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DISTRIBUTION AGREEMENT - EXHIBIT 1.1
International Lease Finance Corporation
$750,000,000 Medium-Term Notes, Series L
Due Nine Months or More
From Date of Issue
Distribution Agreement
January 19, 2001
New York, New York
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & Banc of America Securities LLC
▇▇▇▇▇ Incorporated ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
4 World Financial ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: Debt Financing Group/Medium Term
Note Dept.
▇▇▇▇▇▇ Brothers Inc. Chase Securities Inc.
3 World Financial Center, 9th Floor ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: MTN Desk.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated ▇▇▇▇▇▇▇, Sachs & Co.
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 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 L, 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"). 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
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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
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(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.
(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.
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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 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.
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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 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
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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.
(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,
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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 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
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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 the Registration Statement or the
Prospectus is amended or supplemented to set forth amended or
supplemental financial information or such amended or supplemental
information is incorporated by reference in the Registration Statement
or the Prospectus, or, 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, its current
independent auditors, forthwith to furnish you a letter, dated the date
of the effectiveness of such amendment or the date of filing of such
supplement, in form satisfactory to you, of the same tenor as the letter
referred to in Section 5(f) with such changes as may be necessary to
reflect the amended and supplemental financial information included or
incorporated by reference in the Registration Statement and the
Prospectus, as amended or supplemented to the date of such letter,
provided that if the Registration Statement or the Prospectus is amended
or supplemented solely to include or incorporate by reference financial
information as of and for a fiscal quarter, PricewaterhouseCoopers LLP
may limit the scope of such letter, which shall be satisfactory in form
to you, to the unaudited financial statements included in such amendment
or supplement, unless any other information included or incorporated by
reference therein of an accounting, financial or statistical nature is
of such a nature that, in your reasonable judgment, such letter should
cover such other information.
(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; Aircraft SPC-1, Inc.; Aircraft
SPC-3, Inc.; Aircraft SPC-4, Inc.; Aircraft SPC-6, Inc.; Aircraft
SPC-7, Inc.; Aircraft SPC-8, Inc.; Aircraft SPC-9, Inc.; Aircraft
SPC-11, Inc.; Aircraft SPC-12, Inc.; Aircraft SPC-14, Inc.;
Platypus Leasing, Inc.; Euclid Aircraft; ILFC Dover, Inc.,
CABREA, Inc. and ILFC Volare, Inc., all wholly owned subsidiaries
of Aircraft SPC-3, Inc.; and Atlantic International Aviation
Holdings, Inc., a wholly owned subsidiary of Interlease
Management Corporation.
(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, Atlantic International Aviation Holdings,
Inc., Aircraft SPC-1, Inc., Aircraft SPC-3, Inc., Aircraft SPC-4,
Inc., Aircraft SPC-6, Inc., Aircraft SPC-7, Inc., Aircraft SPC-8,
Inc., Aircraft SPC-9, Inc.; Aircraft SPC-11, Inc.; Aircraft
SPC-12, Inc.; Aircraft SPC-14, Inc.; Platypus Leasing, Inc.;
Euclid Aircraft; ILFC Dover, Inc., CABREA, Inc. and ILFC Volare,
Inc. has been duly incorporated and is existing and in good
standing under the laws of the jurisdiction in which it is
incorporated.
(ii) The Company has the corporate power to own its
properties and conduct its business as described in the
Prospectus.
(iii) The Indenture has been duly authorized by all
necessary corporate action on the part of the Company, has been
duly executed and delivered by the Company and is a legally valid
and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except
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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 constitute a default
under, the Articles of Incorporation or Bylaws of the
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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 L", 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 the
provisions of Section 1 of Article XV of the Constitution of the
State of California.
