EXHIBIT 1
CONFORMED COPY
Dated 16th May, 2003
INTERNATIONAL LEASE FINANCE CORPORATION
U.S.$5,000,000,000
EURO MEDIUM TERM NOTE PROGRAMME
---------------------
PROGRAMME AGREEMENT
(amended and restated)
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XXXXX & XXXXX
London
CONTENTS
CLAUSE PAGE
1. Definitions and Interpretation .................................... 2
2. Agreements to Issue and Purchase Notes ............................ 5
3. Conditions of Issue; Updating of Legal Opinions ................... 6
4. Representations, Warranties and Undertakings ...................... 9
5. Undertakings of the Issuer ........................................ 11
6. Indemnity ......................................................... 14
7. Authority to Distribute Documents ................................. 16
8. Dealers' Undertakings ............................................. 17
9. Fees, Expenses and Stamp Duties ................................... 17
10. Termination of Appointment of Dealers ............................. 17
11. Appointment of New Dealers ........................................ 17
12. Increase in the Aggregate Nominal Amount of the Programme ......... 18
13. Status of the Dealers and the Arranger ............................ 19
14. Counterparts ...................................................... 19
15. Communications .................................................... 19
16. Benefit of Agreement .............................................. 19
17. Calculation Agent ................................................. 20
18. Stabilisation ..................................................... 20
19. Governing Law ..................................................... 20
SCHEDULES
A. Initial Documentation List ........................................ 22
B. Selling Restrictions .............................................. 25
C. Part I - Form of Dealer Accession Letter - Programme .............. 29
Part II - Form of Confirmation Letter ............................. 30
Part III - Form of Dealer Accession Letter - Note Issue ........... 31
Part IV - Form of Confirmation Letter - Note Issue ................ 32
D. Letter regarding increase in the nominal amount of the Programme .. 33
E. Form of Subscription Agreement .................................... 34
Signatories ........................................................... 44
PROGRAMME AGREEMENT
(AMENDED AND RESTATED)
IN RESPECT OF A
U.S.$5,000,000,000
EURO MEDIUM TERM NOTE PROGRAMME
THIS AGREEMENT is made on 16th May, 2003 BETWEEN:
(1)
INTERNATIONAL LEASE FINANCE CORPORATION of 1999 Avenue of the Stars, 00xx
Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000 (the "ISSUER");
(2) ABN AMRO BANK N.V. of 000 Xxxxxxxxxxx, Xxxxxx XX0X 0XX;
(3) BANC OF AMERICA SECURITIES LIMITED of 0 Xxxx Xxxxxx, Xxxxxx X0 0XX;
(4) CITIGROUP GLOBAL MARKETS LIMITED of Citigroup Centre, Canada Square,
Xxxxxx Xxxxx, Xxxxxx X00 0XX;
(5) COMMERZBANK AKTIENGESELLSHAFT of 00 Xxxxxxxxxxx Xxxxxx, Xxxxxx XX0X OHR;
(6) DEUTSCHE BANK AG LONDON of Winchester House, 0 Xxxxx Xxxxxxxxxx Xxxxxx,
Xxxxxx XX0X 0XX;
(7) X.X. XXXXXX SECURITIES LTD. of 000 Xxxxxx Xxxx, Xxxxxx XX0X 0XX;
(8) XXXXXX BROTHERS INTERNATIONAL (EUROPE) of Xxx Xxxxxxxxx, Xxxxxx XX0X 0XX;
(9) XXXXXXX XXXXX INTERNATIONAL of Xxxxxxx Xxxxx Financial Centre, 0 Xxxx
Xxxxxx Xxxxxx, Xxxxxx XX0X 0XX;
(10) XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED of 00 Xxxxx Xxxxxx, Xxxxxx
Xxxxx, Xxxxxx X00 0XX;
(11) SOCIETE GENERALE of Tour Societe Generale, 00, Xxxxx Xxxxx 00000 Xxxxx la
Defense;
(12) UBS LIMITED of 0 Xxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX; and
(13) WESTLB AG of Xxxxxxxxxxxxx 00, X-00000 Xxxxxxxxxx.
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WHEREAS:
(A) The Issuer entered into an Amended and Restated
Programme Agreement dated
15th May, 2002 (the "PRINCIPAL
PROGRAMME AGREEMENT") between the Issuer
and the Dealers named therein.
(B) The parties hereto have agreed to make certain modifications to the
Principal
Programme Agreement and the Programme, including the resignation
of Xxxxxxx Sachs International as a Dealer under the Programme and an
increase in the size of the Programme to U.S.$5,000,000,000.
(C) With effect from 10th March, 2003, UBS AG, acting through its business
group UBS Warburg has resigned in favour of UBS Limited (formerly named
UBS Warburg Ltd.) as a Dealer under the Programme.
(D) This Agreement amends and restates the Principal
Programme Agreement. Any
Notes issued on or after the date hereof shall be issued pursuant to this
Agreement. This does not affect any Notes issued prior to the date of this
Agreement.
IT IS HEREBY AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
(1) For the purposes of this Agreement, except where the context requires
otherwise:
"AGENCY AGREEMENT" means the agency agreement (amended and restated) dated
15th May, 2002 between the Issuer, the Agent and the other Paying Agents
referred to therein under which, amongst other things, the Agent is
appointed as issuing agent, principal paying agent and agent bank for the
purposes of the Programme;
"AGENT" means Citibank, N.A. as Agent under the Agency Agreement and any
successor agent appointed in accordance with the Agency Agreement;
"AGREEMENT DATE" means, in respect of any Note, the date on which
agreement is reached for the issue of such Note as contemplated in clause
2 which, in the case of Notes issued on a syndicated basis or otherwise in
relation to which a Subscription Agreement is entered into, shall be the
date upon which the relevant Subscription Agreement is signed by or on
behalf of all the parties thereto;
"AGREEMENTS" means each of this Agreement and the Agency Agreement;
"ARRANGER" means Xxxxxx Brothers International (Europe) or any other
entity appointed from time to time as the arranger for the Programme;
"CLEARSTREAM, LUXEMBOURG" means Clearstream Banking, societe anonyme;
"CONFIRMATION LETTER" means:
(a) in respect of the appointment of a third party as a Dealer for the
duration of the Programme, the Confirmation Letter substantially in
the form set out in Part II of Appendix C hereto; and
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(b) in respect of the appointment of a third party as a Dealer for one
or more particular issues of Notes under the Programme, the
Confirmation Letter substantially in the form set out in Part IV of
Appendix C hereto;
"DEALER" means each of the Initial Dealers and any New Dealer and excludes
any entity whose appointment has been terminated pursuant to clause 10,
and references in this Agreement to the "RELEVANT DEALER" shall, in
relation to any Note, be references to the Dealer or Dealers with whom the
Issuer has agreed the issue and purchase of such Note;
"DEALER ACCESSION LETTER" means:
(a) in respect of the appointment of a third party as a Dealer for the
duration of the Programme, the Dealer Accession Letter substantially
in the form set out in Part I of Appendix C hereto; and
(b) in respect of the appointment of a third party as a Dealer for one
or more particular issues of Notes under the Programme, the Dealer
Accession Letter substantially in the form set out in Part III of
Appendix C hereto;
"DEALER INDEMNIFIED PERSON" means each Dealer, its affiliates and each
person who controls such Dealer (within the meaning of section 15 of the
Securities Act or section 20 of the Exchange Act) and each of their
directors, officers, employees and agents;
"EUROCLEAR" means Euroclear Bank S.A./N.V. as operator of the Euroclear
System;
"EXCHANGE ACT" means the United States Securities Exchange Act of 1934, as
amended;
"FSMA" means the Financial Services and Markets Xxx 0000;
"INITIAL DEALERS" means the Dealers set out as 2 to 13 of the list of
parties hereto;
"INITIAL DOCUMENTATION LIST" means the lists of documents sets out in
Appendix A to this Agreement;
"LEAD MANAGER" means, in relation to any Tranche of Notes, the person
named as the Lead Manager in the applicable Subscription Agreement;
"LISTING AGENT" means, in relation to any Notes which are, or are to be,
listed on a Stock Exchange, such listing agent as the Issuer may from time
to time appoint for the purposes of liaising with such Stock Exchange;
"MOODY'S" means Xxxxx'x Investors Service Limited;
"NEW DEALER" means any entity appointed as an additional Dealer in
accordance with clause 11;
"NOTE" means a note issued or to be issued by the Issuer pursuant to this
Agreement, which Note may be represented by a Global Note or be in
definitive form including any receipts, coupons or talons relating
thereto;
"OFFERING CIRCULAR" means the Offering Circular relating to the Notes
prepared in connection with the Programme, as revised, supplemented or
amended from time to time by the Issuer in accordance with clause 5(2)
including, in relation to each Tranche of Notes, the applicable
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Pricing Supplement and such other documents as are from time to time
incorporated therein by reference except that for the purpose of clause
4(1) and 4(2) in respect of the Agreement Date and the Issue Date, the
Offering Circular means the Offering Circular as at the Agreement Date but
not including any subsequent revision, supplement or amendment thereto or
incorporation of information therein;
"PRICING SUPPLEMENT" means the pricing supplement issued in relation to
each Tranche of Notes (substantially in the form of Annexe C to the
Procedures Memorandum) as a supplement to the Offering Circular and giving
details of that Tranche;
"PROCEDURES MEMORANDUM" means the Operating and Administrative Procedures
Memorandum as amended or varied from time to time (in respect of any
Tranche) by agreement between the Issuer and the relevant Dealer or Lead
Manager with the approval in writing of the Agent;
"PROGRAMME" means the Euro Medium Term Note Programme that is the subject
of this Agreement;
"SECURITIES ACT" means the United States Securities Act of 1933, as
amended;
"STANDARD & POOR'S" means Standard & Poor's Rating Services, a Division of
The XxXxxx-Xxxx Companies, Inc.;
"STOCK EXCHANGE" means the Luxembourg Stock Exchange or any other stock
exchange(s) on which any Notes may from time to time be listed or admitted
to trading, and references in this Agreement to the "RELEVANT STOCK
EXCHANGE" shall, in relation to any Notes, be references to the stock
exchange or stock exchanges on which such Notes are from time to time, or
are intended to be, listed or admitted to trading; and
"SUBSCRIPTION AGREEMENT" means an agreement (by whatever name called) in
or substantially in the form set out in Appendix E hereto or in such other
form as may be agreed between the Issuer and the Lead Manager which
agreement shall be supplemental to this Agreement.
(2) Terms and expressions defined in the Agency Agreement, the Conditions
and/or the applicable Pricing Supplement and not otherwise defined in this
Agreement shall have the same meanings in this Agreement, except where the
context otherwise requires.
(3) In this Agreement, clause headings are inserted for convenience and ease
of reference only and shall not affect the interpretation of this
Agreement.
(4) All references in this Agreement to the provisions of any statute shall be
deemed to be references to that statute as from time to time modified,
extended, amended or re-enacted.
(5) All references in this Agreement to an agreement, instrument or other
document (including this Agreement, the Agency Agreement, any Series of
Notes and any Conditions appertaining thereto) shall be construed as a
reference to that agreement, instrument or document as the same may be
amended, modified, varied, supplemented, replaced or novated from time to
time including, but without prejudice to the generality of the foregoing,
this Agreement as supplemented by any Subscription Agreement.
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(6) Words denoting the singular number only shall include the plural number
also and vice versa; words denoting the masculine gender only shall
include the feminine gender also; and words denoting persons only shall
include firms and corporations and vice versa.
(7) All references in this Agreement to Euroclear and/or Clearstream,
Luxembourg shall, wherever the context so permits, be deemed to include
reference to any additional or alternative clearing system approved by the
Issuer and the Agent.
2. AGREEMENTS TO ISSUE AND PURCHASE NOTES
(1) Subject to the terms and conditions of this Agreement, the Issuer may from
time to time agree with any Dealer to issue, and any Dealer may agree to
purchase, Notes.
