Exhibit 1.1
International Lease Finance Corporation
$1,000,000,000 Medium-Term Notes, Series O
Due Nine Months or More
From Date of Issue
Distribution Agreement
December 31, ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
Banc of America Securities LLC ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ Incorporated
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ 4 World Financial ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Deutsche Bank Securities Inc. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇ Securities Inc. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies & Gentlemen:
International Lease Finance Corporation, a California corporation (the
"Company"), confirms its agreement with each of you (together with your
affiliates, individually, an "Agent" and collectively, the "Agents") with
respect to the issue and sale by the Company of up to the aggregate principal
amount set forth in Schedule I hereto of its Medium-Term Notes, Series O, Due
Nine Months or More from Date of Issue (the "Notes"). The Notes will 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"), as amended. The
Notes will be issued in minimum denominations of $1,000 and in denominations
exceeding such amount by integral multiples of $1,000, will be issued only in
fully registered form and will bear interest at rates to be provided in a
supplement to the Prospectus referred to below.
1. Representations and Warranties. The Company represents and warrants
to you as of the date hereof, as of each Closing Date and Settlement Date
hereinafter referred to,
and as of the times referred to in Section 4(h) hereof, as follows:
(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 aggregate principal amount set forth
in Schedule I hereto of debt securities including the Notes (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. In connection with the sale of Notes 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 Notes 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 to the date of
this Agreement, is hereinafter called the "Registration Statement";
such prospectus, as supplemented pursuant to the previous sentence, is
hereinafter called the "Prospectus". Any reference herein to the
Registration Statement or the 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 date of the Prospectus, as the case may be; and any
reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement or the 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 date of the Prospectus, as
the case may be, deemed to be incorporated therein by reference.
(b) As of the date hereof, when 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 Prospectus is filed with the Commission and at
the date of delivery by the Company of any Notes sold hereunder (a
"Closing Date"), (i) the Registration Statement, as amended as of any
such time, and the Prospectus as 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 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
Prospectus in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of the Agents
specifically for use in connection with the preparation of the
Registration Statement and the Prospectus.
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(c) Subsequent to the respective dates as of which information
is given in the Registration Statement and Prospectus, and except as
set forth or contemplated in the 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 issued
and delivered pursuant to this Agreement and, if applicable, the Terms
Agreement (as defined in Section 2(b) hereof) or otherwise, will have
been duly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the Indenture, which will be
substantially in the form filed as an exhibit to the Registration
Statement or a document incorporated by reference therein; the
Indenture has been duly authorized and duly qualified under the Trust
Indenture Act and constitutes a valid and legally binding instrument,
enforceable in accordance with its terms, subject, as to enforcement,
to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles; and the Securities and the Indenture will conform to
the descriptions thereof in the Prospectus.
(e) The Notes have been rated by a "nationally recognized
statistical rating agency" (as that term is defined by the Commission
for purposes of Rule 436(g)(2) under the Act), including one or both of
▇▇▇▇▇'▇ Investor Services ("Moody's") and Standard & Poor's Ratings
Services, a division of the McGraw Hill Companies ("S&P").
(f) The Company confirms as of the date hereof, and each
acceptance by the Company of an offer to purchase Notes will be deemed
to be an affirmation, that the Company is in compliance with all
provisions of Section 1 of Laws of Florida, Chapter 92-198, An Act
Relating to Disclosure of Doing Business with Cuba, and the Company
further agrees that if it commences engaging in business with the
government of Cuba or with any person or affiliate located in Cuba
after the date the Registration Statement becomes or has become
effective with the Commission or with the Florida Department of Banking
and Finance (the "Department"), whichever date is later, or if the
information reported in the Prospectus, if any, concerning the
Company's business with Cuba or with any person or affiliate located in
Cuba changes in any material way, the Company will provide the
Department notice of such business or change, as appropriate, in a form
acceptable to the Department.
2. Appointment of Agents; Purchases as Principals.
(a) Subject to the terms and conditions set forth herein, the
Company hereby authorizes you to act as its agents to solicit offers
for the purchase of all or part of the Notes, upon the terms set forth
in the Prospectus, as supplemented, during a period beginning on the
date hereof and ending on the date the Company shall specify to you in
writing. The commission to be paid to each Agent in respect of sales of
Notes shall be that percentage specified in Schedule I hereto of the
aggregate principal amount of Notes
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sold by the Company in respect of offers to purchase solicited by each
Agent and shall be payable as specified in the Procedures (as defined
in Section 3). Offers for the purchase of Notes may be solicited by the
Agents as agents for the Company at such time and in such amounts as
the Agents deem advisable. The Company may from time to time offer
Notes for sale otherwise than through the Agents; provided, however,
that so long as this Agreement shall be in effect, the Company shall
not solicit or accept offers to purchase Notes through any agent at a
commission different from those described in this Agreement for offers
to purchase through the Agents. If any agent, other than an Agent, is
appointed during the term of this Agreement with respect to the Notes,
the Company shall promptly notify the Agents of such appointment.
(b) Each sale of Notes to you as principal shall be made in
accordance with the terms of this Agreement and a separate agreement
which will provide for the sale of such Notes to, and the purchase and
reoffering thereof by, you. Each such separate agreement (which may be
an oral agreement confirmed in writing or which may be substantially in
the form of Schedule II hereto and which may take the form of an
exchange of any standard form of written telecommunication between you
and the Company) is herein referred to as a "Terms Agreement". Your
commitment to purchase Notes pursuant to any Terms Agreement shall be
deemed to have been made on the basis of the representations and
warranties of the Company herein contained and shall be subject to the
terms and conditions herein set forth. Each Terms Agreement shall
specify the principal amount of Notes to be purchased by you pursuant
thereto, the price to be paid to the Company for such Notes, the
initial public offering price, if any, at which the Notes are proposed
to be reoffered, and the time and place of delivery of and payment for
such Notes (the "Settlement Date"). Such Terms Agreement shall also
specify any requirements for opinions of counsel, officers'
certificates and letters from independent auditors pursuant to Section
5 hereof.
3. Offering Procedure. The Agents shall communicate to the Company,
orally or in writing, each offer to purchase Notes on terms previously
communicated by the Company to the Agents, and the Company shall have the sole
right to accept such offers to purchase Notes and may refuse any proposed
purchase of Notes in whole or in part for any reason. Each of the Agents shall
have the right, in its discretion reasonably exercised, to reject any proposed
purchase of Notes on different terms, as a whole or in part, and any such
rejection shall not be deemed a breach of its agreement contained herein. The
Agents and the Company agree to perform the respective duties and obligations
specifically provided to be performed by them in the Medium-Term Notes
Administrative Procedures (attached hereto as Exhibit A) (the "Procedures"), as
amended from time to time. The Procedures may only be amended by written
agreement of the Company and the Agents after notice to, and with the approval
of, the Trustee.
4. Agreements. The Company agrees with you that:
(a) Prior to the termination of the offering of the Notes, the
Company will not file any amendment of the Registration Statement or
supplement to the Prospectus unless the Company has furnished you with
copies 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 each
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supplement to the Prospectus to be filed (or transmitted for filing)
with the Commission as required pursuant to Rule 424. The Company will
promptly advise you (i) when each supplement to the Prospectus shall
have been filed (or transmitted for filing) with the Commission
pursuant to Rule 424, (ii) when any amendment of the Registration
Statement 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 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 Notes 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 Notes is
required to be delivered under the Act, any event occurs as a result of
which the Registration Statement, as then amended, or the Prospectus,
as then supplemented, would include any untrue statement of a material
fact or omit to state any material fact 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 the
Registration Statement or to supplement the Prospectus to comply with
the Act or the Exchange Act or the respective rules thereunder, the
Company promptly will (i) notify the Agents to suspend solicitation of
offers to purchase Notes (and, if so notified by the Company, the
Agents shall forthwith suspend such solicitation and cease using the
Prospectus as then amended or supplemented), (ii) 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 or supplement which will effect such
compliance and (iii) will supply any such amended or supplemented
Prospectus to the Agents in such quantities as the Agents may
reasonably request. If such amendment or supplement is satisfactory in
all respects to the Agents, the Agents will, upon the filing of such
amendment or supplement with the Commission and upon the effectiveness
of an amendment to the Registration Statement if such an amendment is
required, resume their obligation to solicit offers to purchase Notes
hereunder.
(c) As soon as practicable, the Company will make generally
available to its security holders and to you 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 and,
not later than 45 days after the end of the 12-month period beginning
at the end of each fiscal quarter of the Company (other than the last
fiscal quarter of any fiscal year) during which the effective date of
any post-effective amendment to the Registration Statement occurs, not
later than 90 days after the end of the fiscal year beginning at the
end of each last fiscal quarter of any fiscal year of the Company
during which the effective date of any post-effective amendment to the
Registration Statement occurs, and not later than 90 days after the end
of each fiscal year of the Company during which any Notes were issued,
the Company will make generally available to its security holders an
earnings statement covering such 12-month period or such fiscal year,
as the case may be, that will satisfy the provisions of such Section
11(a) and Rule 158.
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(d) The Company will furnish to you and your counsel, without
charge, copies of the Registration Statement (including exhibits
thereto) and each amendment thereto which shall become effective and,
so long as delivery of a prospectus may be required by the Act, as many
copies of any preliminary Prospectus and the Prospectus and any
amendments thereof and supplements thereto as you may reasonably
request.
(e) The Company will arrange for the qualification of the
Notes for sale under the laws of such jurisdictions as you may
reasonably designate, will maintain such qualifications in effect so
long as required for the distribution of the Notes, and, if requested
by the Agents, will arrange for the determination of the legality of
the Notes for purchase by institutional investors.
(f) The Company shall, whether or not any sale of the Notes is
consummated, (i) pay all expenses incident to the performance of its
obligations under this Agreement, including the fees and disbursements
of its accountants and counsel, the cost of printing and delivery of
the Registration Statement, any preliminary Prospectus, the Prospectus,
all amendments thereof and supplements thereto, the Indenture and all
other documents relating to the offering, the cost of preparing,
printing, packaging and delivering the Notes, the fees and
disbursements, including fees of counsel incurred in connection with
the qualification of the Notes for sale and determination of
eligibility for investment of the Notes under the securities or Blue
Sky laws of each such jurisdiction as you may reasonably designate, the
fees and disbursements of the Trustee and the fees of any agency that
rates the Notes, and (ii) reimburse the Agents on a monthly basis for
all out-of-pocket expenses (including without limitation advertising
expenses) incurred by the Agents and approved by the Company in
advance, in connection with the offering and the sale of the Notes, and
(iii) be responsible for the reasonable fees of counsel for the Agents
incurred in connection with the offering and sale of the Notes.
