Exhibit 4.9
FIFTH SUPPLEMENTAL INDENTURE
FIFTH SUPPLEMENTAL INDENTURE, dated as of December 27, 2002
(this "Supplement"), between International Lease Finance Corporation, a
corporation duly organized and existing under the laws of the State of
California (hereinafter called the "Company"), and U.S. Bank National
Association, as Trustee (hereinafter called the "Trustee").
RECITALS OF THE COMPANY
The Company has heretofore executed and delivered an Indenture,
dated as of November 1, 1991 (hereinafter called the "Indenture") with the
Trustee, as successor to Continental Bank, National Association providing, among
other things, for the issuance from time to time of the Company's unsecured
debentures, notes or other evidences of indebtedness in one or more series.
Pursuant to the terms of the Indenture, an Officers' Certificate
dated May 21, 1997 (the "Officers' Certificate") and instructions from a
Designated Person of the Company in connection with the Notes (as defined
below), Medium-Term Notes, Series I, due March 1, 2006 in the aggregate
principal amount of $50,000,000 (the "Notes") were issued on May 30, 1997.
Pursuant the terms of the Second Supplemental Indenture, dated
as of February 28, 2001, between the Company and the Trustee, the terms of the
Notes were amended in certain respects (the "Second Supplemental Indenture").
Pursuant to Section 902 of the Indenture, the Holders of the
Notes have consented and agreed to certain additional changes to the terms of
the Notes.
It is deemed advisable and appropriate that the terms of the
Notes be further amended to reflect the changes consented and agreed to by the
Holders of the Notes.
All things necessary to make this Supplement a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS SUPPLEMENT WITNESSETH:
For and in consideration of the premises, it is mutually
covenanted and agreed, for the equal and proportionate benefit of the Holders of
the Notes only, as follows:
1. The terms used in this Supplement and defined in the
Indenture, Officers' Certificate or Instructions shall have the meanings
assigned to them in the Indenture, Officers' Certificate or Instructions, as the
case may be.
2. The terms of the Notes, as amended by the Second Supplemental
Indenture, are hereby amended as follows:
(i) The Stated Maturity shall be October 15, 2008.
(ii) Interest on the Notes from and including October 15, 2002
to but excluding October 15, 2003, shall accrue at the fixed rate of
6.85% per annum, payable semi-annually on each April 15 and October 15,
on the basis of a 360-day year of twelve 30-day months, without
adjustment for Interest Payment Dates that are not Business Days.
Interest on the Notes will be payable to the persons in whose names the
Notes are registered on the April 1 or October 1 (whether or not a
Business Day) immediately preceding the Applicable Interest Payment
Date.
(iii) The Additional Terms of the Notes shall be amended in
their entirety to read as set forth in Annex A hereto.
3. The Trustee assumes no duties, responsibilities or
liabilities by reason of this Supplement other than as set forth in the
Indenture, and this Supplement is executed and accepted by the Trustee subject
to all terms and conditions of its acceptance of the Trust under the Indenture,
as fully as if said conditions were hereby set forth at length. The Trustee
assumes no responsibility or liability for the recitals of the Company set forth
in this Supplement.
4. As amended and modified by this Supplement and the Second
Supplemental Indenture, the Indenture, Officers' Certificate and Instructions
are in all respects ratified and confirmed.
5. This Supplement may be executed in any number of
counterparts, each one of which shall be an original, and all of which together
constitute but one and the same instrument.
6. Trustee hereby accepts the modification of the Indenture,
Officers' Certificate and Instructions hereby effected and the trust in this
Supplement declared and provided, upon the terms and conditions hereinabove set
forth.
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IN WITNESS WHEREOF, the parties hereto have caused this
Supplement to be executed, and their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first above written.
INTERNATIONAL LEASE
FINANCE CORPORATION
By: /s/ Xxxx X. Xxxx
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Attest:
/s/ Xxxxxx X. Xxxxxx
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U.S. BANK NATIONAL
ASSOCIATION
By: /s/ X.X. Xxxxxxx
-----------------------------------
X.X. Xxxxxxx
Vice President
Attest:
/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
Trust Officer
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ANNEX A
ADDITIONAL TERMS
INTEREST RATES
If the Calculation Agent has not given the Put Notice (as defined below), then
during the period from and including October 15, 2003 to the Maturity Date (the
"Fixed Rate Period"), the Notes will bear interest at a fixed rate calculated as
described below (see "Reset of Interest Rate for Fixed Rate Period" below).
