations are as follows: October 1, 2000 to
April 1, 2001 equals 6 months and 0 days, or 180 days;
the interest paid equals 180/360 times the annual rate
of interest times the principal amount of the Note. The
period from December 3, 2000 to April 1, 2001 equals 3
months and 28 days, or 118 days; the interest payable
equals 118/360 times the annual rate of interest times
the principal amount of the Note.)
Business Day: "Business Day" means, unless otherwise specified in the
applicable Pricing Supplement, any day, other than a
Saturday or Sunday, that meets the following applicable
requirement: such day is not a day on which banking
institutions are authorized or required by law,
regulation or executive order to be closed in the City
of New York.
Payments of
Principal and
Interest: Payments of Principal and Interest. 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, if any, to be paid on
each Global Note on the following Interest Payment Date
(other than an Interest Payment Date coinciding with a
Maturity Date) and the total of such amounts. DTC will
confirm the amount payable on each Global Note on such
Interest Payment Date by reference to the daily bond
reports published by Standard & 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 on the Maturity Date),
B-6
at the times and in the manner set forth below under
"Manner of Payment". If any Interest Payment Date for
any 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 Interest Payment Date.
Payments on the Maturity Date. On or about the first
Business Day of each month, the Trustee will deliver to
the Company and DTC a written list of principal,
premium, if any, and interest to be paid on each Global
Note representing Notes maturing or subject to
redemption (pursuant to a sinking fund or otherwise) or
repayment ("MATURITY") in the following month. The
Trustee, the Company and DTC will confirm the amounts of
such principal, premium, if any, and interest payments
with respect to each Global Note on or about the fifth
Business Day preceding the Maturity Date of such Global
Note. On the Maturity Date, the Company will pay to the
Trustee, and the Trustee in turn will pay to DTC, the
principal amount of such Global Note, together with
interest and premium, if any, due on such Maturity Date,
at the times and in the manner set forth below under
"Manner of Payment". If the Maturity Date of any Global
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 Date. Promptly after
payment to DTC of the principal and interest due on the
Maturity Date of such Global Note and all other Notes
represented by such Global Note, the Trustee will cancel
and destroy such Global Note in accordance with the
Indenture and so advise the Company.
Manner of Payment. The total amount of any principal,
premium, if any, and interest due on Global Notes on any
Interest Payment Date or at Maturity shall be paid by
the Company to the Trustee in immediately available
funds on such date. The Company will make such payment
on such Global Notes by instructing the Trustee to
withdraw funds from an account maintained by the Company
with the Trustee. The Company will confirm such
instructions in writing to the Trustee. Prior to 10:00
a.m., New York City time, on the Maturity Date or as
soon as possible thereafter, the Trustee will make
payment to DTC in accordance with existing arrangements
between DTC and the Trustee provided it has received
payment from the Company, in funds available for
immediate use by DTC, each payment of interest,
principal and premium, if any, due on a Global Note on
such date. On each Interest Payment Date (other than on
the Maturity Date) the Trustee will pay DTC such
interest payments in same-day funds in accordance with
existing arrangements between the Trustee and DTC.
Thereafter, on each 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 with payments in
amounts proportionate to their respective holdings in
principal amount of beneficial interest in such Global
Note as
B-7
are recorded in the book-entry system maintained by DTC.
Neither the Company nor the Trustee shall have any
direct responsibility or liability for the payment by
DTC of the principal of, or premium, if any, or interest
on, the 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.
Procedure for Rate
Setting and
Posting: The Company and the Agents will discuss, from time to
time, the aggregate principal amounts of, the
Maturities, the Issue Price and the interest rates to be
borne by Notes that may be sold as a result of the
solicitation of orders by the Agents. If the Company
decides to set interest rates borne by any Notes in
respect of which the Agents are to solicit orders (the
setting of such interest rates to be referred to herein
as "POSTING"), or if the Company decides to change
interest rates previously posted by it, it will promptly
advise the Agents of the prices and interest rates to be
posted.
The Company will assign a separate CUSIP number for each
tranche of Notes to be posted, and will so advise and
notify the Trustee and Purchasing Agent of said
assignment by telephone and/or by telecopier or other
form of electronic transmission. The Purchasing Agent
will, in turn, include the assigned CUSIP number on all
Posting notices communicated to the Agents and Selling
Group members.
Offering of Notes: In the event that there is a Posting, the Purchasing
Agent will communicate to each of the Agents and Selling
Group members the aggregate principal amount and
Maturities of, along with the interest rates to be borne
by, each tranche of Notes that is the subject of the
Posting. Thereafter, the Purchasing Agent, along with
the other Agents and the Selling Group, will solicit
offers to purchase the Notes accordingly.
Purchase of Notes
by the Purchasing
Agent: The Purchasing Agent will, no later than 4:00 p.m. (New
York City time) on the sixth day subsequent to the day
on which such Posting occurs, or if such sixth day is
not a Business Day, on the preceding Business Day, or on
such other Business Day and time as shall be mutually
agreed upon by the Company and the Agents (any such day,
a "TRADE DAY"), (i) complete, execute and deliver to the
Company a Terms Agreement that sets forth, among other
things, the amount of each tranche that the
B-8
Purchasing Agent is offering to purchase or (ii) inform
the Company that none of the Notes of a particular
tranche will be purchased by the Purchasing Agent.
