UNDERWRITING AGREEMENT - EXHIBIT 1.1
International Lease Finance Corporation
Underwriting Agreement
October 12, 0000
Xxx Xxxx, Xxx Xxxx
To the Representative named
in Schedule I hereto of
the Underwriters named
in Schedule II hereto
Dear Sirs:
International Lease Finance Corporation, a California corporation
(including its predecessor identified in the Registration Statement (as defined
below), the "Company"), proposes to sell to the underwriters named in Schedule
II hereto (the "Underwriters"), for whom you are acting as Representative (the
"Representative"), the principal amount of its securities identified in Schedule
I hereto (the "Securities"), to be issued under an indenture (the "Indenture")
dated as of November 1, 2000, between the Company and The Bank of New York, as
trustee (the "Trustee"). If the firm or firms listed in Schedule II hereto
include only the firm or firms listed in Schedule I hereto, then the terms
"Underwriters" and "Representative," as used herein, shall each be deemed to
refer to such firm or firms.
1. Representations and Warranties. The Company represents and warrants
to, and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form S-3 under
the Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration statement
on such Form (the file number of which is set forth in Schedule I hereto), which
has become effective, for the registration under the Act of the Securities. Such
registration statement, as amended at the date of this Agreement, meets the
requirements set forth in Rule 415(a)(1)(x) under the Act and complies in all
other material respects with said Rule. The Company proposes to file with the
Commission pursuant to Rule 424 under the Act a supplement to the form of
prospectus included in such registration statement relating to the Securities
and the plan of distribution thereof and has previously advised you of all
further information (financial and other) with respect to the Company to be set
forth therein. Such registration statement, including the exhibits thereto, as
amended at the date of this Agreement, is hereinafter called the "Registration
Statement"; such prospectus in the form in which it appears in the Registration
Statement is hereinafter called the "Basic Prospectus"; and such supplemented
form of prospectus, in the form in which it shall be filed with the Commission
pursuant to Rule 424 (including the Basic Prospectus as so supplemented) is
hereinafter called the "Final Prospectus." Any preliminary form of the Final
Prospectus which has heretofore been filed pursuant to Rule 424 is hereinafter
called the "Preliminary Final Prospectus." Any reference herein to the
Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to Item 12
of Form S-3 which were filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), on or before the date of this Agreement, or the
issue date of the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be; and any reference herein to the terms
"amend," "amendment" or "supplement" with respect to the Registration Statement,
the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus
shall be deemed to refer to and include the filing of any document under the
Exchange Act after the date of this Agreement, or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as the
case may be, deemed to be incorporated therein by reference.
(b) As of the date hereof, when the Final Prospectus is first
filed pursuant to Rule 424 under the Act, when, prior to the Closing Date (as
hereinafter defined), any amendment to the Registration Statement becomes
effective (including the filing of any document incorporated by reference in the
Registration Statement), when any supplement to the Final Prospectus is filed
with the Commission and at the Closing Date, (i) the Registration Statement, as
amended as of any such time, and the Final Prospectus, as amended or
supplemented as of any such time, and the Indenture will comply in all material
respects with the applicable requirements of the Act, the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), and the Exchange Act and the
respective rules thereunder and (ii) neither the Registration Statement, as
amended as of any such time, nor the Final Prospectus, as supplemented as of any
such time, will contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order to make
the statements therein not misleading; provided, however, that the Company makes
no representations or warranties as to (i) that part of the Registration
Statement which shall constitute the Statement of Eligibility and Qualification
(Form T-1) under the Trust Indenture Act of the Trustee or (ii) the information
contained in or omitted from the Registration Statement or the Final Prospectus
or any amendment thereof or supplement thereto in reliance upon and in
conformity with information furnished in writing to the Company by or on behalf
of any Underwriter through the Representative specifically for use in connection
with the preparation of the Registration Statement and the Final Prospectus.
(c) Subsequent to the respective dates as of which information is
given in the Registration Statement and Final Prospectus, and except as set
forth or contemplated in the Final Prospectus, neither the Company nor any of
its subsidiaries has incurred any material liabilities or obligations, direct or
contingent, nor entered into any material transactions not in the ordinary
course of business, and there has not been any material adverse change in the
condition (financial or otherwise), business, prospects or results of operations
of the Company and its subsidiaries considered as a whole.
(d) The Securities have been duly authorized and, when the
Underwriters' Securities (as defined in Section 2 hereof) are issued and
delivered pursuant to this Agreement and, in the case of any Contract Securities
(as defined in Section 2 hereof), pursuant to Delayed Delivery Contracts (as
defined in Section 2 hereof) with respect to such Contract Securities, such
Securities will have been duly executed, authenticated, issued and delivered and
will constitute valid and legally binding obligations of the Company entitled to
the benefits provided by the Indenture, which will be substantially in the form
filed as an exhibit to the Registration Statement or a document incorporated by
reference therein; the Indenture has been duly
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authorized and duly qualified under the Trust Indenture Act and constitutes a
valid and legally binding instrument, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors' rights and to
general equity principles; and the Securities and the Indenture will conform to
the descriptions thereof in the Final Prospectus.