(g) Each acceptance by the Company of an offer to purchase
Notes, and each sale of Notes to you pursuant to a Terms Agreement,
will be deemed to be an affirmation that the representations and
warranties of the Company contained in this Agreement and in any
certificate theretofore delivered to you pursuant hereto are true and
correct at and as of such date and a representation and warranty to you
that neither the Registration Statement nor the Prospectus, as then
amended or supplemented, fails to reflect any facts or events which,
individually or in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement or the Prospectus,
as then amended or supplemented, and/or includes any untrue statement
of a material fact, or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, except that the foregoing does
not apply 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
Prospectus or any amendment thereof or supplement thereto in reliance
upon and in conformity with information furnished in writing to the
Company by you or on your behalf specifically for use in connection
with the preparation
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of the Registration Statement and the Prospectus or any amendments
thereof or supplements thereto.
(h) Each time that the Registration Statement or the
Prospectus is amended or supplemented (other than by an amendment or
supplement providing solely for a change in the interest rates offered
on the Notes), or, if so indicated in the applicable Terms Agreement,
the Company sells Notes to you pursuant to a Terms Agreement, the
Company will deliver or cause to be delivered forthwith to you a
certificate of the Company signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the
Company, dated the date of the effectiveness of such amendment or the
date of filing of such supplement, in form reasonably satisfactory to
you, to the effect that the statements contained in the certificate
that was last furnished to you pursuant to either Section 5(e) or this
Section 4(h) are true and correct at the time of the effectiveness of
such amendment or the filing of such supplement as though made at and
as of such time (except that (i) the last day of the fiscal quarter for
which financial statements of the Company were last filed with the
Commission shall be substituted for the corresponding date in such
certificate and (ii) such statements shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented
to the time of the effectiveness of such amendment or the filing of
such supplement) or, in lieu of such certificate, a certificate of the
same tenor as the certificate referred to in Section 5(e) but modified
to relate to the last day of the fiscal quarter for which financial
statements of the Company were last filed with the Commission and to
the Registration Statement and the Prospectus as amended and
supplemented to the time of the effectiveness of such amendment or the
filing of such supplement.
(i) Each time that the Registration Statement or the
Prospectus is amended or supplemented (other than by an amendment or
supplement (i) providing solely for a change in the interest rates
offered on the Notes or (ii) setting forth or incorporating by
reference financial statements or other information as of and for a
fiscal quarter, unless, in the case of clause (ii) above, in your
reasonable judgment, such financial statements or other information are
of such a nature that an opinion of counsel should be furnished), or,
if so indicated in the applicable Terms Agreement, the Company sells
Notes to you pursuant to a Terms Agreement, the Company shall furnish
or cause to be furnished forthwith to you a written opinion or opinions
of counsel to the Company satisfactory to you, dated the date of the
effectiveness of such amendment or the date of filing of such
supplement, of the same tenor as the opinions referred to in Sections
5(b) and 5(c) but modified to relate to the Registration Statement and
the Prospectus as amended and supplemented to the time of the
effectiveness of such amendment or the filing of such supplement or, in
lieu of such opinions, counsel last furnishing such an opinion to you
may furnish you with a letter to the effect that you may rely on such
last opinion to the same extent as though it were dated the date of
such letter authorizing reliance (except that statements in such last
opinion will be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of the effectiveness
of such amendment or the filing of such supplement).
(j) Each time that (i) the Registration Statement or the
Prospectus is amended or supplemented by a filing under the Act to
include additional financial
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information, (ii) there is filed with the Commission under the Exchange
Act any document incorporated by reference into the Prospectus as
amended and supplemented which contains additional financial
information (other than any Current Report on Form 8-K relating
exclusively to quarterly or annual financial results of the Company,
or, unless any Agent shall otherwise request, any Quarterly Report on
Form 10-Q), or (iii) if so indicated in the applicable Terms Agreement,
the Company sells Notes to you pursuant to a Terms Agreement, the
Company shall cause PricewaterhouseCoopers LLP the independent public
accountants which have audited the financial statements of the Company
and its subsidiaries included or incorporated by reference in the
Prospectus as amended and supplemented forthwith to furnish you a
letter, dated the date of filing with the Commission of such supplement
or document, the date of effectiveness of such amendment, or the date
of such sale, as the case may be, in form satisfactory to you in your
reasonable judgment, of the same tenor as the letter referred to in
Section 5(f) hereof, but modified to relate to the Registration
Statement and the Prospectus as amended and supplemented to the date of
such letter, with such changes as may be necessary to reflect changes
in the financial statements and other information derived from the
accounting records of the Company; provided, however, that where such
amendment or supplement only sets forth unaudited quarterly financial
information, the scope of such letter may be limited to relate to such
unaudited financial information unless any other accounting or
financial information included therein is of a character that, in your
reasonable judgment, such other information should be addressed by such
letter.
(k) Between the date of any Terms Agreement and the Settlement
Date with respect to such Terms Agreement, the Company will not,
without your prior consent, offer or sell, or enter into any agreement
to sell, any debt securities of the Company, except as may otherwise be
provided in any such Terms Agreement.
5. Conditions to Obligations. Your obligations as Agents to solicit
offers to purchase the Notes and your obligations to purchase Notes pursuant to
any Terms Agreement or otherwise 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 (including the filing of any document incorporated by
reference therein), as of the date any supplement to the prospectus is filed
with the Commission, as of each Closing Date and as of each Settlement Date with
respect to any applicable Terms Agreement, 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 you the opinion of
corporate counsel for the Company, dated the date hereof, or of such
Settlement Date, if applicable, 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, the only
domestic subsidiaries of the Company are: Interlease Aviation
Corporation; ILFC Aircraft Holding Corporation; Interlease
Management Corporation; Interlease Aircraft Trading
Corporation; Aircraft SPC-3, Inc.; Aircraft SPC-4, Inc.; ILFC
Aviation Consulting, Inc.; Aircraft SPC-8, Inc.; Aircraft
SPC-9, Inc.; Aircraft SPC-11, Inc.; Aircraft SPC-12, Inc.;
Aircraft SPC-14, Inc.; Platypus Leasing, Inc.; Euclid
Aircraft, Inc.; ILFC Dover, Inc., CABREA, Inc. and ILFC
Volare, Inc., all wholly owned subsidiaries of Aircraft SPC-3,
Inc.; ILFC Rhino I LLC; and ILFC Rhino II LLC.
(iii) No subsidiary of the Company nor all of the
subsidiaries of the Company taken as a whole is a "significant
subsidiary" as defined in Rule 1-02 of Regulation S-X
promulgated under the 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 Prospectus.
(c) The Company shall have furnished to you the opinion of
O'Melveny & ▇▇▇▇▇ LLP, special counsel for the Company, dated the date
hereof, or of such Settlement Date, if applicable, to the effect that:
(i) Each of the Company, Interlease Management
Corporation, Interlease Aviation Corporation, ILFC Aircraft
Holding Corporation, Interlease Aircraft Trading Corporation,
Aircraft SPC-3, Inc., Aircraft SPC-4, Inc., ILFC Aviation
Consulting, Inc., Aircraft SPC-8, Inc., Aircraft SPC-9, Inc.,
Aircraft SPC-11, Inc., Aircraft SPC-12, Inc., Aircraft SPC-14,
Inc., Platypus Leasing, Inc., Euclid Aircraft, Inc., ILFC
Dover, Inc., CABREA, Inc., ILFC Volare, Inc., ILFC Rhino I LLC
and ILFC Rhino II LLC has been duly incorporated or organized
and is existing and in good standing under the laws of the
jurisdiction in which it is incorporated or organized.
(ii) The Company has the corporate power to own its
properties and conduct its business as described in the
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
9
Company, enforceable against the Company in accordance with
its terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or
affecting creditors' rights generally (including, without
limitation, fraudulent conveyance laws), and by general
principles of equity including, without limitation, concepts
of materiality, reasonableness, good faith and fair dealing
and the possible unavailability of specific performance or
injunctive relief, regardless of whether considered in a
proceeding in equity or at law, and, 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 Notes have been duly authorized by all
necessary corporate action on the part of the Company and when
the final terms of a particular Note and of its issuance and
sale have been duly established in conformity with the
Indenture, and when such Note has been duly executed,
authenticated and issued in accordance with the provisions of
the Indenture and upon payment for and delivery of the Notes
in accordance with the terms of this Agreement, will be
legally valid and binding obligations of the Company,
enforceable against the Company in accordance with their
terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or
affecting creditors' rights generally (including, without
limitation, fraudulent conveyance laws), and by general
principles of equity including, without limitation, concepts
of materiality, reasonableness, good faith and fair dealing
and the possible unavailability of specific performance or
injunctive relief, regardless of whether considered in a
proceeding in equity or at law, and, 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 the opinion is being
furnished on a Settlement Date, the applicable Terms
Agreement) has been duly authorized by all necessary corporate
action on the part of the Company and has been duly executed
and delivered by the Company.
(vii) No consent, authorization, order or approval of
any California, New York or federal court or governmental
agency or body is required on the part of the Company for the
execution and delivery of this Agreement or for the issuance
and sale of the Notes, except such as have been obtained under
the 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 Notes will conflict with,
result in a breach by the Company of, or
10
constitute a default under, the Articles of Incorporation or
Bylaws of the Company or the terms of any of the agreements,
instruments, contracts, orders, injunctions or judgments
identified to such counsel in an Officer's Certificate of the
Company (a copy of which will be delivered with the opinion of
such counsel) as agreements, instruments, contracts, orders,
injunctions or judgments binding on the Company which have
provisions relating to the issuance by the Company of debt
securities and the breach of or default under or a conflict
with which would have a material adverse effect on the Company
and its subsidiaries considered as a whole, except that no
opinion need be expressed regarding the effect, if any, of the
issuance of the Notes upon the Company's compliance with any
of the financial covenants contained in any of said
agreements, instruments, contracts, orders, injunctions or
judgements.
(ix) The Registration Statement has been declared
effective under the 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 which is
not filed 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
information contained or incorporated by reference therein.
