Table of Contents
Filed Pursuant to Rule 424(b)(3)
Registration Statement No. 333-260359
The information in this preliminary prospectus supplement and theaccompanying
prospectus is not complete and may be changed. This preliminary prospectus
supplement and the accompanying prospectus are not an offer to sell these
securities and are not soliciting an offer to buy these securities in any
jurisdictionwhere such offer or sale is not permitted.
Subject to Completion, dated September 3, 2024
PRELIMINARY PROSPECTUS SUPPLEMENT
(To Prospectus Dated October 19, 2021)
$
AerCap Ireland Capital Designated Activity Company
AerCap Global Aviation Trust
$ % Senior Notes due 20
$ % Senior Notes due 20
Guaranteed by AerCap Holdings N.V.
AerCap IrelandCapital Designated Activity Company, a designated activity
company with limited liability incorporated under the laws of Ireland (the
"Irish Issuer"), and AerCap Global Aviation Trust, a Delaware statutory trust
(the "U.S.Issuer" and, together with the Irish Issuer, the "Issuers"), are
offering $ aggregate principal amount of % Senior Notes due 20 (the "20
Notes") and$ aggregate principal amount of % Senior Notes due 20 (the "20
Notes" and, together with the 20 Notes, the "Notes"). The Notes will be issued
pursuant to an indenture,dated as of October 29, 2021 (as supplemented or
otherwise modified from time to time, the "Indenture"), among the Issuers, the
guarantors (as defined below) and The Bank of New York Mellon Trust Company,
N.A., as trustee (the"Trustee").
The Issuers will pay interest on the 20 Notes semi-annually in arrears onand
of each year, commencing on , 2025. The 20 Notes will mature on , 20. The
Issuers will pay interest on the 20 Notes semi-annually in arrearson and of
each year, commencing on , 2025. The 20 Notes will mature on , 20.
Prior to , 20 with respect to the 20 Notes (the date that is months priorto
the maturity date of the 20 Notes) and , 20 with respect to the 20 Notes (the
date that is months prior to the maturity date of the 20 Notes), the Issuers
mayredeem some or all of the Notes of the applicable series, at their option,
at any time and from time to time by paying a specified "make-whole" premium.
On or after , 20 with respect to the 20Notes (the date that is months prior to
the maturity date of the 20 Notes) and , 20 with respect to the 20 Notes (the
date that is monthsprior to the maturity date of the 20 Notes), the Issuers
may redeem some or all of the Notes of the applicable series, at their option,
at any time and from time to time at par. See "
Description of Notes--OptionalRedemption.
" If we experience a Change of Control Triggering Event with respect to the
Notes of a series (as defined under "
Description of Notes--Certain Definitions
"), the Issuers will be required to make an offer topurchase all of the Notes
of such series at the price described under "
Description of Notes--Repurchase Upon a Change of Control Triggering Event
." The Issuers may redeem the Notes of a series at their option, at any time
inwhole but not in part, in the event of certain developments affecting
taxation described under "
Description of Notes--Redemption for Changes in Withholding Taxes.
"
The Notes will be joint and several obligations of the Issuers and will be the
Issuers' senior unsecured obligations. The Notes will befully and
unconditionally guaranteed (the "guarantees") on a senior unsecured basis by
AerCap Holdings N.V. ("Holdings" and, such guarantee, the "Holdings
Guarantee") and certain other subsidiaries of Holdings (togetherwith Holdings,
the "guarantors"), as described under "
Description of
Notes--Guarantees.
" The Notes and the guarantees will rank
pari passu
in right of payment with all senior debt of the Issuers and theguarantors and
will rank senior in right of payment to all of the Issuers' and the
guarantors' subordinated debt. The Notes and the guarantees will be
effectively subordinated to all of the Issuers' and each guarantor's
existingand future secured debt to the extent of the value of the assets
securing such debt. The Notes and the guarantees will be structurally
subordinated to all of the existing and future debt and other liabilities of
Holdings' subsidiaries (otherthan the Issuers) that do not guarantee the
Notes. See "
Description of Notes--Ranking.
"
Investing in the Notesinvolves risk. You should carefully review the risks and
uncertainties described under the heading "
Risk Factors
" beginning on page S-11 of this prospectus supplement and in the
documentsincorporated by reference herein before you make an investment in the
Notes.
Public Offering Underwriting Proceeds Before
Price(1) Discount Expenses to
the Issuers
Per 20 Note % % %
Total for 20 Notes $ $ $
Per 20 Note % % %
Total for 20 Notes $ $ $
Total $ $ $
(1) Plus accrued interest, if any, from , 2024.
Neither the Securities and Exchange Commission (the "SEC") nor any state or
foreign securities commission has approved or disapproved of thesesecurities
or determined if this prospectus supplement or the accompanying prospectus is
truthful or complete. Any representation to the contrary is a criminal offense.
The underwriters expect to deliver the Notes in global form through the
book-entry system of The Depository Trust Company ("DTC") andits participants,
including Euroclear Bank SA/NV, as operator of the Euroclear System
("Euroclear"), and Clearstream Banking,
societe anonyme
("Clearstream"), on or about , 2024.
Joint Book-Running Managers
RBC Capital Markets Wells Fargo Securities BofA Securities
HSBC Fifth Third Securities SOCIETE GENERALE
Prospectus Supplement dated , 2024
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TABLE OF CONTENTS
Prospectus Supplement
Page
ABOUT THIS PROSPECTUS SUPPLEMENT S-1
FORWARD LOOKING STATEMENTS S-3
WHERE YOU CAN FIND MORE INFORMATION; INCORPORATION BYREFERENCE S-5
SUMMARY S-6
RISK FACTORS S-11
USE OF PROCEEDS S-22
CAPITALIZATION S-23
DESCRIPTION OF NOTES S-24
BOOK-ENTRY, DELIVERY AND FORM OF SECURITIES S-50
CERTAIN IRISH, DUTCH AND U.S. FEDERAL INCOME TAXCONSEQUENCES S-53
IRISH LAW CONSIDERATIONS S-65
DUTCH LAW CONSIDERATIONS S-73
CERTAIN ERISA CONSIDERATIONS S-78
UNDERWRITING S-80
LEGAL MATTERS S-87
EXPERTS S-87
Prospectus
Page
ABOUT THIS PROSPECTUS 1
COMPANY INFORMATION 2
RISK FACTORS 3
FORWARD LOOKING STATEMENTS 4
WHERE YOU CAN FIND MORE INFORMATION 5
INCORPORATION BY REFERENCE 6
USE OF PROCEEDS 7
DESCRIPTION OF DEBT SECURITIES AND GUARANTEES 8
CERTAIN IRISH, DUTCH AND U.S. FEDERAL INCOME TAX CONSEQUENCES 9
PLAN OF DISTRIBUTION 10
ENFORCEMENT OF CIVIL LIABILITY JUDGMENTS UNDER IRISH LAW 12
ENFORCEMENT OF CIVIL LIABILITY JUDGMENTS UNDER DUTCH LAW 13
LEGAL MATTERS 14
EXPERTS 14
DISCLOSURE OF SEC POSITION ON INDEMNIFICATION FOR SECURITIES ACT LIABILITIES 15
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ABOUT THIS PROSPECTUS SUPPLEMENT
We and the underwriters are responsible only for the information contained or
incorporated by reference in this prospectus supplement, theaccompanying
prospectus and any free writing prospectus. Neither we nor the underwriters
have authorized any other person to provide you with information that is
different from that contained or incorporated by reference in this
prospectussupplement, the accompanying prospectus and any free writing
prospectus. The underwriters are not making offers to sell, or seeking offers
to buy, the Notes in any jurisdiction where such offers or sales are not
permitted. The information containedin this prospectus supplement, the
accompanying prospectus and any free writing prospectus is accurate only as of
their respective dates, and any information we and the underwriters have
incorporated by reference herein or in the accompanyingprospectus is accurate
only as of the date of the document incorporated by reference, regardless of
the time of delivery of this prospectus supplement, the accompanying
prospectus or any free writing prospectus or of any sale of the Notes.
This document is in two parts. The first part is this prospectus supplement,
which describes the specific terms of the offering and also addsto and updates
information contained in the accompanying prospectus and the documents
incorporated by reference herein and therein. The second part is the
accompanying prospectus, which gives more general information, some of which
may not apply tothis offering. It is important for you to read and consider
all information contained in this prospectus supplement, the accompanying
prospectus and any free writing prospectus in making your investment decision.
To fully understand this offering,you should also read all of these documents,
including those referred to under the caption "
Where You Can Find More Information
" and "
Incorporation by Reference
" in this prospectus supplement. Investors shouldcarefully review the risk
factors relating to us in the section captioned "
Risk Factors
" herein, in Item 3 of AerCap's Annual Report on Form
20-F
for the year ended December 31,2023, filed with the SEC on February 23, 2024
(AerCap's "2023 Annual Report"), and in AerCap's Reports on Form
6-K
furnished to the SEC from time to time and incorporated by referenceherein. To
the extent there is a conflict between the information contained or
incorporated by reference in this prospectus supplement, on the one hand, and
the information contained in the accompanying prospectus, on the other hand,
the informationcontained or incorporated by reference in this prospectus
supplement shall control. As used in this prospectus supplement and the
accompanying prospectus, unless otherwise stated or the context otherwise
requires, references to "AerCap,""we," "us," "our" and the "Company" include
AerCap Holdings N.V. and its consolidated subsidiaries.
This prospectus supplement (i) has not been prepared in accordance with and is
not a "prospectus" or a "supplement"for the purposes of either Regulation (EU)
2017/1129 (as amended, the "Prospectus Regulation") or Regulation (EU)
2017/1129 as it forms part of domestic law by virtue of the European Union
(Withdrawal) Act 2018 ("EUWA") (the"UK Prospectus Regulation"), (ii) has not
been reviewed or approved by the Central Bank of Ireland or any other
competent authority for the purposes of either the Prospectus Regulation or
the UK Prospectus Regulation and (iii) isreferred to as a "prospectus
supplement" because this is the terminology used for such an offer document in
the United States.
This prospectus supplement has been prepared on the basis that any offer of
Notes in any Member State of the European Economic Area to whichthe Prospectus
Regulation applies (each, a "Relevant Member State") or in the United Kingdom
will be made pursuant to an exemption under the Prospectus Regulation or the
UK Prospectus Regulation, as applicable, from the requirement topublish a
prospectus for offers of Notes. Accordingly any person making or intending to
make an offer in that Relevant Member State or the United Kingdom of Notes
which are the subject of the offering contemplated in this prospectus
supplement mayonly do so in circumstances in which no obligation arises for
the Issuers, the guarantors or any of the underwriters to publish a prospectus
pursuant to the Prospectus Regulation or the UK Prospectus Regulation, in each
case, in relation to suchoffer. None of the Issuers, the guarantors or the
underwriters has authorized, nor do they authorize, the making of any offer of
Notes in circumstances in which an obligation arises for the Issuers, the
guarantors or the underwriters to publish orsupplement a prospectus for such
offer.
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This prospectus supplement has been prepared on the basis that any offer of
Notes in theUnited Kingdom will be made pursuant to an exemption under the UK
Prospectus Regulation from the requirement to publish a prospectus for offers
of Notes. Accordingly any person making or intending to make an offer in the
United Kingdom of Noteswhich are the subject of the offering contemplated in
this prospectus supplement may only do so in circumstances in which no
obligation arises for the Issuers, the guarantors or any of the underwriters
to publish a prospectus pursuant toSection 85 of the Financial Services and
Markets Act 2000 (as amended, "FSMA") or supplement a prospectus pursuant to
Article 23 of the UK Prospectus Regulation, in each case, in relation to such
offer. None of the Issuers, theguarantors or the underwriters has authorized,
nor do they authorize, the making of any offer of Notes in circumstances in
which an obligation arises for the Issuers, the guarantors or the underwriters
to publish a prospectus for such offer.
Except as otherwise noted, all dollar amounts in this prospectus supplement,
the accompanying prospectus and the documents incorporated byreference herein
and therein are in U.S. dollars. The consolidated financial statements of the
Company incorporated by reference herein have been prepared in accordance with
U.S. generally accepted accounting principles.
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FORWARD LOOKING STATEMENTS
This prospectus supplement, the accompanying prospectus and the documents
incorporated by reference into this prospectus supplement and theaccompanying
prospectus include "forward looking statements" within the meaning of the
Private Securities Litigation Reform Act of 1995. We have based these forward
looking statements largely on our current beliefs and projections aboutfuture
events and financial trends affecting our business. Many important factors, in
addition to those discussed in this prospectus supplement, could cause our
actual results to differ substantially from those anticipated in our forward
lookingstatements, including, among other things:
. the availability of capital to us and to our customers and changes in interest rates;
. the ability of our lessees and potential lessees to make lease payments to us;
. our ability to successfully negotiate flight equipment (which includes
aircraft, engines and helicopters)purchases, sales and leases,
to collect outstanding amounts due and to repossess flight equipment
under defaulted leases, and to control costs and expenses;
. changes in the overall demand for commercial aviation leasing and aviation asset management services;
. the continued impacts of the Russian invasion of Ukraine and continued
conflict in that area, including theresulting sanctions by the United
States, the European Union, the United Kingdom and other countries, on our
business and results of operations, financial condition and cash flows;
. the effects of terrorist attacks on the aviation industry and on our operations;
. the economic condition of the global airline and cargo industry and economic and political conditions;
. the impact of current hostilities in the Middle East, or any escalation thereof, on the aviation industry or ourbusiness;
. development of increased government regulation, including travel restrictions, sanctions, regulation
of trade andthe imposition of import and export controls, tariffs and other trade barriers;
. a downgrade in any of our credit ratings;
. competitive pressures within the industry;
. regulatory changes affecting commercial flight equipment operators, flight
equipment maintenance, enginestandards, accounting standards and taxes;
. disruptions and security breaches affecting our information systems or the information systems of our third-partyproviders; and
. the risks described or referred to in "Risk Factors" in this prospectus supplement, in
the accompanyingprospectus, in AerCap's 2023 Annual Report and in AerCap's Reports on
Form 6-K
furnished to the SEC from time to time
and incorporated by reference herein.
The words "believe," "may," "will," "aim," "estimate," "continue,""anticipate,"
"intend," "expect" and similar words are intended to identify forward looking
statements. Forward looking statements include information concerning our
possible or assumed future results of operations,business strategies,
financing plans, competitive position, industry environment, potential growth
opportunities, the effects of future regulation and the effects of
competition. Forward looking statements speak only as of the date they were
madeand we undertake no obligation to update publicly or to revise any forward
looking statements because of new information, future events or other factors.
In light of the risks and uncertainties described above, the forward looking
events andcircumstances described in this prospectus supplement and the
accompanying prospectus
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might not occur and are not guarantees of future performance. The factors
described above should not be construed as exhaustive and should be read in
conjunction with the other cautionarystatements and the risk factors that are
included under "
Risk Factors
" herein, in AerCap's 2023 Annual Report incorporated by reference herein and
in any Report on Form 6-K furnished to the SEC and incorporated by
referenceherein. Except as required by applicable law, we do not undertake any
obligation to publicly update or review any forward looking statement, whether
as a result of new information, future developments or otherwise.
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WHERE YOU CAN FIND MORE INFORMATION; INCORPORATION BYREFERENCE
We are subject to the information reporting requirements of the Securities
Exchange Act of 1934, as amended (the"Exchange Act"), as applicable to foreign
private issuers. As a foreign private issuer, we are exempt from the rules
under the Exchange Act prescribing certain disclosure and procedural
requirements for proxy solicitations. We file withthe SEC an Annual Report on
Form
20-F
containing financial statements audited by an independent registered public
accounting firm. We also furnish Reports on Form
6-K
containing unaudited interim financial information for the first three
quarters of each fiscal year.
The SEC maintains an Internet sitethat contains reports, proxy and information
statements, and other information regarding issuers that file electronically
with the SEC. You can review our SEC filings, including the registration
statement, by accessing the SEC's Internet siteat
www.sec.gov
. We will provide each person to whom a prospectus supplement is delivered a
copy of any or all of the information that has been incorporated by reference
into this prospectus supplement but not delivered with this prospectussupplement
upon written or oral request at no cost to the requester. Requests should be
directed to: AerCap Holdings N.V., AerCap House, 65 St. Stephen's Green,
Dublin D02 YX20, Ireland, or by telephoning us at +353 1 819 2010. Our website
islocated at
www.aercap.com
. The reference to the website is an inactive textual reference only and the
information contained on, or accessible through, our website is not a part of
this prospectus supplement.
The following documents filed with or furnished to the SEC are incorporated
herein by reference:
. AerCap's Annual Report on
Form
20-F
for the year ended December 31, 2023, as filed with the SEC on February 23, 2024; and
. AerCap's Reports on Form
6-K,
furnished to the SEC on
January 4, 2024
,
January 11, 2024
,
January 22, 2024
,
March 15, 2024
,
April 16, 2024
,
May 1, 2024
,
May 8, 2024
,
July 8, 2024
,
July 11, 2024
and
August 1, 2024
.
All documents subsequently filed by us with the SEC pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act and, solely to theextent designated
therein, Reports on Form
6-K
that we furnish to the SEC, in each case prior to the completion or
termination of this offering, shall be incorporated by reference in this
prospectus supplementand be a part hereof from the date of filing or
furnishing of such documents. Any statement contained herein or in a document
incorporated or deemed to be incorporated by reference herein shall be deemed
to be modified or superseded for purposes ofthis prospectus supplement to the
extent that a statement contained herein or in any subsequently filed document
that also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified orsuperseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
prospectus supplement.
