Exhibit 10.1
**EXECUTION VERSION**
            **THIS AGREEMENT**dated as of October 28, 2004 (the **“Agreement”**) is among **BARCLAYS BANK PLC**, apublic limited company incorporated and existing under the laws of England and Wales (**“Barclays”**);**INTERNATIONAL LEASE FINANCE CORPORATION**, a California corporation (**“ILFC”**); and **EXPORT-IMPORT BANKOF THE UNITED STATES**, an agency of the United States of America (**“Ex-Im Bank”**).
WITNESSETH:
            **WHEREAS**, pursuant to the Final Commitment Letter dated August 20, 2004 from Ex-Im Bank toILFC, 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 theform of Participation Agreement attached hereto as Exhibit B, in respect of which Barclays is toserve as the Facility Agent and as the Initial Lender of such loans and to which has been assignedthe 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 andconditions 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, ifever, as ILFC intends to utilize the Ex-Im Bank Facility;
            **NOW, THEREFORE**, in consideration of the mutual agreements herein contained and other good andvaluable consideration, receipt of which is hereby acknowledged, the parties hereto hereby agree asfollows:
     **Section 1.**Definitions. Unless the context otherwise requires, (a) capitalized termsused herein and not otherwise defined herein shall have the meanings set forth in Part I ofAppendix A to the form of Participation Agreement for all purposes of this Agreement, and (b) therules of construction and interpretation for this Agreement shall be as set forth in Part II ofAppendix A to the form of Participation Agreement.
     **Section 2.**Notice of Intended Utilization; Agreement to Enter into Participation Agreementand Other Documents; Availability Period.
     (a) Ex-Im Bank hereby commits to issue the guarantees, and Barclays hereby commits to make theloans, respectively, contemplated by the Ex-Im Bank Final Commitment and the ParticipationAgreement (which, upon delivery of the Notice of Intended Utilization, shall be duly completed tothe satisfaction of Ex-Im Bank and Barclays in accordance with Ex-Im Bank’s and Barclays’ customarystandards) on the terms and subject to the conditions set forth therein. Accordingly, if at anytime after the execution date of this Agreement (the **“Execution Date”**) until thirty (30) days priorto
 

 

the Final Disbursement Date ILFC shall desire to utilize, or otherwise desire to enter intofull definitive documents for, the Ex-Im Bank Facility, ILFC shall: (i) deliver a Notice ofIntended Utilization to each of Ex-Im Bank and Barclays substantially in the form of Exhibit Aattached hereto; (ii) identify entities, each satisfactory to each of Ex-Im Bank and Barclays inaccordance with Ex-Im Bank’s and Barclays’ customary standards, that will serve as the InitialBorrower Party and Initial Lessor Parent; (iii) form entities, each satisfactory to each of Ex-ImBank and Barclays in accordance with Ex-Im Bank’s and Barclays’ customary standards, that willserve as the Initial Lessee Party and the Initial Lessee Parent; and (iv) provide to Ex-Im Bank andBarclays and their respective counsel copies of the constitutional documents for each of theentities referred to in the foregoing clauses (ii) and (iii).
     (b) Within the thirty (30) day period following delivery of the Notice of IntendedUtilization, 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 asExhibit B (which, upon delivery of the Notice of Intended Utilization, shall be duly completed tothe satisfaction of Ex-Im Bank and Barclays in accordance with Ex-Im Bank’s and Barclays’ customarystandards) 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 ofParticipation Agreement, in substantially such form so attached, in the case of the BorrowerIndemnity Agreement, in substantially the form attached hereto as Exhibit C, and, in the case ofany 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 Disbursementduring 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 andspecifying the applicable Quarter, any reduction in the authorized amount, and the proposed FinalDisbursement 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 eventshall 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 hereunderfollowing the Final Disbursement Date.
     (e) Following execution of the Participation Agreement as contemplated by Section 2(b), thisAgreement shall terminate and cease to be of any force or effect.
     (f) For purposes of clarification, no party hereto shall be bound by the
2