(2) Unless otherwise agreed between the parties, on each occasion upon which
the Issuer and any Dealer agree on the terms of the issue by the Issuer
and purchase by such Dealer of one or more Notes:
(a) the Issuer shall cause such Notes which shall be initially
represented by a Temporary Global Note to be issued and delivered to
a common depositary for Euroclear and Clearstream, Luxembourg;
(b) the securities account of the relevant Dealer with Euroclear and/or
Clearstream, Luxembourg (as specified by the relevant Dealer) will
be credited with such Notes on the agreed Issue Date, as described
in the Procedures Memorandum; and
(c) the relevant Dealer or, as the case may be, the Lead Manager shall,
subject to such Notes being so credited, cause the net purchase
moneys for such Notes to be paid in the relevant currency by
transfer of funds to the designated account of the Agent or (in the
case of syndicated issues) the designated account of the Issuer with
Euroclear and/or Clearstream, Luxembourg so that such payment is
credited to such account for value on such Issue Date, as described
in the Procedures Memorandum.
(3) Unless otherwise agreed between the Issuer and the relevant Dealer, where
more than one Dealer has agreed with the Issuer to purchase a particular
Tranche of Notes pursuant to this clause, the obligations of such Dealers
so to purchase the Notes shall be joint and several.
(4) Where the Issuer agrees with two or more Dealers to issue, and such
Dealers agree to purchase, Notes on a syndicated basis, the Issuer shall
enter into a Subscription Agreement with such Dealers. The Issuer may also
enter into a Subscription Agreement with one Dealer only. For the
avoidance of doubt, the Agreement Date in respect of such issue shall be
the date on which the Subscription Agreement is signed on behalf of all
parties thereto.
(5) The procedures which the parties intend should apply for the purposes of
issues not to be subscribed pursuant to a Subscription Agreement are set
out in Annexe A, Part 1 of the Procedures Memorandum. The procedures which
the parties intend should apply for the purposes of issues to be
subscribed pursuant to a Subscription Agreement are set out in Annexe A,
Part 2 of the Procedures Memorandum.
(6) Each of the Issuer and the Dealers acknowledges that any issue of Notes
denominated in a currency in respect of which particular laws, guidelines,
regulations, restrictions or reporting requirements apply may only be
issued in circumstances which comply with such laws, guidelines,
regulations, restrictions or reporting requirements from time to time.
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3. CONDITIONS OF ISSUE; UPDATING OF LEGAL OPINIONS
(1) FIRST ISSUE
Before the Issuer reaches its first agreement with any Dealer for the
issue and purchase of Notes, each Dealer shall have received, and found
satisfactory (in its reasonable opinion), all of the documents and
confirmations described in Part I of the Initial Documentation List. Any
Dealer must notify the Arranger and the Issuer within three London
business days of receipt of the documents and confirmations described in
Part 1 of the Initial Documentation List if it considers any such document
or confirmation to be unsatisfactory in its reasonable opinion and, in the
absence of such notification, such Dealer shall be deemed to consider such
documents and confirmations to be satisfactory and such further conditions
precedent to be satisfied.
(2) EACH ISSUE
The obligations of a Dealer under any agreement for the issue and purchase
of Notes made pursuant to clause 2 are conditional upon:
(a) there having been, as at the proposed Issue Date, no material
adverse change from that set forth in the Offering Circular as at
the relevant Agreement Date in the condition (financial or
otherwise), business, prospects or results of operations of the
Issuer and its subsidiaries considered as a whole, nor the
occurrence of any event making untrue or incorrect to an extent
which is material as aforesaid any of the warranties contained in
clause 4;
(b) there being no outstanding material breach of any of the obligations
of the Issuer under this Agreement, the Agency Agreement or any
Notes which has not been expressly waived by the relevant Dealer on
or prior to the proposed Issue Date;
(c) subject to clause 12, the aggregate nominal amount (or, in the case
of Notes denominated in a currency other than U.S. dollars, the U.S.
dollar equivalent (determined as provided in subclause (5)) of the
aggregate nominal amount) of the Notes to be issued, when added to
the aggregate nominal amount (or, in the case of Notes denominated
in a currency other than U.S. dollars, the U.S. dollar equivalent
(determined as aforesaid) of the aggregate nominal amount) of all
Notes outstanding (as defined in the Agency Agreement) on the
proposed Issue Date (excluding for this purpose Notes due to be
redeemed on such Issue Date) not exceeding U.S.$5,000,000,000;
(d) in the case of Notes which are intended to be listed, the relevant
authority or authorities having agreed to list such Notes, subject
only to the issue of the relevant Notes;
(e) no meeting of the holders of Notes (or any of them) having been duly
convened but not yet held or, if held but adjourned, the adjourned
meeting having not been held;
(f) there having occurred, between the Agreement Date and the Issue Date
for such Notes, none of the following: (a) a suspension or material
limitation (including any setting of minimum prices) in trading in
securities generally on the
New York Stock Exchange, the London
Stock Exchange or any stock exchange on which such Notes
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are to be listed if the effect of any such event, in the judgment of
the relevant Dealer or, if more than one, the relevant Lead Manager
on behalf of the relevant Dealers, is to make it impracticable or
inadvisable to proceed with the solicitation by such relevant
Dealer(s) of offers to purchase Notes or the purchase of Notes from
the Issuer as principal on the terms and in the manner contemplated
by the Offering Circular, as amended or supplemented; (b) a general
moratorium on commercial banking activities in
New York declared by
either Federal or
New York State authorities, in Europe declared by
the European Central Bank or, in respect of Belgium, France,
Germany, Italy, Luxembourg, The Netherlands, Spain or the United
Kingdom, declared by the relevant national authorities, or in
respect of the country (if not included in the foregoing list of
countries) in whose currency the payments of interest or principal
on the Notes are denominated, declared by the relevant national
authority; (c) the outbreak or escalation of hostilities involving
the United States, Belgium, France, Germany, Italy, Luxembourg, The
Netherlands, Spain or the United Kingdom or the country (if not
including in the foregoing list of countries) in whose currency the
payments of interest or principal on the Notes are denominated, or
the declaration by any such country of a national emergency or war
(other than any such outbreak, escalation or declaration that does
not represent a significant departure from the conditions that exist
on such Agreement Date) if the effect of any such event, in the
judgment of the relevant Dealer or, if more than one, the relevant
Lead Manager on behalf of the relevant Dealers, is to make it
impracticable or inadvisable to proceed with the solicitation by
such relevant Dealer(s) of offers to purchase Notes or the purchase
of Notes from the Issuer as principal on the terms and in the manner
contemplated by the Offering Circular, as amended or supplemented;
(d) the suspension in trading in the securities of the Issuer on any
national securities exchange or quotation system on which they are
listed or quoted if the effect of such event, in the judgment of the
relevant Dealer or, if more than one, the relevant Lead Manager on
behalf of the relevant Dealers, is to make it impracticable or
inadvisable to proceed with the solicitation by such relevant
Dealer(s) of offers to purchase Notes or the purchase of Notes from
the Issuer as principal on the terms and in the manner contemplated
by the Offering Circular, as amended or supplemented; (e) any
downgrading in or withdrawal of the rating accorded the Issuer's
senior debt securities by any "nationally recognized statistical
rating organisation", as that term is defined by the U.S. Securities
and Exchange Commission for purposes of Rule 436(g)(2) under the
Securities Act; or (f) any material change in or affecting the
business or properties of the Issuer that, in the judgment of the
relevant Dealer or, if more than one, the relevant Lead Manager on
behalf of the relevant Dealers, materially impairs the investment
quality of the Notes;
(g) there being in full force and effect all governmental or regulatory
resolutions, approvals or consents required for the Issuer to issue
the Notes on the proposed Issue Date and for the Issuer to fulfil
its obligations under such Notes and the Issuer having delivered to
the relevant Dealer (and, to the extent not previously delivered, to
the Arranger) certified copies of such resolutions, approvals or
consents and, where applicable, certified English translations
thereof;
(h) there having been, between the Agreement Date and the Issue Date, no
downgrading in the rating of any of the Issuer's debt by Standard &
Poor's, Moody's or Xxxxx Ratings Ltd. or the placing on
"CREDITWATCH" with negative implications or similar publication of
formal review by the relevant rating agency;
(i) the forms of the Pricing Supplement, the applicable Global Notes,
Notes in definitive form and Receipts, Coupons or Talons (each as
applicable) in relation to the relevant
8
Tranche and the relevant settlement procedures having been agreed by
the Issuer, the relevant Dealer and the Agent;
(j) the relevant currency being accepted for settlement by Euroclear and
Clearstream, Luxembourg;
(k) the delivery to the common depositary of the Temporary Global Note
and/or the Permanent Global Note representing the relevant Notes as
provided in the Agency Agreement; and
(l) any calculations or determinations which are required by the
relevant Conditions to have been made prior to the Issue Date having
been duly made.
In the event that any of the foregoing conditions is not satisfied, the
relevant Dealer shall be entitled (but not bound) by notice to the Issuer
to be released and discharged from its obligations under the agreement
reached under clause 2.
(3) WAIVER
Subject to the discretion of the Lead Manager as provided in a
Subscription Agreement, any Dealer, on behalf of itself only, may by
notice in writing to the Issuer waive any of the conditions precedent
contained in subclause (2) (save for the condition precedent contained in
subclause (2)(c)) in so far as they relate to an issue of Notes to that
Dealer.
(4) UPDATING OF LEGAL OPINIONS
Before the first issue of Notes occurring after each anniversary of the
date of this Agreement, the Issuer will procure that further legal
opinions, in substantially the respective forms and with substantially the
content as the legal opinions delivered pursuant to the Initial
Documentation List, are delivered, at the expense of the Issuer, to the
Dealers from legal advisers (reasonably acceptable to the Dealers) as to
New York law, California law, United States federal securities law and
English law.
In addition, on such other occasions as a Dealer so requests the Issuer
(on the basis of reasonable grounds), the Issuer will procure that a
further legal opinion or further legal opinions, as the case may be, in
such form and with such content as the Dealers may reasonably require, is
or are delivered, at the expense of the Issuer to the Dealers from legal
advisers (approved by the Dealers) as to
New York law, California law,
United States federal securities law and/or English law, as the case may
be. If at or prior to the time of any agreement to issue and purchase
Notes under clause 2, such a request is made with respect to the Notes to
be issued, the receipt of the relevant opinion or opinions by the relevant
Dealer in a form satisfactory to the relevant Dealer shall be a further
condition precedent to the issue of those Notes to that Dealer.
(5) DETERMINATION OF AMOUNTS OUTSTANDING
For the purposes of subclause (2)(c):
(a) the U.S. dollar equivalent of Notes denominated in another Specified
Currency shall be determined, at the discretion of the Issuer,
either as of the Agreement Date for such Notes or on the preceding
day on which commercial banks and foreign exchange markets are open
for business in London, in each case on the basis of the spot rate
for the sale of the U.S. dollar against the purchase of such
Specified Currency in the
9
London foreign exchange market quoted by any leading international
bank selected by the Issuer on the relevant day of calculation;
(b) the U.S. dollar equivalent of Dual Currency Notes, Index Linked
Notes and Partly Paid Notes shall be calculated in the manner
specified above by reference to the original nominal amount on issue
of such Notes (in the case of Partly Paid Notes regardless of the
amount of the subscription price paid); and
(c) the U.S. dollar equivalent of Zero Coupon Notes and other Notes
issued at a discount or a premium shall be calculated in the manner
specified above by reference to the net proceeds received by the
Issuer for the relevant issue.
4. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
(1) As at the date of this Agreement, the Issuer hereby represents, warrants
and undertakes to the Dealers and each of them as follows:
(a) that (i) the latest audited annual financial statements of the
Issuer and its subsidiaries included in the Issuer's annual report
on Form 10-K most recently filed with the United States Securities
and Exchange Commission (the "COMMISSION") as it may be amended by
Form 10-K/A (the "FORM 10-K"), and incorporated by reference in the
Offering Circular, present fairly the consolidated financial
position of the Issuer and its subsidiaries as of the dates
indicated and the results of their operations for the periods
specified and except as otherwise stated in the Form 10-K, such
financial statements have been prepared in conformity with United
States generally accepted accounting principles applied on a
consistent basis, and (ii) except as disclosed in the Offering
Circular, since the date of such latest audited annual financial
statements neither the Issuer nor any of its subsidiaries has
incurred any material liabilities or obligations, direct or
contingent, nor entered into any material transactions not in the
ordinary course of business and there has not been any material
adverse change in the condition (financial or otherwise), business,
prospects or results of operations of the Issuer and its
subsidiaries considered as a whole;
(b) that the Offering Circular does not contain an untrue statement of
material fact or omit to state a material fact that is necessary in
order to make the statements made in the Offering Circular, in the
light of the circumstances under which they were made, not
misleading and there is no other fact or matter omitted from the
Offering Circular which was or is necessary to enable investors and
their professional advisers to make an informed assessment of the
assets and liabilities, financial position, profits and losses and
prospects of the Issuer and of the rights attaching to the Notes;
(c) that the Issuer has been duly incorporated and is validly existing
in good standing under California law with full corporate power and
authority to own, lease and operate its properties and conduct its
business as described in the Offering Circular and to execute and
perform its obligations under the Agreements and is duly qualified
to conduct business as a foreign corporation in each jurisdiction in
which such qualification is required, except where the failure to be
so qualified would not have a material adverse effect on the
condition (financial or otherwise), business, prospects or results
of operations of the Issuer and its subsidiaries considered as a
whole;
(d) that the issue of Notes and the execution and delivery of the
Agreements by the Issuer have been duly authorised by all corporate
action on the part of the Issuer and, in the case of Notes, upon due
execution, issue and delivery in accordance with the Agency
10
Agreement, will constitute, and, in the case of the Agreements
constitute, legal, valid and binding obligations of the Issuer
enforceable in accordance with their respective terms subject to
bankruptcy, insolvency, reorganisation and other laws of general
applicability relating to or affecting creditors' rights and to
general equity principles;
(e) that the execution and delivery of the Agreements, the issue,
offering and distribution of Notes and the performance of the terms
of any Notes and the Agreements will not infringe any law,
regulation, order, rule, decree or statute applicable to the Issuer
or to which its property may be subject and are not contrary to the
provisions of the constitutional documents of the Issuer and will
not result in any breach of the terms of, or constitute a default
under, any instrument, agreement or order to which the Issuer is a
party or by which the Issuer or its property is bound;
(f) that no Event of Default or event which with the giving of notice or
lapse of time or other condition would constitute an Event of
Default is subsisting in relation to any outstanding Note and no
event has occurred which would constitute (after an issue of Notes)
an Event of Default thereunder or which with the giving of notice or
lapse of time or other condition would (after an issue of Notes)
constitute such an Event of Default;
(g) that the Issuer (i) is not engaged (whether as defendant or
otherwise) in, nor has the Issuer knowledge of the existence of, or
any threat of, any legal, arbitration, administrative or other
proceedings the result of which is reasonably expected to result in
claims or amounts which would be material in the context of the
Programme and/or the issue and offering of Notes thereunder or which
would reasonably be expected to have or have had a material adverse
effect on the consolidated or unconsolidated financial condition,
results of operations or business of the Issuer and (ii) has not
taken any action nor, to the best of its knowledge have any steps
been taken or legal proceedings commenced for the winding up or
dissolution of the Issuer;
(h) that no consent, approval, authorisation, order, filing,
registration or qualification of or with any court or governmental
authority is required and no other action or thing (including,
without limitation, the payment of any stamp or other similar tax or
duty) is required to be taken, fulfilled or done by the Issuer for
or in connection with (i) the execution, issue and offering of Notes
under the Programme and compliance by the Issuer with the terms of
any Notes issued under the Programme or (ii) the execution and
delivery of, and compliance with the terms of, the Agreements;
(i) that all corporate approvals and authorisations required by the
Issuer for or in connection with (i) the execution, issue and
offering of Notes under the Programme and compliance by the Issuer
with the terms of any Notes issued under the Programme and (ii) the
execution and delivery of, and compliance with the terms of, the
Agreements have been obtained and are in full force and effect;
(j) that none of the Issuer, its affiliates and any persons acting on
any of their behalf, has engaged or will engage in any directed
selling efforts (as defined in Rule 902(c) under the Securities Act)
with respect to the Notes;
(k) that the Issuer, its affiliates, and each person acting on any of
their behalf have complied and will comply with the offering
restrictions requirement of Regulation S under the Securities Act;
11
(l) that the Issuer is a reporting issuer (within the meaning of
Regulation S under the Securities Act);
(m) that since December 31, 1997 the Issuer has filed all reports and
all proxy or information statements required to be filed with the
Commission pursuant to Sections 13, 14 or 15(d) or the Exchange Act
(the "EXCHANGE FILED INFORMATION"). Each such report and statement
filed by the Issuer and incorporated by reference in the Offering
Circular, when so filed, contained all material statements required
to be included therein by, and conformed in all material respects to
and was filed in compliance with, the requirements of the Exchange
Act and the rules and regulations thereunder;
(n) that the Issuer is not now and, as a result of the issue of any
Notes, will not be an "INVESTMENT COMPANY" as defined in the United
States Investment Company Act of 1940, as amended; and
(o) that in relation to each Tranche of Notes for which a Dealer is
named as a Stabilising Manager in the applicable Pricing Supplement,
it has not issued and will not issue, without the prior consent of
that Dealer, any press or other public announcement referring to the
proposed issue of Notes unless the announcement adequately discloses
that stabilising action may take place in relation to the Notes to
be issued.
(2) With regard to each issue of Notes, the Issuer shall be deemed to repeat
the representations, warranties and agreements contained in subclause (1)
as at the Agreement Date for such Notes (any agreement on such Agreement
Date being deemed to have been made on the basis of, and in reliance on,
such representations, warranties and agreements) and as at the Issue Date
of such Notes.
(3) The Issuer shall be deemed to repeat the representations, warranties and
agreements contained in subclause (1) on each date on which the Offering
Circular is revised, supplemented or amended and on each date on which the
aggregate nominal amount of the Programme is increased in accordance with
clause 12.
(4) The representations, warranties and agreements contained in this clause
shall continue in full force and effect notwithstanding the actual or
constructive knowledge of any Dealer with respect to any of the matters
referred to in the representations and warranties set out above, any
investigation by or on behalf of the Dealers or completion of the
subscription and issue of any Notes.
5. UNDERTAKINGS OF THE ISSUER
(1) NOTIFICATION OF MATERIAL DEVELOPMENTS
(a) The Issuer shall promptly after becoming aware of the occurrence thereof
notify each Dealer of (A) any Event of Default or any condition, event or
act which would after an issue of Notes (or would with the giving of
notice and/or the lapse of time) constitute an Event of Default or (B) any
material breach of the representations and warranties or undertakings
contained in the Agreements.
(b) If, following the Agreement Date and before the Issue Date of the relevant
Notes, the Issuer becomes aware that any of the conditions specified in
clause 3(2) will not be satisfied in relation to that issue, the Issuer
shall forthwith notify the relevant Dealer to this effect giving full
details thereof. In such circumstances, the relevant Dealer shall be
entitled (but not
12
bound) by notice to the Issuer to be released and discharged from its
obligations under the agreement reached under clause 2.
(c) Without prejudice to the generality of the foregoing, the Issuer shall
from time to time promptly furnish to each Dealer such information
relating to the Issuer as such Dealer may reasonably request.
(2) UPDATING OF OFFERING CIRCULAR
(a) On or before each anniversary of the date of this Agreement, the Issuer
shall update or amend the Offering Circular (following consultation with
the Arranger who will consult with the Dealers) by the publication of a
supplement thereto or a new Offering Circular, in a form approved by the
Dealers.
(b) In the event of a change in the condition of the Issuer which is material
in the context of the Programme or the issue of any Notes or if the
Offering Circular shall otherwise come to contain an untrue statement of a
material fact or omit to state a material fact necessary to make the
statements contained therein not misleading or if it is necessary at any
time to amend the Offering Circular to comply with, or reflect changes in,
any applicable laws or regulations the Issuer shall update or amend the
Offering Circular (following consultation with the Arranger who will
consult with the Dealers) by the publication of a supplement thereto or a
new Offering Circular in a form approved by the Dealers.
(c) The Offering Circular shall, as specified therein, be deemed to
incorporate by reference therein the Exchange Filed Information. Upon the
publication of a revision, supplement or amendment to the Offering
Circular ("REVISION"), the Issuer shall promptly supply to each Dealer and
the Agent such number of copies of such Revision as each Dealer or the
Agent (as the case may be) may reasonably request. Until a Dealer receives
a Revision, the definition of "OFFERING CIRCULAR" in clause 1(1) shall, in
relation to such Dealer, mean the Offering Circular prior to the receipt
by such Dealer of such Revision.
(d) If the terms of the Programme are modified or amended in a manner which
would make the Offering Circular inaccurate or misleading, a new Offering
Circular will be prepared in a form approved by the Dealers.
(3) LISTING
The Issuer shall cause an initial application to be made for Notes issued
under the Programme to be listed on the Luxembourg Stock Exchange.
If in relation to any issue of Notes, it is agreed between the Issuer and
the relevant Dealer or the Lead Manager, as the case may be, to list such
Notes on a Stock Exchange, the Issuer undertakes to use its best
endeavours to obtain and maintain the listing of such Notes on such Stock
Exchange. If any Notes cease to be listed on the relevant Stock Exchange,
the Issuer shall use its best endeavours promptly to list or admit to
trading such Notes on a stock exchange to be agreed between the Issuer and
the relevant Dealer or, as the case may be, the Lead Manager.
The Issuer shall comply with the rules of each relevant Stock Exchange (or
any other relevant authority or authorities) and shall otherwise comply
with any undertakings given by it from time to time to the relevant Stock
Exchange (or any other relevant authority or authorities) in connection
with any Notes listed on such Stock Exchange or the listing thereof and,
without prejudice to the generality of the foregoing, shall furnish or
procure to be furnished to the
13
relevant Stock Exchange (or any other relevant authority or authorities)
all such information as the relevant Stock Exchange (or any other relevant
authority or authorities) may require in connection with the listing on
such Stock Exchange of any Notes.
(4) THE AGENCY AGREEMENT
The Issuer undertakes that it will not, except with the consent of the
Dealers, appoint a different Agent under the Agency Agreement and that it
will promptly notify each of the Dealers of any amendment to the Agency
Agreement.
(5) LAWFUL COMPLIANCE
The Issuer will at all times endeavour to ensure that all necessary action
is taken and all necessary conditions are fulfilled (including, without
limitation, the obtaining and, where relevant, maintenance in full force
and effect of all necessary permissions, consents or approvals of all
relevant governmental authorities) so that it may lawfully comply with its
obligations under all Notes, the Agreements and, further, so that it may
comply with any applicable laws, regulations and guidance from time to
time promulgated by any governmental and regulatory authorities relevant
in the context of the issue of Notes.
The Issuer agrees to comply with the restrictions set out in paragraph 4
of Appendix B hereto.
(6) AUTHORISED REPRESENTATIVE
The Issuer will notify the Dealers immediately in writing if any of the
persons named in the list referred to in paragraph 3 of Part I of the
Initial Documentation List ceases to be authorised to take action on its
behalf or if any additional person becomes so authorised together, in the
case of an additional authorised person, with evidence satisfactory to the
Dealers that such person has been so authorised.
(7) AUDITORS' COMFORT LETTERS
The Issuer will (i) at the time of the preparation of the initial Offering
Circular, (ii) thereafter upon each occasion when the same may be revised,
supplemented or amended, whether by means of information incorporated by
reference or otherwise, (insofar as such revision, supplement, amendment
or update concerns or contains financial information about the Issuer) and
(iii) at other times whenever so requested by a Dealer (on the basis of
reasonable grounds) deliver, at the expense of the Issuer to the Dealers a
comfort letter or comfort letters from independent auditors of the Issuer
in substantially the form and with such content as is consistent with the
comfort letter or comfort letters delivered pursuant to the Initial
Documentation List provided that no such letter or letters will be
delivered under paragraph (ii) above if the only revision, supplement or
amendment concerned is the publication or issue of any financial
statements (including Form 10-K or 10-Q) of the Issuer.
If at or prior to the time of any agreement to issue and purchase Notes
under clause 2 such a request is made with respect to the Notes to be
issued, the receipt of the relevant comfort letter or letters in a form
satisfactory to the relevant Dealer shall be a further condition precedent
to the issue of those Notes to that Dealer.