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SUMMARY
This summary highlights the information contained elsewhere in or incorporated
by reference into this prospectus supplement. Because thisis only a summary,
it does not contain all of the information that may be important to you. You
should read this entire prospectus supplement carefully together with the
information incorporated by reference herein, including "RiskFactors" and the
financial statements, and notes related thereto, incorporated by reference in
this prospectus supplement, before making an investment decision.
Our Business
We are the global leader inaviation leasing with a portfolio consisting of
3,492 aircraft, engines (including engines owned and managed by our Shannon
Engine Support Ltd. joint venture) and helicopters that were owned, on order
or managed as of June 30, 2024, as adjustedto reflect an agreement entered
into in July 2024 to purchase 36 additional aircraft from Airbus S.A.S. (the
"Airbus Agreement"). We provide a wide range of assets for lease, including
narrowbody and widebody aircraft, regional jets,freighters, engines and
helicopters. We focus on acquiring
in-demand
flight equipment at attractive prices, funding them efficiently, hedging
interest rate risk prudently and using our platform to deploy theseassets with
the objective of delivering superior risk-adjusted returns. We believe that by
applying our expertise, we will be able to identify and execute on a broad
range of market opportunities that we expect will generate attractive returns
forour investors. We have the infrastructure, expertise and resources to
execute a large number of diverse transactions in a variety of market
conditions. Our teams of dedicated marketing and asset trading professionals
have been successful in leasingand managing our asset portfolio. During the
six months ended June 30, 2024, we executed 246 aviation asset transactions.
As ofJune 30, 2024, we owned 1,529 aircraft and managed 183 aircraft. During
the three and six months ended June 30, 2024, our owned aircraft utilization
rate was 98%, calculated based on the number of days each aircraft was on
lease during theperiods, weighted by the net book value of the aircraft. We
lease most of our aircraft to airlines under operating leases. Under these
leases, the lessee is responsible for the maintenance and servicing of the
equipment during the lease term and wereceive the benefit, and assume the
risks, of the residual value of the equipment at the end of the lease. We also
owned or managed over 1,000 engines (including engines owned and managed by
our Shannon Engine Support Ltd. joint venture) and over300 owned helicopters.
As of June 30, 2024, we had commitments to purchase 351 new aircraft scheduled
for delivery through 2029, as adjusted to reflect the Airbus Agreement. The
average age of our fleet of 1,529 owned aircraft, weighted by netbook value,
was 7.4 years as of June 30, 2024.
For more information on our business, please refer to "
Information onthe Company
" in Item 4 of AerCap's 2023 Annual Report, which is incorporated by reference
herein.
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The Offering
The summary below describes the principal terms of the Notes. Certain of the
terms and conditions described below are subject to importantlimitations and
exceptions. The following is not intended to be complete. You should carefully
review the "Description of Notes" section of this prospectus supplement, which
contains a more detailed description of the terms and conditionsof the Notes.
In this subsection, "we," "us" and "our" refer to Holdings.
Issuers: AerCap Ireland Capital Designated Activity Company and AerCap Global Aviation Trust.
Securities Offered: $ aggregate principal amount of Notes, consisting of:
. $ aggregate principal amount of % Senior Notes due 20; and
. $ aggregate principal amount of % Senior Notes due 20.
Maturity Date: The 20 Notes will mature on , 20.
The 20 Notes will mature on , 20.
Interest: Interest on the 20 Notes will be payable semi-annually in arrears on and
of each year, commencing on , 2025. Interest on the 20 Notes will bepayable
semi-annually
in arrears on and of each year, commencing on , 2025. The 20 Notes will bear
interest at% per annum. The 20 Notes will bear interest at % per annum.
Guarantees: The Notes will be fully and unconditionally guaranteed, jointly and
severally and on a senior unsecured basis, by us, AerCap Aviation
Solutions B.V., AerCap Ireland Limited, International Lease Finance
Corporation ("ILFC") and AerCapU.S. Global Aviation LLC. See "
Description of Notes--Guarantees
."
Ranking: The Notes and the guarantees will be the Issuers' and the guarantors'
general unsecured senior obligations, respectively, and will:
. rank senior in right of payment to any of the Issuers' and the guarantors' obligations that
are, bytheir terms, expressly subordinated in right of payment to the Notes and the guarantees;
. rank
pari passu
in right of payment to all of the Issuers' and the guarantors' existing andfuture senior indebtedness and other
obligations that are not, by their terms, expressly subordinated in right of payment to the Notes and the guarantees;
. be effectively subordinated to all of the Issuers' and the guarantors' existing and future securedindebtedness and other
secured obligations to the extent of the value of the assets securing such indebtedness and other obligations; and
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. be structurally subordinated to all existing and future obligations and other liabilities (including
tradepayables) of each of our subsidiaries (other than the Issuers) that do not guarantee the Notes.
See "
Description of Notes--Ranking
."
As of June 30, 2024, the principal amount of outstanding indebtedness of Holdings and its subsidiaries, which excludes
debt issuance costs, debt discounts and debt premium of $216.2 million, was$45.9 billion, of which $8.7 billion
was secured, and Holdings and its subsidiaries had $10.9 billion of undrawn lines of credit available under their
credit and term loan facilities, subject to certain conditions, includingcompliance with certain financial covenants.
In addition, as of June 30, 2024, our subsidiaries that are not guarantors of the
Notes (other than the Issuers) had total liabilities, including trade payables
(but excluding intercompany liabilities), of$15.9 billion and total assets (excluding
intercompany receivables) of $59.5 billion. Furthermore, for the six months
ended June 30, 2024, our subsidiaries that are not guarantors of the Notes (other
than the Issuers) recorded netincome of $498 million and generated $3.5 billion
of total revenues and other income (each presented on a combined basis and including
the results of intercompany transactions with the Issuers and guarantors).
Additional Amounts: The Issuers and the guarantors will make all payments in
respect of the Notes or the guarantees, as the case may be,
including principal and interest payments, without deduction
or withholding for or on account of any present or future
taxes orother governmental charges in Ireland or certain
other relevant tax jurisdictions, unless they are obligated
by law to deduct or withhold such taxes or governmental
charges. If the Issuers or any guarantor are obligated by
law to deduct or withholdtaxes or governmental charges in
respect of the Notes or the guarantees, subject to certain
exceptions, the Issuers or the relevant guarantor, as
applicable, will pay to the holders of the Notes additional
amounts so that the net amount received bythe holders after
any deduction or withholding will not be less than the
amount the holders would have received if those taxes or
governmental charges had not been withheld or deducted. See "
Description of Notes--AdditionalAmounts
."
Optional Redemption for Changes in Withholding Taxes: If, with respect to any series of the Notes, the Issuers become obligated
to pay any additional amounts as a result of any change in the
law of Irelandor certain other relevant taxing jurisdictions that
is announced or becomes effective on or after the date on which the
Notes of such series are issued (or the date the relevant taxing
jurisdiction became applicable, if later), the Issuers mayredeem the Notes
of such series at their option, at any time in whole but not in part,
at a price equal to 100% of the principal amount of the Notes of
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such series being redeemed, plus accrued and unpaid interest, if any, to, but
not including, the redemption date and additional amounts, if any. See "
Description of Notes--Redemptionfor Changes in Withholding Taxes.
"
Optional Redemption: Prior to the applicable Par Call Date (as defined under "
Description of Notes--Certain Definitions
"), the Notes of the applicable series may be redeemed at the Issuers' option,
at any time in whole or from time to timein part, at a redemption price
equal to the greater of the following amounts, plus, in each case, accrued
and unpaid interest, if any, to, but not including, the redemption date:
. 100% of the principal amount of the Notes of such series being redeemed; and
. the sum of the present value at such redemption date of all remaining scheduled payments of principal
andinterest on such Notes of such series through the applicable Par Call Date (excluding accrued but unpaid
interest to the redemption date), discounted to the date of redemption using a discount rate equal to the
Treasury Rate plusbasis points, in the case of the 20 Notes, and basis points, in the case of the 20 Notes.
On or after the applicable Par Call Date, the Notes of the applicable series may be redeemed
at the Issuers' option, at any time in whole or from time to time in part, at a redemption
price equal to 100% of theprincipal amount of the Notes of such series being redeemed,
plus accrued and unpaid interest, if any, to, but not including, the redemption date.
Change of Control Triggering Event: If the Issuers experience a Change of Control Triggering Event, holders
will have the right to require them to purchase each holder's Notes at
a price of 101% of the principal amount thereof, plus accrued and unpaid
interest, if any, to,but not including, the date of purchase. See "
Description of Notes--Repurchase Upon
a Change of Control Triggering Event.
"
Certain Covenants: The Indenture contains covenants that, among other things, limit
our ability and the ability of our restricted subsidiaries to:
. incur liens on assets, subject to certain exceptions, including
the ability to incur additional liens to secureindebtedness for
borrowed money in an amount not to exceed 20% of our and our restricted
subsidiaries' Consolidated Tangible Assets (as defined under "
Description of
Notes--Certain Definitions
"); and
. consolidate, merge or sell or otherwise dispose of all or substantially all of our assets.
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These covenants are subject to important qualifications and exceptions as described under "
Description of Notes--Certain Covenants
."
Use of Proceeds: We intend to use the net proceeds from this offering for general corporate purposes, including
to acquire, invest in, finance or refinance aircraft assets and to repay indebtedness. See "
Use of Proceeds
."
Tax Consequences: For a discussion of the possible Irish, Dutch and U.S. federal
income tax consequences of an investment in the Notes, see "
Certain Irish, Dutch and U.S. Federal Income Tax Consequences
." You should consult your own tax advisorto determine the Irish, Dutch, U.S.
federal, state, local and other tax consequences of an investment in the Notes.
Risk Factors: You should carefully consider the
information set forth herein under "
Risk Factors
," in the section captioned "
Risk Factors
" in the accompanying prospectus and Item 3 of AerCap's 2023
Annual Report and anyrisk factors described in any Report on Form
6-K
furnished to the SEC from time to time and incorporated by
reference herein, before deciding whether to invest in the Notes.
Denominations: The Notes will be issued in minimum denominations of $150,000 and integral multiples of $1,000 above that amount.
Listing: Application will be made to the Irish Stock Exchange plc, trading as Euronext Dublin
("Euronext Dublin"), for the Notes to be admitted to the Official List and to trading on the
Global Exchange Market of Euronext Dublin. We cannotassure you, however, that this
application will be accepted. Currently, there are no active trading markets for the Notes.
Governing Law: State of New York.
Trustee: The Bank of New York Mellon Trust Company, N. A.
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RISK FACTORS
In addition to the other information included or incorporated by reference in
this prospectus supplement or the accompanying prospectus,including in the
section captioned "Risk Factors" in Item 3 of our 2023 Annual Report and any
risk factors described in any Report on Form
6-K
furnished to the SEC and incorporated by referenceherein, and the matters
addressed under "Forward Looking Statements" in this prospectus supplement and
the accompanying prospectus, you should carefully consider the following risks
before making any investment decisions with respect tothe Notes.
Risks Relating to the Notes
Our substantial debt could adversely affect our cash flow and prevent us from
fulfilling our obligations under our existing indebtedness and the Notes.
As of June 30, 2024, the principal amount of our outstanding indebtedness,
which excludes debt issuance costs, debt discountsand debt premium of $216.2
million, was $45.9 billion (65% of our total assets as of that date), and for
the six months ended June 30, 2024, our interest expense was $1.0 billion. Due
to the capital intensive nature of ourbusiness, we expect that we will incur
additional indebtedness in the future and continue to maintain substantial
levels of indebtedness. We continually review available debt management
alternatives, including liability management solutions such astender offers,
debt exchanges and extension of maturities, debt refinancing and further
accessing capital markets. As of June 30, 2024, we had outstanding fixed rate
debt of $35.4 billion, representing 77% of our outstanding indebtedness.
Our level of indebtedness:
. requires a substantial portion of our cash flows from operations to
be dedicated to interest and principalpayments and therefore not
available to fund our operations, working capital, capital expenditures,
expansion, acquisitions or general corporate or other purposes;
. may make it more difficult for us to satisfy our obligations with respect to the Notes;
. restricts the ability of some of our subsidiaries and joint ventures to make distributions to us;
. may impair our ability to obtain additional financing on favorable terms or at all in the future;
. may limit our flexibility in planning for, or reacting to, changes in our business and industry;
. may place us at a disadvantage compared to other less leveraged competitors; and
. may make us more vulnerable to downturns in our business, our industry or the economy in general.
The agreements governing our debt contain various covenants that impose
restrictions on us that may affect our ability to operateour business and to
make payments on the Notes.
Certain of our indentures, term loan facilities, export credit agency("ECA")
guaranteed financings, revolving credit facilities, securitizations, other
commercial bank financings, and other agreements governing our debt impose
operating and financial restrictions on our activities that limit our
operationalflexibility. Among other negative covenants customary for such
financings, certain of these restrictions limit our ability to incur
additional indebtedness, create liens on, sell or access certain assets,
declare or pay certain dividends anddistributions or enter into certain
transactions, investments, acquisitions, loans, guarantees or advances.
Additionally, a substantial portion of our owned aircraft are held through
special purpose entities or finance structures that finance orrefinance the
aircraft through funding agreements that place restrictions on distributions
of funds to us.
Agreements governing certainof our indebtedness also contain financial
covenants, including requirements that we comply with certain
loan-to-value,
interest coverage and leverage ratios. Theserestrictions could impede
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our ability to operate our business by, among other things, limiting our
ability to take advantage of financing, merger and acquisition and other
corporate opportunities. Our ability to complywith these covenants may be
affected by events beyond our control. Failure to comply with any of the
covenants in our financing agreements would result in a default under those
agreements and could result in a default under other agreementscontaining
cross default provisions. Under these circumstances, we may have insufficient
funds or other resources to satisfy all our obligations, including under the
Notes.
Despite our substantial indebtedness, we might incur significantly more debt.
Despite our current indebtedness levels, we may increase our levels of debt in
the future to finance our operations, including to purchaseaircraft or to meet
our contractual obligations, or for any other purpose. The agreements relating
to our debt, including our indentures, term loan facilities,
ECA-guaranteed
financings, revolving creditfacilities, securitizations, other commercial bank
financings and other financings do not prohibit us from incurring additional
debt. As of June 30, 2024, we had $10.9 billion of undrawn lines of credit
available under our revolving creditand term loan facilities, subject to
certain conditions, including compliance with certain financial covenants. If
we increase our total indebtedness, our debt service obligations will
increase, and we will become more exposed to the risks arisingfrom our
substantial level of indebtedness.
The Irish Issuer, Holdings and certain other guarantors of the Notes are
primarily holding companieswith very limited operations and may not have
access to sufficient cash to make payments on the Notes.
The Irish Issuer, Holdingsand certain other guarantors are primarily holding
companies with very limited operations. Their assets consist primarily of the
equity interests of their directly held subsidiaries, as well as intercompany
receivables and intercompany loans. As aresult, the Irish Issuer, Holdings and
certain other guarantors are dependent primarily upon dividends and other
payments from their subsidiaries to generate the funds necessary to meet their
outstanding debt service and other obligations, and suchdividends may be
restricted by law or the instruments governing their subsidiaries'
indebtedness. Their subsidiaries may not generate sufficient cash from
operations to enable the Issuers or the guarantors, as applicable, to make
principal andinterest payments on their indebtedness, including the Notes. In
addition, their subsidiaries are separate and distinct legal entities and any
payments of dividends, distributions, loans or advances to the Issuers or the
guarantors by theirsubsidiaries could be subject to legal and contractual
restrictions on dividends. In addition, payments to the Issuers or the
guarantors by their subsidiaries will be contingent upon their subsidiaries'
earnings. Additionally, we may be limitedin our ability to cause any existing
or future joint ventures to distribute their earnings to us. We cannot assure
you that agreements governing the current and future indebtedness of our
subsidiaries will permit those subsidiaries to provide theIssuers or the
guarantors with sufficient cash to fund payments of principal, premiums, if
any, and interest on the Notes, when due. In the event that the Issuers or the
guarantors do not receive distributions or other payments from theirsubsidiaries
, they may be unable to make required payments on the Notes.
The Notes and the guarantees are effectively subordinated to our and
theguarantors' existing and future secured indebtedness.
The Notes and the guarantees are unsecured obligations of the Issuersand each
guarantor, respectively, and are effectively subordinated to all of the
Issuers' and each guarantor's existing and future secured indebtedness and
other secured obligations to the extent of the value of the assets securing
suchindebtedness and other obligations. As a result, in the event of any
liquidation, insolvency, dissolution, reorganization or similar proceeding
relating to an Issuer, any guarantor or any property of any such entity,
holders of any securedindebtedness of such entity will have claims that are
prior to the claims of any noteholder with respect to the assets securing such
secured indebtedness. As of June 30, 2024, the Issuers and the guarantors had
$35.6 billion ofindebtedness outstanding (excluding debt issuance costs, debt
discounts and debt premium), none of which was secured.