(xiii) The statements in the Prospectus under the
caption "Description of Debt Securities", and in the
Prospectus Supplement under the caption "Description of
Medium-Term Notes, Series O", insofar as such statements
constitute a summary of provisions of the Indenture or the
Notes, fairly present the information required therein by Form
S-3.
(xiv) The purchase and sale of the Notes in
accordance with the terms and provisions of this Agreement and
the consummation of the transactions contemplated under this
Agreement, the Indenture and the Notes will not violate
11
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, as
amended.
Such counsel shall also state that on the basis of
their review of the Registration Statement, the documents
incorporated therein on the effective date of the Registration
Statement, the Prospectus and the Incorporated Documents, and
their participation in conferences in connection with the
preparation of the Registration Statement and the 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 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 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 Notes or the financial
statements and other financial information included or
incorporated by reference in the Registration Statement, the
Prospectus or the Incorporated Documents.
(d) You shall have received from ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP,
your counsel, such opinion or opinions, dated the date hereof, or of
such Settlement Date, if applicable, with respect to the issuance and
sale of the Notes, the Indenture, the Registration Statement, the
Prospectus and other related matters as you 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 you 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 date hereof, or of such Settlement Date, if
applicable, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Prospectus and this
Agreement and that:
12
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of the date hereof, or of such Settlement
Date, if applicable, with the same effect as if made on the
date hereof, or of such Settlement Date, if applicable, 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 as a condition to your obligation as
Agents to solicit offers to purchase the Notes, or your
obligation to purchase Notes pursuant to any Terms Agreement;
(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 Prospectus, there has been no
material adverse change in the condition (financial or other),
earnings, business or properties of the Company and its
subsidiaries, whether or not arising from transactions in the
ordinary course of business, except as set forth or
contemplated in the Prospectus.
(f) At the date hereof, or of such Settlement Date, if
applicable, PricewaterhouseCoopers LLP shall have furnished to you a
letter (which may refer to a letter or letters previously delivered to
you), dated as of the date hereof, or of such Settlement Date, if
applicable, in form and substance satisfactory to you, stating in
effect that:
(i) They are independent certified public accountants
with respect to the Company and its subsidiaries within the
meaning of the Act and the applicable rules and regulations
thereunder adopted by the Commission;
(ii) In their opinion, the financial statements and
financial statement schedules audited by them and included or
incorporated by reference in the Registration Statement or the
Prospectus comply as to form in all material respects with the
applicable accounting requirements of the Act or the Exchange
Act, as applicable, and the related rules and regulations
thereunder adopted by the Commission;
(iii) They have made a review in accordance with
standards established by the American Institute of Certified
Public Accountants of the unaudited condensed consolidated
statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the
Prospectus and/or included in the Company's quarterly report
on Form 10-Q incorporated by reference into the Prospectus;
and on the basis of specified procedures including inquiries
of officials of the Company who have responsibility for
financial and accounting matters regarding whether the
unaudited condensed consolidated financial statements referred
to in paragraph (v)(1)(i) below comply as to form in all
material respects with the applicable accounting requirements
of the Act and the Exchange Act and the related rules and
regulations, nothing came to their
13
attention that caused them to believe that the unaudited
condensed consolidated financial statements do not comply as
to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and
the related rules and regulations adopted by the Commission;
(iv) The unaudited selected financial information
with respect to the consolidated results of operations and
financial position of the Company for the five most recent
fiscal years included in the Prospectus and included or
incorporated by reference in Item 6 of the Company's Annual
Report on Form 10-K for the most recent fiscal year agrees
with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements
for five such fiscal years which were included or incorporated
by reference in the Company's Annual Reports on Form 10-K for
such fiscal years;
(v) On the basis of limited procedures, not
constituting an examination in accordance with generally
accepted auditing standards, consisting of a reading of the
unaudited financial statements and other information referred
to below, a reading of the latest available interim financial
statements of the Company and its subsidiaries, inspection of
the minute books of the Company and its subsidiaries since the
date of the latest audited financial statements included or
incorporated by reference in the Prospectus, inquiries of
officials of the Company and its subsidiaries responsible for
financial and accounting matters and such other inquiries and
procedures as may be specified in such letter, nothing came to
their attention that caused them to believe that:
(1) (i) the unaudited condensed consolidated
statements of income, consolidated balance sheets and
consolidated statements of cash flows included and/or
incorporated by reference in the Prospectus and
included in the Company's Quarterly Reports on Form
10-Q incorporated by reference in the Prospectus do
not comply as to form in all material respects with
the applicable accounting requirements of the
Exchange Act and the related rules and regulations
adopted by the Commission, or (ii) any material
modifications should be made to the unaudited
condensed consolidated statements of income,
consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus
or included in the Company's Quarterly Reports on
Form 10-Q incorporated by reference in the Prospectus
for them to be in conformity with generally accepted
accounting principles;
(2) any other unaudited income statement
data and balance sheet items included in the
Prospectus do not agree with the corresponding items
in the unaudited consolidated financial statements
from which such data and items were derived, and any
such unaudited data and items were not determined on
a basis substantially consistent with the basis for
the corresponding amounts in the audited consolidated
14
financial statements included or incorporated by
reference in the Company's Annual Report on Form 10-K
for the most recent fiscal year;
(3) the unaudited financial statements which
were not included in the Prospectus but from which
were derived the unaudited condensed financial
statements referred to in clause (1) and any
unaudited income statement data and balance sheet
items included in the Prospectus and referred to in
Clause (2) were not determined on a basis
substantially consistent with the basis for the
audited financial statements included or incorporated
by reference in the Company's Annual Report on Form
10-K for the most recent fiscal year;
(4) any unaudited pro forma consolidated
condensed financial statements included or
incorporated by reference in the Prospectus do not
comply as to form in all material respects with the
applicable accounting requirements of the Act and the
published rules and regulations thereunder or the pro
forma adjustments have not been properly applied to
the historical amounts in the compilation of those
statements;
(5) as of a specified date not more than
five days prior to the date of such letter, there
have been any changes in the consolidated capital
stock (other than issuances of capital stock upon
exercise of options and stock appreciation rights,
upon earn-outs of performance shares and upon
conversions of convertible securities, in each case
which were outstanding on the date of the latest
balance sheet included or incorporated by reference
in the Prospectus) or any increase in the
consolidated long-term debt of the Company and its
subsidiaries, or as of the end of the latest period
for which financial statements are available, any
decreases in consolidated net assets, in each case as
compared with amounts shown in the latest balance
sheet included or incorporated by reference in the
Prospectus, except in each case for changes,
increases or decreases which the Prospectus as
amended and supplemented discloses have occurred or
may occur or which are described in such letter; and
(6) for the period from the date of the
latest financial statements included or incorporated
by reference in the Prospectus there were any
decreases in consolidated net revenues or the total
or per share amounts of income before extraordinary
items or net income, in each case as compared with
the comparable period of the preceding year, except
in each case for increases or decreases which the
Prospectus as amended and supplemented discloses have
occurred or may occur or which are described in such
letter; and
(vi) In addition to the audit referred to in their
report(s) included or incorporated by reference in the
Prospectus and the limited
15
procedures, inspection of minute books, inquiries and other
procedures referred to in paragraphs (iii) and (v) above, they
have carried out certain specified procedures, not
constituting an audit in accordance with generally accepted
auditing standards, with respect to certain amounts,
percentages and financial information specified by the Agents
which are derived from the general accounting records of the
Company and its subsidiaries, which appear in the Prospectus
(excluding documents incorporated by reference), or in Part II
of, or in exhibits and schedules to, the Registration
Statement specified by the Agents or in documents incorporated
by reference in the Prospectus specified by the Agents, and
have compared certain of such amounts, percentages and
financial information with the accounting records of the
Company and its subsidiaries and have found them to be in
agreement.
All references in this paragraph (f) to the
Prospectus shall be deemed to refer to the Prospectus
(including the documents incorporated by reference therein) as
of the date referred to in paragraph 4(j) hereof and to the
Prospectus as amended or supplemented (including the documents
incorporated by reference therein) as of the date of the
amendment, supplement, incorporation or the Settlement Date
relating to the Terms Agreement requiring the delivery of such
letter under Section 4(j) hereof.
(g) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, there shall
not have been (i) any change or decrease specified in the letter
referred to in paragraph (f) of this Section 5 or (ii) any change, or
any development involving a prospective change, in or affecting the
business or properties of the Company and its subsidiaries the effect
of which, in any case referred to in clause (i) or (ii) above, is, in
your judgment, so material and adverse as to make it impractical or
inadvisable to proceed with the purchase or soliciting of offers to
purchase the Notes as contemplated by the Registration Statement and
the Prospectus.
(h) Prior to the date hereof, the Company shall have furnished
you such further information, certificates and documents as you may
reasonably request.
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 you and your counsel, this Agreement and all of your
obligations hereunder may be canceled at any time by you. Notice of such
cancellation shall be given to the Company in writing or by telephone or
telecopy confirmed in writing.
The documents required to be delivered by this Section 5 shall be
delivered at the office of O'Melveny & ▇▇▇▇▇ LLP at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, on the date hereof.
6. Reimbursement of Expenses. If any condition to your obligations set
forth
16
in Section 5 hereof is not satisfied, if any termination pursuant to Section 8
hereof shall occur or in the case 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 you, the Company will reimburse you
upon demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that you shall have incurred in connection with this
Agreement.
7. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each of
you and each person, if any, who controls each of you within the
meaning of Section 15 of the Act as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever arising out of any untrue
statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment
thereto), or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of material
fact contained in the Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading, unless such untrue
statement or such alleged untrue statement or omission was
made in reliance upon and in conformity with written
information furnished to the Company by you expressly for use
in the Registration Statement (or any amendment thereto) or
the Prospectus (or any amendment or supplement thereto);
(ii) against any and all loss, liability, claim,
damage and expense whatsoever to the extent of the aggregate
amount paid in settlement of any litigation, or investigation
or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue
statement or omission (except as made in reliance upon and in
conformity with information furnished by you as aforesaid) if
such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever as
incurred (including the fees and disbursements of counsel
chosen by you) reasonably incurred in investigating, preparing
or defending against any litigation, or investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission (except as made in reliance upon and in conformity
with information furnished by you as aforesaid), to the extent
that any such expense is not paid under (i) or (ii) above.