2. Purchase and Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Company agrees to
sell to each Underwriter and each Underwriter agrees, severally and not jointly,
to purchase from the Company, at the purchase price set forth in Schedule I
hereto, the principal amount of the Securities set forth opposite such
Underwriter's name in Schedule II hereto, except that, if Schedule I hereto
provides for the sale of Securities pursuant to delayed delivery arrangements,
the respective principal amounts of Securities to be purchased by Underwriters
shall be as set forth in Schedule II hereto less the respective amounts of
Contract Securities determined as provided below. Securities to be purchased by
the Underwriters are herein sometimes called the "Underwriters' Securities" and
Securities to be purchased pursuant to Delayed Delivery Contracts hereinafter
provided are herein called "Contract Securities."
If so provided in Schedule I hereto, the Underwriters are
authorized to solicit offers to purchase Securities from the Company pursuant to
delayed delivery contracts ("Delayed Delivery Contracts"), substantially in the
form of Schedule III hereto but with such changes therein as the Company may
authorize or approve. The Underwriters will endeavor to make such arrangements
and, as compensation therefor, the Company will pay to the Representative, for
the account of the Underwriters, on the Closing Date, the percentage set forth
in Schedule I hereto of the principal amount of the Securities for which Delayed
Delivery Contracts are made. Delayed Delivery Contracts are to be with
institutional investors including commercial and savings banks, insurance
companies, pension funds, investment companies and educational and charitable
institutions. The Company will enter into Delayed Delivery Contracts in all
cases where sales of Contract Securities arranged by the Underwriters have been
approved by the Company but, except as the Company may otherwise agree, each
such Delayed Delivery Contract must be for not less than the minimum principal
amount set forth in Schedule I hereto and the aggregate principal amount of
Contract Securities may not exceed the maximum aggregate principal amount set
forth in Schedule I hereto. The Underwriters will not have any responsibility in
respect of the validity or performance of Delayed Delivery Contracts. The
principal amount of Securities to be purchased by each Underwriter as set forth
in Schedule II hereto shall be reduced by an amount which shall bear the same
proportion to the total principal amount of Contract Securities as the principal
amount of Securities set forth opposite the name of such Underwriter bears to
the aggregate principal amount set forth in Schedule II hereto, except to the
extent that you determine that such reduction shall be otherwise than in such
proportion and so advise the Company in writing; provided, however, that the
total principal amount of Securities to be purchased by all Underwriters shall
be the aggregate principal amount set forth in Schedule II hereto less the
aggregate principal amount of Contract Securities.
3. Delivery and Payment. Delivery of and payment for the Underwriters'
Securities shall be made at the office, on the date and at the time specified in
Schedule I hereto (or such later date not later than five business days after
such specified date as the Representative shall designate), which date and time
may be postponed by agreement between the Representative and
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the Company or as provided in Section 8 hereof (such date and time of delivery
and payment for the Underwriters' Securities being herein called the "Closing
Date"). Delivery of the Underwriters' Securities shall be made to the
Representative for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representative of the purchase
price thereof to the Company in immediately available funds.
The Company and the Underwriters shall mutually determine if the
Underwriters' Securities shall be delivered in certificated form or by
book-entry transfer. If the Underwriters' Securities are to be delivered in
certificated form, (a) certificates for the Underwriters' Securities shall be
registered in such names and in such denominations as the Representative may
request not less than three full business days in advance of the Closing Date
and (b) the Company agrees to have the Underwriters' Securities available for
inspection, checking and packaging by the Representative in New York, New York,
not later than 1:00 p.m. on the business day prior to the Closing Date. If the
Underwriters' Securities are to be delivered by book-entry transfer, one or more
global certificates representing the Underwriters' Securities shall be delivered
to The Depositary Trust Company ("DTC"). Interests in the Underwriters'
Securities will be represented by book entries on the records of DTC as the
Representative may request not less than three full business days in advance of
the Closing Date. The Company agrees to have the global certificate(s), if any,
available for inspection by the Representative in New York, New York, not later
than 1:00 p.m. on the business day prior to the Closing Date.
4. Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities,
the Company will not file any amendment of the Registration Statement or
supplement (including the Final Prospectus) to the Basic Prospectus unless the
Company has furnished you a copy for your review prior to filing and will not
file any such proposed amendment or supplement to which you reasonably object.