Acceptance and
Rejection of
Orders: Unless otherwise agreed by the Company and the Agents,
the Company has the sole right to accept orders to
purchase Notes and may reject any such order in whole or
in part. Unless otherwise instructed by the Company, the
Purchasing Agent will promptly advise the Company by
telephone of all offers to purchase Notes received by
it, other than those rejected by it in whole or in part
in the reasonable exercise of its discretion. No order
for less than $1,000 principal amount of Notes will be
accepted.
Upon receipt of a completed and executed Terms Agreement
from the Purchasing Agent, the Company will (i) promptly
execute and return such Terms Agreement to the
Purchasing Agent or (ii) inform the Purchasing Agent
that its offer to purchase the Notes of a particular
tranche has been rejected, in whole or in part. The
Purchasing Agent will thereafter promptly inform the
other Agents and participating Selling Group members of
the action taken by the Company.
Preparation of
Pricing
Supplement: If any offer to purchase a Note is accepted by or on
behalf of the Company, the Company will provide a
Pricing Supplement (substantially in the forms attached
to the Selling Agent Agreement as Exhibit D) reflecting
the terms of such Note and will have filed such Pricing
Supplement with the Commission in accordance with the
applicable paragraph of Rule 424(b) under the Act and
will supply a copy thereof (or additional copies if
requested) to the Purchasing Agent, by no later than
11:00 a.m. on the Business Day immediately following the
Trade Day, and one copy to the Trustee. The Purchasing
Agent will cause a Prospectus and Pricing Supplement to
be delivered to each of the other Agents and Selling
Group members that purchased such Notes, and each of
these, in turn, will, pursuant to the terms of the
Selling Agent Agreement and the Master Selected Dealer
Agreement, cause to be delivered a copy of the
applicable Pricing Supplement to each purchaser of Notes
from such Agent or Selling Group member.
In each instance that a Pricing Supplement is prepared,
the Agents will affix the Pricing Supplement to
Prospectuses prior to their use. Outdated Pricing
Supplements and the Prospectuses to which they are
attached (other than those retained for files) will be
destroyed.
B-9
Delivery of
Confirmation and
Prospectus to
Purchaser by
Purchasing Agent: Subject to "Suspension of Solicitation; Amendment or
Supplement" below, the Agents will deliver a Prospectus
(including the Pricing Supplement) as herein described
with respect to each Note sold by it.
For each offer to purchase a Note solicited by an Agent
and accepted by or on behalf of the Company, the
Purchasing Agent will issue a confirmation to the
purchaser, with a copy to the Company, setting forth the
terms of such Note and other applicable details
described above and delivery and payment instructions.
In addition, the Purchasing Agent will deliver to such
purchaser the Prospectus (including the Pricing
Supplement) in relation to such Note prior to or
together with the earlier of any written offer of such
Note, delivery of the confirmation of sale or delivery
of the Note.
Settlement: The receipt of immediately available funds by the
Company in payment for Notes and the authentication and
issuance of the Global Note representing such Notes
shall constitute "SETTLEMENT" with respect to such Note.
All orders accepted by the Company will be settled
within one to three Business Days pursuant to the
timetable for Settlement set forth below, unless the
Company and the purchaser agree to Settlement on a later
date, and shall be specified upon acceptance of such
offer; provided, however, that in all cases the Company
will notify the Trustee on the date issuance
instructions are given.
Settlement
Procedures: In the event of a purchase of Notes by any Agent, as
principal, appropriate Settlement details, if different
from those set forth below, will be set forth in the
applicable Terms Agreement to be entered into between
such Agent and the Company pursuant to the Selling Agent
Agreement. Settlement Procedures with regard to each
Note sold by an Agent, as agent for the Company, shall
be as follows:
A. After the acceptance of an offer by the Company
with respect to a Note, the Purchasing Agent will
communicate the following details of the terms of
such offer (the "NOTE SALE INFORMATION") to the
Company by telephone confirmed in writing or by
facsimile transmission or other acceptable written
means:
1. Principal amount of the purchase;
2. Interest Rate;
B-10
3. Interest Payment Dates;
4. Settlement Date;
5. Maturity Date;
6. Purchase Price;
7. Purchasing Agent's commission determined
pursuant to Section IV(a) of the Selling
Agent Agreement;
8. Net proceeds to the Company;
9. Trade Date;
10. If a Note is redeemable by the Company, such
of the following as are applicable:
(i) The date on and after which such Note
may be redeemed (the "REDEMPTION
COMMENCEMENT DATE"),
(ii) Initial redemption price (% of par),
and
(iii) Amount (% of par) that the initial
redemption price shall decline (but
not below par) on each anniversary of
the Redemption Commencement Date;
11. Whether the Note has the Survivor's Option;
12. If a Discount Note, the total amount of
original issue discount, the yield to
maturity and the initial accrual period of
original issue discount;
13. DTC Participant Number of the institution
through which the customer will hold the
beneficial interest in the Global Note; and
14. Such other terms as are necessary to
complete the applicable form of Note.
B. The Company will advise the Trustee by telephone
(confirmed in writing and signed by an authorized
person at any time on the same date) or by
facsimile transmission signed by an authorized
person of the information set forth in Settlement
Procedure "A" above and the name of the Purchasing
Agent. The Trustee will assign a CUSIP number to
the Global Security representing such
B-11
Note. The Trustee will notify the Company and the
Purchasing Agent of such CUSIP number by telephone
as soon as practicable.