17
(b) Each Agent severally agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the Act against any and all
loss, liability, claim, damage and expense described in the indemnity
contained in subsection (a) of this Section, but only with respect to
untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to
the Company by such Agent expressly for use in the Registration
Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto).
(c) 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 any indemnified party, the
indemnifying party may participate at its own expense in the defense of
such action. 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 subsection (a) or (b) hereof, as applicable, from
and against any loss or liability by reason of such settlement or
judgment. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending
or threatened proceeding in respect of which any indemnified party is
or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on
claims that are the subject matter of such proceeding.
(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 Agent whose claim is subject to contribution, 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 such Agent, 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 Agents, on the other, with respect to such offering
shall be deemed to
18
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 Agent 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 Agent, 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 Agents 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 Agents 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 Agent shall be required to
contribute any amount in excess of the amount by which the total price
at which the Notes sold through such Agent and distributed to the
public were offered to the public exceeds the amount of any damages
which such Agent 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 Agents' obligations under this Section 7(d) to
contribute are several in proportion to the respective principal
amounts of Notes purchased by each such Agent in such offering and not
joint.
8. Termination. This Agreement may be terminated for any reason, at any
time by any party hereto, with respect to such party, upon the giving of 30 days
written notice of such termination to the other parties hereto. You may also
terminate any Terms Agreement, immediately upon notice to the Company, at any
time prior to the Settlement Date if 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 your reasonable judgment, makes it impracticable to market
the Notes or enforce contracts for the sale of Notes, (ii) a suspension or
material limitation in trading in securities generally on the New York Stock
Exchange if the effect of any such event, in your reasonable judgment, is to
make it impracticable or inadvisable to proceed with the solicitation of offers
to purchase the Notes or the purchase of the Notes from the Company, as
principal on the terms and in the manner contemplated by the Prospectus, as
amended or supplemented; (iii) a general moratorium on commercial banking
activities in New York declared by either Federal or New York State authorities;
(iv) the outbreak or escalation of hostilities involving the United States or
the declaration by the United States 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 the date of such Terms
Agreement, if the effect of any such event in your
19
reasonable judgment is to make it impracticable or inadvisable to proceed with
the solicitation of offers to purchase the Notes or the purchase of the Notes
from the Company as principal on the terms and in the manner contemplated by the
Prospectus, as amended or supplemented; (v) the suspension in trading in the
securities of the Company on any national securities exchange or quotation
system on which they are listed or quoted if the effect of such event in your
reasonable judgment is to make it impracticable or inadvisable to proceed with
the solicitation of offers to purchase the Notes or the purchase of the Notes
from the Company as principal on the terms and in the manner contemplated by the
Prospectus, as amended or supplemented; or (vi) any downgrading in the rating
accorded the Company's senior debt securities by any "nationally recognized
statistical rating organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Act. In the event of any such termination,
neither party will have any liability to the other party hereto, except that (i)
the Agents shall be entitled to any commissions earned in accordance with
Section 2(a) hereof, (ii) if at the time of termination (A) the Agent shall own
any of the Notes acquired pursuant to a Terms Agreement with the intention of
reselling them or (B) an offer to purchase any of the Notes has been accepted by
the Company but the time of delivery to the purchaser or his agent of the Note
or Notes relating thereto has not occurred, the covenants set forth in Sections
3, 4 and 6 hereof shall remain in effect until such Notes are so resold or
delivered, as the case may be, and (iii) the covenants set forth in Sections
4(c) and 4(f) hereof, the indemnity agreement set forth in Section 7 hereof, and
the provisions of Sections 9 and 12 hereof shall remain in effect.
The Company also agrees to offer to any person who has agreed to
purchase Notes as a result of an offer to purchase solicited by any Agent the
right to refuse to purchase and pay for such Notes if, on the related Settlement
Date fixed pursuant to the Procedures, any of the following events has 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, which materially impairs the investment quality of
the Notes; (ii) any downgrading in the rating accorded the Company's senior debt
securities by any "nationally recognized statistical rating organization", as
that term is defined by the Commission for purposes of Rule 436(g)(2) under the
Act; (iii) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange; (iv) the suspension in trading in the
securities of the Company on any national securities exchange or quotation
system on which they are listed or quoted; (v) a banking moratorium shall have
been declared either by federal or New York state authorities; or (vi) any
outbreak or escalation of hostilities or other national or international
calamity or crises, if the effect of any such event specified in clauses (iii),
(iv) (v) or (vi) make it impracticable to proceed with the sale or delivery of
the Notes on the terms and in the manner contemplated in the Prospectus.
9. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company, its officers and you set forth in or made pursuant to this Agreement or
any Terms Agreement will remain in full force and effect, regardless of any
investigation made by you or on your behalf 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 Notes. The provisions of Sections 6
and 7 hereof shall
20
survive the termination or cancellation of this Agreement.
10. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to you, will be mailed, delivered or
telecopied and confirmed to you, at the addresses specified in Schedule I
hereto; or, if sent to the Company, will be mailed, delivered or telecopied and
confirmed to International Lease Finance Corporation, 1999 Avenue of the Stars,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: President.
11. 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.
12. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
21
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 you
and the Company.
Very truly yours,
INTERNATIONAL LEASE FINANCE CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Vice Chairman and
Chief Financial Officer
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above written:
BANC OF AMERICA SECURITIES LLC ▇▇▇▇▇▇ BROTHERS INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------- ------------------------
Name: ▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Principal Title: Sr. Vice President
DEUTSCHE BANK SECURITIES INC. ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ &
▇▇▇▇▇ INCORPORATED
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------- -----------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director Title: Authorized Signatory
By: /s/ Marc Fratepietro
-----------------------------
Name: Marc Fratepietro ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
Title: Vice President
▇.▇. ▇▇▇▇▇▇ SECURITIES INC. By: /s/ Christian ▇▇▇▇▇ ▇▇▇▇
-----------------------------
Name: Christian ▇▇▇▇▇ ▇▇▇▇
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇. Title: Executive Director
----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President ▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Managing Director
22
SCHEDULE I
Registration Statement No. 333-100340
Amount of the Notes: $1,000,000,000
Amount of the Securities: $5,000,000,000
The Company agrees to pay Banc of America Securities LLC, Deutsche Bank
Securities Inc., ▇.▇. ▇▇▇▇▇▇ Securities Inc., ▇▇▇▇▇▇ Brothers Inc., ▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. (individually, an "Agent") a commission equal to
the following percentage of the principal amount of each Note sold by such
Agent:
Term Commission Rate
---- ---------------
From 9 months to less than one year .125%
From one year to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
From 7 years to less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .700%
From 20 years to 30 years .750%
23
Address for Notice to Agents:
Banc of America Securities LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Medium Term Note Dept.
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇ ▇▇▇▇▇
Banc of America Securities LLC
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
Deutsche Bank Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Medium-Term Note Desk
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Transaction Execution Group
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Fixed Income Syndicate/Medium Term Note Desk
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated
4 World Financial ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: MTN Product Management
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
24
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Manager - Continuously Offered Products
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Investment Banking
Information Center
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Medium-Term Note Department
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
Securities to be delivered by book-entry transfer.
25
SCHEDULE II
INTERNATIONAL LEASE FINANCE CORPORATION
(a California corporation)
Medium-Term Notes, Series O
TERMS AGREEMENT
________________, 20__
International Lease Finance Corporation
1999 Avenue of the Stars, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Re: Distribution Agreement dated December 31, 2002
The undersigned agrees to purchase the following principal amount of
Notes:
Interest Rate:
Date of Maturity:
Redemption Date:
Purchase Price: ___%
Settlement Date and Time:
Exceptions, if any, to Section 4(k) of the Distribution Agreement:
[The certificate referred to in Section 4(h) of the Distribution
Agreement, the opinions referred to in Section 4(i) of the Distribution
Agreement and the accountants' letter referred to in Section 4(j) of the
Distribution Agreement will be required.]
By:
----------------------
Name:
Title:
Accepted:
International Lease Finance
Corporation
By:
----------------------------
Name:
Title:
26
Exhibit A
MEDIUM-TERM NOTE ADMINISTRATIVE
PROCEDURES FOR FIXED RATE AND FLOATING RATE NOTES
(DATED AS OF DECEMBER 31, 2002)
Medium-Term Notes, Series O (the "Notes"), in the aggregate principal
amount of up to U.S. $1,000,000,000 are to be offered on a continuing basis by
International Lease Finance Corporation (the "Company") through Banc of America
Securities LLC, Deutsche Bank Securities Inc., ▇.▇. ▇▇▇▇▇▇ Securities Inc.,
▇▇▇▇▇▇ Brothers Inc., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., who, as agents (each
an "Agent," and, collectively, the "Agents"), have agreed to use their best
efforts to solicit offers to purchase the Notes from the Company. The Agents may
also purchase Notes as principal for resale.
The Notes are being sold pursuant to a Distribution Agreement, dated
December 31, 2002 (the "Distribution Agreement"), by and between the Company and
the Agents. The Notes will be issued pursuant to an Indenture (the "Indenture"),
dated as of November 1, 2000, between the Company and The Bank of New York, as
trustee (the "Trustee"), as amended. A Registration Statement (the "Registration
Statement", which term shall include any additional registration statements
filed in connection with the Notes as provided in the introductory paragraph of
the Distribution Agreement) with respect to the Notes has been filed with the
Securities and Exchange Commission (the "Commission"). The most recent basic
Prospectus included in the Registration Statement, as supplemented with respect
to the Notes, is herein referred to as the "Prospectus Supplement." The most
recent supplement to the Prospectus with respect to the specific terms of the
Notes is herein referred to as the "Pricing Supplement."
The Notes will either be issued (a) in book-entry form and represented
by one or more fully registered Notes (each, a "Book-Entry Note") delivered to
the Trustee, as agent for The Depository Trust Company ("DTC"), and recorded in
the book-entry system maintained by DTC, or (b) in certificated form delivered
to the purchaser thereof or a person designated by such purchaser. Owners of
beneficial interests in Notes issued in book-entry form will be entitled to
physical delivery of Notes in certificated form equal in principal amount to
their respective beneficial interests only upon certain limited circumstances
described in the Prospectus.
General procedures relating to the issuance of all Notes are set forth
in Part I hereof. Additionally, Notes issued in book-entry form will be issued
in accordance with the procedures set forth in Part II hereof and Notes issued
in certificated form will be issued in accordance with the procedures set forth
in Part III hereof. Capitalized terms used herein that are not otherwise defined
shall have the meanings ascribed thereto in the Indenture or the Notes, as the
case may be.