Subject to the foregoing sentence, the Company will cause the Final Prospectus
to be filed (or transmitted for filing) with the Commission pursuant to Rule
424. The Company will promptly advise the Representative (i) when the Final
Prospectus shall have been filed (or transmitted for filing) with the Commission
pursuant to Rule 424, (ii) when any amendment to the Registration Statement
relating to the Securities shall have become effective, (iii) of any request by
the Commission for any amendment of the Registration Statement or amendment of
or supplement to the Final Prospectus or for any additional information, (iv) of
the issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the institution or threatening of any proceeding
for that purpose and (v) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of any
such stop order and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) If, at any time when a prospectus relating to the Securities
is required to be delivered under the Act, any event occurs as a result of which
the Final Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it shall be
necessary to amend or supplement the Final Prospectus to comply with the Act or
the Exchange Act or the
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respective rules thereunder, the Company promptly will prepare and file with the
Commission, subject to the first sentence of paragraph (a) of this Section 4, an
amendment or supplement which will correct such statement or omission or an
amendment which will effect such compliance.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representative an earnings
statement or statements of the Company and its subsidiaries which will satisfy
the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representative and counsel for
the Underwriters, without charge, both executed and conformed copies of the
Registration Statement (including exhibits thereto) and each amendment thereto
which shall become effective on or prior to the Closing Date and, so long as
delivery of a prospectus by an Underwriter or dealer may be required by the Act,
as many copies of any Preliminary Final Prospectus and the Final Prospectus and
any amendments thereof and supplements thereto as the Representative may
reasonably request. The Company will pay the expenses of printing or other
production of all documents relating to the offering.
(e) The Company will arrange for, and be responsible for expenses
incurred in connection with, the qualification of the Securities for sale under
the laws of such jurisdictions as the Representative may reasonably designate,
will maintain such qualifications in effect so long as required for the
distribution of the Securities, and, if requested by the Representative, will
arrange for the determination of the legality of the Securities for purchase by
institutional investors.
(f) Until the business day following the Closing Date, the Company
will not, without the consent of the Representative, offer, sell or contract to
sell, or announce the offering of, any debt securities covered by the
Registration Statement or any other registration statement filed under the Act.
5. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Underwriters' Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the date hereof, as of the date of the effectiveness of
any amendment to the Registration Statement filed prior to the Closing Date
(including the filing of any document incorporated by reference therein) and as
of the Closing Date, to the accuracy of the statements of the Company made in
any certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representative the
opinion of corporate counsel for the Company, dated the Closing Date, to the
effect that:
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(i) The Company is duly qualified to do business as a
foreign corporation and is in good standing under the laws of each
jurisdiction in which the ownership or leasing of its property or the
conduct of its business requires it to be so qualified; provided,
however, that the Company may not be so qualified in certain
jurisdictions, the effect of which would not have a material adverse
effect on the Company.
(ii) To the best knowledge of such counsel, Interlease
Aviation Corporation; ILFC Aircraft Holding Corporation; Interlease
Management Corporation; Interlease Aircraft Trading Corporation; Aircraft
SPC-3, Inc.; Aircraft SPC-4, Inc.; Aircraft SPC-6, Inc.; ILFC Aviation
Consulting, Inc.; Aircraft SPC-8, Inc.; Aircraft SPC-9, Inc.; Platypus
Leasing, Inc.; Aircraft SPC-11, Inc.; Aircraft SPC-12, Inc.; Aircraft
SPC-14, Inc.; Euclid Aircraft; ILFC Dover, Inc., CABREA, Inc. and ILFC
Volare, Inc., all wholly owned subsidiaries of Aircraft SPC-3, Inc.; are
the only domestic subsidiaries of the Company.
(iii) No subsidiary of the Company nor all of the
subsidiaries of the Company taken as a whole is a "significant
subsidiary" as defined in Rule 1-02 of Regulation S-X promulgated under
the Exchange Act.
(iv) To the best knowledge of such counsel, there is no
pending or threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries of a character required to be
disclosed in the Registration Statement which is not adequately disclosed
in the Final Prospectus.
(c) The Company shall have furnished to the Representative the
opinion of O'Melveny & Xxxxx LLP, special counsel for the Company, dated the
Closing Date, to the effect that:
(i) Each of the Company and Interlease Management
Corporation, Interlease Aviation Corporation, ILFC Aircraft Holding
Corporation, Interlease Aircraft Trading Corporation, Aircraft SPC-3,
Inc., Aircraft SPC-4, Inc., Aircraft SPC-6, Inc., ILFC Aviation
Consulting, Inc., Aircraft SPC-8, Inc., Aircraft SPC-9, Inc., Platypus
Leasing, Inc., Aircraft SPC-11, Inc., Aircraft SPC-12, Inc., Aircraft
SPC-14, Inc., Euclid Aircraft, ILFC Dover, Inc., CABREA, Inc. and ILFC
Volare, Inc. has been duly incorporated and is existing and in good
standing under the laws of the jurisdiction in which it is incorporated.
(ii) The Company has the corporate power to own its
properties and conduct its business as described in the Final Prospectus.