(8) NO OTHER ISSUES
During the period commencing on an Agreement Date and ending on the Issue
Date with respect to any Notes which are to be listed, the Issuer will
not, without the prior consent of the relevant Dealer or, as the case may
be, the Lead Manager, issue or agree to issue any other
14
listed notes, bonds or other debt securities of whatsoever nature (other
than Notes to be issued to the same Dealer) where such notes, bonds or
other debt securities would have the same maturity and currency as the
Notes to be issued on the relevant Issue Date.
(9) INFORMATION ON NOTEHOLDERS' MEETINGS
The Issuer will, at the same time as it is despatched, furnish the Dealers
with a copy of every notice of a meeting of the holders of the Notes (or
any of them) which is despatched at the instigation of the Issuer and will
notify the Dealers immediately upon its becoming aware that a meeting of
the holders of the Notes (or any of them) has otherwise been convened.
(10) RATINGS
The Issuer undertakes promptly to notify the Dealers of any change in the
ratings given by Moody's and/or Standard & Poor's and/or Fitch Ratings
Ltd. of the Issuer's debt or upon it becoming aware that such ratings are
listed on "CREDITWATCH" or other similar publication of formal review by
the relevant rating agency.
(11) COMMERCIAL PAPER
In respect of any Tranche of Notes having a maturity of less than one
year, the Issuer will issue such Notes only if the following conditions
apply (or the Notes can otherwise be issued without contravention of
Section 19 of the FSMA):
(a) the relevant Dealer covenants in the terms set out in paragraph
2(ii) of Appendix B; and
(b) the redemption value of each Note is not less than L100,000 (or an
amount of equivalent value denominated wholly or partly in a
currency other than sterling), and no part of any Note may be
transferred unless the redemption value of that part is not less
than L100,000 (or such an equivalent amount).
6. INDEMNITY
(1) Without prejudice to the other rights or remedies of the Dealers, the
Issuer undertakes with the Dealers and each of them that it will hold each
Dealer Indemnified Person indemnified against any and all loss, liability,
claim, action, damage or expense which that Dealer Indemnified Person may
incur or which may be made against it as a result of or in relation to:
(a) any actual or alleged breach of the representations, warranties and
undertakings contained in, or made or deemed to be made by the
Issuer pursuant to, this Agreement; or
(b) any untrue or misleading (or allegedly untrue or misleading)
statement in, or any omission (or alleged omission) from, the
Offering Circular; or
(c) any untrue or misleading (or allegedly untrue or misleading)
statement in any additional written information provided by the
Issuer to the Dealers pursuant to clause 7 below,
and such indemnity shall extend to include all costs, charges and expenses
which that Dealer Indemnified Person may pay or incur in disputing or
defending any claim or action in respect of which indemnity may be sought
against the Issuer under this clause; provided, however
15
that this indemnity shall not apply to any Dealer in respect of any loss,
liability, claim, action, damage or expense to the extent arising out of,
or based upon, any untrue or misleading (or allegedly untrue or
misleading) statement in, or any omission (or alleged omission) from, the
Offering Circular in reliance upon and in conformity with written
information furnished to the Issuer by or on behalf of such Dealer
expressly for use in the Offering Circular.
(2) Each Dealer severally agrees to indemnify and hold harmless the Issuer,
its directors, officers, employees and agents and each person, if any, who
controls the Issuer within the meaning of section 15 of the Securities Act
against any and all loss, liability, claim, action, damage and expense
with respect to any untrue or misleading statements or omissions, or
alleged untrue statements or omissions, made in the Offering Circular in
reliance upon and in conformity with written information furnished to the
Issuer by or on behalf of such Dealer expressly for use in the Offering
Circular and such indemnity shall extend to include all costs, charges and
expenses which the Issuer, its directors, officers, employees and agents
and each person, if any, who controls the Issuer may pay or incur in
disputing or defending any claim or action in respect of which indemnity
may be sought against such Dealer under this clause. As at the date
hereof, the parties hereto agree that the only information supplied by a
Dealer for use in the Offering Circular as aforesaid is such Dealer's
legal and business name as appearing therein.
(3) Each indemnified party shall give prompt notice to each indemnifying party
of any action commenced against it in respect of which indemnity may be
sought hereunder but failure to so notify an indemnifying party shall not
relieve it from any liability which it may have otherwise than on account
of this indemnity agreement. In case any such action shall be brought
against an indemnified party, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, to assume the
defence thereof with counsel reasonably satisfactory to the indemnified
party. After notice from the indemnifying party of its election to assume
the defence of such claim or action, the indemnifying party shall not be
liable to the indemnified party under this clause 6 for any legal or other
expenses subsequently incurred by the indemnified party in connection with
the defence thereof; provided, however, that any indemnified party shall
have the right to employ separate counsel in any such action and to
participate in the defence thereof, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless the named
parties to any such action shall include both such indemnified party and
the indemnifying party and such indemnified party shall have been advised
by counsel that there may be one or more legal defences available to it
which are different from or in addition to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel. In no
event shall the indemnifying parties be liable for the fees and expenses
of more than one counsel (other than local counsel) for all indemnified
parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. 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 to the extent set forth in subclause (1) or (2) hereof, as
applicable, from and against any loss or liability by reason of such
settlement or judgement. 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.
16
(4) If the indemnification provided for in this clause 6 shall for any reason
be unavailable to an indemnified party under clause 6(1) or clause 6(2)
hereof in respect of any loss, liability, claim, action or damage referred
to therein, then each indemnifying party shall, in lieu of indemnifying
such indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, action or
damage, (i) in such proportion as shall be appropriate to reflect the
relative benefits received by the Issuer, on the other hand, and the
Dealer whose claim is subject to contribution, on the other, from the
offering of the relevant Notes or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Issuer, on the one
hand, and such Dealer, on the other, with respect to the breach of
representations, warranties or undertakings or statements or omissions
which resulted in such loss, claim, damage or liability, or action in
respect thereof, as well as any other relevant equitable considerations.
The relative benefits received by the Issuer, on the one hand, and the
Dealers, on the other, with respect to such offering shall be deemed to be
in the same proportion as the total net proceeds from the offering of the
relevant Notes (before deducting expenses) received by the Issuer bear to
the total discounts and commissions received by any Dealer with respect to
such offering. Where relevant, the relative fault shall be determined by
reference to whether the untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Issuer or any Dealer, the intent of the
parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Issuer
and the Dealers agree that it would not be just and equitable if
contributions pursuant to this clause 6(4) were to be determined by pro
rata allocation (even if the Dealers were treated as one entity for such
purpose) or by any other method of allocation which does not take into
account the equitable considerations referred to herein. The amount paid
or payable by an indemnified party as a result of the loss, liability,
claim, action or damage, referred to above in this clause 6(4) shall be
deemed to include, for purposes of this clause 6(4), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim to the extent not
already paid or payable pursuant to another provisions of this clause 6.
Notwithstanding the provisions of this clause 6(4), no Dealer shall be
required to contribute any amount in excess of the amount by which the
total price at which the Notes sold to such Dealer and distributed to the
public were offered to the public exceeds the amount of any damages which
such Dealer has otherwise paid or become liable to pay by reason of any
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
The Dealers' obligations under this clause 6(4) to contribute are several
in proportion to the respective principal amounts of Notes purchased by
each such Dealer in such offering and not joint.
7. AUTHORITY TO DISTRIBUTE DOCUMENTS
Subject to clause 8 below, the Issuer hereby authorises each of the
Dealers on behalf of the Issuer to provide copies of the Offering Circular
to actual and potential purchasers of Notes. Subject to clause 8 below,
the Issuer hereby authorises each of the Dealers on behalf of the Issuer
to provide copies of such additional written information as the Issuer
shall provide to the Dealers and approve for the Dealers to use for such
purpose to actual and potential purchasers of Notes.
17
8. DEALERS' UNDERTAKINGS
Each Dealer agrees to comply with the restrictions and agreements set out
in Appendix B hereto unless otherwise agreed with the Issuer.
9. FEES, EXPENSES AND STAMP DUTIES
The Issuer undertakes that it will:
(a) pay to each Dealer all commissions agreed between the Issuer and
such Dealer in connection with the sale of any Notes to that Dealer
(and any value added or other tax thereon);
(b) pay (together with any value added tax or other tax thereon):
(i) the fees and expenses of its legal advisers and auditors;
(ii) the cost of listing and maintaining the listing of any Notes
which are to be listed on a Stock Exchange;
(iii) the cost of obtaining any credit rating for the Notes;
(iv) the fees and expenses of the agents appointed under the Agency
Agreement; and
(v) all expenses in connection with the establishment of the
Programme including, but not limited to, the preparation and
printing of the Offering Circular and the cost of any
publicity agreed by the Issuer;
(c) pay to Xxxxxx Brothers International (Europe) the reasonable fees
and disbursements of the legal advisers appointed to represent the
Dealers (including any value added tax or other tax thereon) in
connection with the establishment of the Programme; and
(d) pay promptly, and in any event before any penalty becomes payable,
any stamp, documentary, registration or similar duty or tax
(including any stamp duty reserve tax) payable in connection with
the issue, sale and/or delivery of any Note and/or the execution
and/or delivery of any of the Agreements.
10. TERMINATION OF APPOINTMENT OF DEALERS
The Issuer or (as to itself) a Dealer may terminate the arrangements
described in this Agreement by giving not less than 30 days' written
notice to the other parties hereto. The Issuer may terminate the
appointment of a Dealer or Dealers by giving not less than 30 days'
written notice to such Dealer or Dealers (with a copy promptly thereafter
to all the other Dealers and the Agent). Termination shall not affect any
rights or obligations (including but not limited to those arising under
clauses 6, 8 and/or 9) which have accrued at the time of termination or
which accrue thereafter in relation to any act or omission or alleged act
or omission which occurred prior to such time.
11. APPOINTMENT OF NEW DEALERS
(1) Nothing in this Agreement shall prevent the Issuer from appointing one or
more New Dealers for the duration of the Programme or, with regard to an
issue of a particular Tranche of Notes,
18
the Issuer from appointing one or more New Dealers for the purposes of
that Tranche, in either case upon the terms of this Agreement and provided
that, unless such appointment is effected pursuant to a Subscription
Agreement:
(a) any New Dealer shall have first delivered to the Issuer an
appropriate Dealer Accession Letter; and
(b) the Issuer shall have delivered to such New Dealer an appropriate
Confirmation Letter.
(2) Upon receipt of the relevant Confirmation Letter or execution of the
relevant Subscription Agreement, as the case may be, each such New Dealer
shall, subject to the terms of the relevant Dealer Accession Letter or the
relevant Subscription Agreement, as the case may be, become a party to
this Agreement, vested with all authority, rights, powers, duties and
obligations of a Dealer as if originally named as a Dealer hereunder
provided further that, except in the case of the appointment of a New
Dealer for the duration of the Programme, following the Issue Date of the
relevant Tranche, the relevant New Dealer shall have no further such
authority, rights, powers, duties or obligations except such as may have
accrued or been incurred prior to, or in connection with, the issue of
such Tranche.
(3) The Issuer shall promptly notify the other Dealers and the Agent of any
appointment of a New Dealer for the duration of the Programme by supplying
to such parties a copy of any Dealer Accession Letter and Confirmation
Letter. Such notice shall be required to be given in the case of an
appointment of a New Dealer for a particular Tranche of Notes to the Agent
only.
12. INCREASE IN THE AGGREGATE NOMINAL AMOUNT OF THE PROGRAMME
(1) From time to time the Issuer may wish to increase the aggregate nominal
amount of the Notes that may be issued under the Programme. In such
circumstances, the Issuer may give notification of such an increase
(subject as set out in subclause (2)) by delivering to the Listing Agent
and the Dealers with a copy to the Agent a letter substantially in the
form set out in Appendix D hereto. Upon the date specified in such notice
(which date may not be earlier than seven London business days after the
date the notice is given) and subject to satisfaction of the conditions
precedent set out in subclause (2), all references in the Agreements to a
Euro Medium Term Note Programme of a certain nominal amount shall be
deemed to be references to a Euro Medium Term Note Programme of the
increased nominal amount.