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(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:
(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
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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, confirming that
they are independent accountants within the meaning of the Act and the
Exchange Act and the respective applicable published rules and
regulations thereunder and stating in effect that:
(i) in their opinion the audited financial
statements and financial statement schedules included or
incorporated in the Registration Statement and the Prospectus and
reported on by them comply in form in all material respects with
the applicable accounting requirements of the Act and the
Exchange Act and the related published rules and regulations;
(ii) on the basis of a reading of the latest
unaudited financial statements made available by the Company and
its subsidiaries; carrying out certain specified procedures (but
not any examination in accordance with generally accepted
auditing standards) which would not necessarily reveal matters of
significance with respect to the comments set forth in such
letter; a reading of the minutes of the meetings of the
shareholders, directors and audit committees of the Company and
the subsidiaries; and inquiries of certain officials of the
Company who have responsibility for financial and accounting
matters of the Company and its subsidiaries as to transactions
and events subsequent to the date of the most recent audited
financial statements included or incorporated in the Prospectus,
nothing came to their attention which caused them to believe
that:
(1) any unaudited financial statements
included or incorporated in the Registration Statement and
the Prospectus do not comply in form in all material
respects with applicable accounting requirements and with
the published rules and regulations of the Commission with
respect to financial statements included or incorporated
in quarterly reports on Form 10-Q under the Exchange Act;
and said
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unaudited financial statements are not in conformity with
generally accepted accounting principles applied on a
basis substantially consistent with that of the audited
financial statements included or incorporated in the
Registration Statement and the Prospectus;
(2) with respect to the period subsequent to
the date of the most recent financial statements (other
than any capsule information), audited or unaudited, in or
incorporated in the Registration Statement and the
Prospectus, there were any changes, at a specified date
not more than five business days prior to the date of the
letter, in the long-term debt of the Company and its
subsidiaries or capital stock of the Company or decreases
in the shareholders' equity of the Company as compared
with the amounts shown on the most recent consolidated
balance sheet included or incorporated in the Registration
Statement and the Prospectus, or for the period from the
date of the most recent financial statements included or
incorporated in the Registration Statement and the
Prospectus to such specified date there were any
decreases, as compared with the corresponding period in
the preceding year, in consolidated revenues or in total
amounts of net income of the Company and its subsidiaries,
except in all instances for changes or decreases set forth
in such letter, in which case the letter shall be
accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed
necessary by the Agents; or
(3) the amounts included in any unaudited
"capsule" information included or incorporated in the
Registration Statement and the Prospectus do not agree
with the amounts set forth in the unaudited financial
statements for the same periods or were not determined on
a basis substantially consistent with that of the
corresponding amounts in the audited financial statements
included or incorporated in the Registration Statement and
Prospectus;
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company and its subsidiaries) set forth in the Registration
Statement and the Prospectus and in Exhibit 12 to the
Registration Statement, including the information included or
incorporated in Items 1, 2, 6, 7 and 11 of the Company's Annual
Report on Form 10-K, incorporated in the Registration Statement
and the Prospectus, and the information included in the
"Management's Discussion and Analysis of Financial Condition and
Results of Operations" included or incorporated in the Company's
Quarterly Reports on Form 10-Q, incorporated in the Registration
Statement and the Prospectus, agrees with the accounting records
of the Company and its subsidiaries, excluding any questions of
legal interpretation; and
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(iv) if pro forma financial statements are included
or incorporated in the Registration Statement and the Prospectus,
on the basis of a reading of the unaudited pro forma financial
statements, carrying out certain specified procedures, inquiries
of certain officials of the Company who have responsibility for
financial and accounting matters, and proving the arithmetic
accuracy of the application of the pro forma adjustments to the
historical amounts in the pro forma financial statements, nothing
came to their attention which caused them to believe that the pro
forma financial statements do not comply in form in all material
respects with the applicable accounting requirements of Rule
11-02 of Regulation S-X or that the pro forma adjustments have
not been properly applied to the historical amounts in the
compilation of such statements.
References to the Registration Statement and the
Prospectus in this paragraph (f) are to such documents as amended
and supplemented at the date of the letter.
(g) Subsequent to the respective dates as of which
information is given in the Registration Statement and the 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 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.
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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.
(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
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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 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
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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 judgement, makes it impracticable to
market the Notes or enforce contracts for the sale of Notes, (ii) trading in any
securities of the Company has been suspended by the Commission or a national
securities exchange, or trading generally on either the New York Stock Exchange
or the American Stock Exchange shall have been suspended, or minimum or maximum
prices for trading shall have been fixed, or maximum ranges for prices for
securities shall have been required, by either of said exchanges or by order of
the Commission or any other governmental authority, (iii) a banking moratorium
shall have been declared either by Federal or New York State authorities, (iv)
any outbreak or escalation of hostilities or other national or international
calamity or crisis, if the effect of such outbreak, escalation, calamity or
crisis would, in your reasonable judgment, make the offering or delivery of the
Notes impracticable, or (v) any decrease in the ratings of any of the Company's
debt securities by ▇▇▇▇▇'▇ or S&P or either of said organizations shall publicly
announce that it has under consideration or review with negative implications
any of the Company's debt securities. 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
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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 decrease in the ratings of the Notes by ▇▇▇▇▇'▇ or S&P or
either of said organizations shall publicly announce that it has under
consideration or review with negative implications any of the Company's debt
securities; (iii) trading in any securities of the Company has been suspended by
the Commission or a national securities exchange, or trading generally on either
the New York Stock Exchange or the American Stock Exchange shall have been
suspended, or minimum or maximum prices for trading shall have been fixed, or
maximum ranges for prices for securities shall have been required, by either of
said exchanges or by order of the Commission or any other governmental
authority; (iv) a banking moratorium shall have been declared either by federal
or New York state authorities; or (v) 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) or (v) 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 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.
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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: Executive Vice President,
Co-Chief Operating
Officer and Chief Financial Officer
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & BANC OF AMERICA SECURITIES LLC
▇▇▇▇▇ INCORPORATED
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------- ---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Authorized Signatory Title: Managing Director
▇▇▇▇▇▇ BROTHERS INC. CHASE SECURITIES INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------- ---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President Title: Vice President
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED ▇▇▇▇▇▇▇, SACHS & CO.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇, Sachs & Co.
