exv10w1



 






Exhibit 10.1




EXECUTION VERSION




            
THIS AGREEMENT dated as of October 28, 2004 (the “Agreement”) is among BARCLAYS BANK PLC, a
public limited company incorporated and existing under the laws of England and Wales (“Barclays”);
INTERNATIONAL LEASE FINANCE CORPORATION, a California corporation (“ILFC”); and EXPORT-IMPORT BANK
OF THE UNITED STATES, an agency of the United States of America (“Ex-Im Bank”).



W I T N E S S E T H:




            WHEREAS, pursuant to the Final Commitment Letter dated August 20, 2004 from Ex-Im Bank to
ILFC, Ex-Im Bank has approved ILFC’s application for an Ex-Im Bank guarantee of loans up to
$1,680,209,374 (the “Ex-Im Bank Final Commitment”) on terms as more specifically described in the
form of Participation Agreement attached hereto as Exhibit B, in respect of which Barclays is to
serve as the Facility Agent and as the Initial Lender of such loans and to which has been assigned
the Ex-Im Bank Final Commitment Number AP080259XX (the “Ex-Im Bank Facility”);



            WHEREAS, Barclays has agreed with ILFC to provide the Ex-Im Bank Facility on terms and
conditions set forth in a term sheet and commitment letter dated April 5, 2004 (the “Term Sheet”)
and accepted by ILFC on April 16, 2004; and



            WHEREAS, ILFC desires to defer execution of the full definitive documents until such time, if
ever, as ILFC intends to utilize the Ex-Im Bank Facility;



            NOW, THEREFORE, in consideration of the mutual agreements herein contained and other good and
valuable consideration, receipt of which is hereby acknowledged, the parties hereto hereby agree as
follows:



     Section 1. Definitions. Unless the context otherwise requires, (a) capitalized terms
used herein and not otherwise defined herein shall have the meanings set forth in Part I of
Appendix A to the form of Participation Agreement for all purposes of this Agreement, and (b) the
rules of construction and interpretation for this Agreement shall be as set forth in Part II of
Appendix A to the form of Participation Agreement.



     Section 2. Notice of Intended Utilization; Agreement to Enter into Participation Agreement
and Other Documents; Availability Period.



     (a) Ex-Im Bank hereby commits to issue the guarantees, and Barclays hereby commits to make the
loans, respectively, contemplated by the Ex-Im Bank Final Commitment and the Participation
Agreement (which, upon delivery of the Notice of Intended Utilization, shall be duly completed to
the satisfaction of Ex-Im Bank and Barclays in accordance with Ex-Im Bank’s and Barclays’ customary
standards) on the terms and subject to the conditions set forth therein. Accordingly, if at any
time after the execution date of this Agreement (the “Execution Date”) until thirty (30) days prior
to



 









 







the Final Disbursement Date ILFC shall desire to utilize, or otherwise desire to enter into
full definitive documents for, the Ex-Im Bank Facility, ILFC shall: (i) deliver a Notice of
Intended Utilization to each of Ex-Im Bank and Barclays substantially in the form of Exhibit A
attached hereto; (ii) identify entities, each satisfactory to each of Ex-Im Bank and Barclays in
accordance with Ex-Im Bank’s and Barclays’ customary standards, that will serve as the Initial
Borrower Party and Initial Lessor Parent; (iii) form entities, each satisfactory to each of Ex-Im
Bank and Barclays in accordance with Ex-Im Bank’s and Barclays’ customary standards, that will
serve as the Initial Lessee Party and the Initial Lessee Parent; and (iv) provide to Ex-Im Bank and
Barclays and their respective counsel copies of the constitutional documents for each of the
entities referred to in the foregoing clauses (ii) and (iii).



     (b) Within the thirty (30) day period following delivery of the Notice of Intended
Utilization, the parties hereto and the parties described in clauses (ii) and (iii) of paragraph
(a) above shall enter into a Participation Agreement in substantially the form attached hereto as
Exhibit B (which, upon delivery of the Notice of Intended Utilization, shall be duly completed to
the satisfaction of Ex-Im Bank and Barclays in accordance with Ex-Im Bank’s and Barclays’ customary
standards) and such other agreements and documents as contemplated by such Participation Agreement,
in the case of each such other agreement or document a form of which is attached to such form of
Participation Agreement, in substantially such form so attached, in the case of the Borrower
Indemnity Agreement, in substantially the form attached hereto as Exhibit C, and, in the case of
any other agreement or document, in form and substance satisfactory to each of the parties hereto.