(iii) The Indenture has been duly authorized by all
necessary corporate action on the part of the Company, has been duly
executed and delivered by the Company and is a legally valid and binding
obligation of the Company, enforceable against the Company in accordance
with its terms, except as limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally
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(including, without limitation, fraudulent conveyance laws), and except
that such counsel may advise that the enforceability of the Indenture is
subject to the effect of general principles of equity including, without
limitation, concepts of materiality, reasonableness, good faith and fair
dealing and the possible unavailability of specific performance or
injunctive relief, regardless of whether considered in a proceeding in
equity or at law, and, if applicable, is subject to provisions of law
which may require that a judgment for money damages rendered by a court
in the United States be expressed in United States dollars.
(iv) The Securities have been duly authorized by all
necessary corporate action on the part of the Company and when executed
and authenticated in accordance with the provisions of the Indenture and
upon payment for and delivery of the Underwriters' Securities in
accordance with the terms of this Agreement, and, if applicable, upon
payment for and delivery of the Contract Securities in accordance with
the terms of the Delayed Delivery Contracts, will be legally valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally (including, without limitation, fraudulent conveyance laws),
and except that such counsel may advise that the enforceability of the
Securities is subject to the effect of general principles of equity
including, without limitation, concepts of materiality, reasonableness,
good faith and fair dealing and the possible unavailability of specific
performance or injunctive relief, regardless of whether considered in a
proceeding in equity or at law, and, if applicable, is subject to
provisions of law which may require that a judgment for money damages
rendered by a court in the United States be expressed in United States
dollars.
(v) The Indenture has been duly qualified under the Trust
Indenture Act.
(vi) This Agreement and, if applicable, any Delayed
Delivery Contracts have been duly authorized by all necessary corporate
action on the part of the Company and have been duly executed and
delivered by the Company.
(vii) No consent, authorization, order or approval of any
California, New York or federal court or governmental agency or body is
required on the part of the Company for the execution and delivery of
this Agreement or, if applicable, any Delayed Delivery Contracts or for
the issuance and sale of the Securities, except such as have been
obtained under the Act, the Trust Indenture Act and such as may be
required under the Blue Sky or securities laws of any jurisdiction and
such other approvals (specified in such opinion) as have been obtained.
(viii) Neither the execution and delivery of the Indenture
nor the issuance of the Securities will conflict with, result in a breach
by the Company of, or constitute a default under, the Articles of
Incorporation or Bylaws of the Company or the terms of any of the
agreements, instruments, contracts, orders, injunctions or judgments
identified to such counsel in an Officer's Certificate of the Company (a
copy of which will be delivered with the opinion of such counsel) as
agreements, instruments, contracts,
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orders, injunctions or judgments binding on the Company which have
provisions relating to the issuance by the Company of debt securities and
the breach of or default under or a conflict with which would have a
material adverse effect on the Company and its subsidiaries considered as
a whole, except that no opinion need be expressed regarding the effect,
if any, of the issuance of the Securities upon the Company's compliance
with any of the financial covenants contained in any of said agreements,
instruments, contracts, orders, injunctions or judgments.
(ix) The Registration Statement has been declared effective
under the Act and, to such counsel's knowledge, no stop order suspending
the effectiveness of the Registration Statement has been issued or
threatened by the Commission.
(x) The Registration Statement, on the date it was filed,
appeared on its face to comply in all material respects with the
requirements as to form for registration statements on Form S-3 under the
Act and the rules and regulations of the Commission thereunder, except
that no opinion need be expressed concerning the financial statements and
other financial and statistical information contained or incorporated by
reference therein.
(xi) Such counsel does not know of any material contract or
other material document of a character required to be filed as an exhibit
to the Registration Statement or required to be described in the
Registration Statement or the Prospectus which is not filed or described
as required.
(xii) The documents incorporated by reference into the
Prospectus (the "Incorporated Documents") appear on their face to comply
in all material respects with the requirements as to form for reports on
Form 10-K, Form 10-Q and Form 8-K, as the case may be, under the Exchange
Act, and the rules and regulations thereunder in effect at the respective
dates of their filing, except that no opinion need be expressed
concerning the financial statements and other financial and statistical
information contained or incorporated by reference therein.
(xiii) The statements in the Final Prospectus under the
caption "Description of Debt Securities," and in "Description of the
Notes," insofar as such statements constitute a summary of provisions of
the Indenture or the Securities, fairly present the information required
therein by Form S-3.
(xiv) The purchase and sale of the Securities in accordance
with the terms and provisions of this Agreement and the consummation of
the transactions contemplated under this Agreement and, if applicable the
Delayed Delivery Contracts, the Indenture and the Securities will not
violate the provisions of Section 1 of Article XV of the Constitution of
the State of California.
(xv) The Company is not an "investment company" within the
meaning of the Investment Company Act of 1940.