C. The Trustee will communicate to DTC and the
Purchasing Agent through DTC's Participant
Terminal System, a pending deposit message
specifying the following Settlement information:
1. The information received in accordance with
Settlement Procedure "A".
2. The numbers of the participant accounts
maintained by DTC on behalf of the Trustee
and the Purchasing Agent.
3. The initial Interest Payment Date for such
Note, number of days by which such date
succeeds the related DTC record date (which
term means the Regular Record Date), and if
then calculated, the amount of interest
payable on such Initial Interest Payment
Date (which amount shall have been confirmed
by the Trustee).
4. The CUSIP number of the Global Note
representing such Notes.
5. The frequency of interest.
6. Whether such Global Note represents any
other Notes issued or to be issued (to the
extent then known).
D. DTC will credit such Note to the participant
account of the Trustee maintained by DTC.
E. The Trustee will complete and deliver a Global
Note representing such Note in a form that has
been approved by the Company, the Agents and the
Trustee.
F. The Trustee will authenticate the Global Note
representing such Note and maintain possession of
such Global Note.
G. The Trustee will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC to (i) debit such Note to the
Trustee's participant account and credit such Note
to the participant account of the Agent maintained
by DTC and (ii) debit the settlement account of
the Agent and credit the settlement account of the
Trustee maintained by DTC, in an amount equal to
the price of such Note less the Purchasing Agent's
commission. The entry of such a deliver order
shall be deemed to constitute a representation and
warranty by the Trustee
B-12
to DTC that (a) the Global Note representing such
Note has been issued and authenticated and (b) the
Trustee is holding such Global Note pursuant to
the Certificate Agreement.
H. The Purchasing Agent will enter an SDFS deliver
order through DTC's Participant Terminal System
instructing DTC to (i) debit such Note to the
Purchasing Agent's participant account and credit
such Note to the participant accounts of the
Participants to whom such Note is to be credited
maintained by DTC and (ii) debit the settlement
accounts of such Participants and credit the
settlement account of the Purchasing Agent
maintained by DTC, in an amount equal to the price
of the Note so credited to their accounts.
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 an amount equal to the amount
credited to the Trustee's DTC participant account
in accordance with Settlement Procedure "G".
K. The Trustee will send a copy of the Global Note
representing such Note by first-class mail to the
Company.
L. The Purchasing Agent will confirm the purchase of
each Note to the purchaser thereof either by
transmitting to the Participant to whose account
such Note has been credited a confirmation order
through DTC's Participant Terminal System or by
mailing a written confirmation to such purchaser.
In all cases the Prospectus, as most recently
amended or supplemented, must accompany or precede
such confirmation.
M. Upon request by the Company, the Trustee will send
to the Company a statement setting forth the
principal amount of Notes outstanding as of that
date under the Indenture and setting forth the
CUSIP number(s) assigned to, and a brief
description of, any orders which the Company has
advised the Trustee but which have not yet been
settled.
B-13
Settlement Procedures
Timetable: In the event of a purchase of Notes by the Purchasing
Agent, as principal, appropriate Settlement details, if
different from those set forth below, will be set forth
in the applicable Terms Agreement to be entered into
between the Purchasing Agent and the Company pursuant to
the Selling Agent Agreement.
For orders of Notes solicited by an Agent, as agent, and
accepted by the Company, Settlement Procedures "A"
through "M" 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 4:00 p.m. on the Trade Day.
B 5:00 p.m. on the Trade Day.
C 2:00 p.m. on the Business Day before
the Settlement Date.
D 10:00 a.m. on the Settlement Date.
E 12:00 p.m. on the Settlement Date.
F 12:30 p.m. on the Settlement Date.
G-H 2:00 p.m. on the Settlement Date.
I 4:45 p.m. on the Settlement Date.
X-X 5:00 p.m. on the Settlement Date
M At the request of the Company.
NOTE: The Prospectus as most recently amended or
supplemented must accompany or precede any written
confirmation given to the customer (Settlement Procedure
"L"). Settlement Procedure "I" is subject to extension
in accordance with any extension Fedwire closing
deadlines and in the other events specified in the SDFS
operating procedures in effect on the Settlement Date.
If Settlement of a Note 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.
B-14
Failure to Settle: If the Trustee fails to enter an SDFS deliver order with
respect to a Note 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 Notes having the
same terms and having a principal amount that is at
least equal to the principal amount of such Note to be
debited. If withdrawal messages are processed with
respect to all the Notes issued or to be issued
represented by a Global Note, the Trustee will cancel
such Global Note in accordance with the Indenture, make
appropriate entries in its records and so advise the
Company. The CUSIP number assigned to such Global Note
shall, in accordance with CUSIP Service Bureau
procedures, be cancelled and not immediately reassigned.
If withdrawal messages are processed with respect to one
or more, but not all, of the Notes represented by a
Global Note, the Trustee will exchange such Global Note
for two Global Notes, one of which shall represent such
Notes and shall be cancelled immediately after issuance,
and the other of which shall represent the remaining
Notes previously represented by the surrendered Global
Note and shall bear the CUSIP number of the surrendered
Global Note. If the purchase price for any 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 default by
the Agent in the performance of its obligations
hereunder or under the Selling Agent Agreement, the
Company will reimburse the Agent on an equitable basis
for its loss of the use of funds during the period when
they were credited to the account of the Company.