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If we defaulted on our obligations under any of our secured debt, our secured
lenders wouldbe entitled to foreclose on our assets securing that indebtedness
and liquidate those assets. If any secured indebtedness were to be
accelerated, we cannot assure you that our assets would be sufficient to repay
in full that indebtedness and ourother indebtedness, including amounts due on
the Notes. In addition, upon any distribution of assets pursuant to any
liquidation, insolvency, dissolution, reorganization or similar proceeding,
the holders of our secured indebtedness will be entitledto receive payment in
full from the proceeds of the collateral securing such secured indebtedness
before the holders of the Notes will be entitled to receive any payment with
respect thereto. As a result, the holders of the Notes may recoverdisproportiona
tely less than the holders of secured indebtedness, and it is possible that
there will be no assets from which claims of holders of the Notes can be
satisfied or, if any assets remain, that the remaining assets will be
insufficient tosatisfy those claims in full.
The Indenture contains a covenant that provides that, subject to certain
exceptions, we must secure theNotes equally and ratably with certain secured
indebtedness that we or our restricted subsidiaries issue, assume or guarantee
in the event that the amount of such secured indebtedness exceeds 20% of our
Consolidated Tangible Assets as shown on orderived from our most recent
quarterly or annual consolidated balance sheet. If this covenant is triggered,
we would be obligated to secure the Notes equally and ratably with such other
secured indebtedness. As equally and ratably secured parties,holders of the
Notes would no longer be effectively subordinated to the other equally and
ratably secured indebtedness. The value of the collateral securing our
obligations to the holders of the Notes and to the other secured holders,
however, couldbe insufficient to repay the holders of the Notes and the other
secured holders in full. To the extent of any insufficiency in the value of
such collateral, holders of the Notes would have unsecured claims ranking
equally and ratably with unsecuredcreditors.
We may be able to obtain secured financing without regard to the foregoing
limit under the Indenture by doing so throughunrestricted subsidiaries. Our
indentures provide us with significant flexibility to designate our
subsidiaries (other than the Issuers and ILFC) as unrestricted and to invest
in, and incur debt (including secured debt) at, those unrestrictedsubsidiaries.
We cannot predict, however, whether we would be able to obtain any required
consents so as to incur additional secured debt under our bank credit
facilities, which limit our ability to incur secured indebtedness. See"
Description of Notes--Certain Covenants--Restrictions on Liens
."
The Notes and the guarantees are structurallysubordinated to all of the
existing and future liabilities, including trade payables, of our subsidiaries
that are not, or do not become, guarantors of the Notes.
The Notes are not guaranteed by all of our subsidiaries. The Notes are
guaranteed, jointly and severally, on a senior unsecured basis, byHoldings,
AerCap Aviation Solutions B.V., AerCap Ireland Limited, ILFC and AerCap U.S.
Global Aviation LLC. In the future, other restricted subsidiaries of Holdings
may be required to guarantee the Notes. See "
Description ofNotes--Certain Covenants--Future Subsidiary Guarantors
." Our subsidiaries that do not guarantee the Notes, including any
subsidiaries that we designate as unrestricted, have no obligation, contingent
or otherwise, to pay amounts dueunder the Notes or to make any funds available
to pay those amounts, whether by dividend, distribution, loan or other
payment. Claims of holders of the Notes will therefore be structurally
subordinated to all of the existing and future liabilities,including trade
payables, of any
non-guarantor
subsidiary such that, in the event of an insolvency, liquidation,
reorganization, dissolution or similar proceeding relating to any subsidiary
that is not aguarantor, all of that subsidiary's creditors (including trade
creditors) would be entitled to payment in full out of that subsidiary's
assets before the holders of the Notes would be entitled to any payment.
In addition, our subsidiaries that provide, or will provide, guarantees of the
Notes will be automatically released from those guarantees uponthe occurrence
of certain events, including the designation of that subsidiary guarantor as
an unrestricted subsidiary in accordance with the terms of the Indenture. The
Indenture provides us with significant flexibility to designate oursubsidiaries
(other than the Issuers and ILFC) as unrestricted subsidiaries. If any
subsidiary guarantee is released, no holder of the Notes will have a claim as
a creditor against that subsidiary, and the indebtedness and other
liabilities,including trade payables, of that subsidiary will be structurally
senior to the claim of any holders of the Notes. See "
Description of Notes--Guarantees
."
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As of June 30, 2024, our subsidiaries that are not guarantors of the Notes
(other thanthe Issuers) had total liabilities, including trade payables (but
excluding intercompany liabilities), of $15.9 billion and total assets
(excluding intercompany receivables) of $59.5 billion. Furthermore, for the
six months endedJune 30, 2024, our subsidiaries that are not guarantors of the
Notes (other than the Issuers) recorded net income of $498 million and
generated $3.5 billion of total revenues and other income (each presented on a
combined basis andincluding the results of intercompany transactions with the
Issuers and guarantors).
Unrestricted subsidiaries will not be subject to the covenantin the Indenture
limiting Holdings' and its restricted subsidiaries' (including the Issuers')
ability to secure indebtedness with liens on its or their assets.
The Issuers have designated certain of Holdings' subsidiaries as unrestricted
subsidiaries under the Indenture and have significantflexibility to designate
any of Holdings' other subsidiaries (other than the Issuers and ILFC) as
additional unrestricted subsidiaries under the Indenture. Unrestricted
subsidiaries are not subject to the covenant in the Indenture limitingHoldings'
and its subsidiaries' ability to secure indebtedness with liens on its or
their assets. Accordingly, we may secure indebtedness with the assets of any
subsidiary we designate as unrestricted, which could reduce the amount of
ourassets that would be available to satisfy your claims should the Issuers
default on the Notes.
If active trading markets for the Notes develop,changes in our credit ratings
or the debt markets could adversely affect the market prices of the Notes.
If active trading marketsfor the Notes develop, the market prices for the
Notes will depend on many factors, including:
. our credit ratings with major credit rating agencies;
. the number of potential buyers and level of liquidity of the Notes;
. the prevailing interest rates being paid by other companies similar to us;
. our results of operations, financial condition, liquidity and future prospects;
. the time remaining until the Notes mature; and
. the overall condition of the economy and the financial markets and the industry in which we operate.
The condition of the financial markets and prevailing interest rates have
fluctuated in the past and are likely tofluctuate in the future. For example,
during 2022, interest rates increased significantly in the United States, the
European Union, the United Kingdom and other countries. Interest rates
continued to increase during 2023 and rates may continue toincrease further
during 2024. Such fluctuations could have an adverse effect on the market
prices of the Notes.
Credit rating agenciesalso continually review their ratings for debt
securities of companies that they follow, including us. Negative changes in
our ratings, or in our outlook, would likely have an adverse effect on the
market prices of the Notes. One of the effects ofany credit rating downgrade
would be to increase our costs of borrowing in the future. In addition, if any
credit rating initially assigned to the Notes is subsequently lowered or
withdrawn for any reason, you may not be able to resell your Noteswithout a
substantial discount or at all.
Because your right to require repurchase of the Notes is limited, the trading
prices of the Notes maydecline if we enter into a transaction that is not a
Change of Control Triggering Event under the Indenture.
The term "Changeof Control Triggering Event" is limited and does not include
every event that might cause the trading prices of the Notes to decline. The
right of the holders of the Notes to require the Issuers to repurchase the
Notes upon a Change of ControlTriggering Event may not preserve the value of
the Notes in the
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event of a highly leveraged transaction, reorganization, merger or similar
transaction. We could engage in many types of transactions, such as
acquisitions, refinancings or recapitalizations, anyof which could
substantially affect our capital structure and the value of the Notes but may
not constitute a Change of Control Triggering Event that permits holders to
require the Issuers to repurchase their Notes. See "
Description ofNotes--Repurchase Upon a Change of Control Triggering Event.
"
The Issuers may not be able to repurchase the Notes upon a Change ofControl
Triggering Event.
Upon the occurrence of a Change of Control Triggering Event, each holder of
Notes has the right torequire the Issuers to repurchase all or any part of
such holder's Notes at a price equal to 101% of their principal amount, plus
accrued and unpaid interest, if any, to, but not including, the date of
repurchase. If we experience a Change ofControl Triggering Event, we cannot
assure you that the Issuers would have sufficient financial resources
available to satisfy their obligations to repurchase the Notes. The Issuers'
failure to repurchase the Notes as required under theIndenture would result in
a default under the Indenture, which could result in defaults under the
instruments governing our other indebtedness, including the acceleration of
the payment of any borrowings thereunder, and have material adverseconsequences
for us and the holders of the Notes. See "
Description of Notes--Repurchase Upon a Change of Control Triggering Event.
"
Holders of the Notes may not be able to determine when a change of control
giving rise to their right to have the Notes repurchased has occurredfollowing
a sale of "substantially all" of our assets.
A Change of Control Triggering Event gives each holder of Notesthe right to
require the Issuers to make an offer to repurchase all or any part of such
holder's Notes. One of the circumstances under which a change of control,
which is a condition to a Change of Control Triggering Event, may occur is
uponthe sale or disposition of "all or substantially all" of our and our
restricted subsidiaries' assets. There is no precise established definition of
the phrase "substantially all" under applicable law and the interpretationof
that phrase will likely depend upon particular facts and circumstances.
Accordingly, the ability of a holder of Notes to require the Issuers to
repurchase its Notes as a result of a sale of less than all of our assets to
another person isuncertain.
Credit ratings on the Notes may not reflect all risks.
Any credit ratings assigned to the Notes may not reflect the potential impact
of all risks related to structure, market, additional factorsdiscussed above
or incorporated by reference herein and other factors that may affect the
value of the Notes. A credit rating is not a recommendation to buy, sell or
hold securities and may be revised, suspended or withdrawn by the rating
agency atany time.
U.S. federal and state fraudulent transfer laws may permit a court to void the
Notes and any of the guarantees, subordinate claims inrespect of the Notes and
require noteholders to return payments received from us or the guarantors and,
if that occurs, you may not receive any payments on the Notes.
U.S. federal and state fraudulent transfer and conveyance statutes may apply
to the issuance of the Notes. Under federal bankruptcy law andcomparable
provisions of state fraudulent transfer or conveyance laws, which may vary
from state to state, the Notes could be voided as a fraudulent transfer or
conveyance if (1) the Issuers issued the Notes with the intent of
hindering,delaying or defrauding creditors or (2) the Issuers received less
than reasonably equivalent value or fair consideration in return for issuing
the Notes and, in the case of (2) only, one of the following is also true at
the time thereof:
. the applicable Issuer or the applicable guarantor was insolvent or rendered insolvent by reason of the issuanceof the Notes;
. the issuance of the Notes left the applicable Issuer or the applicable
guarantor with an unreasonably smallamount of capital to carry on business; or
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. the applicable Issuer or the applicable guarantor intended to, or believed that the applicable Issuer
or theapplicable guarantor would, incur debts beyond their ability to pay such debts as they mature.
Claims described undersubparagraph (1) above are generally described as
intentional fraudulent conveyances, while those under subparagraph (2) above
are constructive fraudulent conveyances. A court would likely find that an
Issuer did not receive reasonablyequivalent value or fair consideration for
the Notes if that Issuer did not substantially benefit directly or indirectly
from the issuance of the Notes. As a general matter, value is given for a
transfer or an obligation if, in exchange for thetransfer or obligation,
property is transferred or antecedent debt is secured or satisfied. To the
extent that the fraudulent conveyance analysis turns on insolvency, as with a
constructive fraudulent conveyance, the insolvency determination is
anintensely factual one, which is supposed to be conducted based on current
conditions rather than with the benefit of hindsight. Generally, an entity
would be considered insolvent if, at the time it incurred indebtedness,
insolvency was present basedon one of three alternative tests described above.
For purposes of evaluating solvency under the first of these tests, a court
would evaluate whether the sum of an entity's debts, including contingent
liabilities in light of the probabilitiesof their incurrence, was greater than
the fair saleable value of all its assets.
If a court were to find that the issuance of the Noteswas a fraudulent
transfer or conveyance, the court could void the payment obligations under the
Notes or subordinate the Notes to presently existing and future indebtedness
of ours, or require the holders of the Notes to repay any amounts receivedwith
respect to such Notes. In the event of a finding that a fraudulent transfer or
conveyance occurred, you may not receive any repayment on the Notes.
Irish law may permit a court to void the Notes and any of the guarantees,
subordinate claims in respect of the Notes and require noteholders to
returnpayments received from us or the guarantors and, if that occurs, you may
not receive any payments on the Notes.
Under Irishinsolvency law, if an Irish company or a company capable of being
wound-up
under the Irish Companies Act 2014 (as amended, the "2014 Act") goes into
liquidation, a liquidator can seek to invoke anumber of provisions of the 2014
Act to
set-side,
void or render voidable certain transactions entered into by that company
prior to the appointment of the liquidator. Such provisions may be invoked by
aliquidator to try to void the Notes and the related guarantees. In such an
event, you may not receive any repayment on the Notes. See "
Irish Law Considerations--Insolvency Under Irish Law--Voidance of
Transactions, Unfair Preference,Improper Transfers and Fraudulent Transfer
."
Insolvency laws of Ireland, the Netherlands or other local insolvency laws may
precludeholders of the Notes from recovering payments due on the Notes and may
not be as favorable to you as those of another jurisdiction with which you may
be familiar.
The Irish Issuer and AerCap Ireland Limited, a guarantor, are incorporated,
have their registered offices and conduct the administration oftheir business
in Ireland and are likely to have their center of main interests (within the
meaning of Regulation 2015/848, the "EU Insolvency Regulation") in Ireland.
Consequently, main insolvency proceedings in respect of the IrishIssuer and
AerCap Ireland Limited are likely to be commenced in Ireland and determined in
accordance with Irish insolvency laws.
Holdingsis incorporated under the laws of the Netherlands, has its statutory
seat (
statutaire zetel
) in the Netherlands, but conducts (most of) the administration of its
business in Ireland and is therefore likely to have its center of main
interests(within the meaning of the EU Insolvency Regulation) in Ireland.
Consequently, main insolvency proceedings in respect of Holdings are likely to
be commenced in Ireland and determined in accordance Irish insolvency laws.
AerCap Aviation Solutions B.V. is incorporated under the laws of the
Netherlands and has its statutory seat (
statutaire zetel
) in theNetherlands, and is likely to have its center of main interests
(within the meaning of the
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EU Insolvency Regulation) in the Netherlands. Consequently, main insolvency
proceedings in respect of AerCap Aviation Solutions B.V. would likely be
initiated in the Netherlands.
Secondary proceedings could be initiated in one or more EU jurisdictions (with
the exception of Denmark) in which the Issuers, Holdings,AerCap Ireland
Limited, AerCap Aviation Solutions B.V. or any other guarantor, as the case
may be, have an establishment.
While notincorporated in Ireland, any
non-Irish
incorporated guarantor may be subject to insolvency proceedings in Ireland if
(a) it has its center of main interests in Ireland (within the meaning of the
EUInsolvency Regulation), or (b) if it has its center of main interests
outside of the EU and, depending on the nature of the insolvency proceedings,
it has a sufficient connection to Ireland. In respect of examinership,
following two recentdecisions of the Irish High Court, there is now authority
(although each was determined on an uncontested basis) that:
(1) an examiner can be appointed to a
non-Irish
incorporated company thathas its center of main interests in Ireland (within the meaning of the EU Insolvency Regulation); and
(2) an examiner can be appointed to a
non-Irish
company that does not haveits center of main interests in Ireland, or in any
other EU member state, but has a sufficient connection to Ireland and is related
to another company (e.g. a parent, subsidiary or sister company) that (i) has
its center of main interests inIreland and (ii) is also in examinership.
Such proceedings may limit the ability of the holders of the Notes toenforce
their rights against the Issuers or the guarantors as applicable.
Dutch insolvency laws may make it difficult or impossible toeffect a
restructuring, which may limit the ability of the holders of the Notes to
enforce their rights under the Holdings Guarantee and the guarantee by AerCap
Aviation Solutions B.V. (the "AerCap Aviation Guarantee"). See "
IrishLaw Considerations--Insolvency under Irish Law--Examinership
" and "
Dutch Law Considerations--Insolvency Under Dutch Law
" for a description of insolvency laws in Ireland and the Netherlands.
The Holdings Guarantee and the AerCap Aviation Guarantee may be voidable under
Dutch fraudulent conveyance rules.
Dutch law contains specific provisions dealing with fraudulent transfer or
conveyance both in and outside of bankruptcy: the
so-called
actio pauliana
provisions. The
actio pauliana
protects creditors against acts that are prejudicial to them. A legal act
performed by a debtor (including, without limitation, an agreementpursuant to
which it guarantees the performance of the obligations of a third party and
any other legal act having similar effect) can be challenged in or outside
bankruptcy of the relevant debtor and may be nullified by the liquidator in
bankruptcy(
curator
) of the relevant debtor or, outside bankruptcy, by any of the creditors of
the relevant debtor, if: (i) the debtor performed such acts without a
pre-existing
legal obligation to do so(
onverplicht
); (ii) the creditor concerned (or, in the case of the debtor's bankruptcy,
any creditor) was prejudiced as a consequence of the act; and (iii) at the
time the act was performed both the debtor and the counterparty tothe
transaction knew or should have known that one or more of its creditors
(existing or future) would be prejudiced, unless the act was entered into for
no consideration (
om niet
), in which case such knowledge of the counterparty is notnecessary for a
successful challenge on grounds of fraudulent transfer or conveyance. For
certain types of transactions that are entered into within one year before (a)
the declaration of the bankruptcy (if the transaction is challenged
inbankruptcy), or (b) the moment the transaction is challenged by a creditor
(if the transaction is challenged outside bankruptcy), the debtor and the
counterparty to the transaction are legally presumed to have knowledge of the
fact that thetransaction will prejudice the debtor's creditors (subject to
evidence of the contrary). In addition, the liquidator in bankruptcy of a
debtor may nullify that debtor's performance of any due and payable obligation
if (i) at the timeof such performance the payee (
hij die betaling ontving
) knew that a request for bankruptcy of that debtor had been filed, or (ii)
the performance of the obligation was the result of a consultation between the
debtor
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and the payee with a view to give preference to the latter over the debtor's
other creditors. If the granting of the Holdings Guarantee or AerCap Aviation
Guarantee or any other transactionentered into by Holdings or AerCap Aviation
Solutions B.V. at any time in connection with the issuance of the Notes
involves a fraudulent conveyance that does not qualify for any valid defense
under Dutch law, then the granting of the HoldingsGuarantee or the AerCap
Aviation Guarantee or any such other transaction may be nullified. As a result
of a successful challenge, holders of the Notes may not enjoy the benefit of
the Holdings Guarantee or the AerCap Aviation Guarantee. In addition,under
such circumstances, holders of the Notes might be held liable for any damages
incurred by prejudiced creditors of Holdings or AerCap Aviation Solutions B.V.
as a result of the fraudulent conveyance.