Such counsel shall also state that on the basis of their review of
the Registration Statement, the documents incorporated therein on the effective
date of the Registration
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Statement, the Final Prospectus and the Incorporated Documents, and their
participation in conferences in connection with the preparation of the
Registration Statement and the Final Prospectus, they do not believe that the
Registration Statement and the documents incorporated therein on the date the
Registration Statement became effective (or if later, the date the Company's
latest Annual Report on Form 10-K was filed with the Commission), considered as
a whole as of such date, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and they do not believe that the
Final Prospectus and the Incorporated Documents, considered as a whole on the
date of the Final Prospectus and on the date of the opinion, contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. Such counsel need not
express any opinion or belief as to any document filed by the Company under the
Exchange Act, whether prior or subsequent to the effective date of the
Registration Statement, except to the extent that any such document is an
Incorporated Document read together with the Registration Statement or the
Prospectus and considered as a whole and as specifically stated in clause (xii)
above, nor must such counsel express any opinion or belief as to the Form T-1
filed by the Trustee in connection with the Securities or the financial
statements and other financial and statistical information included or
incorporated by reference in the Registration Statement, the Prospectus or the
Incorporated Documents.
(d) The Representative shall have received from Xxxxxx, Xxxxx &
Xxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the issuance and sale of the Securities, the
Indenture, any Delayed Delivery Contracts, the Registration Statement, the Final
Prospectus and other related matters as the Representative may reasonably
require, and the Company shall have furnished to such counsel such documents as
they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representative a
certificate of the Company, signed by the Chairman of the Board, the President
or a Vice President and the principal financial or accounting officer of the
Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the Final
Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in
this Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date and
the Company has, in all material respects, complied with all the
agreements and satisfied all the conditions on its part to be performed
or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge, threatened;
and
(iii) since the date of the most recent financial
statements included in the Final Prospectus, there has been no material
adverse change in the condition (financial or other), earnings, business
or properties of the Company and its subsidiaries,
9
whether or not arising from transactions in the ordinary course of
business, except as set forth or contemplated in the Final Prospectus.
(f) At the Closing Date, PricewaterhouseCoopers LLP shall have
furnished to the Representative a letter, dated as of the Closing Date, in form
and substance satisfactory to the Representative, confirming that they are
independent accountants within the meaning of the Act and the Exchange Act and
the respective applicable published rules and regulations thereunder and stating
in effect that:
(i) in their opinion the audited financial statements and
financial statement schedules included or incorporated in the
Registration Statement and the Final Prospectus and reported on by them
comply in form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related published
rules and regulations;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company and its subsidiaries;
carrying out certain specified procedures (but not an examination in
accordance with generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the comments
set forth in such letter; a reading of the minutes of the meetings of the
shareholders, directors and audit committee of the Company and the
subsidiaries; and inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the Company and
its subsidiaries as to transactions and events subsequent to the date of
the most recent audited financial statements in or incorporated in the
Final Prospectus, nothing came to their attention which caused them to
believe that:
(1) any unaudited financial statements included or
incorporated in the Registration Statement and the Final
Prospectus do not comply in form in all material respects with
applicable accounting requirements and with the published rules
and regulations of the Commission with respect to financial
statements included or incorporated in quarterly reports on Form
10-Q under the Exchange Act; and said unaudited financial
statements are not in conformity with generally accepted
accounting principles applied on a basis substantially consistent
with that of the audited financial statements included or
incorporated in the Registration Statement and the Final
Prospectus;
(2) with respect to the period subsequent to the
date of the most recent financial statements (other than any
capsule information), audited or unaudited, in or incorporated in
the Registration Statement and the Final Prospectus, there were
any changes, at a specified date not more than five business days
prior to the date of the letter, in the long-term debt of the
Company and its subsidiaries or capital stock of the Company or
decreases in the shareholders' equity of the Company as compared
with the amounts shown on the most recent consolidated balance
sheet included or incorporated in the Registration Statement and
the Final Prospectus, or for the period from the date of the most
recent financial statements included or incorporated in the
Registration
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Statement and the Final Prospectus to such specified date there
were any decreases, as compared with the corresponding period in
the preceding year, in consolidated revenues or in total amounts
of net income of the Company and its subsidiaries, except in all
instances for changes or decreases set forth in such letter, in
which case the letter shall be accompanied by an explanation by
the Company as to the significance thereof unless said explanation
is not deemed necessary by the Representative; or
(3) the amounts included in any unaudited "capsule"
information included or incorporated in the Registration Statement
and the Final Prospectus do not agree with the amounts set forth
in the unaudited financial statements for the same periods or were
not determined on a basis substantially consistent with that of
the corresponding amounts in the audited financial statements
included or incorporated in the Registration Statement and the
Prospectus;
(iii) they have performed certain other specified
procedures as a result of which they determined that certain information
of an accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the general
accounting records of the Company and its subsidiaries) set forth in the
Registration Statement and the Final Prospectus and in Exhibit 12 to the
Registration Statement, including the information included or
incorporated in Items 1, 2, 6, 7 and 11 of the Company's Annual Report on
Form 10-K, incorporated in the Registration Statement and the Final
Prospectus, and the information included in the "Management's Discussion
and Analysis of Financial Condition and Results of Operations" included
or incorporated in the Company's Quarterly Reports on Form 10-Q,
incorporated in the Registration Statement and the Final Prospectus,
agrees with the accounting records of the Company and its subsidiaries,
excluding any questions of legal interpretation; and
(iv) if pro forma financial statements are included or
incorporated in the Registration Statement and the Final Prospectus, on
the basis of a reading of the unaudited pro forma financial statements,
carrying out certain specified procedures, inquiries of certain officials
of the Company and the acquired company who have responsibility for
financial and accounting matters, and proving the arithmetic accuracy of
the application of the pro forma adjustments to the historical amounts in
the pro forma financial statements, nothing came to their attention which
caused them to believe that the pro forma financial statements do not
comply in form in all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X or that the pro forma
adjustments have not been properly applied to the historical amounts in
the compilation of such statements.