Notwithstanding the foregoing, upon any failure to
settle with respect to a 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 one or more, but not all, of Notes that were to have
been represented by a Global Note, the Trustee will
provide, in accordance with Settlement Procedures "D"
and "E", for the authentication and issuance of a Global
Note representing the other Notes to have been
represented by such Global Note and will make
appropriate entries in its records.
B-15
Procedure for Rate
Changes: Each time a decision has been reached to change rates,
the Company will promptly advise the Agents of the new
rates, who will forthwith suspend solicitation of
purchases of Notes at the prior rates. The Agents may
telephone the Company with recommendations as to the
changed interest rates.
Suspension of
Solicitation;
Amendment or
Supplement: Subject to the Company's representations, warranties and
covenants contained in the Selling Agent Agreement, the
Company may instruct the Agents to suspend at any time
for any period of time or permanently, the solicitation
of orders to purchase Notes. Upon receipt of such
instructions (which may be given orally), each Agent
will forthwith suspend solicitation until such time as
the Company has advised it that solicitation of offers
to purchase may be resumed.
In the event that at the time the Company suspends
solicitation of offers to purchase there shall be any
orders outstanding for settlement, the Company will
promptly advise the Agents and the Trustee whether such
orders may be settled and whether copies of the
Prospectus as in effect at the time of the suspension
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 may not be so
delivered.
If the Company decides to amend or supplement the
Registration Statement or the Prospectus, it will
promptly advise the Agents and furnish the Agents and
the Trustee with the proposed amendment or supplement
and with such certificates and opinions as are required,
all to the extent required by and in accordance with the
terms of the Selling Agent Agreement. Subject to the
provisions of the Selling Agent Agreement, the Company
may file with the Commission any supplement to the
Prospectus relating to the Notes. The Company will
provide the Agents and the Trustee with copies of any
such supplement, and confirm to the Agents that such
supplement has been filed with the Commission.
Trustee Not to Risk
Funds: Nothing herein shall be deemed to require the Trustee to
risk or expend its own funds in connection with any
payment to DTC, the Company, or the Agents or the
purchasers, it being understood by all parties that
payments made by the Trustee to either the Company or
the Agents shall be made only to the extent that funds
are provided to the Trustee for such purpose.
B-16
Advertising Costs: The Company shall have the sole right to approve the
form and substance of any advertising an Agent may
initiate in connection with such Agent's solicitation to
purchase the Notes. The expense of such advertising will
be solely the responsibility of such Agent, unless
otherwise agreed to by the Company.
Trustee's Rights The Trustee's rights, including but not limited, its
right to compensation and indemnity, will be as set
forth in the Indenture.
B-17
EXHIBIT C
INTERNATIONAL LEASE FINANCE CORPORATION
ILFC NOTES
TERMS AGREEMENT
__________ __, 200_
International Lease Finance Corporation
1999 Avenue of the Stars, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
The undersigned agrees to purchase the following aggregate principal amount of
Notes:
$___________
The terms of such Notes shall be as follows:
CUSIP Number:________________
Interest Rate:_______________%
Issue Date:__________________
Maturity Date:_______________
Price to Public:_____________
Agent's Concession:__________%
Settlement Date, Time
and Place:________________________
Survivor's Option:____________________________
Annual Put Limitation:___________
Individual Put Limitation:_______
Interest Payment Dates:_______________________
Optional Redemption, if any:__________________
Initial Redemption Date:_______
Redemption Price: Initially % of Principal Amount and declining
___________% of the Principal Amount on each anniversary of the
Initial Redemption Date until the Redemption Price is 100% of the
Principal Amount.
Overdue Rate:
Additional provisions for floating rate Notes:
Designation (check one):
Regular Floating Rate______________
Floating Rate/Fixed Rate___________
Inverse Floating Rate______________
C-1
Interest Rate Basis or Bases:___________
Initial Interest Rate:__________________
Interest Rate Reset Period:_____________
Interest Rate Reset Dates:______________
Index Maturity:_________________________
Spread:_________________________________
Spread Multiplier:______________________%
Maximum Interest Rate:__________________
Minimum Interest Rate:__________________
Fixed Rate Commencement Date:__________________
Fixed Interest Rate:____________________
Designated LIBOR Page (for LIBOR Notes only) (check one)
LIBOR Reuters______________
LIBOR Telerate_____________
Designated CMT Telerate Page (for CMT Notes only):__________
Designated CMT Maturity Index (for CMT Notes only):_________
[Any other terms and conditions agreed to by such Agent and the Company]
ABN AMRO FINANCIAL SERVICES, INC.