Interest during the Fixed Rate Period will be payable semi-annually in arrears
on each April 15 and October 15, commencing April 15, 2004 (each a "Fixed Rate
Interest Payment Date"), to the person in whose name a Note is registered on the
April 1 or October 1 (whether or not a Business Day) immediately preceding the
applicable Fixed Rate Interest Payment Date. However, interest payable on the
Maturity Date will be paid to the person to whom principal on the Note is paid.
The amount of interest payable during the Fixed Rate Period will be computed and
paid on the basis of a 360-day year of twelve 30-day months.
PUT OPTION
The Calculation Agent has the right to require the Company to repurchase all
(but not less than all) of the Notes on October 15, 2003 at a purchase price
equal to 100% of the principal amount thereof, plus accrued but unpaid interest
to but excluding October 15, 2003 (the "Redemption Price"), by delivering
written notice thereof to the Company on behalf of all (but not fewer than all)
holders of the Notes (the "Put Notice"). Such Put Notice shall be given no later
than 9:00 a.m. (New York time) on October 8, 2003. The Calculation Agent shall
give the Put Notice if the holders of a majority in principal amount of the
Notes request the Calculation Agent to give the Put Notice, in which event the
Put Notice shall be binding on all Noteholders; the Calculation Agent shall not
give the Put Notice absent such request of the holders of a majority in
principal amount of the Notes. In the event the Put Notice is timely given, the
Company shall repurchase the Notes at the Redemption Price on October 15, 2003.
IF REQUIRED BY THE CALCULATION AGENT, EACH HOLDER SHALL INDICATE ITS ELECTION TO
HAVE THE CALCULATION AGENT DELIVER THE PUT NOTICE TO THE COMPANY BY DELIVERING
WRITTEN NOTICE OF SUCH ELECTION TO THE CALCULATION AGENT BY NO LATER THAN 12:00
NOON (NEW YORK TIME) ON OCTOBER 6, 2003.
RESET OF INTEREST RATE FOR FIXED RATE PERIOD
If the Calculation Agent has not delivered the Put Notice to the Company in
accordance with the terms set forth under "Put Option" above, the Company and
the Calculation Agent, on October 8, 2003, shall undertake the following actions
to calculate the fixed rate of interest to be paid on the Notes during the Fixed
Rate Period. All references to specific hours are references to prevailing New
York time. Each notice, bid or offer (including those given by the Reference
Dealers [as defined below]) shall be given telephonically and shall be confirmed
as soon as possible by facsimile to each of the Calculation Agent and the
Company. The times set forth below are guidelines for action by the Company and
the Calculation Agent, and each shall use its best efforts to adhere to such
times. The Company shall use its best efforts to cause the Reference Dealers to
take all actions contemplated below in as timely a manner as possible.
A HOLDER SHALL INDICATE ITS ELECTION TO SELL ITS NOTE TO, AND PURCHASE
DESIGNATED TREASURY BONDS FROM, THE FINAL DEALER OR FINAL DEALERS (AS DEFINED
BELOW) IN ACCORDANCE WITH THE
TERMS SET FORTH IN PARAGRAPH (e) BELOW BY NOTIFYING THE CALCULATION AGENT OF
SUCH ELECTION BY NO LATER THAN 9:35 A.M. (NEW YORK TIME) ON OCTOBER 8, 2003. IF
THE CALCULATION AGENT HAS NOT RECEIVED WRITTEN ELECTION FOR THE SALE OF AT LEAST
$25,000,000 AGGREGATE PRINCIPAL AMOUNT OF THE NOTES TO THE FINAL DEALER OR FINAL
DEALERS, THE CALCULATION AGENT SHALL SELECT PRO RATA FROM ALL HOLDERS NOTES IN A
PRINCIPAL AMOUNT THAT, WHEN AGGREGATED WITH THE PRINCIPAL AMOUNT OF NOTES FOR
WHICH THE CALCULATION AGENT HAS RECEIVED A WRITTEN ELECTION TO SELL, WILL TOTAL
$25,000,000, AND SHALL IMMEDIATELY NOTIFY SUCH HOLDERS OF SUCH SELECTION. THE
HOLDERS OF SUCH RANDOMLY SELECTED NOTES SHALL SELL THEIR NOTES TO, AND PURCHASE
DESIGNATED TREASURY BONDS FROM, THE FINAL DEALER OR FINAL DEALERS IN ACCORDANCE
WITH THE TERMS SET FORTH IN PARAGRAPH (e) BELOW.