PART I: PROCEDURES OF GENERAL
APPLICABILITY
Date of Issuance/
Authentication: Each Note will be dated as of the date of
its authentication by the Trustee. Each Note
shall also bear an original issue date (the
"Original Issue Date"). The Original Issue
Date shall remain the same for all Notes
subsequently issued upon transfer, exchange
or substitution of an original Note
regardless of their dates of authentication.
Maturities: Each Note will mature on a date selected by
the purchaser and agreed to by the Company
which is not less than nine months from its
Original Issue Date; provided, however, that
Notes bearing interest at rates determined
by reference to selected indices ("Floating
Rate Notes") will mature on an Interest
Payment Date.
Registration: Notes will be issued only in fully
registered form.
Calculation of Interest: In the case of Notes bearing interest at
fixed rates ("Fixed Rate Notes") interest
(including payments for partial periods)
will be calculated and paid on the basis of
a 360-day year of twelve 30-day months. In
the case of Floating Rate Notes, interest
will be calculated and paid on the basis of
the actual number of days in the interest
period divided by 360 for CD Rate,
Commercial Paper Rate, Eleventh District
Cost of Funds Rate, Federal Funds Rate,
Prime Rate or LIBOR Notes and on the basis
of the actual number of days in the interest
period divided by the actual number of days
in the year for CMT Rate or Treasury Rate
Notes.
Acceptance and
Rejection Of Offers: The Company shall have the sole
right to accept offers to purchase Notes
from the Company and may reject any such
offer in whole or in part. Each Agent shall
communicate to the Company, orally or in
writing, each reasonable offer to purchase
Notes from the Company received by it. Each
Agent shall have the right, in its
discretion reasonably exercised, without
notice to the Company, to reject any offer
to purchase Notes through it in whole or in
part.
Preparation of Pricing If any offer to purchase a Note is accepted
Supplement: by the Company, the Company, with the
assistance of the Agent which presented such
offer (the "Presenting Agent"), will prepare
a Pricing Supplement reflecting the terms of
such Note and file such Pricing Supplement
relating to the Notes
2
and the plan of distribution thereof, if
changed (the "Supplemented Prospectus"),
with the Commission in accordance with Rule
424 under the Securities Act of 1933, as
amended (the "Act"). The Presenting Agent
will cause a stickered Supplemented
Prospectus to be delivered to the purchaser
of the Note.
In addition, the Company shall deliver each
completed Pricing Supplement, via next day
mail or telecopy to arrive no later than
11:00 A.M. on the Business Day following the
trade date, to the Presenting Agent at the
following locations:
If to Banc of America Securities LLC:
Banc of America Securities LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: Debt Financing Group
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇ ▇▇▇▇▇
Banc of America Securities LLC
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
If to Deutsche Bank Securities Inc.:
Deutsche Bank Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Medium-Term Note Desk
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
3
If to ▇.▇. ▇▇▇▇▇▇ Securities Inc.:
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Medium-Term Note Desk
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to ▇▇▇▇▇▇ Brothers Inc.:
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Fixed Income Syndicate
/Medium Term Note Desk
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
also for record keeping purposes,
please send a copy to:
ADP Prospectus Services
For ▇▇▇▇▇▇ Brothers Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Client Services Desk
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated:
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated
Tritech Services
▇▇-▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Final Prospectus Unit/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇/2775/2776
also, for record keeping purposes,
please send a copy to:
4
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated
▇▇▇▇▇▇▇ ▇▇▇▇▇ World Headquarters
4 World Financial ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: MTN Product Management
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Medium-Term Notes
Trading Desk/
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
In each instance that a Pricing Supplement
is prepared, the Agents will affix the
Pricing Supplement to Supplemented
Prospectuses prior to their use. Outdated
Pricing Supplements, and the Supplemented
Prospectuses to which they are attached
(other than those retained for files) will
be destroyed.
Settlement: The receipt of immediately available funds
by the Company in payment for a Note and the
authentication and delivery of such Note
shall, with respect to such Note, constitute
"settlement." Offers accepted by the Company
will be settled from three to five Business
Days after the Company's acceptance of the
offer, or at a time as the purchaser and the
Company shall agree, pursuant to the
timetable for settlement set forth in Parts
II and III hereof under "Settlement
Procedures" with respect to Book-Entry Notes
and Certificated Notes, respectively. If
procedures A and B of the applicable
Settlement Procedures with respect to a
particular offer are not completed on or
before the time
5
set forth under the applicable "Settlement
Procedures Timetable," such offer shall not
be settled until the Business Day following
the completion of settlement procedures A
and B or such later date as the purchaser
and the Company shall agree.
In the event of a purchase of Notes by
any Agent as principal, appropriate
settlement details will be as agreed
between the Agent and the Company
pursuant to the applicable Terms
Agreement.
Procedure for Changing Rates or
Other Variable Terms: When a decision has been reached to change
the interest rate or any other variable term
on any Notes being sold by the Company, the
Company will promptly advise the Agents and
the Agents will forthwith suspend
solicitation of offers to purchase such
Notes. The Agents will telephone the Company
with recommendations as to the changed
interest rates or other variable terms. At
such time as the Company advises the Agents
of the new interest rates or other variable
terms, the Agents may resume solicitation of
offers to purchase such Notes. Until such
time only "indications of interest" may be
recorded. Immediately after acceptance by
the Company of an offer to purchase at a new
interest rate or new variable term, the
Company, the Presenting Agent and the
Trustee shall follow the procedures set
forth under the applicable "Settlement
Procedures."
Suspension of Solicitation;
Amendment or Supplement: The Company may instruct the Agents to
suspend solicitation of purchases at any
time. Upon receipt of such instructions the
Agents will forthwith suspend solicitation
of offers to purchase from the Company until
such time as the Company has advised them
that solicitation of offers to purchase may
be resumed. If the Company decides to amend
the Registration Statement (including
incorporating any documents by reference
therein) or supplement any of such documents
(other than to change rates or other
variable terms), it will promptly advise the
Agents and will furnish the Agents and their
counsel with copies of the proposed
amendment (including any document proposed
to be incorporated by reference therein) or
supplement. One copy of such filed document,
along with a copy of the cover letter sent
to the Commission, will be delivered or
mailed to the Agents at the following
respective addresses:
6
Banc of America Securities LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: Medium-Term Note
Department
Deutsche Bank Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Medium-Term Note Desk
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Transaction Execution
Group
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Fixed Income
Syndicate/Medium Term
Note Desk
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated
4 World Financial ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: MTN Product Management
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Manager - Continuously
Offered Products
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Medium-Term Note
Department
In the event that at the time the
solicitation of offers to purchase from the
Company is suspended (other than to change
interest rates or other variable terms)
there shall be any orders outstanding which
have not been settled, the Company will
promptly advise the Agents and the Trustee
whether such orders may be settled and
whether copies of the Prospectus as
theretofore amended and/or supplemented as
in effect at the time of the suspension may
be delivered in connection with the
settlement of such orders. The
7
Company will have the sole responsibility
for such decision and for any arrangements
which may be made in the event that the
Company determines that such orders may not
be settled or that copies of such Prospectus
may not be so delivered.
Delivery of Prospectus: A copy of the most recent Prospectus,
Prospectus Supplement and Pricing Supplement
must accompany or precede the earlier of (a)
the written confirmation of a sale sent to a
customer or his agent or (b) the delivery of
Notes to a customer or his agent.
Authenticity of Signatures: The Agents will have no obligations or
liability to the Company or the Trustee in
respect of the authenticity of the signature
of any officer, employee or agent of the
Company or the Trustee on any Note.
Documents Incorporated by
Reference: The Company shall supply the Agents with an
adequate supply of all documents
incorporated by reference in the
Registration Statement.
Business Day: "Business Day" means any day that is not a
Saturday or Sunday, and that, in The City of
New York (and with respect to LIBOR Notes,
the City of London), is neither a legal
holiday nor a day on which banking
institutions are authorized or required by
law to close. For Notes the payment of which
is to be made in a currency other than U.S.
dollars or composite currencies (such
currency or composite currency in which a
Note is denominated is the "Specified
Currency"), a Business Day will not be a day
on which banking institutions are authorized
or required by law, regulation or executive
order to close in the Principal Financial
Center (as defined below) of the country
issuing such Specified Currency (or, in the
case of EUROs), is not a day that the TARGET
System (as defined below) is not open.
However, with respect to Notes for which
LIBOR is an applicable Interest Rate Basis,
the day must be also be a London Business
Day (as defined below). "London Business
Day" means (i) if the currency (including
composite currencies) specified in the
applicable Pricing Supplement as the
currency (the "Index Currency") for which
LIBOR is calculated is other than any day on
which dealings in the Index Currency are
transacted in the London interbank market or
(ii) if the Index Currency is the EURO, is
not a day on which payments in EURO cannot
be settled in the TARGET System. If no
currency or composite currency is specified
in the applicable Pricing Supplement,
8
the Index Currency shall be U.S. dollars.
"Principal Financial Center" means the
capital city of the country issuing the
currency or composite currency in which any
payment in respect of the Notes is to be
made or, solely with respect to the
calculation of LIBOR, the Index Currency.
"TARGET System" means the Trans-European
Automated Real-time Gross Settlement Express
Transfer System.
9
PART II: PROCEDURES FOR NOTES ISSUED IN
BOOK-ENTRY FORM
In connection with the qualification of Notes issued in
book-entry form for eligibility in the book-entry system maintained by DTC, the
Trustee will perform the custodial, document control and administrative
functions described below, in accordance with its respective obligations under a
Letter of Representation from the Company and the Trustee to DTC (the
"Certificate Agreement"), and its obligations as a participant in DTC, including
DTC's Same-Day Funds Settlement System ("SDFS").