     (c) For purposes of this Agreement, “Final Disbursement Date” means August 31, 2005; provided
that, at any time following the end of each of the first four Quarters following September 1, 2004
(and ending November 30, 2004, February 28, 2005, May 31, 2005 and August 31, 2005, respectively)
so long as ILFC has not given a Notice of Intended Utilization and there has been no Disbursement
during such Quarter, but not later than thirty (30) days prior to the then Final Disbursement Date,
ILFC may extend such Final Disbursement Date by an additional Quarter ending on November 30, 2005,
February 28, 2006, May 31, 2006 and August 31, 2006 (but not beyond August 31, 2006), respectively,
by (i) submitting a request to Ex-Im Bank (with a copy to Barclays) requesting such extension and
specifying the applicable Quarter, any reduction in the authorized amount, and the proposed Final
Disbursement Date, and (ii) receiving written confirmation of such extension from Ex-Im Bank
(whereupon Barclays shall be deemed to have agreed to such extension as well), but in no event
shall the Final Disbursement Date be extended beyond August 31, 2006.



     (d) Neither Ex-Im Bank nor Barclays shall have any obligation to take any action hereunder
following the Final Disbursement Date.



     (e) Following execution of the Participation Agreement as contemplated by Section 2(b), this
Agreement shall terminate and cease to be of any force or effect.



     (f) For purposes of clarification, no party hereto shall be bound by the



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representations, warranties, covenants, indemnities or Events of Default contained in the
Participation Agreement, the Borrower Indemnity Agreement or the documents referred to therein,
which shall be of no force or effect, unless and until each such party executes the Participation
Agreement and the Borrower Indemnity Agreement; provided that the foregoing shall not be construed
as affecting the commitment of Ex-Im Bank or Barclays set forth in Section 2(a) above.



     Section 3. Ex-Im Bank Commitment Fee. ILFC shall pay, or cause to be paid, to Ex-Im
Bank a guarantee commitment fee (the “Ex-Im Bank Commitment
Fee”) in Dollars equal
to 0.125% per annum accruing on the uncancelled and undisbursed balance from time to time of the
Ex-Im Bank Final Commitment, computed on the basis of a 360-day year and the actual number of days
elapsed (including the first day but excluding the last day), accruing from October 19, 2004 until
the earliest of (i) the date the Ex-Im Bank Commitment is fully disbursed, (ii) the date the
undisbursed portion of the Ex-Im Bank Commitment is cancelled by ILFC (on behalf of the Borrower
Parties) by notice in writing to Ex-Im Bank, and (iii) the Final Disbursement Date. The Ex-Im Bank
Commitment Fee shall first be payable on February 10, 2005 and Quarterly thereafter and on the
final day on which the same accrues in accordance with the foregoing provisions of this Section 3;
provided that if any such date is not a Business Day the relevant payment shall be payable on the
next succeeding Business Day and the amount thereof adjusted accordingly.



     Section 4. Barclays Fees and Expenses.



     4.01 Barclays Commitment Fee. ILFC shall pay, or cause to be paid, to Barclays a
commitment fee (the “Barclays Commitment Fee”) in Dollars equal to 0.02% per annum accruing on the
uncancelled and undisbursed balance from time to time of the Ex-Im Bank Facility, computed on the
basis of a 360-day year and the actual number of days elapsed (including the first day but
excluding the last day), accruing from August 20, 2004 until the earliest of (i) the date the Ex-Im
Bank Facility is fully disbursed, (ii) the date the undisbursed portion of the Ex-Im Bank Facility
is cancelled by ILFC (on behalf of the Borrower Parties) by notice in writing to Barclays, and
(iii) the Final Disbursement Date. The Barclays Commitment Fee shall first be payable on December
15, 2004 and quarterly thereafter and on the final day on which the same accrues in accordance with
the foregoing provisions of this Section 4.01; provided that if any such date is not a Business Day
the relevant payment shall be payable on the next succeeding Business Day and the amount thereof
adjusted accordingly.



     4.02  Other Barclays Fees and Expenses. ILFC shall pay, or cause to be paid, to Barclays,
the Arrangement Fee and costs and expenses in the respective amounts and on the respective dates as
set forth in the Term Sheet.



     Section 5. Miscellaneous.



     5.01  Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK, U.S.A., WITHOUT REFERENCE TO PRINCIPLES OF



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CONFLICTS OF LAW OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS
LAW.