References to the Registration Statement and the Final Prospectus
in this paragraph (f) are to such documents as amended and supplemented at the
date of the letter.
(g) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Final Prospectus, there shall not
have been (i) any change or decrease specified in the letter or letters referred
to in paragraph (f) of this Section 5 or (ii) any
11
change, or any development involving a prospective change, in or affecting the
business or properties of the Company and its subsidiaries the effect of which,
in any case referred to in clause (i) or (ii) above, is, in the judgment of the
Representative, so material and adverse as to make it impractical or inadvisable
to proceed with the offering or the delivery of the Securities as contemplated
by the Registration Statement and the Final Prospectus.
(h) Subsequent to the execution of this Agreement, there shall not
have been any decrease in the ratings of any of the Company's debt securities by
Xxxxx'x Investors Service, Inc. or Standard & Poor's Corporation and neither of
said organizations shall have publicly announced that it has under consideration
or review with negative implications any of the Company's debt securities.
(i) Prior to the Closing Date, the Company shall have furnished to
the Representative such further information, certificates and documents as the
Representative may reasonably request.
(j) The Company shall have accepted Delayed Delivery Contracts in
any case where sales of Contract Securities arranged by the Underwriters have
been approved by the Company.
If any of the conditions specified in this Section 5 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representative and its counsel, this
Agreement and all obligations of the Underwriters hereunder may be cancelled at,
or at any time prior to, the Closing Date by the Representative. Notice of such
cancellation shall be given to the Company in writing or by telephone or
telegraph confirmed in writing.
6. Reimbursement of Underwriters' Expenses. If the sale of the Securities
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 5 hereof is not satisfied, because of
any termination pursuant to Section 9 hereof or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally upon
demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Securities.
7. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities (including but not limited to the amount
paid in settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened), joint or several, to
which they or any of them may become subject under the Act, the Exchange Act or
other federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement as
originally filed or in any amendment thereof, or in the Basic
12
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any and all
expenses (including the fees and disbursements of counsel) incurred by them in
connection with investigating, preparing or defending any such loss, claim,
damage, liability, action, investigation or proceeding; provided, however, that
(i) the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by any Underwriter through the Representative expressly for use in
connection with the preparation thereof, and (ii) such indemnity with respect to
the Basic Prospectus or any Preliminary Final Prospectus shall not inure to the
benefit of any Underwriter (or any person controlling such Underwriter) from
whom the person asserting any such loss, claim, damage or liability purchased
the Securities which are the subject thereof if such person did not receive a
copy of the Final Prospectus (or the Final Prospectus as amended or
supplemented) excluding documents incorporated therein by reference at or prior
to the confirmation of the sale of such Securities to such person in any case
where such delivery is required by the Act and the untrue statement or omission
of a material fact contained in the Basic Prospectus or any Preliminary Final
Prospectus was corrected in the Final Prospectus (or the Final Prospectus as
amended or supplemented). This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by such Underwriter through the Representative expressly for use in the
preparation of the documents referred to in the foregoing indemnity.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 7, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under this Section 7. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein, and to
the extent that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified party,
to assume the defense thereof, with counsel satisfactory to such indemnified
party; provided, however, that if the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall have
the right to select separate counsel to assert such legal defense and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties.
13
Upon receipt of notice from the indemnifying party to such indemnified party of
its election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to such
indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Representative in the case of paragraph (a) of
this Section 7, representing the indemnified parties under such paragraph (a)
who are parties to such action), (ii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of the
action or (iii) the indemnifying party has authorized the employment of counsel
for the indemnified party at the expense of the indemnifying party; and except
that, if clause (i) or (iii) is applicable, such liability shall be only in
respect of the counsel referred to in such clause (i) or (iii).