Issuance: All Fixed Rate Notes issued in book-entry
form having the same Original Issue Date,
interest rate and Stated Maturity
(collectively, the "Fixed Rate Terms") will
be represented initially by a single global
security in fully registered form without
coupons (each, a "Book-Entry Note"); and all
Floating Rate Notes issued in book-entry
form having the same Original Issue Date,
base rate upon which interest may be
determined (each, a "Base Rate"), which may
be the Commercial Paper Rate, the Treasury
Rate, LIBOR, the CD Rate, the CMT Rate, the
Eleventh District Cost of Funds Rate, the
Federal Funds Rate, the Prime Rate, any
other rate set forth by the Company, Initial
Interest Rate, Index Maturity, Spread or
Spread Multiplier, if any, the minimum
interest rate, if any, the maximum interest
rate, if any, and the Stated Maturity
(collectively, "Floating Rate Terms") will
be represented initially by a single
Book-Entry Note.
Each Book-Entry Note will be dated and
issued as of the date of its authentication
by the Trustee. Each Book-Entry Note will
bear an Interest Accrual Date, which will be
(a) with respect to an original Book-Entry
Note (or any portion thereof), its Original
Issue Date and (b) with respect to any
Book-Entry Note (or portion thereof) issued
subsequently upon exchange of a Book-Entry
Note or in lieu of a destroyed, lost or
stolen Book-Entry Note, the most recent
Interest Payment Date to which interest has
been paid or duly provided for on the
predecessor Book-Entry Note or Notes (or if
no such payment or provision has been made,
the Original Issue Date of the predecessor
Book-Entry Note or Notes), regardless of the
date of authentication of such subsequently
issued Book-Entry Note. No Book-Entry Note
shall represent any Note issued in
certificated form.
Identification: The Company has arranged with the CUSIP
Service Bureau of Standard & Poor's
Corporation (the "CUSIP Service
10
Bureau") for the reservation of
approximately 900 CUSIP numbers which have
been reserved for and relating to Book-Entry
Notes and the Company has delivered to the
Trustee and DTC such list of such CUSIP
numbers. The Company will assign CUSIP
numbers to Book-Entry Notes as described
below under Settlement Procedure B. DTC will
notify the CUSIP Service Bureau periodically
of the CUSIP numbers that the Company has
assigned to Book-Entry Notes. The Trustee
will notify the Company at any time when
fewer than 100 of the reserved CUSIP numbers
remain unassigned to Book-Entry Notes, and,
if it deems necessary, the Company will
reserve additional CUSIP numbers for
assignment to Book-Entry Notes. Upon
obtaining such additional CUSIP numbers, the
Company will deliver a list of such
additional numbers to the Trustee and DTC.
Book-Entry Notes having an aggregate
principal amount in excess of $500,000,000
(or the equivalent thereof in one or more
foreign or composite currencies) and
otherwise required to be represented by the
same Global Certificate will instead be
represented by two or more Global
Certificates which shall all be assigned the
same CUSIP number.
Registration: Each Book-Entry Note will be registered in
the name of Cede & Co., as nominee for DTC,
on the register maintained by the Trustee
under the Indenture. The beneficial owner of
a Note issued in book-entry form (i.e., an
owner of a beneficial interest in a
Book-Entry Note) (or one or more indirect
participants in DTC designated by such
owner) will designate one or more
participants in DTC (with respect to such
Note issued in book-entry form, the
"Participants") to act as agent for such
beneficial owner in connection with the
book-entry system maintained by DTC, and DTC
will record in book-entry form, in
accordance with instructions provided by
such Participants, a credit balance with
respect to such Note issued in book-entry
form in the account of such Participants.
The ownership interest of such beneficial
owner in such Note issued in book-entry form
will be recorded through the records of such
Participants or through the separate records
of such Participants and one or more
indirect participants in DTC.
Transfers: Transfers of a Book-Entry Note will be
accomplished by book entries made by DTC
and, in turn, by Participants (and in
certain cases, one or more indirect
participants in DTC) acting on behalf of
beneficial transferors and
11
transferees of such Book-Entry Note.
Exchanges: The Trustee may deliver to DTC and the CUSIP
Service Bureau at any time a written notice
specifying (a) the CUSIP numbers of two or
more Book-Entry Notes Outstanding on such
date that represent Book-Entry Notes having
the same Fixed Rate Terms or Floating Rate
Terms, as the case may be, (other than
Original Issue Dates) and for which interest
has been paid to the same date; (b) a date,
occurring at least 30 days after such
written notice is delivered and at least 30
days before the next Interest Payment Date
for the related Notes issued in book-entry
form, on which such Book-Entry Notes shall
be exchanged for a single replacement
Book-Entry Note; and (c) a new CUSIP number,
obtained from the Company, to be assigned to
such replacement Book-Entry Note. Upon
receipt of such a notice, DTC will send to
its participants (including the Trustee) a
written reorganization notice to the effect
that such exchange will occur on such date.
Prior to the specified exchange date, the
Trustee will deliver to the CUSIP Service
Bureau written notice setting forth such
exchange date and the new CUSIP number and
stating that, as of such exchange date, the
CUSIP numbers of the Book-Entry Notes to be
exchanged will no longer be valid. On the
specified exchange date, the Trustee will
exchange such Book-Entry Notes for a single
Book-Entry Note bearing the new CUSIP number
and the CUSIP numbers of the exchanged
Book-Entry Notes will, in accordance with
CUSIP Service Bureau procedures, be
cancelled and not immediately reassigned.
Notwithstanding the foregoing, if the
Book-Entry Notes to be exchanged exceed
$500,000,000 (or the equivalent thereof in
one or more foreign or composite currencies)
in aggregate principal amount, one
replacement Book-Entry Note will be
authenticated and issued to represent
$500,000,000 of principal amount of the
exchanged Book-Entry Notes and an additional
Book-Entry Note or Notes will be
authenticated and issued to represent any
remaining principal amount of such
Book-Entry Notes (See "Denominations"
below).
Denominations: All Notes issued in book-entry form will be
denominated in U.S. dollars. Notes issued in
book-entry form will be issued in
denominations of $1,000 and any larger
denomination which is an integral multiple
of $1,000. Book-Entry Notes will be
denominated in principal amounts not in
excess of $500,000,000 (or the equivalent
12
thereof in one or more foreign or composite
currencies). If one or more Notes issued in
book-entry form having an aggregate
principal amount in excess of $500,000,000
would, but for the preceding sentence, be
represented by a single Book-Entry Note,
then one Book-Entry Note will be issued to
represent $500,000,000 principal amount of
such Note or Notes issued in book-entry form
and an additional Book-Entry Note or Notes
will be issued to represent any remaining
principal amount of such Note or Notes
issued in book-entry form. In such a case,
each of the Book-Entry Notes representing
such Note or Notes issued in book-entry form
shall be assigned the same CUSIP number.
Interest: General. Interest on each Note issued in
book-entry form will accrue from the
Interest Accrual Date of the Book-Entry Note
representing such Note. Each payment of
interest on a Note issued in book-entry form
will include interest accrued through and
including the day preceding, as the case may
be, the Interest Payment Date (provided that
in the case of Floating Rate Notes which
reset daily or weekly, interest payments
will include interest accrued to and
including the Regular Record Date
immediately preceding the Interest Payment
Date), or the Stated Maturity (the date on
which the principal of a Note becomes due
and payable as provided in the Indenture,
whether at the Stated Maturity or by
declaration of acceleration, redemption,
repayment or otherwise is referred to herein
as the "Maturity"). Interest payable at
Maturity of a Note issued in book-entry form
will be payable to the Person to whom the
principal of such Note is payable. DTC will
arrange for each pending deposit message
described under Settlement Procedure C below
to be transmitted to Standard & Poor's, a
division of the ▇▇▇▇▇▇-▇▇▇▇ Companies
("Standard & Poor's") which will use the
information in the message to include
certain terms of the related Book-Entry Note
in the appropriate daily bond report
published by Standard & Poor's.
Regular Record Dates. Unless otherwise
specified in the applicable Pricing
Supplement, the Regular Record Date with
respect to any Interest Payment Date for a
Fixed Rate Note or a Floating Rate Note
shall be the close of business on the date
15 calendar days (whether or not a Business
Day) preceding such Interest Payment Date.
Interest Payment Dates. Interest payments
will be made on each Interest Payment Date
commencing with the first
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Interest Payment Date following the Original
Issue Date; provided, however, the first
payment of interest on any Book-Entry Note
originally issued between a Regular Record
Date and an Interest Payment Date will occur
on the Interest Payment Date following the
next Regular Record Date.
If an Interest Payment Date with respect to
any Floating Rate Note issued in book-entry
form would otherwise fall on a day that is
not a Business Day with respect to such
Note, such Interest Payment Date will be the
following day that is a Business Day with
respect to such Note, except that in the
case of a LIBOR Note, if such day falls in
the next calendar month, such Interest
Payment Date will be the preceding day that
is a London Business Day.
Fixed Rate Notes. Unless otherwise specified
in the applicable Pricing Supplement,
interest payments on Fixed Rate Notes issued
in book-entry form will be made
semi-annually on April 15 and October 15 of
each year and at Maturity.
Floating Rate Notes. Interest payments on
Floating Rate Notes issued in book-entry
form will be made as specified in the
Floating Rate Note.
Notice of Interest Payments and Regular
Record Dates. On the first Business Day of
March, June, September and December of each
year, the Trustee will deliver to the
Company and DTC a written list of Regular
Record Dates and Interest Payment Dates that
will occur during the six-month period
beginning on such first Business Day with
respect to Floating Rate Notes issued in
book-entry form. Promptly after each
Interest Determination Date for Floating
Rate Notes issued in book-entry form, the
Trustee will notify Standard & Poor's of the
interest rates determined on such Interest
Determination Date.
Payments of Principal and Interest: Payments of Interest Only. Promptly after
each Regular Record Date, the Trustee will
deliver to the Company and DTC a written
notice specifying by CUSIP number the amount
of interest to be paid on each Book-Entry
Note on the following Interest Payment Date
(other than an Interest Payment Date
coinciding with Maturity) and the total of
such amounts. DTC will confirm the amount
payable on each Book-Entry Note on such
Interest Payment Date by
14
referring to the daily bond reports
published by Standard & Poor's. On such
Interest Payment Date, the Company will pay
to the Trustee, and the Trustee in turn will
pay to DTC, such total amount of interest
due (other than at Maturity), at the times
and in the manner set forth below under
"Manner of Payment".