----------------------------- ---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Name:
Title: Principal Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: First Vice President and Counsel
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SCHEDULE I
Registration Statement No. 333-49566
Amount of the Notes: $750,000,000
Amount of the Securities: $2,000,000,000
The Company agrees to pay ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated, ▇▇▇▇▇▇ Brothers Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, ▇▇▇▇▇▇▇
▇▇▇▇▇ Barney Inc., Banc of America Securities LLC, Chase Securities Inc. and
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. (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%
21
22
Address for Notice to Agents:
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated
4 World Financial ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: MTN Product Management
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ Brothers Inc.
3 World Financial Center, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: MTN Desk
Telecopy number: (▇▇▇) ▇▇▇ ▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & 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: (▇▇▇) ▇▇▇-▇▇▇▇
Banc of America Securities LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Debt Financing Group/Medium Term Note Dept.
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
22
23
Chase Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Medium-Term Note Desk
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Medium-Term Note Desk
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
Securities to be delivered by book-entry transfer.
23
24
SCHEDULE II
INTERNATIONAL LEASE FINANCE CORPORATION
(a California corporation)
Medium-Term Notes, Series L
TERMS AGREEMENT
________________, 20__
International Lease Finance Corporation
1999 Avenue of the Stars, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Re: Distribution Agreement dated January 19, 2001
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:
24
25
EXHIBIT A
MEDIUM-TERM NOTE ADMINISTRATIVE
PROCEDURES FOR FIXED RATE AND FLOATING RATE NOTES
(DATED AS OF JANUARY 19, 2001)
Medium-Term Notes, Series L (the "Notes"), in the aggregate
principal amount of up to U.S. $750,000,000 are to be offered on a continuing
basis by International Lease Finance Corporation (the "Company") through ▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇▇▇▇▇▇ Brothers Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& Co. Incorporated, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., Banc of America Securities LLC,
Chase Securities Inc. and ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., 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 January 19, 2001 (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"). 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.
26
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 by the
Supplement: 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
27
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 ▇▇▇▇▇▇▇ 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:
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇▇▇ ▇▇▇▇▇ World Headquarters
4 World Financial ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: MTN Product Management
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to ▇▇▇▇▇▇ Brothers Inc.:
▇▇▇▇▇▇ Brothers Inc.
c/o ADP
Prospectus Services
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
3
28
also for record keeping purposes, please send a
copy to:
▇▇▇▇▇▇ Brothers Inc.
Ninth Floor
3 World Financial Center
New York, New York 10285-0900
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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: (▇▇▇) ▇▇▇-▇▇▇▇
If to Banc of America Securities LLC:
Banc of America Securities LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: Debt Financing Group/
Medium-Term Note Department
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
4
29
If to Chase Securities Inc.:
Chase Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Medium-Term Note Desk
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.:
▇▇▇▇▇▇▇, Sachs & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Medium Term Note Desk/▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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 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.
5
30
Procedure for Changing Rates or When a decision has been reached to change
Other Variable Terms: 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; The Company may instruct the Agents to suspend
Amendment or Supplement: 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:
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
4 World Financial ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: MTN Product Management
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10285-0900
Attention: MTN Desk
6
31
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Manager - Continuously Offered
Products
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Medium-Term Note Department
Banc of America Securities LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: Debt Financing Group
Medium-Term Note Department
Chase Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Medium-Term Note Desk
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Medium Term Note Desk/▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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 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
7
32
sent to a customer or his agent and (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, 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.
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33
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
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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 $200,000,000 (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
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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 $200,000,000
(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 $200,000,000 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 $200,000,000 (or the equivalent
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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
$200,000,000 would, but for the preceding
sentence, be represented by a single
Book-Entry Note, then one Book-Entry Note
will be issued to represent $200,000,000
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 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
Interest Payment Date following the Original Issue Date;
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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 referring to the daily bond
reports published by Standard &
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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 by DTC) to an account
at the Federal Reserve Bank of New
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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;
e) interest rate reset dates;
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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:
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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
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Trustee's participant account and credit
such Note 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
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Participant with respect to such Note a
confirmation 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.
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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, can 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.
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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,
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.
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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.
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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;
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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.
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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 ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated:
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Money Markets Clearance
Concourse Level, N.S.C.C. Window
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ -- ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & 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.
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If to Banc of America Securities LLC:
▇/▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, Window B
New York, New York 10286
Attention: ▇▇▇ Cangelus
Account #: 076854/NationsBanc ▇▇▇▇▇▇▇▇▇▇
Securities LLC
If to Chase Securities Inc.:
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10041
Attention: Window 17 or 18
If to ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.:
▇▇▇▇▇▇▇, Sachs & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Medium Term Note Desk
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.