(d) If the indemnification provided for in this Section 7 shall
for any reason be unavailable to an indemnified party under Section 7(a) or 7(b)
hereof in respect of any loss, claim, damage or liability, or any action in
respect thereof, referred to therein, then each indemnifying party shall, in
lieu of indemnifying such indemnified party, contribute to the amount paid or
payable by such indemnified party as a result of such loss, claim, damage or
liability, or action in respect thereof, (i) in such proportion as shall be
appropriate to reflect the relative benefits received by the Company, on the one
hand, and the Underwriters, on the other, from the offering of the Notes or (ii)
if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company, on the one hand, and the Underwriters, on the other, with respect to
the statements or omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company, on the one hand,
and the Underwriters, on the other, with respect to such offering shall be
deemed to be in the same proportion as the total net proceeds from the offering
of the Notes (before deducting expenses) received by the Company bear to the
total discounts and commissions received by any Underwriter with respect to such
offering. The relative fault shall be determined by reference to whether the
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the Company
or any Underwriter, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 7(d) were to be determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take into
account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this Section 7(d)
shall be deemed to include, for purposes of this Section 7(d), any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim to the extent not already
paid or payable pursuant to another provision of this Section 7. Notwithstanding
the provisions of this Section 7(d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
14
which the Notes sold through such Underwriter and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise paid or become liable to pay by reason of any untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations under this Section 7(d) to
contribute are several in proportion to the respective principal amounts of
Securities purchased by each such Underwriter and not joint.
8. Default by an Underwriter. If any one or more Underwriters shall fail
to purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bears to the aggregate amount
of Securities set forth opposite the names of all the remaining Underwriters)
the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
amount of Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate amount of Securities set
forth in Schedule II hereto, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to any nondefaulting
Underwriter or the Company. In the event of a default by any Underwriter as set
forth in this Section 8, the Closing Date shall be postponed for such period,
not exceeding seven days, as the Representative shall determine in order that
the required changes in the Registration Statement and the Final Prospectus or
in any other documents or arrangements may be effected. Nothing contained in
this Agreement shall relieve any defaulting Underwriter of its liability, if
any, to the Company and any nondefaulting Underwriter for damages occasioned by
its default hereunder.
9. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representative, by notice given to the Company prior
to delivery of and payment for the Securities, if prior to such time any of the
following shall have occurred: (i) since the respective dates as of which
information is given in the Registration Statement, any material adverse change
in the condition, financial or otherwise, of the Company and its subsidiaries
considered as one enterprise, or in the earnings, affairs or business prospects
of the Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, except as set forth or contemplated
in the Prospectus, which, in the Representative' judgement, makes it
impracticable to market the Securities or enforce contracts for the sale of the
Securities, (ii) trading in any securities of the Company has been suspended by
the Commission or a national securities exchange, or trading generally on either
the New York Stock Exchange or the American Stock Exchange shall have been
suspended, or minimum or maximum prices for trading shall have been fixed, or
maximum ranges for prices for securities shall have been required, by either of
said exchanges or by order of the Commission or any other governmental
authority, (iii) a banking moratorium shall have been declared either by Federal
or New York State authorities, or (iv) any outbreak or escalation of hostilities
or other national or international calamity or crisis, if the effect of such
outbreak, escalation, calamity or crisis
15
would, in the Representative' reasonable judgment, make the offering or delivery
of the Securities impracticable.
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in Section 7 hereof,
and will survive delivery of and payment for the Securities. The provisions of
Sections 6 and 7 hereof shall survive the termination or cancellation of this
Agreement.
11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representative, will be mailed,
delivered or telecopied and confirmed to them, at the address specified in
Schedule I hereto; or, if sent to the Company, will be mailed, delivered or
telecopied and confirmed to International Lease Finance Corporation at the
address specified in Schedule I.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7 hereof, and no
other person will have any right or obligation hereunder.
13. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties hereto and delivered to each of the other parties hereto.
14. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
16
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
International Lease Finance Corporation
By: /s/ Xxxx X. Xxxx
------------------------------------------
Name: Xxxx X. Xxxx
----------------------------------------
Title: Executive Vice President, Co-Chief
---------------------------------------
Operating Officer and Chief Financial
Officer
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
Xxxxxx Brothers Inc.
As Representative of the several Underwriters
referred to on Schedule II hereto
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Senior Vice President
17
SCHEDULE I
Underwriting Agreement dated: October 12, 2001
Registration Statement No.: 333-60264
Representative: Xxxxxx Brothers Inc.
Title, Purchase Price and Description of Securities:
Title: 5-3/4% Notes due October 15, 2006
Principal amount: $700,000,000
Purchase price (include accrued interest or amortization, if
any): 98.804% plus accrued interest, if any, from October 17,
2001.
Title: Floating Rate Notes due October 18, 2004
Principal amount: $150,000,000
Purchase price (include accrued interest or amortization, if
any): 99.65% plus accrued interest, if any, from October 17,
2001.