By:______________________________
Name:
Title:
ACCEPTED:
INTERNATIONAL LEASE FINANCE
CORPORATION
By:____________________________________
Name:
Title:
C-2
EXHIBIT D
FORMS OF PRICING SUPPLEMENTS
Registration No. 333-100340
Filed Pursuant to Rule 424(b)(3)
INTERNATIONAL LEASE FINANCE CORPORATION
ILFC NOTES
With Maturities of 9 Months or More from Date of Issue
________________________________________________________________________________
Pricing Supplement No. __ Trade Date: __/__/__
(To Prospectus dated April 15, 2003 and Prospectus Issue Date: __/__/__
Supplement dated April 15, 2003)
The date of this Pricing Supplement is _______ __, ____
CUSIP
or
Common Code Principal Amount Interest Rate Maturity Date Price to Public
----------- ---------------- ------------- ------------- ---------------
Interest Payment
Frequency Interest Payment Subject to
(begin date) Dates Survivor's Option Proceeds to Issuer Redemption
------------ ----- ----------------- ------------------ ----------
Annual Put
Limitation:
Individual Put
Limitation:
Dates and terms of redemption Discounts and
(including the redemption price) Commissions Reallowance Dealer
-------------------------------- ----------- ----------- ------
Overdue Rate
------------
D-1
Registration No. 333-100340
Filed Pursuant to Rule 424(b)(3)
INTERNATIONAL LEASE FINANCE CORPORATION
ILFC NOTES
With Maturities of 9 Months or More from Date of Issue
________________________________________________________________________________
Pricing Supplement No. __ Trade Date: __/__/__
(To Prospectus dated April 15, 2003 and Prospectus Issue Date: __/__/__
Supplement dated April 15, 2003)
The date of this Pricing Supplement is _______ __, ____
CUSIP
or
Common Code Principal Amount Interest Rate Maturity Date Price to Public
----------- ---------------- ------------- ------------- ---------------
Interest Payment
Frequency Interest Payment Subject to
(begin date) Dates Survivor's Option Redemption Proceeds to Issuer
------------ ----- ----------------- ---------- ------------------
Annual Put
Limitation:
Individual Put
Limitation:
Dates and terms of redemption Discounts and
(including the redemption price) Commissions Reallowance Dealer
-------------------------------- ----------- ----------- ------
Interest Rate Basis Interest Rate Reset Interest Rate Reset
Overdue Rate or Bases Initial Interest Rate Period Dates
------------ -------- --------------------- ------ -----
D-2
Maximum Interest Minimum Interest
Index Maturity Spread Spread Multiplier Rate Rate
-------------- ------ ----------------- ---- ----
___%
Fixed Rate Designated LIBOR
Commencement Page (for LIBOR Designated CMT Designated CMT
Date Notes only) Telerate Page (for Maturity Index (for
---- Fixed Interest Rate (check one) CMT Notes only) CMT Notes only)
------------------- ----------- --------------- ---------------
LIBOR Reuters: __
LIBOR Telerate: __
D-3
EXHIBIT E
Form of Master Selected Dealer Agreement
[Name of Broker-Dealer]
[Broker-Dealer's Address]
Dear Selected Dealer:
In connection with public offerings of securities after the date hereof
for which we are acting as manager of an underwriting syndicate or are otherwise
responsible for the distribution of securities to the public by means of an
offering of securities for sale to selected dealers, you may be offered the
right as such a selected dealer to purchase as principal a portion of such
securities. This will confirm our mutual agreement as to the general terms and
conditions applicable to your participation in any such selected dealer group
organized by us as follows.
1. Applicability of this Agreement. The terms and conditions of this
Agreement shall be applicable to any public offering of securities
("SECURITIES") pursuant to a registration statement filed under the Securities
Act of 1933 (the "SECURITIES ACT"), or exempt from registration thereunder
(other than a public offering of Securities effected wholly outside the United
States of America), wherein ABN AMRO Financial Services, Inc. ("AAFS") (acting
for its own account or for the account of any underwriting or similar group or
syndicate) is responsible for managing or otherwise implementing the sale of the
Securities to selected broker-dealers ("SELECTED DEALERS") and has expressly
informed you that such terms and conditions shall be applicable. Any such
offering of Securities to you as a Selected Dealer is hereinafter called an
"OFFERING". In the case of any Offering where we are acting for the account of
any underwriting or similar group or syndicate ("UNDERWRITERS"), the terms and
conditions of this Agreement shall be for the benefit of, and binding upon, such
Underwriters, including, in the case of any Offering where we are acting with
others as representatives of Underwriters, such other representatives.
2. Conditions of Offering; Acceptance and Purchases. Any Offering
will be subject to delivery of the Securities and their acceptance by us and any
other Underwriters, may be subject to the approval of all legal matters by
counsel and the satisfaction of other conditions, and may be made on the basis
of reservation of Securities or an allotment against subscription. We will
advise you by telegram, telex or other form of written communication ("WRITTEN
COMMUNICATION", which term, in the case of any Offering described in Section
3(a) or 3(b) hereof, may include a prospectus or offering circular) of the
particular method and supplementary terms and conditions (including, without
limitation, the information as to prices and offering date referred to in
Section 3(c) hereof) of any Offering in which you are invited to participate. To
the extent such supplementary terms and conditions are inconsistent with any
provision herein, such terms and conditions shall supersede any such provision.
Unless otherwise indicated in any such Written Communication, acceptances and
other communications by you with respect to an Offering should be sent to ABN
AMRO Financial Services, Inc., 000 Xxxxx Xxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx
00000 (Telecopy: (000) 000-0000). We reserve the right to reject any acceptance
in whole or in part. Unless notified otherwise by us, Securities
E-1
purchased by you shall be paid for on such date as we shall determine, on one
business day's prior notice to you, by certified or official bank check, in an
amount equal to the Public Offering Prices (as hereinafter defined) or, if we
shall so advise you, at such Public Offering Price less the Concession (as
hereinafter defined), payable in immediately available funds to the order of ABN
AMRO Financial Services, Inc., against delivery of the Securities. If Securities
are purchased and paid for at such Public Offering Price, such Concession will
be paid after the termination of the provisions of Section 3(c) hereof with
respect to such Securities. Notwithstanding the foregoing, unless notified
otherwise by us, payment for and delivery of Securities purchased by you shall
be made through the facilities of The Depository Trust Company, if you are a
member, unless you have otherwise notified us prior to the date specified in a
Written Communication to you from us or, if you are not a member, settlement may
be made through a correspondent who is a member pursuant to instructions which
you will send to us prior to such specified date.