     5.02  Notices. Except as otherwise specified, all notices given hereunder shall be in
writing in the English language, shall include the applicable Ex-Im Bank Final Commitment Number
and shall be given by mail, facsimile, telex or personal delivery and deemed to be given for the
purposes of this Agreement on the day that such notice is received by the intended recipient
thereof. All notices shall be delivered to Barclays, ILFC and Ex-Im Bank at their respective
addresses specified in the form of Participation Agreement attached hereto as Exhibit B, or at such
other address for any party as such party may from time to time specified for such purpose by
notice to the other parties.



     5.03  Benefit of Agreement. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the respective successors of the parties hereto. No party may
assign any of its rights or obligations hereunder without the prior written consent of the other
parties hereto.



     5.04  Amendment or Waiver. This Agreement may not be changed, discharged or terminated
(except as expressly provided herein) without the written consent of the parties hereto, and no
provision hereof may be waived without the written consent of the party to be bound thereby.



     5.05  Expenses. Whether or not the transactions contemplated hereby are consummated,
and subject to any separate agreements related thereto, ILFC shall pay or reimburse Ex-Im Bank
(against invoices and receipts (if available) submitted by any such Person), for any reasonable
out-of-pocket costs and expenses (including reasonable fees and disbursements of legal counsel and
other experts employed or retained by such Person) incurred by such Person in connection with the
negotiation, preparation, execution, delivery or enforcement of this Agreement and the form
documents attached hereto (collectively, “Transaction Costs”). In addition to the foregoing but
without duplication, ILFC shall pay or reimburse Ex-Im Bank for any reasonable out-of-pocket costs
and expenses (including fees and disbursements of legal counsel and other experts employed or
retained by such Person) incurred by Ex-Im Bank in connection with any amendment, modification or
waiver of this Agreement.



            All costs and expenses payable by ILFC pursuant to this Section 5.05 incurred in connection
with the negotiation, preparation, execution and delivery of this Agreement and the form documents
attached hereto (including, without limitation, legal fees) shall (to the extent invoices and
receipts have been submitted to ILFC at least one (1) Business Day prior to the Execution Date) be
paid on such Execution Date.



     5.06  Counterparts. This Agreement may be signed in separate counterparts, each of
which shall be deemed to be an original and all of which together shall constitute one and the same
instrument.



     5.07  English Language. All documents to be delivered by any party hereto pursuant to
the terms hereof shall be in the English language, or if originally written in



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another language, shall be accompanied by an accurate English translation upon which the other
parties hereto shall have the right to rely for all purposes under this Agreement.



     5.08  Severability. To the extent permitted by applicable law, the illegality or
unenforceability of any provision of this Agreement shall not in any way affect or impair the
legality or enforceability of the remaining provisions of this Agreement.



*      *      *




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            IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the day and year first above written.



	 	 	 	 	 	 	 	 	 
	 	 	ILFC
	 
	 	 	 	 	 	 	 	 
	 	 	INTERNATIONAL LEASE FINANCE CORPORATION
	 
	 	 	 	 	 	 	 	 
	

	 	By:
	 	   /s/ Pamela S. Hendry
	 	/s/ Alan H. Lund	 	 
	 	 	 	 	 	 	 
	

	 	Name:
	 	  Pamela S. Hendry
	 	Alan H. Lund	 	 
	 	 	 	 	 	 	 
	

	 	Title:
	 	  Vice President

  and Treasurer
	 	Vice Chairman

Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	BARCLAYS
	 
	 	 	 	 	 	 	 	 
	 	 	BARCLAYS BANK PLC
	 
	 	 	 	 	 	 	 	 
	

	 	By:
	 	  /s/ Nicholas A. Bell	 	 	 	 
	 	 	 	 	 	 	 
	

	 	Name:
	 	  Nicholas A. Bell	 	 	 	 
	 	 	 	 	 	 	 
	

	 	Title:
	 	  Director	 	 	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	EX-IM BANK
	 
	 	 	 	 	 	 	 	 
	 	 	EXPORT-IMPORT BANK OF THE UNITED STATES
	 
	 	 	 	 	 	 	 	 
	

	 	By:
	 	  /s/ Robert A. Morin	 	 	 	 
	 	 	 	 	 	 	 
	

	 	Name:
	 	  Robert A. Morin	 	 	 	 
	 	 	 	 	 	 	 
	

	 	Title:
	 	  Vice President	 	 	 	 
	 	 	 	 	 	 	 





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EXHIBITS




Exhibit A - Form of Notice of Intended Utilization

Exhibit B - Form of Participation Agreement

Exhibit C - Form of Borrower Indemnity Agreement