In the event of the Irish Issuer's liquidation or winding up, the amount of
your recovery, if any, may be denominated in euro and may therefore beexposed
to currency exchange rate fluctuations.
If you are entitled to recovery with respect to the Notes upon the
IrishIssuer's liquidation or winding up, you might not be entitled to a
recovery in U.S. dollars and might be entitled only to a recovery in or in
reference to euro or any other lawful currency of Ireland or any other
jurisdiction governing suchliquidation or winding up. In addition, under
current Irish law, in a winding up of the Irish Issuer, all foreign currency
claims (including, under the Notes) must be converted into euro or other
lawful currency of Ireland for the purpose of proofusing the spot rate as of,
in the case of a compulsory winding up, either the date of its commencement
(presentation of the petition for winding up or earlier winding up resolution)
or of the winding up order and, in the case of a voluntary windingup, the date
of the winding up resolution. As a result, you would be exposed to currency
exchange rate fluctuations between that date and the date you receive proceeds
pursuant to such proceedings, if any. The same risks would apply in respect
ofany recovery with respect to a guarantee issued in respect of the Notes upon
the liquidation or winding up under Irish law of the relevant guarantor.
Dutch corporate benefit laws may adversely affect the validity and
enforceability of the Holdings Guarantee or the AerCap Aviation Guarantee.
If a Dutch company, such as Holdings or AerCap Aviation Solutions B.V., enters
into a transaction (such as the granting of theHoldings Guarantee or the
AerCap Aviation Guarantee), the relevant transaction may be nullified by the
Dutch company or its liquidator in bankruptcy and, as a consequence, may not
be valid, binding and enforceable against it, if that transaction isnot within
the company's corporate objects and the other party to the transaction knew or
should have known this without independent investigation. In determining
whether the granting of a guarantee or the giving of security is within
thecorporate objects of the relevant company, a Dutch court would not only
consider the text of the objects clause in the articles of association of the
company but all relevant circumstances, including whether the company derives
certain commercialbenefits from the transaction in respect of which the
guarantee was granted or the security was given and any indirect benefit
derived by the relevant Dutch company as a consequence of the interdependence
of it with the group of companies to whichit belongs and whether or not the
subsistence of the relevant Dutch company is put at risk by conducting such
transaction.
It is unclearwhether a transaction can be nullified for being a transgression
of the corporate objects of a company if that transaction is expressly
permitted according to the wording of the objects clause in the articles of
association of that company. A Dutchcourt of appeal ruled that circumstances
such as the absence of corporate benefit are in principle not relevant if the
relevant transaction is expressly permitted according to the objects clause in
the articles of association of the company.However, there is no decision of
the Dutch Supreme Court confirming this, and therefore there can be no
assurance that a transaction that is expressly permitted according to the
objects clause in the articles of association of a company cannot benullified
for being a transgression of the corporate objects of that company. The
objects clauses in the articles of association of Holdings and AerCap Aviation
Solutions B.V. include providing security for debts of legal entities and
othercompanies.
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If the Holdings Guarantee or the AerCap Aviation Guarantee or any other
guarantee of theNotes were held to be unenforceable, it could adversely affect
your ability to collect any amounts you are owed in respect of the Notes.
Irishcorporate benefit laws may adversely affect the validity and
enforceability of the AerCap Ireland Limited guarantee.
The Notes areguaranteed by AerCap Ireland Limited, to the extent that such
guarantee would not constitute the giving of unlawful financial assistance
within the meaning of Section 82 of the 2014 Act. There is a risk under Irish
law that a guarantee may bechallenged as unenforceable on the basis that there
is an absence of corporate benefit on the part of the relevant guarantor or
that it is not for the purpose of carrying on the business of the relevant
guarantor. Where a guarantor is a direct orindirect holding company of an
issuer, there is less risk of an absence of a corporate benefit on the basis
that the holding company could justify the decision to give a guarantee to
protect or enhance its investment in its direct or indirectsubsidiary. Where a
guarantor is a direct or indirect subsidiary of an issuer or is a member of
the group with a common direct or indirect holding company, there is a greater
risk of the absence of the corporate benefit. In the case of an Irishguarantor,
the Irish courts have held that corporate benefit may be established where the
benefit flows to the group generally rather than specifically to the relevant
Irish guarantor.
U.S. investors in the Notes may have difficulties enforcing certain civil
liabilities against us or our executive officers, some of our directors
andsome of our named experts in the United States.
Holdings is a public limited liability company (
naamloze vennootschap
orN.V.) incorporated under the laws of the Netherlands and the Irish Issuer is
an entity incorporated and existing under the laws of Ireland. The rights of
investors in the Notes under the laws of the Netherlands or Ireland may differ
from the rightsof investors in companies incorporated in other jurisdictions.
Some of the named experts referred to in this prospectus supplement, the
accompanying prospectus or the documents incorporated by reference herein or
therein are not residents of theUnited States, and most of our directors and
our executive officers and most of our assets and the assets of our directors
are located outside the United States. As a result, you may not be able to
serve process on us or on such persons in theUnited States or obtain or
enforce judgments from U.S. courts against them or us based on the civil
liability provisions of the securities laws of the United States. There is
doubt as to whether the courts of the Netherlands or Ireland would
enforcecertain civil liabilities under U.S. securities laws in original
actions and enforce claims for punitive damages.
Under our articles ofassociation, we indemnify and hold our directors,
officers and employees harmless against all claims and suits brought against
them, subject to limited exceptions. Under our articles of association, to the
extent allowed by law, the rights andobligations among or between us, any of
our current or former directors, officers and employees and any current or
former shareholder shall be governed exclusively by the laws of the
Netherlands and subject to the jurisdiction of the Dutch courts,unless such
rights or obligations do not relate to or arise out of their capacities listed
above. Although there is doubt as to whether U.S. courts would enforce such
provision in an action brought in the United States under U.S. securities
laws,such provision could make judgments obtained outside of the Netherlands
more difficult to enforce against our assets in the Netherlands or
jurisdictions that would apply the laws of the Netherlands.
For more information, see "
Irish Law Considerations--Enforcement of Civil Liability Judgments Under Irish
Law
" and"
Dutch Law Considerations--Enforcement of Civil Liability Judgments Under Dutch
Law
."
Enforcing your rights as an investor inthe Notes or under the guarantees
across multiple jurisdictions may be difficult.
The Notes are guaranteed by certain of oursubsidiaries organized under the
laws of Ireland, the Netherlands and the United States. In the event of
bankruptcy, insolvency, liquidation or a similar event, proceedings could be
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initiated in any of these jurisdictions or in the jurisdiction of organization
of a future guarantor. Your rights under the Notes and the guarantees will be
subject to the laws of severaljurisdictions and you may not be able to enforce
effectively your rights in multiple bankruptcy, insolvency, liquidation and
other similar proceedings. Moreover, such multi-jurisdictional proceedings are
typically complex and costly for creditorsand often result in substantial
uncertainty and delay in the enforcement of creditors' rights.
In addition, the bankruptcy,insolvency, liquidation, foreign exchange,
administration and other analogous laws of the various jurisdictions in which
the Irish Issuer and the guarantors are located or operate may be materially
different from or in conflict with one another andwith those of the United
States and/or the jurisdiction of the holder of the Notes, including in
respect of creditors' rights, priority of creditors, the ranking of claims,
the ability to obtain post-petition interest and the duration of theinsolvency
proceeding. The consequences of the multiple jurisdictions involved in the
transaction could trigger disputes over which jurisdiction's law should apply
and choice of law disputes which could adversely affect your ability to
enforceyour rights and to collect payment in full under the Notes and the
guarantees.
If payments made pursuant to either the Holdings Guarantee or theAerCap
Aviation Guarantee are subject to withholding tax in the Netherlands, the
relevant Dutch guarantor will make the required withholding or deduction for
the account of the relevant holder of the Notes and shall not be obliged to
pay additionalamounts to such holder of the Notes.
The Netherlands introduced a withholding tax on interest payments as of
January 1, 2021pursuant to the Dutch Withholding Tax Act 2021 (
Wet bronbelasting 2021
). The withholding tax generally applies to interest payments made or deemed
to be made by an entity tax resident in the Netherlands to a related (
gelieerd
) entity(as described below) if such related (
gelieerd
) entity (i) is considered to be resident (
gevestigd
) in a jurisdiction that is listed in the annually updated Dutch Regulation on
low-taxing
jurisdictions and
non-cooperative
jurisdictions for tax purposes (
Regeling laagbelastende staten en
niet-cooperatieve
rechtsgebieden voorbelastingdoeleinden
) (a "Listed Jurisdiction"), (ii) has a permanent establishment located in a
Listed Jurisdiction to which the interest payment is attributable, (iii) is
entitled to the interest payment with the main purpose orone of the main
purposes of avoiding taxation for another person or entity and there is an
artificial arrangement or transaction or a series of artificial arrangements
or transactions, (iv) is not considered to be the recipient of the interestin
its jurisdiction of residence because such jurisdiction treats another entity
as the recipient of the interest (a hybrid mismatch); (v) is not resident in
any jurisdiction (also a hybrid mismatch), or (vi) is a reverse hybrid (within
themeaning of Article 2(12) of the Dutch Corporate Income Tax Act;
Wet op de vennootschapsbelasting 1969
), if and to the extent (x) there is a participant in the reverse hybrid
holding a Qualifying Interest (as defined below) in the reversehybrid, (y) the
jurisdiction of residence of the participant holding the Qualifying Interest
in the reverse hybrid treats the reverse hybrid as transparent for tax
purposes and (z) such participant would have been subject to Dutchwithholding
tax in respect of the payments of interest without the interposition of the
reverse hybrid, all within the meaning of the Dutch Withholding Tax Act 2021 (
Wet bronbelasting 2021
).
For purposes of the Dutch Withholding Tax Act 2021, an entity is considered a
related (
gelieerd
) entity if (i) such entity has aQualifying Interest in the entity tax
resident in the Netherlands, (ii) the entity tax resident in the Netherlands
has a Qualifying Interest in such entity or (iii) a third party has a
Qualifying Interest in both the entity tax resident inthe Netherlands and such
entity.
The term "Qualifying Interest" means a directly or indirectly held
interest--either by anentity individually or jointly if an entity is part of a
collaborating group (
samenwerkende groep
)--that enables such entity or such collaborating group to exercise a
definitive influence over another entity's decisions and allows itto determine
the other entity's activities (within the meaning of case law of the European
Court of Justice on the right of freedom of establishment (
vrijheid van vestiging
)).
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This Dutch withholding tax may also apply in situations where artificial
arrangements ortransactions are put in place with the main purpose or one of
the main purposes of avoiding taxation for another person, such as where an
interest payment to a Listed Jurisdiction is artificially routed via an
intermediate entity in a
non-Listed
Jurisdiction.
If any payments made pursuant to either the Holdings Guarantee or the
AerCapAviation Guarantee are subject to withholding tax in the Netherlands
pursuant to the Dutch Withholding Tax Act 2021 as a result of the relevant
holder of the Notes being a related (
gelieerd
) entity in respect of any of the Issuers, Holdingsor AerCap Aviation
Solutions B.V. (together with Holdings, the "Dutch Guarantors") for purposes
of the Dutch Withholding Tax Act 2021, the relevant Dutch Guarantor will make
the required withholding or deduction for the account of therelevant holder of
the Notes and shall not be required to pay additional amounts in respect of
the withholding or deduction. See "
Description of Notes--Additional Amounts
."
In practice, the Issuers or the Dutch Guarantors may not always be able to
assess whether a holder of the Notes is a related (
gelieerd
)entity located in a Listed Jurisdiction. The parliamentary history is unclear
on the Issuers' or the Dutch Guarantors' responsibilities to determine the
absence of such relation (
gelieerdheid
) in respect of notes issued in themarket, like the Notes.
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USE OF PROCEEDS
We intend to use the net proceeds from this offering of approximately $, after
deducting underwriting discounts,but before deducting expenses of this
offering, for general corporate purposes, including to acquire, invest in,
finance or refinance aircraft assets and to repay indebtedness.
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CAPITALIZATION
The following table sets forth our cash and cash equivalents and capitalization
as of June 30, 2024, on an actual basis and on an asadjusted basis after
giving effect to:
(1) our issuance of $750,000,000 aggregate
principal amount of Fixed-Rate Reset Junior
Subordinated Notes due 2055,as further
described in AerCap's Report on Form
6-K
filed with the SEC on July 11,
2024, and, for purposes of this "
Capitalization
" section, assumes we will use the net proceedstherefrom to redeem all $750,000,000
aggregate principal amount of Holdings' outstanding Fixed-Rate Reset Junior
Subordinated Notes due 2079 at their first call date occurring on October 10,
2024 at a redemption price equal to 100% of theprincipal amount thereof; and
(2) the issuance and sale of the Notes offered hereby.
The information presented in the table below is unaudited and should be read
in conjunction with our financial statements and related notesincorporated by
reference into this prospectus supplement.
As of June 30, 2024
Actual As Adjusted
(U.S. dollars in thousands)
Cash and cash equivalents $ 1,436,032 $
Consolidated debt
Unsecured
Issuers' Existing Notes $ 30,915,349 $
20 Notes offered hereby --
20 Notes offered hereby --
Asia Revolving Credit Facility 25,000
Citi Revolving Credit Facility --
Other unsecured debt 3,975,000
TOTAL UNSECURED $ 34,915,349 $
Secured
Export credit facilities $ 969,113 $
Institutional secured term loans and secured portfolio loans 6,557,290
AerFunding Revolving Credit Facility 875,891
Other secured debt 345,074
Fair value adjustment 628
TOTAL SECURED $ 8,747,996 $
Subordinated
ECAPS Subordinated Notes due 2065 $ 1,000,000 $
AGAT Subordinated Notes due 2045 500,000
Junior Subordinated Notes due 2079 750,000
Junior Subordinated Notes due 2055 --
TOTAL SUBORDINATED $ 2,250,000 $
Debt issuance costs, debt discounts and debt premium (216,156 )
Total Consolidated Debt $ 45,697,189 $
Total Equity $ 17,016,421 $
Total Capitalization $ 62,713,610 $
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DESCRIPTION OF NOTES
General
Certain terms used in this"
Description of Notes
" are defined under the subheading "--
Certain Definitions
." In this description, (1) the term "Irish Issuer" refers to AerCap Ireland
Capital Designated Activity Company andnot to any of its Affiliates, (2) the
term "U.S. Issuer" refers only to AerCap Global Aviation Trust and not to any
of its Affiliates, (3) references to the "Issuers" refer only to the Irish
Issuer and the U.S. Issuerand not to any of their subsidiaries or Affiliates,
(4) the term "Holdings" refers only to AerCap Holdings N.V. and not to any of
its Affiliates and (5) references to "we," "our" and "us" refer toHoldings and
its consolidated subsidiaries.
The % Senior Notes due 20 (the "20 Notes") and the %Senior Notes due 20 (the
"20 Notes" and, together with the 20 Notes, the "Notes") will be issued under
an indenture, dated as of October 29, 2021, among the Issuers, the Guarantors
and The Bank of NewYork Mellon Trust Company, N.A., as trustee (the "Trustee")
(as supplemented by the Ninth Supplemental Indenture, to be dated as of the
Issue Date, among the Issuers, the Guarantors party thereto and the Trustee,
the"Indenture"). The following summary of certain provisions of the Notes and
the Indenture does not purport to be complete and is subject to, and is
qualified in its entirety by reference to, the Notes and the Indenture,
including thedefinitions of certain terms contained therein.
The Notes will be issued only in fully registered book-entry form without
coupons only inminimum denominations of $150,000 and integral multiples of
$1,000 above that amount. The Notes will be issued in the form of global
notes. Global notes will be registered in the name of a nominee of DTC, New
York, New York, as described under"
Book-Entry, Delivery and Form of Securities.
"
Listing
Application will be made to Euronext Dublin for the Notes to be admitted to
the Official List and to trading on the Global Exchange Market ofEuronext
Dublin. We cannot assure you, however, that this application will be accepted.
The Issuers are not regulated by the Central Bankof Ireland or any other
financial services regulator under Irish law by virtue of the issuance of the
Notes. Any investment in the Notes does not have the status of a bank deposit
and is not within the scope of the deposit protection scheme operatedby the
Central Bank of Ireland. The Issuers are not required to be licensed,
registered or authorized under any current securities, commodities or banking
laws of Ireland by virtue of the issuance of the Notes.