Closing Date, Time and Location:
October 17, 2001, 7:00 a.m. Los Angeles time, at the offices of O'Melveny
& Xxxxx LLP, 000 Xxxxx Xxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000
Modification of items to be covered by the letter from
PricewaterhouseCoopers LLP delivered pursuant to Section 5(f) at the time
this Agreement is executed:
None
Addresses for Notices to Representative and the Company:
Xxxxxx Brothers Inc.
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attn: Fixed Income Syndicate (with a copy to the General Counsel)
International Lease Finance Corporation
1999 Avenue of the Stars, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Chief Financial Officer
Securities to be delivered in the form of a Global Note
SCHEDULE II
5-3/4% Notes due October 15, 2006:
Principal Amount
of Securities to
Underwriters be Purchased
---------------------------- ----------------------------
Xxxxxx Brothers Inc. $205,310,000
Xxxxxx Xxxxxxx & Co. Incorporated $205,310,000
Xxxxxxx Xxxxx Barney Inc. $205,310,000
Commerzbank Capital Markets Corp. $ 28,070,000
Banc of America Securities LLC $ 14,000,000
Tokyo-Mitsubishi International plc $ 14,000,000
XX Xxxxx Securities Corporation $ 14,000,000
X.X. Xxxxxx Securities Inc. $ 14,000,000
============
Total....... $700,000,000
Floating Rate Notes due October 18, 2004:
Principal Amount
of Securities to
Underwriters be Purchased
---------------------------- ----------------------------
Xxxxxx Brothers Inc. $ 43,995,000
Xxxxxx Xxxxxxx & Co. Incorporated $ 43,995,000
Xxxxxxx Xxxxx Barney Inc. $ 43,995,000
Commerzbank Capital Markets Corp. $ 6,015,000
Banc of America Securities LLC $ 3,000,000
Tokyo-Mitsubishi International plc $ 3,000,000
XX Xxxxx Securities Corporation $ 3,000,000
X.X. Xxxxxx Securities Inc. $ 3,000,000
============
Total....... $150,000,000
SCHEDULE III
Delayed Delivery Contract
__________, 20___
[Insert name and address
of lead Representative]
Dear Sirs:
The undersigned hereby agrees to purchase from International Lease
Finance Corporation (the "Company"), and the Company agrees to sell to the
undersigned, on ________, 20__, (the "Delivery Date"), $_________ principal
amount of the Company's __________________ (the "Securities") offered by the
Company's Prospectus dated _________, 20___, and related Prospectus Supplement
dated __________, 20___, receipt of a copy of which is hereby acknowledged, at a
purchase price of ___% of the principal amount thereof, plus accrued interest,
if any, thereon from __________, 20___, to the date of payment and delivery, and
on the further terms and conditions set forth in this contract.
Payment for the Securities to be purchased by the undersigned shall be
made on or before 11:00 A.M., New York City time, on the Delivery Date to or
upon the order of the Company in ______________________________ funds, at your
office or at such other place as shall be agreed between the Company and the
undersigned, upon delivery to the undersigned of the Securities in definitive
fully registered form and in such authorized denominations and registered in
such names as the undersigned may request by written or telegraphic
communication addressed to the Company not less than five full business days
prior to the Delivery Date. If no request is received, the Securities will be
registered in the name of the undersigned and issued in a denomination equal to
the aggregate principal amount of Securities to be purchased by the undersigned
on the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Securities on the Delivery Date, and the obligation of the Company to sell
and deliver Securities on the Delivery Date, shall be subject to the conditions
(and neither party shall incur any liability by reason of the failure thereof)
that (1) the purchase of Securities to be made by the undersigned, which
purchase the undersigned represents is not prohibited on the date hereof, shall
not on the Delivery Date be prohibited under the laws of the jurisdiction to
which the undersigned is subject, and (2) the Company, on or before the Delivery
Date, shall have sold to certain underwriters (the "Underwriters") such
principal amount of the Securities as is to be sold to them pursuant to the
Underwriting Agreement referred to in the Prospectus and Prospectus Supplement
mentioned above. Promptly after completion of such sale to the Underwriters, the
Company will mail or deliver to the undersigned at its address set forth below
notice to such effect, accompanied by a copy of the opinion of counsel for the
Company delivered to the
Underwriters in connection therewith. The obligation of the undersigned to take
delivery of and make payment for the Securities, and the obligation of the
Company to cause the Securities to be sold and delivered, shall not be affected
by the failure of any purchaser to take delivery of and make payment for the
Securities pursuant to other contracts similar to this contract.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first come, first served basis. If this contract is
acceptable to the Company, it is required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding contract
between the Company and the undersigned, as of the date first above written,
when such counterpart is so mailed or delivered.
This agreement shall be governed by and construed in accordance with the
laws of the State of New York.
Very truly yours,
----------------------------------------
(Name of Purchaser)
By:
---------------------------------
(Signature and Title of Officer)
---------------------------------
(Address)
Accepted:
International Lease Finance Corporation
By:
---------------------------------------
(Authorized Signature)
International Lease Finance Corporation