3. Representations, Warranties and Agreements.
(a) Registered Offerings. In the case of any Offering of Securities
that are registered under the Securities Act ("REGISTERED OFFERING"), we shall
provide you with such number of copies of each preliminary prospectus and of the
final prospectus relating thereto as you may reasonably request for the purposes
contemplated by the Securities Act and the Securities Exchange Act of 1934 (the
"EXCHANGE ACT") and the applicable rules and regulations of the Securities and
Exchange Commission (the "COMMISSION") thereunder. You represent and warrant
that you are familiar with Rule 15c2-8 under the Exchange Act relating to the
distribution of preliminary and final prospectuses and agree that you will
comply therewith. You agree to make a record of your distribution of each
preliminary prospectus and, when furnished with copies of any revised
preliminary prospectus, you will, upon our request, promptly forward copies
thereof to each person to whom you have theretofore distributed a preliminary
prospectus. You agree that in purchasing Securities in a Registered Offering you
will rely upon no statement whatsoever, written or oral, other than the
statements in the final prospectus delivered to you by us. You will not be
authorized by the issuer or other seller of Securities offered pursuant to a
prospectus or by any Underwriter to give any information or to make any
representation not contained in the prospectus in connection with the sale of
such Securities.
(b) Offerings Pursuant to Offering Circular. In the case of any
Offering of Securities, other than a Registered Offering, which is made pursuant
to an offering circular or other document comparable to a prospectus in a
Registered Offering, including, without limitation, an Offering of "exempted
securities" as defined in Section 3(a)(12) of the Exchange Act (an "EXEMPTED
SECURITIES OFFERING"), we shall provide you with such number of copies of each
preliminary offering circular and of the final offering circular relating
thereto as you may reasonably request. You agree that you will comply with the
applicable Federal and state laws, and the applicable rules and regulations of
any regulatory body promulgated thereunder, governing the use and distribution
of offering circulars by brokers or dealers. You agree that in purchasing
Securities pursuant to an offering circular you will rely upon no statements
whatsoever, written or oral, other than the statements in the final offering
circular delivered to you by us. You will not be authorized by the issuer or
other seller of Securities offered pursuant to an offering circular or by any
Underwriter to give any information or to make any representation not contained
in the offering circular in connection with the sale of such Securities.
E-2
(c) Offer and Sale to the Public. With respect to any Offering of
Securities, we will inform you by a Written Communication of the public offering
price, the selling concession, the reallowance (if any) to broker-dealers and
the time when you may commence selling Securities to the public. After such
public offering has commenced, we may change the public offering price, the
selling concession and the reallowance (if any) to broker-dealers. The offering
price, selling concession and reallowance (if any) to broker-dealers at any time
in effect with respect to an Offering are hereinafter referred to, respectively,
as the "PUBLIC OFFERING PRICE", the "CONCESSION" and the "REALLOWANCE". With
respect to each Offering of Securities, until the provisions of this Section
3(c) shall be terminated pursuant to Section 5 hereof, you agree to offer
Securities to the public at no more than the Public Offering Price. If notified
by us, you may sell securities to the public at a lesser negotiated price than
the Public Offering Price, but in an amount not to exceed the Concession. If a
Reallowance is in effect, a reallowance from the Public Offering Price not in
excess of such Reallowance may be allowed as consideration for services rendered
in distribution to broker-dealers (i) who are actually engaged in the investment
banking or securities business, (ii) who execute the written agreement
prescribed by Rule 2740(c) of the Conduct Rules of the National Association of
Securities Dealers. Inc. (the "NASD") and (iii) who, if they are foreign banks,
broker-dealers or institutions not eligible for membership in the NASD,
represent to you that they will promptly reoffer such Securities at the Public
Offering Price and will abide by the conditions with respect to foreign banks,
broker-dealers and institutions set forth in Section 3(e) hereof.
(d) Over-allotment; Stabilization; Unsold Allotments. We may, with
respect to any Offering, be authorized to over-allot in arranging sales to
Selected Dealers, to purchase and sell Securities for long or short account and
to stabilize or maintain the market price of the Securities. You agree not to
purchase and sell Securities for which an order from a client has not been
received without our consent in each instance. You further agree that, upon our
request at any time and from time to time prior to the termination of the
provisions of Section 3(c) hereof with respect to any Offering, you will report
to us the amount of Securities purchased by you pursuant to such Offering which
then remain unsold by you and will, upon our request at any such time, sell to
us for our account or the account of one or more Underwriters such amount of
such unsold Securities as we may designate at the Public Offering Price less an
amount to be determined by us not in excess of the Concession. If, prior to the
later of (i) the termination of the provisions of Section 3(c) hereof with
respect to any Offering or (ii) the covering by us of any short position created
by us in connection with such Offering for our account or the account of one or
more Underwriters, we purchase or contract to purchase for our account or the
account of one or more Underwriters in the open market or otherwise any
Securities purchased by you under this Agreement as part of such Offering, you
agree to pay us on demand an amount equal to the Concession with respect to such
Securities (unless you shall have purchased such Securities pursuant to Section
2 hereof at the Public Offering Price in which case we shall not be obligated to
pay such Concession to you pursuant to Section 2) plus transfer taxes and
broker's commissions or dealer's xxxx-up, if any, paid in connection with such
purchase or contract to purchase.