 

representations, warranties, covenants, indemnities or Events of Default contained in theParticipation 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 ParticipationAgreement and the Borrower Indemnity Agreement; *provided*that the foregoing shall not be construedas 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-ImBank a guarantee commitment fee (the **“Ex-Im Bank CommitmentFee”**) in Dollars equalto 0.125% per annum accruing on the uncancelled and undisbursed balance from time to time of theEx-Im Bank Final Commitment, computed on the basis of a 360-day year and the actual number of dayselapsed (including the first day but excluding the last day), accruing from October 19, 2004 untilthe earliest of (i) the date the Ex-Im Bank Commitment is fully disbursed, (ii) the date theundisbursed portion of the Ex-Im Bank Commitment is cancelled by ILFC (on behalf of the BorrowerParties) by notice in writing to Ex-Im Bank, and (iii) the Final Disbursement Date. The Ex-Im BankCommitment Fee shall first be payable on February 10, 2005 and Quarterly thereafter and on thefinal 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 thenext 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 acommitment fee (the **“Barclays Commitment Fee”**) in Dollars equal to 0.02% per annum accruing on theuncancelled and undisbursed balance from time to time of the Ex-Im Bank Facility, computed on thebasis of a 360-day year and the actual number of days elapsed (including the first day butexcluding the last day), accruing from August 20, 2004 until the earliest of (i) the date the Ex-ImBank Facility is fully disbursed, (ii) the date the undisbursed portion of the Ex-Im Bank Facilityis 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 December15, 2004 and quarterly thereafter and on the final day on which the same accrues in accordance withthe foregoing provisions of this Section 4.01; *provided*that if any such date is not a Business Daythe relevant payment shall be payable on the next succeeding Business Day and the amount thereofadjusted 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 asset forth in the Term Sheet.
     **Section 5.**Miscellaneous.
     5.01  Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCEWITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK, U.S.A., WITHOUT REFERENCE TO PRINCIPLES OF
3

 

CONFLICTS OF LAW OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONSLAW.
     5.02  Notices. Except as otherwise specified, all notices given hereunder shall be inwriting in the English language, shall include the applicable Ex-Im Bank Final Commitment Numberand shall be given by mail, facsimile, telex or personal delivery and deemed to be given for thepurposes of this Agreement on the day that such notice is received by the intended recipientthereof. All notices shall be delivered to Barclays, ILFC and Ex-Im Bank at their respectiveaddresses specified in the form of Participation Agreement attached hereto as Exhibit B, or at suchother address for any party as such party may from time to time specified for such purpose bynotice to the other parties.
     5.03  Benefit of Agreement. This Agreement shall be binding upon and inure to thebenefit of and be enforceable by the respective successors of the parties hereto. No party mayassign any of its rights or obligations hereunder without the prior written consent of the otherparties 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 noprovision 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 reasonableout-of-pocket costs and expenses (including reasonable fees and disbursements of legal counsel andother experts employed or retained by such Person) incurred by such Person in connection with thenegotiation, preparation, execution, delivery or enforcement of this Agreement and the formdocuments attached hereto (collectively, **“Transaction Costs”**). In addition to the foregoing butwithout duplication, ILFC shall pay or reimburse Ex-Im Bank for any reasonable out-of-pocket costsand expenses (including fees and disbursements of legal counsel and other experts employed orretained by such Person) incurred by Ex-Im Bank in connection with any amendment, modification orwaiver of this Agreement.
            All costs and expenses payable by ILFC pursuant to this Section 5.05 incurred in connectionwith the negotiation, preparation, execution and delivery of this Agreement and the form documentsattached hereto (including, without limitation, legal fees) shall (to the extent invoices andreceipts have been submitted to ILFC at least one (1) Business Day prior to the Execution Date) bepaid on such Execution Date.
     5.06  Counterparts. This Agreement may be signed in separate counterparts, each ofwhich shall be deemed to be an original and all of which together shall constitute one and the sameinstrument.
     5.07  English Language. All documents to be delivered by any party hereto pursuant tothe terms hereof shall be in the English language, or if originally written in
4

 

another language, shall be accompanied by an accurate English translation upon which the otherparties 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 orunenforceability of any provision of this Agreement shall not in any way affect or impair thelegality or enforceability of the remaining provisions of this Agreement.
*      *      *
5

 

            **IN WITNESS WHEREOF**, the parties hereto have caused this Agreement to be duly executed as ofthe 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