(2) Notwithstanding subclause (1), the right of the Issuer to increase the
aggregate nominal amount of the Programme shall be subject to each Dealer
having received and found satisfactory all the documents and confirmations
described in Part II of the Initial Documentation List (with such changes
as may be relevant with reference to the circumstances at the time of the
proposed increase as are agreed between the Issuer and the Dealers), and
the satisfaction of any further conditions precedent that any of the
Dealers may reasonably require, including, without limitation, the
production of a supplementary Offering Circular by the Issuer and any
further or other documents required by the relevant authority or
authorities for the purpose of listing any Notes to be issued on the
relevant Stock Exchange. The Arranger shall circulate to the Dealers all
the documents and confirmations described in Part II of the Initial
Documentation List and any further conditions precedent so required. Any
Dealer must notify the Arranger and the Issuer within three London
business days of receipt if it considers, in its reasonable opinion, such
documents, confirmations and, if applicable, such further conditions
precedent to be unsatisfactory and, in the absence of such
19
notification, such Dealer shall be deemed to consider such documents and
confirmations to be satisfactory and such further conditions precedent to
be satisfied.
13. STATUS OF THE DEALERS AND THE ARRANGER
(1) Each of the Dealers agrees that the Arranger has only acted in an
administrative capacity to facilitate the establishment and/or maintenance
of the Programme and has no responsibility to it for (a) the adequacy,
accuracy, completeness or reasonableness of any representation, warranty,
undertaking, agreement, statement or information in the Offering Circular,
any Pricing Supplement, this Agreement or any information provided in
connection with the Programme or (b) the nature and suitability to it of
all legal, tax and accounting matters and all documentation in connection
with the Programme or any Tranche.
(2) The Arranger shall have only those duties, obligations and
responsibilities expressly specified in this Agreement.
14. COUNTERPARTS
This Agreement may be signed in any number of counterparts, all of which,
taken together, shall constitute one and the same agreement and any party
may enter into this Agreement by executing a counterpart.
15. COMMUNICATIONS
(1) All communications shall be by telex, fax or letter delivered by hand or
(but only where specifically provided in the Procedures Memorandum) by
telephone. Each communication shall be made to the relevant party at the
telex number, fax number or address or telephone number and, in the case
of a communication by telex, fax or letter, marked for the attention of,
or (in the case of a communication by telephone) made to, the person or
department from time to time specified in writing by that party to the
other for the purpose. The initial telephone number, telex number, fax
number and person or department so specified by each party are set out in
the Procedures Memorandum.
(2) A communication shall be deemed received (if by telex) when a confirmed
answerback is received at the end of the transmission, (if by fax) when an
acknowledgement of receipt is received, (if by telephone) when made or (if
by letter) when delivered, in each case in the manner required by this
clause. However, if a communication is received after business hours on
any business day or on a day which is not a business day in the place of
receipt it shall be deemed to be received and become effective on the next
business day in the place of receipt. Every communication shall be
irrevocable save in respect of any manifest error therein.
16. BENEFIT OF AGREEMENT
(1) This Agreement shall be binding upon and shall inure for the benefit of
the Issuer and each Dealer and their respective successors and permitted
assigns.
(2) A Dealer may only assign or transfer its rights or obligations under this
Agreement with the prior written consent of the Issuer except for an
assignment and/or transfer of all of a Dealer's rights and obligations
hereunder in whatever form such Dealer determines may be appropriate to a
partnership, corporation, trust or other organisation in whatever form
that may succeed to, or to which the Dealer transfers, all or
substantially all of the Dealer's assets and business and that assumes
such obligations by contract, operation of law or otherwise. Upon any such
transfer and assumption of obligations such Dealer shall be relieved of
and fully discharged
20
from all obligations under this Agreement, whether such obligations arose
before or after such transfer and assumption.
17. CALCULATION AGENT
(1) In the case of any Series of Notes which require the appointment of a
Calculation Agent the Agent shall act as Calculation Agent, unless the
relevant Dealer or, as the case may be, the Lead Manager requests the
Issuer to appoint such Dealer or Lead Manager, or a person nominated by
such Dealer or Lead Manager (a "NOMINEE"), as Calculation Agent.
(2) Should such a request be made to the Issuer the appointment of that Dealer
or Lead Manager shall be automatic upon the issue of the relevant Series
of Notes and shall, except as agreed, be on the terms set out in the
Calculation Agency Agreement set out in Schedule 1 to the Agency
Agreement, and no further action shall be required to effect the
appointment of such Dealer or Lead Manager as Calculation Agent in
relation to that Series of Notes, and the Schedule to the Calculation
Agency Agreement shall be deemed to be duly annotated to include such
Series. The name of the Dealer or Lead Manager so appointed will be
entered in the applicable Pricing Supplement.
(3) Should such a request be made to the Issuer for the appointment of a
Nominee as the Calculation Agent, such Nominee must be reasonably
acceptable to the Issuer and shall agree with the Issuer in writing to its
appointment as Calculation Agent on the terms set out in the Calculation
Agency Agreement set out in Schedule 1 to the Agency Agreement and no
further action shall be required to effect the appointment of such Nominee
as Calculation Agent in relation to that Series of Notes, and the Schedule
to the Calculation Agency Agreement shall be deemed to be duly annotated
to include such Series. The name of the Nominee so appointed will be
entered in the applicable Pricing Supplement.
18. STABILISATION
(1) In connection with the distribution of any Notes, the Dealer (if any)
designated as Stabilising Manager in the applicable Pricing Supplement may
over-allot or effect transactions which support the market price of such
Notes and/or any associated securities at a level higher than that which
might otherwise prevail, but in doing so such Dealer shall act as
principal and not as agent of the Issuer. Such stabilising, if commenced,
may be discontinued at any time. Any loss resulting from over-allotment
and stabilisation shall be borne, and any net profit arising therefrom
shall be retained, by the Stabilising Manager for its own account.
(2) The Issuer confirms that it has been informed of the existence of the
informational guidance published by the Financial Services Authority in
relation to stabilisation.
19. GOVERNING LAW
(1) This Agreement and every agreement for the issue and purchase of Notes as
referred to in clause 2 shall be governed by, and construed in accordance
with, the laws of the State of
New York.
(2) Each of the parties to this Agreement agrees that any State or federal
courts sitting in the Borough of Manhattan, the City of
New York (the
"COURTS") are to have jurisdiction to settle any disputes which may arise
out of or in connection with this Agreement and that accordingly any suit,
action or proceedings (together referred to as "PROCEEDINGS") arising out
of or in connection with this Agreement may be brought in such courts.
21
Each of the parties to this Agreement hereby irrevocably waives any
objection which it may have now or hereafter to the laying of the venue of
any such Proceedings in any such court and any claim that any such
Proceedings have been brought in an inconvenient forum and hereby further
irrevocably agrees that a judgment in any such Proceedings brought in the
Courts shall be conclusive and binding upon it and may be enforced in the
courts of any other jurisdiction.
Nothing contained in this clause shall limit any right to take Proceedings
against any party to this Agreement in any other court of competent
jurisdiction, nor shall the taking of Proceedings in one or more
jurisdictions preclude the taking of Proceedings in any other
jurisdiction, whether concurrently or not.
22
APPENDIX A
INITIAL DOCUMENTATION LIST
PART I
1. A copy of the Articles of Incorporation and Bylaws of the Issuer,
certified by the Secretary of the Issuer.
2. A copy of all resolutions and other authorisations, certified by the
Secretary of the Issuer, required to be passed or given, and evidence of
any other action required to be taken, on behalf of the Issuer:
(a) to approve its entry into the Agreements, the creation of the
Programme and the issue of Notes;
(b) to authorise appropriate persons to execute each of the Agreements
and any Notes and to take any other action in connection therewith;
and
(c) to authorise appropriate persons to enter into agreements with any
Dealer on behalf of the Issuer to issue Notes in accordance with
clause 2 of this Agreement.
3. A list of the names, titles and specimen signatures of the persons
authorised on behalf of the Issuer in accordance with paragraph 2(c)
above, certified by the Secretary of the Issuer.
4. Copies of any other governmental or other consents, authorisations and
approvals required for the Issuer to issue Notes, to execute and deliver
the Agreements and to fulfil its obligations under the Agreements.
5. Confirmation that one or more master Temporary Global Notes and master
Permanent Global Notes (from which copies can be made for each particular
issue of Notes), duly executed by a person or persons authorised to take
action on behalf of the Issuer as specified in paragraph 2(b) above, have
been delivered to the Agent.
6. Legal opinions addressed to each of the Dealers dated on or after the date
of this Agreement, in such form and with such content as previously agreed
to, from:
(a) O'Melveny & Xxxxx LLP, legal advisers to the Issuer;
(b) General Counsel of the Issuer; and
(c) Xxxxx & Overy, legal advisers to the Dealers.
7. A conformed copy of each Agreement and confirmation that executed copies
of such documents have been delivered, in the case of the Agency
Agreement, to the Agent (for itself and the other agents party thereto).
8. A printed final version of the Offering Circular and the Procedures
Memorandum.
9. Confirmation from the Listing Agent that the Luxembourg Stock Exchange
will list Notes to be issued under the Programme.
23
10. Comfort letter from PricewaterhouseCoopers LLP as independent auditors of
the Issuer in such form and with such content as previously agreed to.
11. Confirmation that the Programme has been rated A1 by Xxxxx'x, XX- by
Standard & Poor's and AA- by Fitch Ratings Ltd.
24
PART II
1. A copy of the Articles of Incorporation and Bylaws of the Issuer,
certified by the Secretary of the Issuer or confirmation that they have
not been changed since they were last submitted to the Dealers.
2. A copy of all resolutions and other authorisations required to be passed
or given, and evidence of any other action required to be taken, on behalf
of the Issuer to approve the increase in the amount of the Programme,
certified by the Secretary of the Issuer.
3. Copies of any other governmental or other consents, authorisations and
approvals required for the increase.
4. Confirmation that one or more master Temporary Global Notes and master
Permanent Global Notes (from which copies can be made for each particular
issue of Notes), duly executed by a person or persons authorised to take
action on behalf of the Issuer as specified in paragraph 2(b) of Part I of
the Initial Documentation List, have been delivered to the Agent.
5. Legal opinions addressed to each of the Dealers dated on or after the date
of this Agreement, in such form and with such content as previously agreed
to, from:
(a) O'Melveny & Xxxxx LLP, legal advisers to the Issuer;
(b) General Counsel to the Issuer; and
(c) Xxxxx & Overy, legal advisers to the Dealers.
6. A printed final version of the Offering Circular.
7. Confirmation from the Listing Agent that the Luxembourg Stock Exchange
will list Notes to be issued under the increased Programme.
8. Comfort letter from PricewaterhouseCoopers LLP as independent auditors of
the Issuer in such form and with such content as previously agreed to.
9. Confirmation from Moody's, Standard & Poor's and Fitch Ratings Ltd. that
there has been no change in the rating assigned by them to the Programme
as a result of the increase.
00
XXXXXXXX X
XXXXXXX XXXXXXXXXXXX
0. XXXXXX XXXXXX
(1) The Notes have not been and will not be registered under the Securities
Act, and may not be offered or sold within the United States or to, or for
the account or benefit of, U.S. persons except in accordance with
Regulation S under the Securities Act or pursuant to an exemption from the
registration requirements of the Securities Act. Each Dealer represents
and agrees that it has offered and sold any Notes, and will offer and sell
any Notes only in accordance with Regulation S under the Securities Act
(i) as part of their distribution at any time and (ii) otherwise until 40
days after the completion of the distribution of all Notes of the Tranche
of which such Notes are a part, as determined and certified as provided
below. Each Dealer who has purchased Notes of a Tranche hereunder (or in
the case of a sale of a Tranche of Notes issued to or through more than
one Dealer, each of such Dealers as to the Notes of such Tranche purchased
by or through it or, in the case of a syndicated issue, the relevant Lead
Manager) shall determine and certify to the Agent the completion of the
distribution of the Notes of such Tranche. On the basis of such
notification or notifications, the Agent agrees to notify such Dealer/Lead
Manager of the end of the distribution compliance period with respect to
such Tranche. Each Dealer also agrees that, at or prior to confirmation of
sale of Notes, it will have sent to each distributor, dealer or person
receiving a selling concession, fee or other remuneration that purchases
Notes from it during the distribution compliance period a confirmation or
notice to substantially the following effect:
"The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933, as amended (the "SECURITIES ACT"), and may not be
offered or sold within the United States or to, or for the account or
benefit of, U.S. persons (i) as part of their distribution at any time or
(ii) otherwise until 40 days after the completion of the distribution of
the Securities as determined and certified by the relevant Dealer, in the
case of a non-syndicated issue, or the Lead Manager, in the case of a
syndicated issue, and except in either case in accordance with Regulation
S under the Securities Act. Terms used above have the meanings given to
them by Regulation S."