(e) NASD. You represent and warrant that you are actually engaged in
the investment banking or securities business. In addition, you further
represent and warrant that you are either (i) a member in good standing of the
NASD(ii) a foreign bank, broker-dealer or institution not eligible for
membership in the NASD which agrees not to make any sales within
E-3
the United States, its territories or its possessions or to persons who are
citizens thereof or residents therein, and in making any other sales to comply
with the NASD's interpretation with respect to free riding and withholding, or
(iii), solely in connection with an Exempted Securities Offering, a bank, as
defined in Section 3(a)(6) of the Exchange Act, that does not otherwise fall
within provision (i) or (ii) of this sentence (a "BANK"). You further represent,
by your participation in an Offering, that you have provided to us all documents
and other information required to be filed with respect to you, any related
person or any person associated with you or any such related person pursuant to
the supplementary requirements of the NASD's interpretation with respect to
review of corporate financing as such requirements relate to such Offering.
You agree that, in connection with any purchase or sale of the
Securities wherein a selling Concession, discount or other allowance is received
or granted, (1) you will comply with the provisions of Rule 2740 of the Conduct
Rules of the NASD, (2) if you are a non-NASD member broker or dealer in a
foreign country, you will also comply (a), as though you were an NASD member,
with the provision of Rules 2730, 2740 and 2750 of the Conduct Rules and (b)
with Rule 2420 of the Conduct Rules as that Rule applies to a non-NASD member
broker or dealer in a foreign country and (3), in connection with an Exempted
Securities Offering, if you are a Bank, you will also comply, as though you were
an NASD member, with the provision of Rules 2730, 2740 and 2750 of the Conduct
Rules.
You further agree that, in connection with any purchase of
securities from us that is not otherwise covered by the terms of this Agreement
(whether we are acting as manager, as a member of an underwriting syndicate or a
selling group or otherwise), if a selling Concession, discount or other
allowance is granted to you, clauses (1), (2) and (3) of the preceding paragraph
will be applicable.
(f) Relationship among Underwriters and Selected Dealers. We may buy
Securities from or sell Securities to any Underwriter or Selected Dealer and the
Underwriters (if any) and the Selected Dealers may purchase Securities from and
sell Securities to each other at the Public Offering Price less all or any part
of the Reallowance. You are not authorized to act as agent for us, any
Underwriter or the issuer or other seller of any Securities in offering
Securities to the public or otherwise. Neither we nor any Underwriter shall be
under any obligation to you except for obligations assumed hereby or in any
Written Communication from us in connection with any Offering. Nothing contained
herein or in any Written Communication from us shall constitute the Selected
Dealers an association or partners with us or any Underwriter or with one
another. If the Selected Dealers, among themselves or with the Underwriters,
should be deemed to constitute a partnership for Federal income tax purposes,
then you elect to be excluded from the application of Subchapter K, Chapter 1,
Subtitle A of the Internal Revenue Code of 1986 and agree not to take any
position inconsistent with that election. You authorize us, in our discretion,
to execute and file on your behalf such evidence of that election as may be
required by the Internal Revenue Service. In connection with any Offering, you
shall be liable for your proportionate amount of any tax, claim, demand or
liability that may be asserted against you alone or against one or more Selected
Dealers participating in such Offering, or against us or the Underwriters, based
upon the claim that the Selected Dealers (including you), or any of them,
constitute an association, an unincorporated business or other
E-4
entity, including, in each case, your proportionate amount of any expense
incurred in defending against any such tax, claim, demand or liability.
(g) Blue Sky Laws. Upon application to us, we shall inform you as to
any advice we have received from counsel concerning the jurisdictions in which
Securities have been qualified for sale or are exempt under the securities or
blue sky laws of such jurisdictions, but we do not assume any obligation or
responsibility as to your right to sell Securities in any such jurisdiction.
(h) Compliance with Law. You agree that in selling Securities
pursuant to any Offering (which agreement shall also be for the benefit of the
issuer or other seller of such Securities) you will comply with all applicable
laws, rules and regulations, including the applicable provisions of the
Securities Act and the Exchange Act, the applicable rules and regulations of the
Securities and Exchange Commission thereunder, the applicable rules and
regulations of the NASD, the applicable rules and regulations of any securities
exchange having jurisdiction over the Offering and the applicable laws, rules
and regulations specified in Section 3(b) hereof.
(i) Registration of the Securities. You are aware that no action has
been or will be taken by the issuer of the Securities that would permit the
offer or sale of the Securities or possession or distribution of the Prospectus
or any other offering material relating to the Securities in any jurisdiction
where action for that purpose is required, other than registering the Securities
under the Securities Act in the case of a Registered Offering. Accordingly, you
agree that you will observe all applicable laws and regulations in each
jurisdiction in or from which you may directly or indirectly acquire, offer,
sell, or deliver Securities or have in your possession or distribute the
Prospectus or any other offering material relating to the Securities, and you
will obtain any consent, approval or permission required by you for the
purchase, offer, or sale by you of the Securities under the laws and regulations
in force in any such jurisdiction to which you are subject or in which you make
such purchase, offer, or sale. Neither the issuer of the Securities nor AAFS or
any Selected Dealers or Underwriters shall have any responsibility for
determining what compliance is necessary by you or for your obtaining such
consents, approvals, or permissions. You further agree that you will take no
action that will impose any obligations on the issuer of the Securities, AAFS,
or any Selected Dealers or Underwriters. Subject as provided above, you shall,
unless prohibited by applicable law, furnish to each person to whom you offer,
sell or deliver Securities a copy of the Prospectus (as then amended or
supplemented) or (unless delivery of the Prospectus is required by applicable
law) inform each such person that a copy thereof (as then amended or
supplemented) will be made available upon request. You are not authorized to
give any information or to make any representation not contained in the
Prospectus or the documents incorporated by reference or specifically referred
to therein in connection with the offer and sale of the Securities. In the case
of an Exempted Securities Offering, all references to "Prospectus" in this
section shall be interpreted to mean "offering circular."