Paying Agent and Registrar for the Notes
The Issuers will maintain one or more paying agents and registrars for the
Notes.
Principal Amount; Maturity and Interest
The 20 Notes will be initially issued in an aggregate principal amount of $
and will matureon, 20. The 20 Notes will be initially issued in an aggregate
principal amount of $ and will mature on , 20.
The 20 Notes will bear interest at the rate per annum shown on the front cover
of this prospectus supplement, payable semiannually inarrears on and of each
year, commencing on , 2025, until full repayment of the outstanding principal
amount of the 20 Notes. Interest on the 20 Noteswill be payable to the holders
of record on and , as the case may be, immediately preceding such interest
payment date, whether or not such day is a Business Day.
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The 20 Notes will bear interest at the rate per annum shown on the front cover
ofthis prospectus supplement, payable semiannually in arrears on and of each
year, commencing on , 2025, until full repayment of the outstanding principal
amount ofthe 20 Notes. Interest on the 20 Notes will be payable to the holders
of record on and , as the case may be, immediately preceding such interest
payment date, whether or not suchday is a Business Day.
Interest on the Notes will accrue from the most recent date on which interest
has been paid or, if no interest hasbeen paid, from and including the Issue
Date.
The Notes will be denominated in U.S. dollars and all payments of principal
and interestthereon will be paid in U.S. dollars. Interest will be computed on
the basis of a
360-day
year comprised of twelve
30-day
months.
Additional Notes
The Issuers may, fromtime to time, without notice to or the consent of the
holders, create and issue, pursuant to the Indenture and in accordance with
applicable laws and regulations, additional Notes (the "Additional Notes") of
any series maturing on the samematurity date as the other Notes of such series
and having the same terms and conditions under the Indenture (including with
respect to the Guarantors and the Guarantees) as the Notes of such series at
the time Outstanding in all respects (or in allrespects except for the issue
date and the date of the first interest payment thereon) so that such
Additional Notes shall be consolidated and form a single class with the Notes
of such series at the time Outstanding for all purposes under theIndenture,
including with respect to waivers, amendments, redemptions and offers to
purchase;
provided
that, if the Additional Notes of a series are not fungible with the other
Notes of such series for U.S. federal income tax purposes, theAdditional Notes
will have a separate CUSIP, ISIN or other identifying number.
Additional Notes, if any, will be the subject of aseparate prospectus
supplement.
Ranking
The Notes and the Guarantees thereof will rank
pari passu
in right of payment with all existing and future senior indebtedness of
therelevant Issuer or the relevant Guarantor, as the case may be.
The Notes will be effectively subordinated to all of the Issuers' andeach
Guarantor's existing and future secured indebtedness and other secured
obligations to the extent of the value of the assets securing such
indebtedness and other obligations. As of June 30, 2024, the principal amount
of outstandingindebtedness of Holdings and its Subsidiaries, which excludes
debt issuance costs, debt discounts and debt premium of $216.2 million, was
$45.9 billion, of which $8.7 billion was secured, and Holdings and its
Subsidiaries had$10.9 billion of undrawn lines of credit available under their
credit and term loan facilities. See "
Capitalization.
"
The Notes will be structurally subordinated to all of the existing and future
indebtedness and other liabilities (including trade payables) ofeach
Subsidiary of Holdings (other than the Issuers) that does not guarantee the
Notes. As of June 30, 2024, these
non-Guarantor
Subsidiaries had total liabilities, including trade payables (but
excludingintercompany liabilities), of $15.9 billion and total assets
(excluding intercompany receivables) of $59.5 billion. Furthermore, for the
six months ended June 30, 2024, these
non-Guarantor
Subsidiaries recorded net income of $498 million and generated $3.5 billion of
total revenues and other income (each presented on a combined basis and
including the results of intercompany transactions with the Issuers and
Guarantors).
Guarantees
The Notes and allobligations under the Indenture will be initially irrevocably
and unconditionally guaranteed, jointly and severally, on a senior unsecured
basis, by Holdings, AerCap Aviation Solutions B.V.,
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AerCap Ireland Limited, ILFC and AerCap U.S. Global Aviation LLC. In addition,
in the future, other Restricted Subsidiaries of Holdings may be required to
guarantee the Notes. See"--
Certain Covenants
--
Future Subsidiary Guarantors
."
In addition, the obligations of each Guarantor(other than any Guarantor that
is a direct or indirect parent of the Irish Issuer) under its Guarantee will
be limited to the extent necessary to prevent such Guarantee from constituting
a fraudulent conveyance or transfer under applicable law (orto ensure
compliance with legal restrictions with respect to distributions or the
provision of other benefits to direct or indirect shareholders) or as
necessary to recognize certain defenses generally available to guarantors,
including voidablepreference, financial assistance, corporate purpose, capital
maintenance or similar laws, regulations or defenses affecting the rights of
creditors generally or other considerations under applicable law. See "
Irish LawConsiderations--Insolvency Under Irish Law
" and "
Dutch Law Considerations--Insolvency Under Dutch Law.
"
A Guarantee by a Subsidiary Guarantor in respect of the Notes of a series
shall provide by its terms that it shall be automatically andunconditionally
released and discharged upon:
(1) (a) any sale, exchange, disposition or transfer (including through consolidation,
amalgamation, merger orotherwise) of (x) the Capital Stock of such Subsidiary
Guarantor, after which such Subsidiary Guarantor is no longer a Restricted
Subsidiary, or (y) all or substantially all the assets of such Subsidiary Guarantor;
(b) other than with respect to each Subsidiary Guarantor that is a party to the Indenture on the date of
theIndenture, the release, discharge or termination of the Guarantee by such Subsidiary Guarantor
that resulted in the obligation of such Subsidiary Guarantor to guarantee the Notes of such series,
except a release, discharge or termination by or as aresult of payment under such Guarantee;
(c) the permitted designation of any Restricted Subsidiary that is a Subsidiary Guarantor as an UnrestrictedSubsidiary;
(d) the consolidation, amalgamation or merger of any Subsidiary Guarantor with and into
an Issuer or anotherGuarantor that is the surviving Person in such consolidation,
amalgamation or merger, or upon the liquidation of such Subsidiary Guarantor
following the transfer of all of its assets to an Issuer or another Guarantor; or
(e) the Issuers exercising their legal defeasance option or covenant defeasance
option with respect to the Notes ofsuch series as described under
"--Legal Defeasance and Covenant Defeasance
" or the Issuers' obligations with respect to the Notes of such series
under the applicable Indenture being discharged as described under"
--Satisfaction and Discharge
"; and
(2) if evidence of such release and discharge is requested to be executed by the Trustee, the Irish
Issuerdelivering, or causing to be delivered, to the Trustee an Officers' Certificate and an opinion
of counsel, each stating that all conditions precedent provided for in the Indenture relating to
such transaction and to the execution of suchevidence by the Trustee have been complied with.
Additional Amounts
The Issuers and the Guarantors are required to make all payments under or with
respect to the Notes and each Guarantee, as the case may be,free and clear of
and without withholding or deduction for or on account of any present or
future tax, duty, levy, impost, assessment or other governmental charge
(including penalties, interest and other liabilities related thereto)
(hereinafter"Taxes") imposed or levied by or on behalf of (i) Ireland or any
political subdivision or any authority or agency therein or thereof having
power to tax, (ii) any other jurisdiction in which an Issuer is organized or
otherwiseresident for tax purposes or any political subdivision or any
authority or agency therein or thereof having the power to tax, (iii) any
jurisdiction from or through which
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payment on the Notes or any Guarantee or any political subdivision or any
authority or agency therein or thereof having the power to tax is made or (iv)
any jurisdiction in which a Guarantorthat actually makes a payment on the
Notes or its Guarantee is organized or otherwise considered to be a resident
for tax purposes, or any political subdivision or any authority or agency
therein or thereof having the power to tax (each a"Relevant Taxing
Jurisdiction"), unless the Issuers and the Guarantors are required to withhold
or deduct Taxes by law or by the interpretation or administration thereof.
If an Issuer or a Guarantor is so required to withhold or deduct any amount
for or on account of Taxes imposed by a Relevant TaxingJurisdiction from any
payment made under or with respect to the Notes of a series or any Guarantee
in respect of the Notes of such series, the Issuers and the Guarantors will be
required to pay such additional amounts ("AdditionalAmounts") as may be
necessary so that the net amount received by holders of Notes of such series
(including Additional Amounts) after such withholding or deduction will not be
less than the amount such holders would have received if such Taxeshad not
been withheld or deducted;
provided
,
however
, that the foregoing obligation to pay Additional Amounts does not apply to
(1) any Taxes that would not have been so imposed but for the existence of any
present or formerconnection between the relevant holder (or between a
fiduciary, settlor, beneficiary, member or shareholder of, or possessor of
power over, the relevant holder, if the relevant holder is an estate, nominee,
trust or corporation) and the RelevantTaxing Jurisdiction (including being a
citizen or resident or national of, or carrying on a business or maintaining a
permanent establishment in, or being physically present in, the Relevant
Taxing Jurisdiction, but other than a connection arisingfrom the acquisition,
ownership or holding of such Note of such series or the receipt of any payment
in respect thereof); (2) any estate, inheritance, gift, sales, value added,
excise, transfer, personal property tax or similar tax, assessment
orgovernmental charge; (3) any Taxes imposed as a result of the failure of the
relevant holder or beneficial owner of the Notes of such series to comply with
a timely request in writing of any Issuer addressed to the holder or
beneficial owner,as the case may be (such request being made at a time that
would enable such holder or beneficial owner acting reasonably to comply with
that request), to provide information concerning such holder's or beneficial
owner's nationality,residence, identity or connection with any Relevant Taxing
Jurisdiction, if and to the extent that due and timely compliance with such
request under applicable law, regulation or administrative practice would have
reduced or eliminated such Taxeswith respect to such holder or beneficial
owner, as applicable; (4) any Taxes that are payable other than by deduction
or withholding from a payment of the principal of, premium, if any, or
interest, if any, on the Notes of such series;(5) any Taxes that are required
to be deducted or withheld on a payment that are required to be made pursuant
to Council Directive 2014/107/EU ("DAC2") or any law implementing or complying
with, or introduced in order to conform tosuch Directive; (6) any Taxes
withheld or deducted pursuant to the Dutch Withholding Tax Act 2021 (
Wet bronbelasting 2021
); or (7) any Taxes withheld or deducted pursuant to Sections 1471 through
1474 of the Internal Revenue Code(or any amended or successor version of such
Sections), any U.S. Treasury regulations promulgated thereunder, any official
interpretations thereof or any agreements or treaties (including any law
implementing any such agreement or treaty) enteredinto in connection with the
implementation thereof; nor will the Issuers or Guarantors pay Additional
Amounts (a) if the payment could have been made without such deduction or
withholding if the beneficiary of the payment had presented the Noteof such
series for payment (where presentation is permitted or required for payment)
within 30 days after the date on which such payment or such Note became due
and payable or the date on which payment thereof is duly provided for,
whichever islater, (b) with respect to any payment of principal of (or
premium, if any, on) or interest on such Note to any holder who is a fiduciary
or partnership or any Person other than the sole beneficial owner of such
payment, to the extent that abeneficiary or settlor with respect to such
fiduciary, a member of such a partnership or the beneficial owner of such
payment would not have been entitled to the Additional Amounts had such
beneficiary, settlor, member or beneficial owner been theactual holder of such
Note, or (c) in respect of any Note where such withholding or deduction is
imposed as a result of any combination of clauses (1), (2), (3), (4), (5),
(6), (7), (a) and (b) of this paragraph.
The Issuers and the Guarantors will make any required withholding or deduction
and remit the full amount deducted or withheld to the RelevantTaxing
Jurisdiction in accordance with applicable law. The Issuers and the Guarantors
will provide the Trustee, for the benefit of the holders, with official
receipts evidencing the payment
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of the Taxes with respect to which Additional Amounts are paid. If,
notwithstanding the efforts of the Issuers and the Guarantors to obtain such
receipts, the same are not obtainable, the Issuersand the Guarantors will
provide the Trustee with other evidence. In no event, however, shall any
Issuer or Guarantor be required to disclose any information it reasonably
deems to be confidential.
If the Issuers or the Guarantors are or become obligated to pay Additional
Amounts under or with respect to any payment made on the Notes orany
Guarantee, at least 30 days prior to the date of such payment, the Issuers
will deliver to the Trustee an Officers' Certificate stating that Additional
Amounts will be payable and the amount so payable and such other information
necessaryto enable the paying agent to pay Additional Amounts to holders on
the relevant payment date. Whenever in the Indenture there is mentioned, in
any context:
(1) the payment of principal or interest;
(2) redemption prices or purchase prices in connection with a redemption or purchase of Notes; or
(3) any other amount payable on or with respect to any of the Notes or any Guarantee;
such reference shall be deemed to include payment of Additional Amounts as
described under this heading to the extent that, in such context,
AdditionalAmounts are, were or would be payable in respect thereof.
The Issuers and the Guarantors will pay any present or future stamp, court
ordocumentary taxes or any other excise, property or similar taxes, charges or
levies that arise in any Relevant Taxing Jurisdiction from the execution,
delivery, enforcement or registration of the Notes, the Indenture, any
Guarantee or any otherdocument or instrument in relation thereof, and the
Issuers and the Guarantors will agree to indemnify the holders for any such
taxes paid by such holders. The obligations described under this heading will
survive any termination, defeasance ordischarge of the Indenture and will apply
mutatis mutandis
to any jurisdiction in which any successor Person to any Issuer or any
Guarantor is organized or any political subdivision or taxing authority or
agency thereof or therein. For adiscussion of Irish withholding taxes
applicable to payments under or with respect to the Notes, see "
Certain Irish, Dutch and U.S. Federal Income Tax Consequences--Certain Irish
Tax Consequences.
"
Optional Redemption
Prior to theapplicable Par Call Date, the Issuers may redeem all or part of
the Notes of the applicable series, upon not less than 15 nor more than 45
days' prior notice mailed by first class mail to each holder's registered
address, or deliveredelectronically if held by DTC, at a redemption price
equal to the greater of (i) 100% of the principal amount of Notes being
redeemed and (ii) the sum of the present value at such redemption date of all
remaining scheduled payments of principaland interest on such Notes through
the applicable Par Call Date (excluding accrued but unpaid interest to the
redemption date), discounted to the date of redemption using a discount rate
equal to the Treasury Rate plus basispoints, in the case of the 20 Notes, or
basis points, in the case of the 20 Notes, plus, in each case, accrued and
unpaid interest, if any, to, but not including, the redemptiondate, subject to
the right of holders of record on the relevant record date to receive interest
due on the relevant interest payment date. In the event of a partial
redemption of the Notes of a series, the Notes of such series to be redeemed
shallbe selected in the manner described under "--
Selection and Notice
." On or after the applicable Par Call Date, the Notes of the applicable
series may be redeemed at the Issuers' option, at any time in whole or from
time totime in part, at a redemption price equal to 100% of the principal
amount of the Notes being redeemed, plus accrued and unpaid interest, if any,
to, but not including, the redemption date, subject to the right of holders of
record on the relevantrecord date to receive interest due on the relevant
interest payment date.
Any redemption or notice of any redemption may, at theIssuers' discretion, be
subject to one or more conditions precedent, including, but not limited to,
completion of any debt or equity financing, acquisition or other corporate
transaction or event, and, at the Issuers' discretion, theredemption date may
be delayed until
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such time as any or all of such conditions have been satisfied. In addition,
the Issuers may provide in any notice of redemption that payment of the
redemption price and the performance of theirobligations with respect to such
redemption may be performed by another Person;
provided, however
, that the Issuers will remain obligated to pay the redemption price and
perform their obligations with respect to such redemption in the eventsuch
other Person fails to do so.
In addition to the Issuers' right to redeem Notes as set forth above, the
Issuers may at any timeand from time to time purchase Notes pursuant to
open-market transactions, tender offers or otherwise.
The Trustee will not beresponsible for calculating the redemption price of the
Notes.
Redemption for Changes in Withholding Taxes
The Issuers are entitled to redeem the Notes of a series, at the option of the
Issuers, at any time in whole but not in part, upon not lessthan 15 nor more
than 45 days' notice (which notice shall be irrevocable) to the holders mailed
by first-class mail to each holder's registered address, or delivered
electronically if held by DTC, at a redemption price equal to 100% of
theprincipal amount of the Notes being redeemed, plus accrued and unpaid
interest, if any, to, but not including, the date of redemption (subject to
the right of holders of record on the relevant record date to receive interest
due on the relevantinterest payment date) and Additional Amounts, if any, in
the event the Issuers have become or would become obligated to pay, on the
next date on which any amount would be payable with respect to the Notes of
such series, any Additional Amounts withrespect to the Notes of such series as
a result of:
(1) a change in or an amendment to the laws (including any regulations, rulings or protocols promulgated
andtreaties enacted thereunder) of any Relevant Taxing Jurisdiction affecting taxation; or
(2) any change in or amendment to, or the introduction of, any official
position regarding the application,administration or interpretation
of such laws, regulations, rulings, protocols or treaties (including
a holding, judgment or order by a court of competent jurisdiction),
which change or amendment is announced or becomes effective on or after the
date on which the Notes of such series are issued (or, in the case of
ajurisdiction that becomes a Relevant Taxing Jurisdiction after such date, on
or after such later date), and the Issuers cannot avoid such obligation by
taking reasonable measures available to the Issuers. Notwithstanding the
foregoing, no suchnotice of redemption will be given (i) earlier than 90 days
prior to the earliest date on which the Issuers would be obliged to make such
payment of Additional Amounts and (ii) unless at the time such notice is
given, such obligation topay such Additional Amounts remains in effect.