Payments at Maturity. On or about the first
Business Day of each month, the Trustee will
deliver to the Company and DTC a written
list of principal, interest and premium, if
any, to be paid on each Book-Entry Note
maturing either at Stated Maturity or on a
Redemption Date in the following month. The
Trustee, the Company and DTC will confirm
the amounts of such principal and interest
payments with respect to a Book-Entry Note
on or about the fifth Business Day preceding
the Maturity of such Book-Entry Note. At
such Maturity the Company will pay to the
Trustee, and the Trustee in turn will pay to
DTC, the principal amount of such Note,
together with interest and premium, if any,
due at such Maturity, at the times and in
the manner set forth below under "Manner of
Payment". If any Maturity of a Book-Entry
Note is not a Business Day, the payment due
on such day shall be made on the next
succeeding Business Day and no interest
shall accrue on such payment for the period
from and after such Maturity. Promptly after
payment to DTC of the principal, interest
and premium, if any, due at the Maturity of
such Book-Entry Note, the Trustee will
cancel such Book-Entry Note and deliver it
to the Company with an appropriate debit
advice. On the first Business Day of each
month, the Trustee will deliver to the
Company a written statement indicating the
total principal amount of Outstanding
Book-Entry Notes as of the immediately
preceding Business Day.
Manner of Payment. The total amount of any
principal, premium, if any, and interest due
on Book-Entry Notes on any Interest Payment
Date or at Maturity shall be paid by the
Company to the Trustee in funds available
for use by the Trustee as of 9:30 a.m., New
York City time, on such date. The Company
will make such payment on such Book-Entry
Notes by instructing the Trustee to withdraw
funds from an account maintained by the
Company at the Trustee. The Company will
confirm such instructions in writing to the
Trustee. Prior to 10:00 a.m., New York City
time, on such date or as soon as possible
thereafter, the Trustee will pay by separate
wire transfer (using Fedwire message entry
instructions in a form previously specified
15
by DTC) to an account at the Federal Reserve
Bank of New York previously specified by
DTC, in funds available for immediate use by
DTC, each payment of interest, principal and
premium, if any, due on a Book-Entry Note on
such date. Thereafter on such date, DTC will
pay, in accordance with its SDFS operating
procedures then in effect, such amounts in
funds available for immediate use to the
respective Participants in whose names such
Notes are recorded in the book-entry system
maintained by DTC. Neither the Company nor
the Trustee shall have any responsibility or
liability for the payment by DTC of the
principal of, or interest on, the Book-Entry
Notes to such Participants.
Withholding Taxes. The amount of any taxes
required under applicable law to be withheld
from any interest payment on a Note will be
determined and withheld by the Participant,
indirect participant in DTC or other Person
responsible for forwarding payments and
materials directly to the beneficial owner
of such Note.
Settlement Procedures: Settlement Procedures with regard to each
Note in book-entry form sold by each Agent,
as agent of the Company, will be as follows:
A. The Presenting Agent will advise
the Company by telephone of the
following Settlement Information:
1. Taxpayer identification number
of the purchaser.
2. Principal amount of the Note.
3. Fixed Rate Notes:
a) interest rate; and
b) redemption or optional
repayment dates, if any
Floating Rate Notes:
a) designation (which may be
"Regular Floating Rate
Note," Floating Rate/
Fixed Rate Note" or
"Inverse Floating Rate
Note;"
b) interest rate basis or
bases;
c) initial interest rate;
d) spread or spread
multiplier, if any;
16
e) interest rate reset
dates;
f) interest rate reset
period;
g) interest payment dates;
h) interest rate payment
period;
i) index maturity;
j) calculation agent;
k) interest payment dates
if any;
l) minimum interest rate,
if any;
m) calculation date;
n) interest determination
dates;
o) redemption or optional
repayment dates, if any;
and
p) fixed rate (for Floating
Rate/Fixed Rate Notes and
Inverse Floating Rate
Notes) and fixed rate
commencement date (for
Floating Rate/Fixed Rate
Notes).
4. Price to public of the Note.
5. Trade date.
6. Settlement Date
(Original Issue Date).
7. Stated Maturity.
8. Overdue rate (if any).
9. Extension periods, if any,
and final maturity date.
10. Optional reset dates, if any.
11. Net proceeds to the Company.
12. Agent's commission.
B. The Company will assign a CUSIP
number to the Book-Entry Note
representing such Note and then
advise the Trustee by electronic
transmission of the above
settlement information received
from the Presenting Agent, such
CUSIP number and the name of the
Agent.
C. The Trustee will communicate to DTC
and the Agent through DTC's
Participant Terminal System, a
pending deposit message specifying
the following settlement
information:
17
1. The information set forth in
Settlement Procedure A.
2. Identification numbers of the
participant accounts
maintained by DTC on behalf of
the Trustee and the Agent.
3. Identification as a Fixed Rate
Book-Entry Note or Floating
Rate Book-Entry Note.
4. Initial Interest Payment Date
for such Note, number of days
by which such date succeeds
the related record date for
DTC purposes (or, in the case
of Floating Rate Notes which
reset daily or weekly, the
date five calendar days
preceding the Interest Payment
Date) and, if then calculable,
the amount of interest payable
on such Interest Payment Date
(which amount shall have been
confirmed by the Trustee).
5. CUSIP number of the Book-Entry
Note representing such Note.
6. Whether such Book-Entry Note
represents any other Notes
issued or to be issued in
book-entry form.
7. The Trustee will advise the
Presenting Agent by telephone
of the CUSIP number as soon as
possible.
D. The Company will complete and
deliver to the Trustee a Book-
Entry Note representing such
Note in a form that has been
approved by the Company, the
Agents and the Trustee.
E. The Trustee will authenticate the
Book-Entry Note representing such
Note.
F. DTC will credit such Note to the
participant account of the Trustee
maintained by DTC.
G. The Trustee will enter an
SDFS deliver order through
DTC's Participant Terminal
System instructing DTC (i)
to debit such Note to the
Trustee's participant
account and credit such
Note
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to the participant account of
the Presenting Agent
maintained by DTC and (ii) to
debit the settlement account
of the Presenting Agent and
credit the settlement account
of the Trustee maintained by
DTC, in an amount equal to the
price of such Note less such
Agent's commission. Any entry
of such a deliver order shall
be deemed to constitute a
representation and warranty by
the Trustee to DTC that (i)
the Book-Entry Note
representing such Note has
been issued and authenticated
and (ii) the Trustee is
holding such Book-Entry Note
pursuant to the Medium Term
Note Certificate Agreement
between the Trustee and DTC.
H. The Presenting Agent will
enter an SDFS deliver
order through DTC's
Participant Terminal
System instructing DTC (i)
to debit such Note to the
Presenting Agent's
participant account and
credit such Note to the
participant account of the
Participants maintained by
DTC and (ii) to debit the
settlement accounts of
such Participants and
credit the settlement
account of the Presenting
Agent maintained by DTC,
in an amount equal to the
initial public offering
price of such Note.
I. Transfers of funds in
accordance with SDFS
deliver orders described
in Settlement Procedures G
and H will be settled in
accordance with SDFS
operating procedures in
effect on the Settlement
Date.
J. The Trustee will credit to
an account of the Company
maintained at the Trustee
funds available for
immediate use in the
amount transferred to the
Trustee in accordance with
Settlement Procedure G.
K. The Trustee will send a
copy of the Book-Entry
Note by first class mail
to the Company together
with a statement setting
forth the principal amount
of Notes Outstanding as of
the related Settlement
Date after giving effect
to such transaction and
all other offers to
purchase Notes of which
the Company has advised
the Trustee but which have
not yet been settled.
L. The Agent will confirm the
purchase of such Note to
the purchaser either by
transmitting to the
Participant with respect
to such Note a
confirmation
19
order through DTC's
Participant Terminal
System or by mailing a
written confirmation to
such purchaser.
Settlement Procedures Timetable: For orders of Notes accepted by the Company,
Settlement Procedures "A" through "L" set
forth above shall be completed as soon as
possible but not later than the respective
times (New York City time) set forth below:
Settlement
Procedure Time
--------- ----
A-B 11:00 a.m. on the trade date
C 2:00 p.m. on the trade date
D 3:00 p.m. on the Business Day before
Settlement Date
E 9:00 a.m. on Settlement Date
F 10:00 a.m. on Settlement Date
G-H No later than 2:00 p.m. on Settlement Date
I 4:45 p.m. on Settlement Date
▇-▇ 5:00 p.m. on Settlement Date
If a sale is to be settled more than one
Business Day after the sale date, Settlement
Procedures A, B and C may, if necessary, be
completed at any time prior to the specified
times on the first Business Day after such
sale date. In connection with a sale which
is to be settled more than one Business Day
after the trade date, if the initial
interest rate for a Floating Rate Note is
not known at the time that Settlement
Procedure A is completed, Settlement
Procedures B and C shall be completed as
soon as such rates have been determined, but
no later than 11:00 a.m. and 2:00 p.m., New
York City time, respectively, on the second
Business Day before the Settlement Date.
Settlement Procedure I is subject to
extension in accordance with any extension
of Fedwire closing deadlines and in the
other events specified in the SDFS operating
procedures in effect on the Settlement Date.
If settlement of a Note issued in book-entry
form is rescheduled or cancelled, the
Trustee will deliver to DTC, through DTC's
Participant Terminal system, a cancellation
message to such effect by no later than 2:00
p.m., New York City time, on the Business
Day immediately preceding the scheduled
Settlement Date.
20
Failure to Settle: If the Trustee fails to enter an SDFS
deliver order with respect to a Book-Entry
Note issued in book-entry form pursuant to
Settlement Procedure G, the Trustee may
deliver to DTC, through DTC's Participant
Terminal System, as soon as practicable a
withdrawal message instructing DTC to debit
such Note to the participant account of the
Trustee maintained at DTC. DTC will process
the withdrawal message, provided that such
participant account contains a principal
amount of the Book-Entry Note representing
such Note that is at least equal to the
principal amount to be debited. If
withdrawal messages are processed with
respect to all the Notes represented by a
Book-Entry Note, the Trustee will ▇▇▇▇ such
Book-Entry Note "cancelled," make
appropriate entries in its records and send
such cancelled Book-Entry Note to the
Company. The CUSIP number assigned to such
Book-Entry Note shall, in accordance with
CUSIP Service Bureau procedures, be
cancelled and not immediately reassigned. If
withdrawal messages are processed with
respect to a portion of the Notes
represented by a Book-Entry Note, the
Trustee will exchange such Book-Entry Note
for two Book-Entry Notes, one of which shall
represent the Book-Entry Notes for which
withdrawal messages are processed and shall
be cancelled immediately after issuance, and
the other of which shall represent the other
Notes previously represented by the
surrendered Book-Entry Note and shall bear
the CUSIP number of the surrendered
Book-Entry Note.