Terms used in this paragraph 1(1) have the meanings given to them by
Regulation S.
(2) Each Dealer represents and agrees that it, its affiliates or any persons
acting on its or their behalf have not engaged and will not engage in any
directed selling efforts with respect to any Note, and it and they have
complied and will comply with the offering restrictions requirement of
Regulation S.
(3) In addition,
(a) except to the extent permitted under U.S. Treas. Reg. Section
1.163-5(c)(2)(i)(D) (the "D RULES"), each Dealer (a) represents that
it has not offered or sold, and agrees that during the restricted
period it will not offer or sell, Notes to a person who is within
the United States or its possessions or to a United States person,
and (b) represents that it has not delivered and agrees that it will
not deliver within the United States or its possessions definitive
Notes that are sold during the restricted period;
(b) each Dealer represents that it has, and agrees that throughout the
restricted period it will have, in effect procedures reasonably
designed to ensure that its employees or agents who are directly
engaged in selling Notes are aware that such Notes may not
26
be offered or sold during the restricted period to a person who is
within the United States or its possessions or to a United States
person, except as permitted by the D Rules;
(c) if it is a United States person, each Dealer represents that it is
acquiring the Notes for purposes of resale in connection with their
original issuance and if it retains Notes for its own account, it
will only do so in accordance with the requirements of U.S. Treas.
Reg. Section l.163-5(c)(2)(i)(D)(6); and
(d) with respect to each affiliate that acquires Notes from a Dealer for
the purpose of offering or selling such Notes during the restricted
period, such Dealer repeats and confirms the representations and
agreements contained in subparagraphs (a), (b) and (c) on such
affiliate's behalf.
Terms used in this paragraph 1(3) have the meanings given to them by the
U.S. Internal Revenue Code of 1986, as amended, and regulations
thereunder, including the D Rules.
(4) Each issue of Index Linked Notes or Dual Currency Notes shall be subject
to such additional U.S. selling restrictions as the Issuer and the
relevant Dealer may agree as a term of the issue and purchase of such
Notes, which additional selling restrictions shall be set out in the
applicable Pricing Supplement. The relevant Dealer agrees that it shall
offer, sell and deliver such Notes only in compliance with such additional
U.S. selling restrictions.
2. UNITED KINGDOM
Each Dealer represents and agrees that:
(i) in relation to Notes which have a maturity of one year or more, it
has not offered or sold and, prior to the expiry of the period of
six months from the Issue Date of such Notes, will not offer or sell
any such Notes to persons in the United Kingdom except to persons
whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for the
purposes of their businesses or otherwise in circumstances which
have not resulted and will not result in an offer to the public in
the United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995 (as amended);
(ii) in relation to any Notes having a maturity of less than one year,
(a) it is a person whose ordinary activities involve it in
acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of its business and (b) it has
not offered or sold and will not offer or sell any Notes other than
to persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or as
agent) for the purposes of their businesses or who it is reasonable
to expect will acquire, hold, manage or dispose of investments (as
principal or agent) for the purposes of their businesses where the
issue of the Notes would otherwise constitute a contravention of
Section 19 of the FSMA by the Issuer;
(iii) it has only communicated or caused to be communicated and will only
communicate or cause to be communicated any invitation or inducement
to engage in investment activity (within the meaning of Section 21
of the FSMA) received by it in connection with the issue or sale of
any Notes in circumstances in which Section 21(1) of the FSMA does
not apply to the Issuer; and
27
(iv) it has complied and will comply with all applicable provisions of
the FSMA with respect to anything done by it in relation to any
Notes in, from or otherwise involving the United Kingdom.
3. JAPAN
The Notes have not been and will not be registered under the Securities
and Exchange Law of Japan (the "SECURITIES AND EXCHANGE LAW") and each
Dealer agrees that it will not offer or sell any Notes, directly or
indirectly, in Japan or to, or for the benefit of, any resident of Japan
(which term as used herein means any person resident in Japan, including
any corporation or other entity organised under the laws of Japan), or to
others for re-offering or resale, directly or indirectly, in Japan or to a
resident of Japan except pursuant to an exemption from the registration
requirements of, and otherwise in compliance with, the Securities and
Exchange Law and any other applicable laws and regulations of Japan.
4. FRANCE
The Issuer and each Dealer represents and agrees, it has not offered or
sold, and will not offer or sell, directly or indirectly, Notes to the
public in France, and has not distributed or caused to be distributed and
will not distribute or cause to be distributed to the public in France,
the Offering Circular or any other offering material relating to the
Notes, and that such offers, sales and distributions have been and shall
be made in France only to qualified investors (investisseurs qualifies)
acting for their own account, as defined in and in accordance with
articles 5 L.411-1 and L.411-2 of the French Code Monetaire et Financier
and decret no. 98-880 dated 1st October, 1998.
5. THE NETHERLANDS
Each Dealer represents and agrees that it has not, directly or indirectly,
offered or sold and will not, directly or indirectly, offer or sell in The
Netherlands any Notes with a denomination of less than E50,000 (or its
foreign currency equivalent) other than to persons who trade or invest in
securities in the conduct of a profession or business (which include
banks, stockbrokers, insurance companies, pension funds, other
institutional investors and finance companies and treasury departments of
large enterprises) unless one of the other exemptions from or exceptions
to the prohibition contained in article 3 of the Dutch Securities
Transactions Supervision Act 1995 ("Wet toezicht effectenverkeer 1995") is
applicable and the conditions attached to such exemption or exception are
complied with.
6. GERMANY
Each Dealer represents and agrees that Notes have not been and will not be
offered, sold or publicly promoted or advertised by it in the Federal
Republic of Germany other than in compliance with the German Securities
Selling Prospectus Act (Wertpapierverkaufsprospektgesetz) of 13th
December, 1990, as amended, or any other laws applicable in the Federal
Republic of Germany governing the issue, offering and sale of securities.
7. GENERAL
Each Dealer agrees that it will (to the best of its knowledge and belief)
comply with all applicable securities laws and regulations in force in any
jurisdiction in which it purchases, offers, sells or delivers Notes or
possesses or distributes the Offering Circular and will obtain any
consent, approval or permission required by it for the purchase, offer,
sale or delivery by it of Notes under the laws and regulations in force in
any jurisdiction to which it is subject or
28
in which it makes such purchases, offers, sales or deliveries and none of
the Issuer and any other Dealer shall have any responsibility therefor.
None of the Issuer and any of the Dealers represents that Notes may at any
time lawfully be sold in compliance with any applicable registration or
other requirements in any jurisdiction, or pursuant to any exemption
available thereunder, or assumes any responsibility for facilitating such
sale.
With regard to each Tranche, the relevant Dealer will be required to
comply with such other additional restrictions as the Issuer and the
relevant Dealer shall agree and as shall be set out in the applicable
Pricing Supplement.
29
APPENDIX C
PART I
FORM OF DEALER ACCESSION LETTER - PROGRAMME
[Date]
To:
INTERNATIONAL LEASE FINANCE CORPORATION
(the "ISSUER")
Dear Sirs,
INTERNATIONAL LEASE FINANCE CORPORATION
EURO MEDIUM TERM NOTE PROGRAMME
We refer to the amended and restated
Programme Agreement dated 16th May, 2003
entered into in respect of the above Euro Medium Term Note Programme and made
between the Issuer and the Dealers party thereto (which agreement, as amended,
supplemented or restated from time to time, is herein referred to as the
"
PROGRAMME AGREEMENT").
CONDITIONS PRECEDENT
We confirm that we are in receipt of the documents referenced below:
(i) a copy of the
Programme Agreement; and
(ii) a copy of current versions of all documents referred to in Part I of
Appendix A of the
Programme Agreement,
and have found them to our satisfaction.
For the purposes of the Programme Agreement our notice details are as follows:
[insert name, address, telephone, facsimile, telex (+ answerback) and
attention].
In consideration of the appointment by the Issuer of us as a Dealer under the
Programme Agreement we hereby undertake, for the benefit of the Issuer and each
of the other Dealers, that we will perform and comply with all the duties and
obligations expressed to be assumed by a Dealer under the Programme Agreement.
This letter is governed by, and shall be construed in accordance with, the laws
of the State of
New York.
Yours faithfully,
[Name of New Dealer]
By:
cc: CITIBANK, N.A. as Agent
The other Dealers
30
PART II
FORM OF CONFIRMATION LETTER - PROGRAMME
[Date]
To: [Name and address of New Dealer]
Dear Sirs,
INTERNATIONAL LEASE FINANCE CORPORATION
EURO MEDIUM TERM NOTE PROGRAMME
We refer to the amended and restated Programme Agreement dated 16th May, 2003
(such agreement, as amended, supplemented or restated from time to time, the
"PROGRAMME AGREEMENT") entered into in respect of the above Euro Medium Term
Note Programme and hereby acknowledge receipt of your Dealer Accession Letter to
us dated [specify].
We hereby confirm that, with effect from the date hereof, you shall become a
Dealer under the Programme Agreement in accordance with clause 11(2) of the
Programme Agreement.
Yours faithfully,
INTERNATIONAL LEASE FINANCE CORPORATION
By:
cc: CITIBANK, N.A. as Agent
The other Dealers
31
PART III
FORM OF DEALER ACCESSION LETTER - NOTE ISSUE
[Date]
To:
INTERNATIONAL LEASE FINANCE CORPORATION
(the "ISSUER")
Dear Sirs,
INTERNATIONAL LEASE FINANCE CORPORATION
[DESCRIPTION OF ISSUE]
(the "NOTES")
We refer to the amended and restated Programme Agreement dated 16th May, 2003
and made between the Issuer and the Dealers party thereto (which agreement, as
amended, supplemented or restated from time to time, is herein referred to as
the "PROGRAMME AGREEMENT").
CONDITIONS PRECEDENT
We confirm that we are in receipt of the documents referenced below:
(i) a copy of the Programme Agreement; and
(ii) a copy of current versions of such of the other documents referred to in
Part I of Appendix A of the Programme Agreement as we have requested,
and have found them to our satisfaction or (in the case of the documents
referred to in (ii) above) have waived such production.
For the purposes of the Programme Agreement our notice details are as follows:
[insert name, address, telephone, facsimile, telex (+ answerback) and
attention].
In consideration of the appointment by the Issuer of us as a Dealer under the
Programme Agreement in respect of the issue of the Notes we hereby undertake,
for the benefit of the Issuer and each of the other Dealers, that, in relation
to the issue of the Notes, we will perform and comply with all the duties and
obligations expressed to be assumed by a Dealer under the Programme Agreement.
This letter is governed by, and shall be construed in accordance with, the laws
of the State of
New York.
Yours faithfully,
[Name of New Dealer]
By:
cc: CITIBANK, N.A. as Agent
32
PART IV
FORM OF CONFIRMATION LETTER - NOTE ISSUE
[Date]
To: [Name and address of New Dealer]
Dear Sirs,
INTERNATIONAL LEASE FINANCE CORPORATION
[DESCRIPTION OF ISSUE]
(the "NOTES")
We refer to the amended and restated Programme Agreement dated 16th May, 2003
(such agreement, as amended, supplemented or restated from time to time, the
"PROGRAMME AGREEMENT") and hereby acknowledge receipt of your Dealer Accession
Letter to us dated [specify].
We hereby confirm that, with effect from the date hereof, in respect of the
issue of the Notes, you shall become a Dealer under the Programme Agreement in
accordance with the provisions of clause 11(2) of the Programme Agreement.
Yours faithfully,
INTERNATIONAL LEASE FINANCE CORPORATION
By:
cc: CITIBANK, N.A. as Agent
33
APPENDIX D
LETTER REGARDING INCREASE IN THE NOMINAL AMOUNT
OF THE PROGRAMME
[Date]
To: The Dealers and the Listing Agent
(as those expressions are defined in the
amended and restated Programme Agreement dated 16th May, 2003
as amended, supplemented or restated from
time to time, (the "PROGRAMME AGREEMENT"))
Dear Sirs,
INTERNATIONAL LEASE FINANCE CORPORATION
EURO MEDIUM TERM NOTE PROGRAMME
We hereby require, pursuant to clause 12(1) of the Programme Agreement, that the
aggregate nominal amount of the above Programme be increased to U.S.$ [specify]
from [specify date which is no earlier than seven London business days after the
date the notice is given] whereupon (but subject as provided in the next
paragraph) all references in the Agreements will be deemed amended accordingly.