Before the Issuers publish or mail or deliver notice of redemption of the
Notes of aseries as described above, the Issuers will deliver to the Trustee
an Officers' Certificate stating that the Issuers cannot avoid their
obligation to pay Additional Amounts by taking reasonable measures available
to them and that all conditionsprecedent to the redemption have been complied
with. The Issuers will also deliver an opinion of outside counsel stating that
the Issuers would be obligated to pay Additional Amounts as a result of a
change or amendment described above and that allconditions precedent to the
redemption have been complied with.
The foregoing will apply
mutatis mutandis
to any jurisdiction inwhich any successor Person to an Issuer is incorporated
or organized or any political subdivision or taxing authority or agency
thereof or therein.
Repurchase Upon a Change of Control Triggering Event
If a Change of Control Triggering Event occurs with respect to a series of
Notes, the Issuers will make an offer to purchase all of the Notesof such
series pursuant to the offer described below (the "Change of Control Offer")
at a price in cash (the "Change of Control Payment") equal to 101% of the
aggregate principal amount
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thereof plus accrued and unpaid interest to, but not including, the date of
purchase, subject to the right of holders of record on the relevant record
date to receive interest due on the relevantinterest payment date. Within 30
days following any Change of Control Triggering Event, the Issuers will send
notice of such Change of Control Offer by first class mail, or delivered
electronically if held by DTC, with a copy to the Trustee, to eachholder of
Notes to the address of such holder appearing in the security register or
otherwise in accordance with the procedures of DTC, with the following
information:
(1) a Change of Control Offer is being made pursuant to the covenant
entitled "Repurchase Upon a Change ofControl Triggering Event,"
and that all Notes of such series properly tendered pursuant
to such Change of Control Offer will be accepted for payment;
(2) the purchase price and the purchase date, which will be no earlier than 30 days nor later than
60 days from thedate such notice is mailed or delivered (the "Change of Control Payment Date");
(3) any Note of such series not properly tendered will remain Outstanding and continue to accrue interest;
(4) unless the Issuers default in the payment of the Change of
Control Payment, all Notes of such series acceptedfor payment
pursuant to the Change of Control Offer will cease to accrue
interest on, but not including, the Change of Control Payment Date;
(5) the instructions determined by the Issuers consistent with this covenant that a holder must follow
in order tohave its Notes of such series purchased or to cancel a previous order of purchase; and
(6) if such notice is mailed or delivered prior to the occurrence of a Change of Control Triggering Event,
statingthe Change of Control Offer is conditional on the occurrence of such Change of Control Triggering Event.
While theNotes of a series are in global form, when the Issuers make an offer
to purchase all of the Notes of such series pursuant to the Change of Control
Offer, a holder of Notes of such series may exercise its option to elect for
the purchase of suchholder's Notes of such series through the facilities of
DTC, subject to DTC's rules and regulations.
If holders of not lessthan 90% in aggregate principal amount of the Notes of
the applicable series at the time Outstanding validly tender and do not
withdraw such Notes in a Change of Control Offer and the Issuers, or any other
Person making a Change of Control Offer inlieu of the Issuers as described
below, purchase all of the Notes of such series validly tendered and not
withdrawn by such holders, the Issuers will have the right, upon not less than
30 nor more than 60 days' prior notice, given not more than30 days following
such purchase pursuant to the Change of Control Offer described above, to
redeem all Notes of such series that remain Outstanding following such
purchase at a redemption price in cash equal to 101% of the principal amount
thereof,plus accrued and unpaid interest to, but not including, the date of
redemption (subject to the right of holders of record on the relevant record
date to receive interest due on the relevant interest payment date).
The Issuers will not be required to make a Change of Control Offer following a
Change of Control Triggering Event with respect to the Notes ofa series if (1)
a third party makes the Change of Control Offer in the manner, at the times
and otherwise in compliance with the requirements set forth in the Indenture
applicable to a Change of Control Offer made by the Issuers and purchasesall
Notes of such series validly tendered and not withdrawn pursuant to such
Change of Control Offer or (2) notice of redemption has been given pursuant to
the Indenture as described under the caption "--
OptionalRedemption
," unless and until there is a default in payment of the applicable redemption
price. Notwithstanding anything to the contrary herein, a Change of Control
Offer may be made in advance of a Change of Control Triggering Event,conditional
upon such Change of Control Triggering Event.
Notes repurchased by the Issuers pursuant to a Change of Control Offer
willhave the status of Notes issued but not Outstanding or will be retired and
canceled at the Issuers' option. Notes purchased by a third party pursuant to
the preceding paragraph will have the status of Notes issued and Outstanding.
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The Issuers will comply with the requirements of Section 14(e) under the
Exchange Actand any other securities laws and regulations thereunder to the
extent such laws or regulations are applicable in connection with the
repurchase of Notes pursuant to a Change of Control Offer. To the extent that
the provisions of any securities lawsor regulations conflict with the
provisions of the Indenture, the Issuers will comply with the applicable
securities laws and regulations and shall not be deemed to have breached their
obligations described in the Indenture by virtue thereof.
On the Change of Control Payment Date, the Issuers (or any Person making a
Change of Control Offer in lieu of the Issuers) will, to the extentpermitted
by law,
(1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer,
(2) deposit with the paying agent an amount equal to the aggregate Change of
Control Payment in respect of allNotes or portions thereof so tendered, and
(3) at the option of the Issuers, unless a Person is making a Change of Control Offer
in lieu of the Issuers,deliver, or cause to be delivered, to the Trustee for
cancellation the Notes so accepted together with an Officers' Certificate stating that
such Notes or portions thereof have been tendered to and purchased by the Issuers.
The paying agent will promptly mail or otherwise deliver to each holder of the
Notes the Change of Control Payment forsuch Notes, and the Trustee, upon the
Issuers' order, will promptly authenticate and mail, or deliver electronically
if held by DTC, to each holder a new Note equal in principal amount to any
unpurchased portion of the Notes surrendered, ifany;
provided
that each such new Note will be in a minimum denomination of $150,000 and an
integral multiple of $1,000 above that amount. The Issuers will publicly
announce the results of the Change of Control Offer on or as soon
aspracticable after the Change of Control Payment Date.
The Change of Control Triggering Event purchase feature is a result of
negotiationsbetween the underwriters of the Notes and us. We have no present
intention to engage in a transaction that would trigger a Change of Control
Offer, although it is possible that we could decide to do so in the future.
Subject to the limitationsdiscussed below, we could, in the future, enter into
certain transactions, including acquisitions, refinancings or other
recapitalizations, that would not constitute a Change of Control Triggering
Event under the Indenture, but that could cause achange in effective control
of Holdings or any of its subsidiaries, increase the amount of indebtedness
outstanding at such time or otherwise affect our capital structure or credit
ratings. Except for the limitations contained in the Indenture anddescribed
below, the Indenture will not contain any covenants or provisions that may
afford holders of the Notes protection in a highly levered transaction.
Certain of our debt facilities provide that the occurrence of certain change
of control events with respect to us would constitute a defaultthereunder. In
the event a Change of Control occurs, we may seek the consent of our lenders
or may attempt to refinance or repay outstanding borrowings under those debt
facilities. If we do not obtain such consent or refinance or repay
suchborrowings, we may be in default under those debt facilities, which may,
in turn, constitute a default under the Indenture. In addition, future
indebtedness that we may incur may contain prohibitions on the occurrence of
certain events that wouldconstitute a Change of Control or require the
repurchase or repayment of such indebtedness upon a Change of Control. The
exercise by the holders of their right to require the Issuers to repurchase
their Notes could cause a default under suchindebtedness, even if a Change of
Control itself does not, due to the financial effect of such repurchase on us.
We cannot assure you that sufficient funds will be available when necessary to
make any required repurchases.
The definition of "Change of Control" includes a disposition of all or
substantially all of the assets of Holdings and itsRestricted Subsidiaries to
certain Persons. Although there is a limited body of case law interpreting the
phrase "substantially all," there is no precise established definition of the
phrase under applicable law. Accordingly, in certaincircumstances there may be
a degree of uncertainty as to whether a particular
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transaction would involve a disposition of "all or substantially all" of the
assets of Holdings. As a result, it may be unclear as to whether a Change of
Control has occurred andwhether a holder of Notes may require the Issuers to
make an offer to repurchase the Notes as described above.
The existence of aholder's right to require the Issuers to repurchase such
holder's Notes upon the occurrence of a Change of Control Triggering Event may
deter a third party from seeking to acquire Holdings or its subsidiaries in a
transaction that wouldconstitute a Change of Control.
The provisions under the Indenture relative to the Issuers' obligation to make
an offer torepurchase the Notes of any series as a result of a Change of
Control Triggering Event with respect to such series may be waived or modified
with the written consent of the holders of a majority in principal amount of
the Notes and all other seriesof notes Outstanding under the indenture voting
as a single group.
Notice of repurchase, at the Issuers' option and discretion, maybe subject to
one or more conditions precedent, including, but not limited to, completion of
such Change of Control, as the case may be.
Selection andNotice
If less than all of the Notes of a particular series are to be redeemed or
repurchased at any time, selection of the Notes ofsuch series for redemption
or repurchase will be made in accordance with the procedures of DTC;
provided
that no Notes of $150,000 or less shall be purchased or redeemed in part.
Notices of purchase or redemption shall be mailed by first class mail, postage
prepaid, or delivered electronically if held by DTC, at least15 but not more
than 45 days before the purchase or redemption date to each holder of the
Notes to be purchased or redeemed at such holder's registered address. If any
Note is to be purchased or redeemed in part only, any notice of purchase
orredemption that relates to such Note shall state the portion of the
principal amount thereof that has been or is to be purchased or redeemed. In
the case of any book-entry notes, notices of purchase or redemption will be
given to DTC in accordancewith its applicable procedures.
A new Note in principal amount equal to the unpurchased or unredeemed portion
of any Note purchased orredeemed in part will be issued in the name of the
holder thereof upon cancellation of the original Note. On and after the
purchase or redemption date, unless the Issuers default in payment of the
purchase or redemption price, interest shall ceaseto accrue on Notes or
portions thereof purchased or called for redemption.
For so long as the Notes are admitted to the Official List ofEuronext Dublin
and to trading on the Global Exchange Market thereof and the guidelines of
Euronext Dublin so require, the Issuers shall deliver, or cause to be
delivered, notice of redemption to the Company Announcements Office in Dublin
and, withrespect to certificated Notes only, mail such notice to holders by
first-class mail, postage prepaid, at their respective addresses as they
appear on the registration books of the registrar, in each case not less than
30 nor more than 60 days priorto the redemption date.
Certain Covenants
The Indenture contains the negative covenants summarized below.
Restrictions on Liens
TheIndenture provides that Holdings will not, nor will it permit any
Restricted Subsidiary to, issue, assume or guarantee any indebtedness for
borrowed money secured by any Lien upon any property of Holdings or any
Restricted Subsidiary, or upon anyshares of Capital Stock of any Restricted
Subsidiary, without in any such case effectively providing, concurrently with
the issuance, assumption or guarantee of any such indebtedness for borrowed
money, that the Notes (together with, if Holdingsshall so determine, any other
indebtedness of
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Holdings or a Restricted Subsidiary ranking equally with the Notes then
existing or thereafter created) shall be secured equally and ratably with such
indebtedness for borrowed money;
provided, however
, that the foregoing restrictions shall not apply to:
(1) Liens existing on the original date of the Indenture dated as of October 29, 2021;
(2) Liens to secure the payment of all or part of the purchase price of
property (other than property acquired forlease to a Person other
than Holdings or a Restricted Subsidiary) upon the acquisition of
such property by Holdings or a Restricted Subsidiary or to secure
any indebtedness for borrowed money incurred or guaranteed by
Holdings or a RestrictedSubsidiary prior to, at the time of or within
180 days after the latest of the acquisition, completion of
construction or commencement of full operation of such property, which
indebtedness for borrowed money is incurred or guaranteed for thepurpose
of financing all or any part of the purchase price thereof or
construction or improvements thereon; provided, however, that in
the case of any such acquisition, construction or improvement, the
Liens shall not apply to any propertytheretofore owned by Holdings
or a Restricted Subsidiary, other than, in the case of any such
construction or improvement, any theretofore unimproved real property
on which the property so constructed, or the improvement, is located;
(3) Liens on the property of a Restricted Subsidiary on the date it becomes a Restricted Subsidiary;
(4) Liens securing indebtedness for borrowed money of a Restricted Subsidiary owing to Holdings or to anotherRestricted Subsidiary;
(5) Liens on property of a Person existing at the time such Person is merged into or
consolidated or amalgamatedwith Holdings or a Restricted Subsidiary or at the time
of a purchase, lease or other acquisition of the properties of a Person as an
entirety or substantially as an entirety by Holdings or a Restricted Subsidiary;
(6) bankers' Liens arising by law or by contract in the ordinary and
usual course of business of Holdings orany Restricted Subsidiary;
(7) any replacement or successive replacement in whole or in part of any Liens referred to in the foregoing
clauses(1) to (6), inclusive; provided, however, that the principal amount of the indebtedness for borrowed
money secured by the Liens shall not be increased and the stated maturity of such indebtedness shall
remain the same or be extended and(A) such replacement shall be limited to all or part of the property
that secured the indebtedness for borrowed money so replaced (plus improvements and construction on such
property), or (B) if the property that secured the indebtednessfor borrowed money so replaced has been
destroyed, condemned or damaged and pursuant to the terms of such indebtedness other property has been
substituted therefor, then such replacement shall be limited to all or part of such substituted property;
(8) Liens created by or resulting from any litigation or other proceeding that is being contested
in good faith byappropriate proceedings, including Liens arising out of judgments or
awards against Holdings or any Restricted Subsidiary with respect to which Holdings or such
Restricted Subsidiary is, in good faith, prosecuting an appeal or proceedings forreview;
or Liens incurred by Holdings or any Restricted Subsidiary for the purpose of obtaining a
stay or discharge in the course of any litigation or other proceeding to which Holdings
or such Restricted Subsidiary is a party; or Liens created byor resulting from any litigation
or other proceeding that would not result in an Event of Default under the Indenture;
(9) Liens for taxes or assessments or governmental charges or levies not yet due or delinquent, or which canthereafter be
paid without penalty, or which are being contested in good faith by appropriate proceedings; landlord's Liens on property
held under lease; and any other Liens or charges incidental to the conduct of the business of Holdings orany Restricted
Subsidiary or the ownership of the property and assets of any of them that were not incurred in connection with the
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borrowing of money or the obtaining of advances or credit and that do not,
in the opinion of Holdings, materially impair the use of such property
in the operation of the business of Holdings orsuch Restricted Subsidiary
or the value of such property for the purposes of such business; or
(10) Liens arising as a result of or in connection with a fiscal unity (
fiscal eenheid
) of which one or moreRestricted Subsidiaries are members.
Notwithstanding the foregoing provisions, Holdings and any one or more
RestrictedSubsidiaries may issue, assume or guarantee indebtedness for
borrowed money secured by Liens that would otherwise be subject to the
foregoing restrictions in an aggregate amount that, together with all the
other outstanding indebtedness for borrowedmoney of Holdings and its
Restricted Subsidiaries secured by Liens that are not listed in clauses (1)
through (10) above, does not at the time of the issuance, assumption of
guarantee thereof, exceed 20% of the Consolidated Tangible Assetsof Holdings
as shown on, or derived from, Holdings' most recent quarterly or annual
consolidated balance sheet.
Restrictions on PermittingRestricted Subsidiaries to Become Unrestricted
Subsidiaries and Unrestricted Subsidiaries to Become Restricted Subsidiaries
TheIndenture provides that Holdings will not permit any Restricted Subsidiary
to be designated as an Unrestricted Subsidiary unless, immediately after such
designation, such Subsidiary will not own, directly or indirectly, any Capital
Stock orindebtedness of any Restricted Subsidiary.
The Indenture also provides that Holdings will not permit any Unrestricted
Subsidiary to bedesignated as a Restricted Subsidiary unless, immediately
after such designation, such Subsidiary has no Liens outstanding securing
indebtedness for borrowed money except as would have been permitted by the
covenant described under the caption"--
Restrictions on Liens
" above had such Liens been incurred immediately after such designation.
Promptly after theadoption of any resolution by the Board of Directors of
Holdings designating a Restricted Subsidiary as an Unrestricted Subsidiary or
an Unrestricted Subsidiary as a Restricted Subsidiary, Holdings shall file a
certified copy thereof with theTrustee, together with an Officers' Certificate
as required by the terms of the Indenture.
Each of Holdings' Subsidiaries as ofthe Issue Date was a Restricted
Subsidiary, except for the Subsidiaries identified as Unrestricted
Subsidiaries under "--
Certain Definitions
--
Unrestricted Subsidiary
."