If the purchase price for any Book-Entry
Note is not timely paid to the Participants
with respect to such Note by the beneficial
purchaser thereof (or a person, including an
indirect participant in DTC, acting on
behalf of such purchaser), such Participants
and, in turn, the related Agent may enter
SDFS deliver orders through DTC's
Participant Terminal System reversing the
orders entered pursuant to Settlement
Procedures G and H, respectively.
Thereafter, the Trustee will deliver the
withdrawal message and take the related
actions described in the preceding
paragraph. If such failure shall have
occurred for any reason other than default
by the applicable Agent to perform its
obligations hereunder or under the
Distribution Agreement, the Company will
reimburse such Agent on an equitable basis
for its loss of the use of funds during the
period when the funds were credited to the
account of the Company.
21
Notwithstanding the foregoing, upon any
failure to settle with respect to a
Book-Entry Note, DTC may take any actions in
accordance with its SDFS operating
procedures then in effect. In the event of a
failure to settle with respect to a Note
that was to have been represented by a
Book-Entry Security also representing other
Notes, the Trustee will provide, in
accordance with Settlement Procedures D and
E, for the authentication and issuance of a
Book-Entry Note representing such remaining
Notes and will make appropriate entries in
its records.
22
PART III: PROCEDURES FOR NOTES ISSUED IN
CERTIFICATED FORM
Denominations: The Notes will be issued in denominations of
U.S. $1,000 and integral multiples of U.S.
$1,000 in excess thereof.
Interest: Each Note will bear interest in accordance
with its terms. Interest will begin to
accrue on the Original Issue Date of a Note
for the first interest period and on the
most recent interest payment date to which
interest has been paid for all subsequent
interest periods. Each payment of interest
shall include interest accrued to, but
excluding, the date of such payment. Unless
otherwise specified in the applicable
Pricing Supplement, interest payments in
respect of Fixed Rate Notes will be made
semi-annually on April 15 and October 15 of
each year and at Maturity. However, the
first payment of interest on any Note issued
between a Record Date and an Interest
Payment Date will be made on the Interest
Payment Date following the next succeeding
Record Date. Unless otherwise specified in
the applicable Pricing Supplement, the
Record Date for any payment of interest
shall be the close of business 15 calendar
days prior to the applicable Interest
Payment Date. Interest at Maturity will be
payable to the person to whom the principal
is payable.
Notwithstanding the above, in the case of
Floating Rate Notes which reset daily or
weekly, interest payments shall include
accrued interest from, and including, the
date of issue or from, but excluding, the
last date in respect of which interest has
been accrued and paid, as the case may be,
through, and including, the record date
which is 15 calendar days immediately
preceding such Interest Payment Date (the
"Record Date"), except that at Maturity the
interest payable will include interest
accrued to, but excluding, the Maturity
date. For additional special provisions
relating to Floating Rate Notes, see the
Prospectus Supplement.
23
Payments of Principal and Interest: Upon presentment and delivery of the Note,
the Trustee will pay the principal amount of
each Note at Maturity and the final
installment of interest in immediately
available funds received from the Company.
All interest payments on a Note, other than
interest due at Maturity, will be made by
check drawn on the Trustee and mailed by the
Trustee to the person entitled thereto as
provided in the Note. However, holders of
ten million dollars or more in aggregate
principal amount of Notes (whether having
identical or different terms and provisions)
shall be entitled to receive payments of
interest, other than at Maturity, by wire
transfer in immediately available funds to a
designated account maintained in the United
States upon receipt by the Trustee of
written instructions from such a holder not
later than the regular Record Date for the
related Interest Payment Date. Any payment
of principal or interest required to be made
on an Interest Payment Date or at Maturity
of a Note which is not a Business Day need
not be made on such day, but may be made on
the next succeeding Business Day with the
same force and effect as if made on the
Interest Payment Date or at Maturity, as the
case may be, and no interest shall accrue
for the period from and after such Interest
Payment Date or Maturity.
The Trustee will provide monthly to the
Company a list of the principal and interest
to be paid on Notes maturing in the next
succeeding month. The Trustee will be
responsible for withholding taxes on
interest paid as required by applicable law,
but shall be relieved from any such
responsibility if it acts in good faith and
in reliance upon an opinion of counsel.
Notes presented to the Trustee at Maturity
for payment will be cancelled by the
Trustee. All cancelled Notes held by the
Trustee shall be destroyed, and the Trustee
shall furnish to the Company a certificate
with respect to such destruction.
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Settlement Procedures: Settlement Procedures with regard to each
Note purchased through any Agent, as agent,
shall be as follows:
A. The Presenting Agent will advise
the Company by telephone of the
following Settlement information
with regard to each Note:
1. Exact name in which the Note
is to be registered (the
"Registered Owner").
2. Exact address or addresses of
the Registered Owner for
delivery, notices and payments
of principal and interest.
3. Taxpayer identification number
of the Registered Owner.
4. Principal amount of the Note.
5. Denomination of the Note.
6. Fixed Rate Notes:
a) interest rate; and
b) redemption or optional
repayment dates, if any.
Floating Rate Notes:
a) designation (which may be
"Regular Floating Rate
Note," "Floating Rate/
Fixed Note" or "Inverse
Floating Rate Note;"
b) interest rate basis or
bases;
c) initial interest rate;
d) spread or spread
multiplier, if any;
e) interest rate reset
dates;
f) interest rate reset
period;
g) interest payment dates;
h) interest payment period;
i) index maturity;
j) calculation agent;
k) maximum interest rate,
if any;
l) minimum interest rate,
if any;
m) calculation date;
25
n) interest determination
date;
o) redemption or optional
repayment dates, if any;
and
p) fixed rate (for Floating
Rate/Fixed Rate Notes and
Inverse Floating Rate
Notes) and fixed rate
commencement date (for
Floating Rate/Fixed Rate
Notes).
7. Price to public of the
Note.
8. Settlement date (Original
Issue Date).
9. Stated Maturity.
10. Overdue rate (if any).
11. Extension periods, if
any, and final maturity
date.
12. Optional reset dates, if
any.
13. Net proceeds to the
Company.
14. Agent's Commission.
B. The Company shall provide to the
Trustee the above Settlement
information received from the
Agent and shall cause the
Trustee to issue, authenticate
and deliver Notes. The Company
also shall provide to the
Trustee and/or Agent a copy of
the applicable Pricing
Supplement.
C. The Trustee will complete the
preprinted 4-ply Note packet
containing the following
documents in forms approved by
the Company, the Presenting
Agent and the Trustee:
1. Note with Agent's customer
confirmation.
2. Stub 1 - for Trustee.
3. Stub 2 - for Agent.
4. Stub 3 - for the Company.
26
D. With respect to each trade, the
Trustee will deliver the Notes
and Stub 2 thereof to the
Presenting Agent at the
following applicable address:
If to Banc of America Securities
LLC:
▇/▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, Window B
New York, New York 10286
Attention: ▇▇▇ Cangelus
Account #: 076854/NationsBanc
▇▇▇▇▇▇▇▇▇▇ Securities LLC
If to Deutsche Bank Securities
Inc.:
Deutsche Bank Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Medium-Term Note Desk
If to ▇.▇. ▇▇▇▇▇▇ Securities Inc.:
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10041
Attention: Window 17 or 18
If to ▇▇▇▇▇▇ Brothers Inc.:
Chase Manhattan Bank
Ground Floor, Receive Window
4 New York Plaza
FAO ▇▇▇▇▇▇ Brothers
New York, New York
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
If to ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇
& ▇▇▇▇▇ Incorporated:
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇
Money Markets Clearance
Concourse Level, N.S.C.C. Window
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
27
If to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated:
The Bank of New York Dealer
Clearance Department ▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇
Attention: For the Account of
▇▇▇▇▇▇▇
▇▇▇▇▇ Barney Inc.
If to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated:
The Bank of New York
Dealer Clearance Department
3rd Floor, Window 3B
▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: For the Account of
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
If to ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.:
The Bank of New York
Dealer Clearance Department
▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: For the Account of
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
The Trustee will keep Stub 1. The Presenting
Agent will acknowledge receipt of the Note
through a broker's receipt and will keep
Stub 2. Delivery of the Note will be made
only against such acknowledgement of
receipt. Upon determination that the Note
has been authorized, delivered and completed
as aforementioned, the Presenting Agent will
wire the net proceeds of the Note after
deduction of its applicable commission to
the Company pursuant to standard wire
instructions given by the Company.
E. The Presenting Agent will
deliver the Note (with
confirmations), as well as a
copy of the Prospectus and any
applicable Prospectus Supplement
or Supplements received from the
Trustee to the purchaser against
payment in immediately available
funds.
F. The Trustee will send Stub 3 to
the Company.
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Settlement Procedures Timetable: For offers accepted by the Company,
Settlement Procedures "A" through "F" set
forth above shall be completed on or before
the respective times set forth below:
Settlement
Procedure Time
--------- ----
A-B 3:00 PM on Business Day prior to settlement
C-D 2:15 PM on day of settlement
E 3:00 PM on day of settlement
F 5:00 PM on day of settlement
Failure to Settle: In the event that a purchaser of a Note from
the Company shall either fail to accept
delivery of or make payment for a Note on
the date fixed for settlement, the
Presenting Agent will forthwith notify the
Trustee and the Company by telephone,
confirmed in writing, and return the Note to
the Trustee.
The Trustee, upon receipt of the Note from
the Agent, will immediately advise the
Company and the Company will promptly
arrange to credit the account of the
Presenting Agent in an amount of immediately
available funds equal to the amount
previously paid by such Agent in settlement
for the Note. Such credits will be made on
the settlement date if possible, and in any
event not later than the Business Day
following the settlement date; provided that
the Company has received notice on the same
day. If such failure shall have occurred for
any reason other than failure by such Agent
to perform its obligations hereunder or
under the Distribution Agreement, the
Company will reimburse such Agent on an
equitable basis for its loss of the use of
funds during the period when the funds were
credited to the account of the Company.
Immediately upon receipt of the Note in
respect of which the failure occurred, the
Trustee will cancel and destroy the Note,
make appropriate entries in its records to
reflect the fact that the Note was never
issued, and accordingly notify in writing
the Company.
29