(a) At 9:00 a.m., the Company shall provide to the Calculation Agent the
names of four financial institutions that deal in the Company's debt
securities and have agreed to participate as reference dealers in
accordance with the terms set forth below (the "Reference Dealers") and,
for each Reference Dealer, the name of and telephone and facsimile
numbers for one individual who will represent such Reference Dealer.
(b) At 9:15 a.m., the Calculation Agent shall:
(i) determine and provide to the Company the 5-year Treasury
bond yield determined at or about such time (the "Designated
Treasury Yield") based on an issue of 5-year Treasury bonds
chosen by the Calculation Agent (the "Designated Treasury
Bonds");
(ii) calculate and provide to the Company the "Premium", which
shall equal the present value (expressed as a percentage rounded
to four decimal places) of the Treasury Rate Difference applied
over the 10 semi-annual periods from October 15, 2003 to the
Maturity Date, discounted at the Discount Rate divided by two,
where:
"Treasury Rate Difference" means the difference between
6.91% (the "Initial Treasury Yield") minus the Designated
Treasury Yield; and
"Discount Rate" means the sum of the Designated Treasury
Yield plus 0.50%; and
(iii) provide to the Company the aggregate principal amount of
the Designated Treasury Bonds that the Holders will purchase
(the "Hedge Amount") in the event that all of the Notes are sold
to one or more of the Reference Dealers in accordance with
paragraph (e) below.
(c) The Calculation Agent immediately thereafter shall contact each of
the Reference Dealers and request that each Reference Dealer provide to
the Calculation Agent the following firm bid and firm offer for the
benefit of the Holders (which bid and offer shall remain firm for 15
minutes):
(i) a firm bid (on an all-in basis), expressed as a spread to
the Designated Treasury Bonds (using, for such purposes, the
Designated Treasury Yield), at which such Reference Dealer would
purchase any Notes offered (up to Notes in a principal amount
equal to $50,000,000, provided that such Reference Dealer shall
not be obligated to purchase Notes in a principal amount less
that $25,000,000) at a price equal to 100% plus the Premium for
settlement on the Redemption Date (the lowest of such spreads,
the "Spread"); and
(ii) a firm offer (on an all-in basis) to sell Designated
Treasury Bonds in a principal amount equal to the Hedge Amount
at a yield equal to the Designated Treasury Yield for settlement
on the Redemption Date.
(d) At 9:30 a.m., the following shall occur following receipt of the
bids and offers requested in paragraph (c) above:
(i) the Calculation Agent shall calculate and provide to the
Company the "Adjusted Coupon", which shall be the fixed rate of
interest on the Notes required to produce a yield on the Notes
equal to the sum of the Designated Treasury Yield and the Spread
given a purchase price of 100% plus the Premium;
(ii) the Interest Rate on the Notes shall be adjusted and shall
equal, effective from and including October 15, 2003 to the
Maturity Date, the Adjusted Coupon; and
(iii) the Reference Dealer providing the Spread shall be deemed
the "Final Dealer"; provided that if two or more Reference
Dealers shall have quoted such Spread, the Company shall
determine which of such Reference Dealers shall be the Final
Dealer or the Final Dealers (and, in the latter case, the
allocation to be made between them).
(e) The Holders:
(i) shall sell Notes to the Final Dealer or Final Dealers in a
principal amount which shall be not less than $25,000,000 nor
more than $50,000,000 at a price equal to 100% plus the Premium;
and
(ii) shall purchase Designated Treasury Bonds from the Final
Dealer or Final Dealers in a principal amount equal to the Hedge
Amount (adjusted pro rata based on the amount of Notes sold in
the event that less than $50,000,000 principal amount is sold),
at a price based on the Designated Treasury Yield, in each case
for settlement on the Redemption Date and, in the case of more
than one Final Dealer, according to the allocation designated by
the Company under paragraph (d)(iii) above.
If the Calculation Agent determines that (i) a Market Disruption Event (as
defined below) has occurred or (ii) two or more of the Reference Dealers have
failed to provide indicative or firm bids or offers in a timely manner
substantially as provided above, the steps contemplated above shall be delayed
until the next trading day on which there is no Market Disruption Event and no
such failure by two or more Reference Dealers. "Market Disruption Event" shall
mean any of the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange or the establishment of
minimum prices on such exchange: (ii) a general moratorium on commercial banking
activities declared by either federal or New York State authorities; (iii) any
material adverse change in the existing financial, political or economic
conditions in the United States or America or elsewhere; (iv) an outbreak or
escalation of major hostilities involving the United States of America or the
declaration of a national emergency or war by the United States of America; or
(v) any material disruption of the U.S. government securities market, U.S.
corporate bond market and/or U.S. federal wire system.