SEC Reports and Reports to Holders
The Indenture provides that notwithstanding that Holdings may not be subject
to the reporting requirements of Section 13 or 15(d) of theExchange Act or
otherwise report on an annual and quarterly basis pursuant to rules and
regulations promulgated by the SEC, Holdings will file with, or furnish to,
the SEC (and will deliver a copy to the Trustee and make available to the
holders ofthe Notes (without exhibits), within 15 days after it files them
with, or furnishes them to, the SEC):
(1) within 120 days (or any longer time period then in effect under the rules and regulations of the Exchange Actfor a
non-accelerated
filer), plus any grace period provided by Rule
12b-25
under the Exchange Act, after the end of each fiscal year, annual reports on Form
20-F,
or any successor or comparable form (including Form
10-K),
containing the information required to be contained therein;
(2) within 75 days (or any longer time period then in effect under the rules and regulations of the Exchange
Act)after the end of each of the first three fiscal quarters of each fiscal year, reports on Form
6-K,
containing the information required to be contained
therein, or any successor or comparable form (includingForm
10-Q);
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(3) promptly from time to time
after the occurrence of
an event required to be
therein reported, current
reportscontaining
substantially the information
required to be contained in
a current report on Form
6-K,
or any successor or comparable form; provided that no such current report or any
information required to becontained in such current report will be required to
be filed or furnished if the Issuers determine in their good faith judgment that
such event, or any information with respect to such event that is not included
in any report that is filed orfurnished, is not material to the holders of the
Notes or the business, assets, operations, financial position or prospects of
Holdings and its Restricted Subsidiaries, taken as a whole, or such current
report relates solely to securities other thanthe Notes and the Guarantees; and
(4) any other information, documents and other
reports that Holdings would be required to
file with the SEC if itwere subject to Section
13 or 15(d) of the Exchange Act; provided
that all such reports (A) will not be required
to comply with Section 302 or Section
404 of the Sarbanes-Oxley Act of 2002, or
related Items 307 and 308 ofRegulation
S-K
promulgated by the SEC, or
Item 10(e) of Regulation
S-K
(with respect to any
non-GAAP
financial measures containedtherein),
(B) will not be required to contain the
information required by Items 201, 402, 403,
405, 406, 407, 701 or 703 of Regulation
S-K
or (C) will not be required
to contain the separate
financialinformation contemplated by Rules
3-10,
13-01
or
13-02
of Regulation
S-X
promulgated bythe SEC; provided further that Holdings shall not be so obligated to
file such reports with, or furnish such reports to, the SEC if the SEC does not
permit such filing or furnishing, in which event Holdings will make available
such information toprospective purchasers of Notes, in addition to providing such
information to the Trustee and the holders of the Notes, in each case within 15 days
after the time Holdings would be required to file such information with, or furnish
such informationto, the SEC, if it were subject to Section 13 or 15(d) of the
Exchange Act, pursuant to the provisions set forth in clauses (1) through (4) above.
Other than with respect to delivery to the Trustee, the foregoing delivery
requirements will be deemed satisfied if the foregoing materialsare publicly
available on the SEC's EDGAR system (or a successor thereto) within the
applicable time periods specified above.
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of suchshall not
constitute actual or constructive notice or knowledge of any information
contained therein or determinable from information contained therein,
including the Issuers' compliance with any of their covenants under the
Indenture (as towhich the Trustee is entitled to rely exclusively on Officers'
Certificates).
Merger and Sale of Assets
The Indenture provides that Holdings may not consolidate, amalgamate or merge
with or into or wind up into (whether or not Holdings is thesurviving entity),
or sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its properties or assets, in one or more related
transactions, to any Person unless:
(1) Holdings is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation ormerger (if
other than Holdings) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been
made is a Person organized or existing under the laws of the jurisdiction of organization of Holdings or under thelaws
of a Permitted Jurisdiction (Holdings or such Person, as the case may be, being herein called "Successor Holdings");
(2) Successor Holdings, if other than Holdings, expressly assumes all the obligations
of Holdings under the Notesand the Indenture pursuant to a supplemental indenture;
(3) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and becontinuing;
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(4) Successor Holdings, if other than Holdings, shall have delivered, or cause to be delivered, to the
Trustee anopinion of counsel (which may contain customary exceptions) stating that the Guarantee
to be provided by Successor Holdings has been duly authorized, executed and delivered by Successor
Holdings and constitutes the legal, valid and enforceableobligation of Successor Holdings; and
(5) Successor Holdings shall have delivered, or cause to be delivered, to the Trustee an Officers'
Certificateand an opinion of counsel, each stating that such consolidation, amalgamation,
merger or transfer and such supplemental indenture, if any, comply with the Indenture; provided,
however, that, notwithstanding the foregoing clause (3), (i) anyRestricted Subsidiary
may consolidate or amalgamate with or merge with or into Holdings; (ii) Holdings may
consolidate or amalgamate with or merge with or into or wind up into an Affiliate of Holdings
solely for the purpose of reincorporatingHoldings in a Permitted Jurisdiction; and (iii)
Holdings may be converted into, or reorganized or reconstituted in a Permitted Jurisdiction.
Successor Holdings (if other than Holdings) will succeed to, and be
substituted for, Holdings under the Indenture and the Holdings Guaranteeand in
such event Holdings will automatically be released and discharged from its
obligations under the Indenture and the Holdings Guarantee.
The Indenture provides that the Irish Issuer may not consolidate, amalgamate
or merge with or into or wind up into (whether or not the IrishIssuer is the
surviving entity), or sell, assign, transfer, lease, convey or otherwise
dispose of all or substantially all of its properties or assets, in one or
more related transactions, to any Person unless:
(1) the Irish Issuer is the surviving Person or the Person formed by
or surviving any such consolidation,amalgamation or merger (if
other than the Irish Issuer) or to which such sale, assignment,
transfer, lease, conveyance or other disposition will have been
made is a Person organized or existing under the laws of the
jurisdiction of incorporation ofthe Irish Issuer or under the laws
of a Permitted Jurisdiction (the Irish Issuer or such Person, as
the case may be, being herein called "Successor Irish Issuer");
(2) the Successor Irish Issuer, if other than the Irish Issuer, expressly assumes all the obligations
of the IrishIssuer under the Notes and the Indenture pursuant to a supplemental indenture;
(3) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and becontinuing;
(4) if the Successor Irish Issuer is other than the Irish Issuer, the
Irish Issuer shall have delivered, or causeto be delivered, to the
Trustee an opinion of local tax counsel stating that the holders of
Notes will not recognize income, gain or loss in the jurisdiction of
incorporation of the Irish Issuer for income tax purposes as a
result of suchtransaction and will be subject to income tax in such
jurisdiction on the same amounts, in the same manner and at the same
times as would have been the case if such transaction had not occurred;
(5) if the Successor Irish Issuer is other than the Irish Issuer, the Irish Issuer shall have delivered, or causeto be delivered,
to the Trustee an opinion of local tax counsel stating that the holders of Notes will not recognize income, gain or loss
for U.S. federal income tax purposes as a result of such transaction and will be subject to U.S. federal incometax on the
same amounts, in the same manner and at the same times as would have been the case if such transaction had not occurred;
(6) if the Successor Irish Issuer is other than the Irish Issuer, each Guarantor, unless
it is the other party tothe transactions, shall have by supplemental indenture
confirmed that its Guarantee shall apply to such Successor Irish Issuer's obligations
under the Indenture and each series of Notes at the time Outstanding; and
(7) the Successor Irish Issuer shall have delivered, or cause to be delivered, to the Trustee an
Officers'Certificate and an opinion of counsel, each stating that such consolidation, amalgamation, merger
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or transfer and such supplemental indenture,
if any, comply with the Indenture;
provided, however
, that, notwithstanding the foregoing clause (3), (i) any Restricted Subsidiary mayconsolidate or amalgamate with or merge
with or into the Irish Issuer; (ii) the Irish Issuer may consolidate or amalgamate with or merge with or into or wind
up into an Affiliate of the Irish Issuer solely for the purpose of reincorporating theIrish Issuer in a Permitted
Jurisdiction; and (iii) the Irish Issuer may be converted into, or reorganized or reconstituted in a Permitted Jurisdiction.
Successor Irish Issuer (if other than the Irish Issuer) will succeed to, and
be substituted for, the Irish Issuer under the Indenture and theNotes and in
such event the Irish Issuer will automatically be released and discharged from
its obligations under the Indenture and the Notes.
The Indenture provides that the U.S. Issuer may not consolidate, amalgamate or
merge with or into or wind up into (whether or not the U.S.Issuer is the
surviving entity), or sell, assign, transfer, lease, convey or otherwise
dispose of all or substantially all of its properties or assets, in one or
more related transactions, to any Person unless:
(1) the U.S. Issuer is the surviving Person or the Person formed by or
surviving any such consolidation,amalgamation or merger (if other than the
U.S. Issuer) or to which such sale, assignment, transfer, lease,
conveyance or other disposition will have been made is a Person organized
or existing under the laws of the jurisdiction of organization ofthe
U.S. Issuer or the laws of the United States, any state thereof, the
District of Columbia or any territory thereof (the U.S. Issuer or such
Person, as the case may be, being herein called "Successor U.S. Issuer");
(2) the Successor U.S. Issuer, if other than the U.S. Issuer, expressly assumes all the obligations
of the U.S.Issuer under the Notes and the Indenture pursuant to a supplemental indenture;
(3) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and becontinuing;
(4) if the Successor U.S. Issuer is other than the U.S. Issuer, each Guarantor, unless
it is the other party to thetransactions, shall have by supplemental indenture
confirmed that its Guarantee shall apply to such Successor U.S. Issuer's obligations
under the Indenture and each series of Notes at the time Outstanding; and
(5) the Successor U.S. Issuer shall have delivered, or cause to be delivered, to the Trustee an
Officers'Certificate and an opinion of counsel, each stating that such consolidation, amalgamation, merger
or transfer and such supplemental indenture, if any, comply with the Indenture; provided, however,
that, notwithstanding the foregoing clause (3), (i)the U.S. Issuer may consolidate or amalgamate
with or merge with or into or wind up into an Affiliate of the U.S. Issuer solely for the purpose of
reincorporating the U.S. Issuer in the United States, any state thereof, the District of Columbia
orany territory thereof; and (ii) the U.S. Issuer may be converted into, or reorganized or reconstituted
in the United States, any state thereof, the District of Columbia or any territory thereof.
The Successor U.S. Issuer (if other than the U.S. Issuer) will succeed to, and
be substituted for the U.S. Issuer, as the case may be, underthe Indenture and
the Notes and in such event the U.S. Issuer will automatically be released and
discharged from its obligations under the Indenture and the Notes.
The Indenture provides that each Subsidiary Guarantor may not consolidate,
amalgamate or merge with or into or wind up into (whether or notthe applicable
Subsidiary Guarantor is the surviving entity), or sell, assign, transfer,
lease, convey or otherwise dispose of all or substantially all of its
properties or assets, in one or more related transactions, to any Restricted
Subsidiary(other than an Issuer) unless:
(1) the applicable Subsidiary Guarantor is the surviving Person or the Person formed by or surviving
any suchconsolidation, amalgamation or merger (if other than such Subsidiary Guarantor) or to
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which such sale, assignment, transfer, lease, conveyance or other disposition will have been
made is a Person organized or existing under the laws of the jurisdiction of organization of
suchSubsidiary Guarantor or under the laws of a Permitted Jurisdiction (such Subsidiary Guarantor
or such Person, as the case may be, being herein called "Successor Subsidiary Guarantor");
(2) the Successor Subsidiary Guarantor, if other than the applicable Subsidiary Guarantor, expressly assumes allthe
obligations of such Subsidiary Guarantor under the Notes and the Indenture pursuant to a supplemental indenture;
(3) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and becontinuing;
(4) the Successor Subsidiary Guarantor, if other than the applicable Subsidiary Guarantor, shall have delivered, orcause to
be delivered, to the Trustee an opinion of counsel (which may contain customary exceptions) stating that the Guarantee to
be provided by such Successor Subsidiary Guarantor has been duly authorized, executed and delivered by such SuccessorSubsidiary
Guarantor and constitutes the legal, valid and enforceable obligation of such Successor Subsidiary Guarantor; and
(5) the Successor Subsidiary Guarantor shall have delivered, or cause to be delivered, to the Trustee anOfficers'
Certificate and an opinion of counsel, each stating that such consolidation, amalgamation, merger
or transfer and such supplemental indenture, if any, comply with the Indenture; provided, however, that,
notwithstanding the foregoingclause (3), (i) any Restricted Subsidiary may consolidate or amalgamate
with or merge with or into a Subsidiary Guarantor; (ii) any Subsidiary Guarantor may consolidate or
amalgamate with or merge with or into or wind up into an Affiliate ofsuch Subsidiary Guarantor solely for
the purpose of reincorporating such Subsidiary Guarantor in a Permitted Jurisdiction; and (iii) any
Subsidiary Guarantor may be converted into, or reorganized or reconstituted in a Permitted Jurisdiction.
Successor Subsidiary Guarantor (if other than the applicable Subsidiary
Guarantor) will succeed to, and be substitutedfor the applicable Subsidiary
Guarantor under the Indenture and such Subsidiary Guarantor's Guarantee and in
such event the applicable Subsidiary Guarantor will automatically be released
and discharged from its obligations under the Indentureand such Subsidiary
Guarantor's Guarantee.
Future Subsidiary Guarantors
The Indenture provides that Holdings will not cause or permit any of its
Restricted Subsidiaries (other than a Securitization Subsidiary),directly or
indirectly, to guarantee any capital markets debt or any unsecured credit
facility (other than Standard Securitization Undertakings in connection with a
Qualified Securitization Financing) of Holdings, the Issuers or any
SubsidiaryGuarantor (other than guarantees by any of the U.S. Issuer's
Subsidiaries of capital markets debt or unsecured credit facilities of the
U.S. Issuer or any of its Subsidiaries), unless such Restricted Subsidiary:
(1) within five Business Days of the date on which it guarantees such capital markets
debt or unsecured creditfacility, executes and delivers to the Trustee a
supplemental indenture pursuant to which such Restricted Subsidiary shall
guarantee all of the Issuers' obligations under the Notes and the Indenture; and
(2) delivers to the Trustee an opinion of counsel (which may contain customary
exceptions) stating that suchsupplemental indenture and Guarantee have been duly
authorized, executed and delivered by such Restricted Subsidiary and constitute
the legal, valid and enforceable obligation of such Restricted Subsidiary.
Thereafter, such Restricted Subsidiary shall be a Subsidiary Guarantor for all
purposes of the Indenture until such Guarantee is released inaccordance with
the provisions of the Indenture.
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Notwithstanding the foregoing, Restricted Subsidiaries of the U.S. Issuer and
any of itsSubsidiaries shall be permitted to guarantee capital markets debt
and unsecured credit facilities without complying with this covenant.
Events ofDefault
The Indenture defines an Event of Default with respect to a series of Notes as
being any one of the following occurrences:
(1) default in the payment of any installment of interest upon any Note of such series when it
becomes due andpayable, and continuance of such default for a period of 30 days or more;
(2) default in the payment of all or any part of the principal of any
Note of such series when it becomes due andpayable at its maturity;
(3) default in the performance, or breach, of any other covenant or warranty of Holdings or any
RestrictedSubsidiary in the Indenture applicable to such series of Notes, and continuance of such default or
breach for a period of 60 days after notice to Holdings by the Trustee, or to Holdings and the Trustee
by the holders of at least 25% in principalamount of the Notes of such series at the time Outstanding;
(4) default under any mortgage, indenture (including the Indenture) or
instrument under which there is issued, orwhich secures or evidences,
any indebtedness for borrowed money of Holdings or any Restricted
Subsidiary existing on, or created after, the date of the Indenture,
which default shall constitute a failure to pay principal of such
indebtedness in anamount exceeding $200,000,000 when due and payable
(other than as a result of acceleration), after expiration of
any applicable grace period with respect thereto, or shall have
resulted in an aggregate principal amount of such indebtedness
exceeding$200,000,000 becoming or being declared due and payable
prior to the date on which it would otherwise have become due and
payable, without such indebtedness having been discharged or such
acceleration having been rescinded or annulled within aperiod of 30
days after there has been given a notice to Holdings by the Trustee,
or to Holdings and the Trustee by the holders of at least 25% in
principal amount of Notes of such series at the time Outstanding;
(5) any Guarantee ceases to be in full force and effect in any material respect
(except as contemplated by theterms thereof) or any such Guarantor denies or
disaffirms its obligations under the Indenture or any Guarantee if, and only
if, in each such case, such default continues for ten consecutive days; or
(6) certain events in relation to bankruptcy, insolvency, reorganization,
receivership or liquidation, whethervoluntary or involuntary.
If an Event of Default (other than an Event of Default relating to certain
events ofbankruptcy, insolvency, reorganization, receivership or liquidation)
occurs and is continuing, the Trustee or the holders of at least 25% in
principal amount with respect to any series of Notes at the time Outstanding
by notice to the Issuers (andto the Trustee, if notice is given by the
holders) may declare such series of Notes to be due and payable immediately,
but under certain conditions such acceleration may be rescinded by the holders
of a majority in principal amount of such series ofNotes at the time
Outstanding. If an Event of Default relating to certain events of bankruptcy,
insolvency, reorganization, receivership or liquidation occurs and is
continuing, the principal of, premium, if any, and accrued and unpaid interest
onall the Notes will become immediately due and payable without any
declaration or other act on the part of the Trustee or any holders.