4. Indemnification. You agree to indemnify and hold harmless ABN
AMRO Financial Services, Inc., the issuer of the Securities, each person, if
any, who controls (within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act) ABN AMRO Financial Services, Inc. or the
issuer of the Securities, and their respective directors,
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officers and employees from and against any and all losses, liabilities, costs
or claims (or actions in respect thereof) (collectively, "LOSSES") to which any
of them may become subject (including all reasonable costs of investigating,
disputing or defending any such claim or action), insofar as such Losses arise
out of or are in connection with the breach of any representation, warranty or
agreement made by you herein.
If any claim, demand, action or proceeding (including any
governmental investigation) shall be brought or alleged against an indemnified
party in respect of which indemnity is to be sought against an indemnifying
party, the indemnified party shall promptly notify the indemnifying party in
writing, and the indemnifying party, upon request of the indemnified party,
shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnified party may
designate in such proceeding and shall pay the reasonable fees and expenses of
such counsel related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the reasonable fees
and expenses of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel, (ii) the indemnifying party has failed
within a reasonable time to retain counsel reasonably satisfactory to such
indemnified party or (iii) the named parties to any such proceeding (including
any impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
agreed that the indemnifying party shall not, in connection with any proceeding
or related proceedings in the same jurisdiction, be liable for the reasonable
fees and expenses of more than one separate law firm (in addition to local
counsel where necessary) for all such indemnified parties. Such firm shall be
designated in writing by the indemnified party. The indemnifying party shall not
be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
The indemnity agreements contained in this Section and the
representations and warranties by you in this Agreement shall remain operative
and in full force and effect regardless of: (i) any termination of this
Agreement; (ii) any investigation made by an indemnified party or on such
party's behalf or any person controlling an indemnified party or by or on behalf
of the indemnifying party, its directors or officers or any person controlling
the indemnifying party; and (iii) acceptance of and payment for any Securities.
5. Termination, Supplements and Amendments. This Agreement
constitutes the entire agreement of the parties with regard to the subject
matter hereof and supercedes all prior oral or written agreements between the
parties hereto or their predecessors with regard to the subject matter hereof.
This Agreement may be terminated by Written Communication from you to AAFS or
from AAFS to you. Until so terminated, this Agreement shall continue in full
force and effect. This Agreement may be supplemented or amended by us by written
notice
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thereof to you, and any such supplement or amendment to this Agreement shall be
effective with respect to any Offering to which this Agreement applies after the
date you received such supplement or amendment. Each reference to "this
Agreement" herein shall, as appropriate, be to this Agreement as so amended and
supplemented. The terms and conditions set forth in Section 3(c) hereof with
regard to any Offering will terminate at the close of business on the 30th day
after the commencement of the public offering of the Securities to which such
Offering relates, but in our discretion may be extended by us for a further
period not exceeding 30 days and in our discretion, whether or not extended, may
be terminated at any earlier time.
6. Successors and Assigns. This Agreement shall be binding on, and
inure to the benefit of, the parties hereto and other persons specified in
Section 1 hereof, and the respective successors and assigns of each of them.
7. Governing Law. This Agreement and the terms and conditions set
forth herein with respect to any Offering together with such supplementary terms
and conditions with respect to such Offering as may be contained in any Written
Communication from us to you in connection therewith shall be governed by, and
construed in accordance with, the laws of the State of New York.
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Please confirm by signing and returning to us the enclosed copy of this
Agreement that your subscription to, or your acceptance of any reservation of,
any Securities pursuant to an Offering shall constitute (i) acceptance of and
agreement to the terms and conditions of this Agreement (as supplemented and
amended pursuant to Section 5 hereof) together with and subject to any
supplementary terms and conditions contained in any Written Communication from
us in connection with such Offering, all of which shall constitute a binding
agreement between you and us, individually or as representative of any
Underwriters, (ii) confirmation that your representations and warranties set
forth in Section 3 hereof are true and correct at that time, (iii) confirmation
that your agreements set forth in Sections 2 and 3 hereof have been and will be
fully performed by you to the extent and at the times required thereby and (iv)
in the case of any Offering described in Section 3(a) and 3(b) hereof,
acknowledgment that you have requested and received from us sufficient copies of
the final prospectus or offering circular, as the case may be, with respect to
such Offering in order to comply with your undertakings in Section 3(a) or 3(b)
hereof.
Very truly yours,
ABN AMRO FINANCIAL SERVICES, INC.
By:______________________________________
Name:
Title:
CONFIRMED: ________ __, 200_
(NAME OF BROKER-DEALER)
By:______________________________________
Name:
Title:
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