We understand that this increase is subject to the satisfaction of the condition
set out in clause 12(2) of the Programme Agreement namely that each Dealer shall
have received and found satisfactory all the documents and confirmations
described in the Part II of the Initial Documentation List (with such changes as
may be relevant, with reference to the circumstances at the time of the proposed
increase, as are agreed between the Issuer and the Dealers) and the delivery of
any further conditions precedent that any of the Dealers may reasonably require.
You must notify the Arranger and ourselves within three London business days of
receipt by you of those documents and confirmations and, if applicable, further
conditions precedent if you consider (in your reasonable opinion) such
documents, confirmations and, if applicable, such further conditions precedent
to be unsatisfactory and, in the absence of such notification, you will be
deemed to consider such documents and confirmations to be satisfactory and such
further conditions precedent to be satisfied.
Terms used in this letter have the meanings given to them in the Programme
Agreement.
Yours faithfully,
INTERNATIONAL LEASE FINANCE CORPORATION
By:
cc: CITIBANK, N.A. as Agent
00
XXXXXXXX X
FORM OF SUBSCRIPTION AGREEMENT
INTERNATIONAL LEASE FINANCE CORPORATION
[DESCRIPTION OF ISSUE]
[DATE]
To: [Names of Dealers]
(the "MANAGERS")
c/o [Name of Lead Manager]
(the "LEAD MANAGER")
cc: CITIBANK, N.A.
as Agent
Dear Sirs,
INTERNATIONAL LEASE FINANCE CORPORATION (the "ISSUER") proposes to issue
[DESCRIPTION OF ISSUE] (the "NOTES") pursuant to the U.S.$5,000,000,000 Euro
Medium Term Note Programme established by it. The terms of the issue shall be as
set out in the form of Pricing Supplement attached to this Agreement as Annexe
A.
This Agreement is made pursuant to the terms of the amended and restated
Programme Agreement as amended and/or supplemented from time to time (the
"PROGRAMME AGREEMENT") dated 16th May, 2003 between the Issuer and the Dealers
party thereto. All terms with initial capitals used herein without definition
have the meanings given to them in the Programme Agreement.
We wish to record the arrangements agreed between us in relation to the issue:
1. This Agreement appoints each Manager which is not a party to the Programme
Agreement (each a "NEW DEALER") as a New Dealer in accordance with the
provisions of clause 11 of the Programme Agreement for the purposes of the
issue of the Notes. The Lead Manager confirms that it is in receipt of the
documents referenced below:
(i) a copy of the Programme Agreement; and
(ii) a copy of such of the documents referred to in Part I of Appendix A
of the Programme Agreement as the Lead Manager (on behalf of the
Managers) has requested and has confirmed with each New Dealer that
it has found them to be satisfactory or (in the case of any or all
of the documents referred to in (ii)) has waived such production.
For the purposes of the Programme Agreement the details of the Lead
Manager for service of notices are as follows:
[insert name, address, telephone, facsimile, telex (+ answerback) and
attention].
35
In consideration of the Issuer appointing each New Dealer as a Dealer in
respect of the Notes under the Programme Agreement, each New Dealer hereby
undertakes, for the benefit of the Issuer, the Lead Manager (for itself
and each of the other Dealers) and the Managers, that, in relation to the
issue of the Notes, it will perform and comply with all the duties and
obligations expressed to be assumed by a Dealer under the Programme
Agreement, a copy of which it acknowledges it has received from the Lead
Manager. The Issuer hereby confirms that each New Dealer shall be vested
with all authority, rights, powers, duties and obligations of a Dealer in
relation to the issue of the Notes as if originally named as a Dealer
under the Programme Agreement provided that following the Issue Date of
the Notes each New Dealer shall have no further such authority, rights,
powers, duties or obligations except such as may have accrued or been
incurred prior to, or in connection with, the issue of the Notes.
2. Subject to the terms and conditions of the Programme Agreement and this
Agreement the Issuer hereby agrees to issue the Notes and the Managers
jointly and severally agree to subscribe or procure subscribers for the
Notes at a price of [specify] per cent. of the principal amount of the
Notes (the "PURCHASE PRICE"), being the issue price of [specify] per cent.
less a selling [commission/concession] of [specify] per cent. of such
principal amount and a combined management and underwriting commission of
[specify] per cent. of such principal amount.
3. The settlement procedures set out in Part [1/2] of Annexe A to the
Procedures Memorandum shall apply as if set out in this Agreement provided
that, for the purposes of this Agreement:
(i) the sum payable on the Issue Date shall represent the Purchase Price
less any amount payable in respect of Managers' expenses as provided
in the agreement referred to in clause 4 of this Agreement);
(ii) "ISSUE DATE" means [specify] a.m. ([specify] time) on [specify] or
such other time and/or date as the Issuer and the Lead Manager on
behalf of the Managers may agree; and
(iii) "PAYMENT INSTRUCTION DATE" means the Issue Date unless there is to
be a pre-closing for the issue in which case it means the business
day (being a day on which banks and foreign exchange markets are
open for business in London) prior to the Issue Date.
4. The arrangements in relation to expenses have been separately agreed
between the Issuer and the Lead Manager.
5. The obligation of the Managers to purchase the Notes is conditional upon:
(i) the conditions set out in clause 3(2) (other than that set out in
clause 3(2)(f)) of the Programme Agreement being satisfied as of the
Payment Instruction Date (on the basis that the references therein
to "RELEVANT DEALER" shall be construed as references to the Lead
Manager) and without prejudice to the aforesaid, the Offering
Circular dated [specify] [, as supplemented by [ ],] containing all
material information relating to the assets and liabilities,
financial position and profits and losses of the Issuer and nothing
having happened or being expected to happen which would require the
Offering Circular [, as so supplemented,] to be [further]
supplemented or updated; and
(ii) the delivery to the Lead Manager on the Payment Instruction Date of:
36
(A) legal opinions addressed to the Managers dated the Payment
Instruction Date in such form and with such contents as the
Lead Manager, on behalf of the Managers, may reasonably
require from the general counsel of the Issuer, O'Melveny &
Xxxxx LLP, the legal advisers to the Issuer and Xxxxx & Overy,
the legal advisers to the Managers;
(B) a certificate dated as at the Payment Instruction Date signed
by a duly authorised officer of the Issuer giving confirmation
to the effect stated in paragraph (i) of this clause;
(C) a comfort letter dated the Payment Instruction Date from the
independent auditors of the Issuer, in such form and with such
content as the Managers may reasonably request; and
(D) such other conditions precedent as the Lead Manager may
require.
If any of the foregoing conditions is not satisfied on or before the
Payment Instruction Date, this Agreement shall terminate on such date and
the parties hereto shall be under no further liability arising out of this
Agreement (except for any liability of the Issuer in relation to expenses
as provided in the agreement referred to in clause 4 and except for any
liability arising before or in relation to such termination), provided
that the Lead Manager, on behalf of the Managers, may in its discretion
waive any of the aforesaid conditions (other than the condition precedent
contained in clause 3(2)(c) of the Programme Agreement) or any part of
them.
6. The Lead Manager, on behalf of the Managers, may, by notice to the Issuer,
terminate this Agreement at any time prior to payment of the net purchase
money to the Issuer if any of the following occurs (after the date of this
Agreement): (a) a suspension or material limitation (including any setting
of minimum prices) in trading securities generally on the
New York Stock
Exchange, the London Stock Exchange or any stock exchange on which such
Notes are to be listed if the effect of any such event, in the judgment of
the relevant Dealer or, if more than one, the relevant Lead Manager on
behalf of the relevant Dealers, is to make it impracticable or inadvisable
to proceed with the solicitation by such relevant Dealer(s) of offers to
purchase Notes or the purchase of Notes from the Issuer as principal on
the terms and in the manner contemplated by the Offering Circular, as
amended or supplemented; (b) a general moratorium on commercial banking
activities in New York declared by either Federal or New York State
authorities, in Europe declared by the European Central Bank or, in
respect of Belgium, France, Germany, Italy, Luxembourg, The Netherlands,
Spain or the United Kingdom, declared by the relevant national
authorities, or in respect of the country (if not included in the
foregoing list of countries) in whose currency the payments of interest or
principal on the Notes are denominated, declared by the relevant national
authority; (c) the outbreak or escalation of hostilities involving the
United States, Belgium, France, Germany, Italy, Luxembourg, The
Netherlands, Spain or the United Kingdom or the country (if not included
in the foregoing list of countries) in whose currency the payments of
interest or principal on the Notes are denominated, or the declaration by
any such country of a national emergency of war (other than any such
outbreak, escalation or declaration that does not represent a significant
departure from the conditions that exist on the date of this Agreement) if
the effect of any such event, in the judgment of the relevant Dealer or,
if more than one, the relevant Lead Manager on behalf of the relevant
Dealers, is to make it impracticable or inadvisable to proceed with the
solicitation by such relevant Dealer(s) of offers to purchase Notes or the
purchase of Notes from the relevant Issuer as principal on the terms and
in the manner contemplated by the Offering Circular, as amended or
supplemented; (d) the suspension in trading in the securities of the
Issuer on any national securities exchange or
37
quotation system on which they are listed or quoted if the effect of such
event, in the judgment of the relevant Dealer or, if more than one, the
relevant Lead Manager on behalf of the relevant Dealers, is to make it
impracticable or inadvisable to proceed with the solicitation by such
relevant Dealer(s) of offers to purchase Notes or the purchase of Notes
from the Issuer as principal on the terms and in the manner contemplated
by the Offering Circular, as amended or supplemented; (e) any downgrading
in or withdrawal of the rating accorded the Issuer's senior debt
securities by any "nationally recognized statistical rating organization",
as that term is defined by the U.S. Securities and Exchange Commission for
purposes of Rule 436(g)(2) under the Securities Act; or (f) any material
change in or affecting the business or properties of the Issuer that, in
the judgment of the relevant Dealer or, if more than one, the relevant
Lead Manager on behalf of the relevant Dealers, materially impairs the
investment quality of the Notes.
7. Clause 19 of the Programme Agreement shall also apply to this Agreement as
if expressly incorporated herein.
8. This Agreement may be signed in any number of counterparts, all of which,
taken together, shall constitute one and the same agreement and any party
may enter into this Agreement by executing a counterpart.
Please confirm that this letter correctly sets out the arrangements agreed
between us.
Yours faithfully,
For: INTERNATIONAL LEASE FINANCE CORPORATION
By:
We agree to the foregoing.
For: [NAMES OF MANAGERS]
By:
38
ANNEXE A TO THE SUBSCRIPTION AGREEMENT
FORM OF PRICING SUPPLEMENT
Set out below is the form of Pricing Supplement which will be completed for
each Tranche of Notes issued under the Programme.
[Date]
INTERNATIONAL LEASE FINANCE CORPORATION
ISSUE OF [AGGREGATE NOMINAL AMOUNT OF TRANCHE] [TITLE OF NOTES]
UNDER THE U.S.$5,000,000,000
EURO MEDIUM TERM NOTE PROGRAMME
This document constitutes the Pricing Supplement relating to the issue of
Notes described herein. Terms used herein shall be deemed to be defined as such
for the purposes of the Conditions set forth in the Offering Circular dated 16
May, 2003. This Pricing Supplement is supplemental to and must be read in
conjunction with such Offering Circular.
[Include whichever of the following apply or specify as "Not Applicable"
(N/A). Note that the numbering should remain as set out below, even if "Not
Applicable" is indicated for individual paragraphs or sub-paragraphs.]
[If the Notes have a maturity of less than one year from the date of their
issue, the minimum denomination may need to be L100,000 or its equivalent in any
other currency.]
1. Issuer: International Lease Finance Corporation
2. [(i)] Series Number: [ ]
[(ii) Tranche Number: [ ]
(If fungible with an existing Series,
details of that Series, including the date
on which the Notes become fungible)]
3. Specified Currency or Currencies: [ ]
4. Aggregate Nominal Amount:
-- Tranche: [ ]
-- Series: [ ]
5. [(i)] Issue Price of Tranche: [ ] per cent. of the Aggregate
Nominal Amount [plus accrued interest from
[insert date] (in the case of fungible
issues only, if applicable)]
[(ii) Net proceeds: [ ] (Required only for listed
issues)]
6. Specified Denominations: [ ]
[ ]
7. (i) Issue Date: [ ]
(ii) Interest Commencement Date: [ ]
8. Maturity Date: [Fixed rate -- specify date/Floating rate
-- Interest Payment Date falling in or
nearest to [specify month]]
9. Interest Basis: [[ ] per cent. Fixed Rate]
[[LIBOR/EURIBOR] [+/-] [ ] per cent.
Floating Rate]
[Zero Coupon]
[Index Linked Interest]
[specify other]
(further particulars specified below)
39
10. Redemption/Payment Basis: [Redemption at par]
[Index Linked Redemption]
[Dual Currency]
[Partly Paid]
[Instalment]
[specify other]
11. Change of Interest Basis or [Specify details of any provision for
Redemption/Payment Basis: change of Notes into another Interest Basis
or Redemption/Payment Basis]
12. Put/Call Options: [Investor Put]
[Issuer Call]
[(further particulars specified below)]
13. Listing: [Luxembourg/specify other/None]
14. Method of distribution: [Syndicated/Non-syndicated]
PROVISIONS RELATING TO INTEREST (IF ANY) PAYABLE
15. FIXED RATE NOTE PROVISIONS [Applicable/Not Applicable]
(If not applicable, delete the remaining
sub-paragraphs of this paragraph)
(i) Rate[(s)] of Interest: [ ] per cent. per annum [payable
[annually/semi-annually/quarterly] in
arrear]
(If payable other than annually, consider
amending Condition 4)
(ii) Interest Payment Date(s): [[ ] in each year up to and
including the Maturity Date/specify other]
(NB: This will need to be amended in the
case of long or short coupons)
(iii) Fixed Coupon Amount(s): [ ] per [ ] in nominal amount
(iv) Broken Amount(s): [Insert particulars of any initial or final
broken interest amounts which do not
correspond with the Fixed Coupon Amount]
(v) Day Count Fraction (subject to [30/360 or Actual/Actual (ISMA) or specify
paragraph 29): other]
(NB: if interest is not payable on a
regular basis (for example, if there are
Broken Amounts specified) Actual/Actual
(ISMA) may not be a suitable Day Count
Fraction)
(vi) Determination Date(s): [ ] in each year
[Insert regular interest payment dates,
ignoring issue date or maturity date in the
case of a long or short first or last
coupon
(NB: This will need to be amended in the
case of regular interest payment dates
which are not of equal duration)
(NB: Only relevant where Day Count Fraction
is Actual/Actual (ISMA))]
(vii) Other terms relating to the method of
calculating interest for Fixed Rate [None/Give details]
Notes:
40
16. FLOATING RATE NOTE PROVISIONS [Applicable/Not Applicable]
(If not applicable, delete the remaining
sub-paragraphs of this paragraph)
(i) Specified Period(s)/Specified Interest
Payment Dates: [ ]
(ii) Business Day Convention: [Floating Rate Convention/Following
Business Day Convention/Modified Following
Business Day Convention/Preceding Business
Day Convention/specify other]
(iii) Additional Business Centre(s): [ ]
(iv) Manner in which the Rate of Interest [Screen Rate Determination/ISDA
and Interest Amount is to be determined: Determination/specify other]
(v) Party responsible for calculating the
Rate of Interest and Interest Amount (if
not the Agent): [ ]
(vi) Screen Rate Determination:
-- Reference Rate: [ ]
(Either LIBOR, EURIBOR or other, although
additional information is required if
other -- including the fallback provisions
in the Agency Agreement)
-- Interest Determination Date(s): [ ]
(Second day on which commercial banks are
open for general business (including
dealings in foreign exchange and foreign
currency deposits) in London prior to the
start of each Interest Period if LIBOR
(other than euro LIBOR or Sterling LIBOR)
and first day of each Interest Period if
Sterling LIBOR and second day on which the
TARGET System is open prior to the start of
each Interest Period if EURIBOR or euro
LIBOR)
-- Relevant Screen Page: [ ]
(In the case of EURIBOR, if not Telerate
Page 248 ensure it is a page which shows a
composite rate or amend the fallback
provisions appropriately)
(vii) ISDA Determination:
-- Floating Rate Option: [ ]
-- Designated Maturity: [ ]
-- Reset Date: [ ]
(viii)Margin(s): [+/-] [ ] per cent. per annum
(ix) Minimum Rate of Interest: [ ] per cent. per annum
(x) Maximum Rate of Interest: [ ] per cent. per annum
(xi) Day Count Fraction: [Actual/365 or Actual/Actual
Actual/365 (Fixed)
Actual/365 (Sterling)
Actual/360
30/360, 360/360 or Bond Basis
30E/360 or Eurobond Basis
Other]
(see Condition 4 for alternatives)
(xii) Fallback provisions, rounding
provisions and any other terms relating to
the method of calculating interest on
Floating Rate Notes, if different
from those set out in the Conditions: [ ]
41
17. ZERO COUPON NOTE PROVISIONS [Applicable/Not Applicable]
(If not applicable, delete the remaining
sub-paragraphs of this paragraph)
(i) Accrual Yield: [ ] per cent. per annum
(ii) Reference Price: [ ]
(iii) Any other formula/basis of [ ]
determining amount payable: (Consider applicable day count fraction if
euro denominated)
(iv) Day Count Fraction in relation to
Early Redemption Amounts and late payment: [Condition 6(e)(iii) and 6(j) apply/specify
other]
(Consider applicable day count fraction if
not U.S. dollar denominated)
18. INDEX LINKED INTEREST NOTE PROVISIONS [Applicable/Not Applicable]
(If not applicable, delete the remaining
sub-paragraphs of this paragraph)
(i) Index/Formula: [give or annex details]
(ii) Calculation Agent responsible for
calculating the principal and/or interest [ ]
due:
(iii) Provisions for determining coupon
where calculation by reference to Index
and/or Formula is impossible or [ ]
impracticable:
(iv) Specified Period(s)/Specified Interest
Payment Dates: [ ]
(v) Business Day Convention: [Floating Rate Convention/Following
Business Day Convention/Modified Following
Business Day Convention/Preceding Business
Day Convention/specify other]
(vi) Additional Business Centre(s): [ ]
(vii) Minimum Rate of Interest: [ ] per cent. per annum
(viii) Maximum Rate of Interest: [ ] per cent. per annum
(ix) Day Count Fraction: [ ]
19. DUAL CURRENCY NOTE PROVISIONS [Applicable/Not Applicable]
(If not applicable, delete the remaining
sub-paragraphs of this paragraph)
(i) Rate of Exchange/method of calculating [give details]
Rate of Exchange:
(ii) Calculation Agent, if any, responsible
for calculating the principal and/or
interest payable: [ ]
(iii) Provisions applicable where
calculation by reference to Rate of
Exchange impossible or impracticable: [ ]
(iv) Person at whose option Specified
Currency(ies) is/are payable: [ ]
PROVISIONS RELATING TO REDEMPTION
20. Issuer Call: [Applicable/Not Applicable]
(If not applicable, delete the remaining
sub-paragraphs of this paragraph)
(i) Optional Redemption Date(s): [ ]
(ii) Optional Redemption Amount(s) and
method, if any, of calculation of such
amount(s): [ ]
42
(iii) If redeemable in part:
(a) Minimum Redemption Amount: [ ]
(b) Maximum Redemption Amount: [ ]
(iv) Notice period (if other than as set
out in the Conditions): [ ]
21. Investor Put: [Applicable/Not Applicable]
(If not applicable, delete the remaining
sub-paragraphs of this paragraph)
(i) Optional Redemption Date(s): [ ]
(ii) Optional Redemption Amount(s) and
method, if any, of calculation of such [ ]
amount(s):
(iii) Notice period (if other than as set
out in the Conditions): [ ]
22. Final Redemption Amount: [Par/specify other/see Appendix]
23. Early Redemption Amount(s) payable on
redemption for taxation reasons or on event
of default and/or the method of calculating
the same (if required or if different from
that set out in Condition 6(e)): [ ]
GENERAL PROVISIONS APPLICABLE TO THE NOTES
24. Form of Notes: [Temporary Global Note exchangeable for a
Permanent Global Note which is exchangeable
for Definitive Notes on 60 days' notice
given at any time] or
[Temporary Global Note exchangeable into
Definitive Notes on and after the Exchange
Date]
25. Additional Financial Centre(s) or other [Not Applicable/give details]
special provisions relating to Payment (Note that this item relates to the place
Dates: of payment and not Interest Period end
dates to which items 16(iii) and 18(vi)
relate)
26. Talons for future Coupons or Receipts to be
attached to Definitive Notes (and dates on
which such Talons mature): [Yes/No. If yes, give details]
27. Details relating to Partly Paid Notes:
amount of each payment comprising the Issue
Price and date on which each payment is to
be made and consequences of failure to pay,
including any right of the Issuer to
forfeit the Notes and interest due on late [Not Applicable/give details. NB: a new
payment: form of Temporary Global Note and/or
Permanent Global Note may be required for
Partly Paid issues.]
28. Details relating to Instalment Notes:
(i) Instalment Amount(s): [Not Applicable/give details]
(ii) Instalment Date(s): [Not Applicable/give details]
29. Redenomination: Redenomination [not] applicable
(If Redenomination is applicable, specify
the terms of the redenomination in an Annex
to the Pricing Supplement)
30. Other terms or special conditions: [Not Applicable/give details]
DISTRIBUTION
31. (i) If syndicated, names of Managers: [Not Applicable/give names]
(ii) Stabilising Manager (if any): [Not Applicable/give name]
43
32. If non-syndicated, name of relevant Dealer: [ ]
33. Whether TEFRA D or TEFRA C rules applicable [TEFRA D/TEFRA C/TEFRA not applicable]
or TEFRA rules not applicable:
34. Additional selling restrictions: [Not Applicable/give details]
OPERATIONAL INFORMATION
35. Any clearing system(s) other than Euroclear
and Clearstream, Luxembourg and the
relevant identification number(s): [Not Applicable/give name(s) and number(s)]
36. Delivery: Delivery [against/free of] payment
37. Additional Paying Agent(s) (if any): [ ]
ISIN: [ ]
Common Code: [ ]
LISTING APPLICATION
This Pricing Supplement comprises the details required to list the issue of
Notes described herein pursuant to the U.S.$5,000,000,000 Euro Medium Term Note
Programme of International Lease Finance Corporation.
RESPONSIBILITY
The Issuer accepts responsibility for the information contained in this
Pricing Supplement.
Signed on behalf of the Issuer:
By
Duly authorised
If the applicable Pricing Supplement specifies any modification to the
Terms and Conditions of the Notes as described herein, it is envisaged that, to
the extent that such modification relates only to Conditions 1, 4, 5, 6 (except
Condition 6(b)), 10, 11, 12, 13 (insofar as such Notes are not listed or
admitted to trade on any stock exchange) or 15, they will not necessitate the
preparation of a supplement to the Offering Circular. If the Terms and
Conditions of the Notes of any Series are to be modified in any other respect, a
supplement to the Offering Circular will be prepared, if appropriate.
44
SIGNATORIES
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the
date first above written.
THE ISSUER
INTERNATIONAL LEASE FINANCE CORPORATION
By: /s/ XXXXXX XXXXXX
THE DEALERS
ABN AMRO BANK N.V.
BANC OF AMERICA SECURITIES LIMITED
CITIGROUP GLOBAL MARKETS LIMITED
COMMERZBANK AKTIENGESELLSCHAFT
DEUTSCHE BANK AG LONDON
X.X. XXXXXX SECURITIES LTD.
XXXXXX BROTHERS INTERNATIONAL (EUROPE)
XXXXXXX XXXXX INTERNATIONAL
XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED
SOCIETE GENERALE
UBS LIMITED
WESTLB AG
Each by its duly authorised signatory: /s/ XXXXX XXXXXXXX