Theholder of any Note will not have any right to institute any proceeding with
respect to the Indenture or remedies thereunder, unless:
(1) such holder previously gives the Trustee written notice of an Event of Default with
respect to the applicableseries of Notes and that Event of Default is continuing;
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(2) the holders of not less than 25% in principal amount of the Notes of such series at
the time Outstanding shallhave made a written request to the Trustee to institute
proceedings in respect of such Event of Default and offered the Trustee indemnity
reasonably satisfactory to the Trustee to institute such proceeding as Trustee; and
(3) the Trustee shall have failed to institute such proceeding for 60 days after its receipt of such
notice,request and offer of indemnity and the Trustee has not been given inconsistent direction during such
60-day
period by holders of a majority in principal amount
of the Notes of such series at the timeOutstanding.
The right of any holder of any Note to institute suit for enforcement of any
payment of principal andinterest on any Note on or after the applicable due
date may not be impaired or affected without such holder's consent.
The holdersof a majority in principal amount of the Notes of a series at the
time Outstanding may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or for exercising any trust
or power conferred on theTrustee with respect to such series of Notes. The
Trustee may refuse to follow any direction that conflicts with any rule of law
or the Indenture or that may expose the Trustee to personal liability. Before
proceeding to exercise any right or powerunder the Indenture at the direction
of such holders, the Trustee shall be entitled to receive security or
indemnity reasonably satisfactory to the Trustee from such holders against the
fees, costs, expenses and liabilities that might be incurred bythe Trustee in
compliance with any such direction. Under the Indenture, if a Default occurs
and is continuing and is actually known to a Responsible Officer (as defined
in the Indenture) of the Trustee, the Trustee will deliver within 60 days
bymail, or electronically if held by DTC, to each holder of Notes of such
series a notice of the Default, unless such Default shall have been cured or
waived. The Trustee may withhold from holders of a series of Notes notice of
any continuing Default(except a Default in payment of principal, premium (if
any) or interest), if it determines that withholding notice is in the
interests of the holders of such series of Notes.
Holdings is required under the Indenture to furnish to the Trustee within 120
days after the end of each fiscal year a statement as to whetherit is in
Default under the Indenture and, if it is in Default, specifying all such
Defaults and the nature and status thereof.
Amendment, Supplementand Waiver of the Indenture
The Indenture contains provisions permitting the Issuers and the Trustee to
amend or supplement theIndenture (including the provisions relating to a
repurchase of the Notes upon the occurrence of a Change of Control Triggering
Event) with the consent of the holders of a majority in principal amount of
the Notes and all other series of notesOutstanding under the Indenture voting
as a single group;
provided
that any amendment or supplement that affects the terms of any series of Notes
as distinct from any other series of Notes shall require the consent of the
holders of amajority in principal amount of the Outstanding Notes of such
series. Any past Default by the Issuers in respect of any series of Notes and
its consequences may be waived with the consent of the holders of a majority
in principal amount of the Notesof such series at the time Outstanding. The
Issuers are not permitted, however, to enter into any amendment, supplement or
waiver without the consent of the holders of all affected Notes if the
amendment, supplement or waiver would:
(1) change the stated maturity of the principal of or any installment of principal or interest on any Note;
(2) reduce the principal amount payable of, or the rate of interest on, any Note;
(3) change the date on which any Notes may be subject to redemption, or reduce the redemption price therefor;
(4) reduce any premium payable (other than in connection with a Change of Control Triggering Event);
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(5) make any Note payable in a currency other than U.S. dollars;
(6) impair the right of the holders of such series of Notes to institute suit
for the enforcement of any payment onor after the stated maturity thereof;
(7) release the Guarantee of Holdings or the Guarantee of any Subsidiary Guarantor that is a SignificantSubsidiary;
(8) amend, change or modify any provision of the Indenture affecting the ranking of
a series of Notes in a manneradverse to the holders of such series of Notes; or
(9) make any change in the preceding amendment, supplement or waiver provisions.
The Indenture also contains provisions permitting the Issuers and the Trustee
to amend or supplement the terms of the Indenture with respectto a series of
Notes, without the consent of any holder of such series of Notes, for certain
purposes including:
(1) to evidence either Issuer's succession by another Person;
(2) to comply with the covenant described under the caption "--
Certain Covenants--Merger and Saleof Assets
";
(3) to comply with requirements of the SEC in order to effect or maintain
the qualification of the Indenture underthe Trust Indenture Act;
(4) to add Guarantees under the Indenture in accordance with the terms of the Indenture;
(5) to add covenants for the benefit of the holders of such series of Notes or any
additional Event of Default forthe benefit of the holders of such series of Notes;
(6) to secure such series of Notes;
(7) to evidence the appointment of a successor trustee;
(8) to conform the text of the Indenture or
the Notes to any provision of this "
Description ofNotes
" to the extent that such provision was intended by the Issuers to be a verbatim recitation of a provision
of the Indenture, which intent shall be evidenced by an Officers' Certificate delivered to the Trustee; or
(9) to cure any ambiguity, to correct or supplement any provision of the
Indenture inconsistent with otherprovisions or make any other provision
that does not adversely affect the interests of the holders of such
series of Notes in any material respect, as determined by the Issuers.
Legal Defeasance and Covenant Defeasance
The Issuers and the Guarantors may, at their option, and at any time, elect to
have all their obligations discharged under the Indenture withrespect to a
series of Notes and cure any then-existing Events of Default with respect to
such series of Notes ("legal defeasance"), other than:
(1) the rights of holders to receive payments in respect of the principal of, premium,
if any, and interest on theNotes of such series when such payments are due;
(2) the Issuers' obligations with respect to the register, transfer and exchange
of such Notes and withrespect to mutilated, destroyed, lost or stolen Notes;
(3) the Issuers' obligations to maintain an office or agency in the place designated for
payment of such Notesand with respect to the treatment of funds held by paying agents;
(4) the Issuers' obligations to hold, or cause the paying agent to hold, in trust money for the payment ofprincipal
and interest due on the Notes of such series at the time Outstanding for the benefit of the holders;
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(5) certain obligations to the Trustee; and
(6) certain obligations arising in connection with such discharge of obligations.
The Issuers may also, at their option and at any time, elect to be released
from the restrictions described under the caption"--
Certain Covenants
" above with respect to a series of Notes ("covenant defeasance") and
thereafter, any omission to comply with such covenants will not constitute an
Event of Default with respect to such series ofNotes.
The conditions the Issuers must satisfy for legal defeasance or covenant
defeasance include the following:
(1) the Issuers must have irrevocably deposited with the Trustee trust funds for the payment of such series ofNotes. The
trust funds must consist of U.S. dollars or U.S. Government Obligations, or a combination thereof, that, in the
opinion of a certified public accounting firm of national reputation, will be in an amount sufficient without
reinvestment topay at maturity or redemption the entire amount of principal and interest on such series of Notes;
(2) in the case of legal defeasance, the Issuers shall have delivered, or cause to be delivered, to the
Trustee anopinion of outside counsel confirming that (i) the Issuers have received from, or there has
been published by, the U.S. Internal Revenue Service (the "IRS") a ruling or (ii) since the Issue
Date, there has been a change in theapplicable U.S. federal income tax law, in either case stating
that, and based thereon such opinion of counsel shall confirm that, the beneficial owners of the Notes
of such series will not recognize income, gain or loss for U.S. federal income taxpurposes as a
result of such defeasance and will be subject to U.S. federal income tax on the same amounts, in
the same manner at the same times as would have been the case if such defeasance had not occurred;
(3) in the case of covenant defeasance, the Issuers shall have delivered, or cause to be delivered, to the Trusteean opinion
of outside counsel confirming that the beneficial owners of the Notes of such series will not recognize income, gain or
loss for U.S. federal income tax purposes as a result of such defeasance and will be subject to U.S. federal incometax on
the same amounts, in the same manner at the same times as would have been the case if such defeasance had not occurred;
(4) the Issuers shall have delivered, or cause to be delivered,
to the Trustee an opinion of outside counselstating that the
beneficial owners of the Notes of such series will not recognize
income, gain or loss in the jurisdiction of incorporation of the
Irish Issuer for income tax purposes as a result of such defeasance
and will be subject to income taxin such jurisdiction on
the same amounts, in the same manner and at the same times as
would have been the case if such transaction had not occurred;
(5) no Default or Event of Default shall have occurred and be continuing
on the date the Issuers make such deposits(other than a Default or
Event of Default resulting from the borrowing of funds to be applied
to such deposit or the granting of Liens in connection therewith);
(6) the Issuers shall have delivered, or cause to be delivered, to the Trustee an Officers' Certificatestating that the deposit
was not made by the Issuers with the intent of defeating, hindering, delaying or defrauding any creditors of the Issuers; and
(7) the Issuers shall have delivered, or cause to be delivered, to the Trustee an Officers'
Certificate and anopinion of counsel (which opinion of counsel may be subject to
customary assumptions and exclusions) each stating that all conditions precedent provided
for or relating to such defeasance, as the case may be, have been complied with.
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Satisfaction and Discharge
The Indenture will be discharged and will cease to be of further effect as to
a series of Notes when:
(1) either:
(a) all Notes of such series theretofore authenticated and delivered,
except lost, stolen or destroyed Notes thathave been replaced or paid
and Notes for whose payment money has theretofore been deposited
in trust, have been delivered to the Trustee for cancellation; or
(b) all Notes of such series not theretofore delivered to such Trustee for cancellation have become
due and payableby reason of the making of a notice of redemption or otherwise or will become
due and payable within one year, and the Issuers have irrevocably deposited or caused to be
deposited with such Trustee as trust funds in trust solely for the benefit ofthe holders, cash
in U.S. dollars, U.S. Government Obligations, or a combination thereof, in such amounts as
will be sufficient without consideration of any reinvestment of interest to pay and discharge
the entire indebtedness on such Notes nottheretofore delivered to the Trustee for cancellation
for principal, premium, if any, and accrued interest to the date of maturity or redemption;
(2) the Issuers have paid or caused to be paid all sums payable under the Indenture; and
(3) the Issuers have delivered irrevocable instructions to the Trustee under the Indenture to apply the
depositedmoney toward the payment of such Notes at maturity or the redemption date, as the case may be.
In addition, the Issuersmust deliver, or cause to be delivered, an Officers'
Certificate and an opinion of counsel to the Trustee, each stating that all
conditions precedent to satisfaction and discharge have been satisfied.
Governing Law; Jury Trial Waiver
TheIndenture and the Notes are governed by and shall be construed in
accordance with the laws of the State of New York without regard to conflicts
of law principles thereof. The Indenture provides that the Issuers, the
Guarantors, the Trustee, and eachholder of a Note by its acceptance thereof
irrevocably waives, to the fullest extent permitted by applicable law, any and
all right to a trial by jury in any legal proceeding arising out of or
relating to the Indenture, the Notes or any transactioncontemplated thereby.
Certain Definitions
The following definitions apply to the terms of the Notes.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct orindirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,whethe
r through the ownership of voting securities, by contract or otherwise; and
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Below Investment Grade Rating Event" means, with respect to the Notes of a
series, that at any time within a 60 day period from theRating Date, the
rating on the Notes of such series is lowered, and the Notes of such series
are rated below an Investment Grade Rating, by two Rating Organizations, if
the Notes of such series are rated by all three Rating Organizations or
bothRating Organizations, if the Notes of such series are only rated by two
Rating Organizations;
provided
, that a Below Investment Grade Rating Event otherwise arising by virtue of a
particular reduction in rating shall not be deemed to haveoccurred in respect
of a particular Change of Control (and thus shall not be deemed a Below
Investment Grade Rating Event for purposes of the definition of Change of
Control Triggering Event hereunder) if the Rating Organizations making
thereduction in rating to which this
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definition would otherwise apply do not announce or publicly confirm or inform
us in writing that the reduction was the result, in whole or in part, of any
event or circumstance comprised of orarising as a result of, or in respect of,
the applicable Change of Control (whether or not the applicable Change of
Control shall have occurred at the time of the Below Investment Grade Rating
Event). The Trustee shall not be responsible formonitoring or charged with
knowledge of the ratings on the Notes.
"Board of Directors" means, with respect to Holdings, eitherthe board of
directors of Holdings or any committee of that board duly authorized to act
under the terms of the Indenture and with respect to any other Person, the
board of directors or committee of such Person serving a similar function.
"Business Day" means any day other than Saturday, Sunday or any other day on
which banking or trust institutions in New York orLondon are authorized
generally or obligated by law, regulation or executive order to remain closed.
"Capital Stock" means(a) in the case of a corporation, corporate stock, (b) in
the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock, (c) in thecase of a partnership, unlimited liability company or limited
liability company, partnership interests, membership interests (whether
general or limited) or shares in the capital of the company and (d) any other
interest or participation thatconfers on a Person the right to receive a share
of the profits and losses of, or distributions of assets of, the issuing
Person.
"Change of Control" means:
(1) any "person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the ExchangeAct),
other than one or more Permitted Holders, is or becomes the beneficial owner (as defined in Rules
13d-3
and
13d-5
under the Exchange Act), directly or indirectly,of shares representing
more than 50% of the voting power of Holdings' Voting Stock;
(2) Holdings ceases to own, directly or indirectly, 100% of the issued and outstanding Voting Stock of
eitherIssuer, other than director's qualifying shares and other shares required to be issued by law;
(3) (a) all or substantially all of the
assets of Holdings and the Restricted
Subsidiaries, taken as a whole,
aresold or otherwise transferred
to any Person other than a Wholly-Owned
Restricted Subsidiary or one
or more Permitted Holders or (b)
Holdings consolidates, amalgamates or
merges with or into another Person or
any Person consolidates, amalgamatesor
merges with or into Holdings, in
either case in one transaction
or a series of related transactions
in which immediately after the
consummation thereof Persons
beneficially owning (as defined in Rules
13d-3
and
13d-5
under the Exchange Act) Voting
Stock representing in the
aggregate a majority of the
total voting power of the
Voting Stock of Holdings
immediately prior to such
consummation do not beneficially
own(as defined in Rules
13d-3
and
13d-5
under the Exchange Act) Voting Stock representing a majority of the
total voting power of the Voting Stock of Holdings or theapplicable
surviving or transferee Person (or applicable parent thereof); provided
that this clause shall not apply (i) in the case where immediately
after the consummation of the transactions Permitted Holders
beneficially own Voting Stockrepresenting in the aggregate a majority
of the total voting power of Holdings or the applicable surviving
or transferee Person (or applicable parent thereof) or (ii) to a
consolidation, amalgamation or merger of Holdings with or into a(x)
Person or (y) wholly-owned subsidiary of a Person that, in either
case, immediately following the transaction or series of transactions,
has no Person or group (other than Permitted Holders) that
beneficially owns Voting Stockrepresenting 50% or more of the voting
power of the total outstanding Voting Stock of such Person and, in
the case of clause (y), the parent of such wholly-owned subsidiary
guarantees Holdings' obligations under the Notes and the Indenture; or
(4) Holdings shall adopt a plan of liquidation or dissolution or any such plan shall be approved by theshareholders of Holdings.
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"Change of Control Triggering Event" means, with respect to a series of Notes,
theoccurrence of both a (1) Change of Control and (2) Below Investment Grade
Rating Event with respect to such series of Notes.
"Consolidated Tangible Assets" means total assets (less depreciation and
valuation reserves and other reserves and items deductiblefrom the gross book
value of specific asset amounts under GAAP) that, under GAAP, would be
included on a consolidated balance sheet of Holdings and its Restricted
Subsidiaries, less all assets shown on such consolidated balance sheet that
areclassified and accounted for as intangible assets of Holdings or any of its
Restricted Subsidiaries or that otherwise would be considered intangible
assets under GAAP, including, without limitation, franchises, trademarks,
unamortized debt discountand goodwill.
"Default" means any event or condition that is, or after notice or passage of
time or both would be, an Event ofDefault.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SECpromulgated thereunder.
"Fitch" means Fitch Ratings, Ltd., a division of Fitch, Inc., or any successor
ratings agency.
"GAAP" means generally accepted accounting principles in the United States
that are in effect from time to time. At any time afterthe original date of
the Indenture dated as of October 29, 2021, Holdings may elect to apply IFRS
accounting principles in lieu of GAAP and, upon any such election, references
herein to GAAP shall thereafter be construed to mean IFRS;
provided
that any calculation or determination herein that requires the application of
GAAP for periods that include fiscal quarters ended prior to Holdings'
election to apply IFRS shall remain as previously calculated or determined
inaccordance with GAAP. Holdings shall give notice of any such election made
in accordance with this definition to the Trustee and the holders of the Notes.
"Guarantee" means the guarantee by any Guarantor of the Issuers' obligations
under the Indenture and the Notes.
"Guarantor" means each Person that Guarantees the Notes in accordance with the
terms of the Indenture, including Holdings and theSubsidiary Guarantors.
"ILFC" means International Lease Finance Corporation.
"Investment Grade Rating" means a rating of
BBB-
or higher by Fitch (or its equivalent underany successor rating category of
Fitch), a rating of Baa3 or higher by Moody's (or its equivalent under any
successor rating category of Moody's) and a rating of
BBB-
or higher by S&P (or itsequivalent under any successor rating category of S&P).
"Issue Date" means , 2024.
"Lien" means any mortgage, pledge, lien, security interest or other charge,
encumbrance or preferential arrangement, including theretained security title
of a conditional vendor or lessor. For avoidance of doubt, the parties hereto
acknowledge that (a) the filing of a financing statement under the Uniform
Commercial Code does not, in and of itself, give rise to a Lien and(b) in no
event shall an operating lease be deemed to constitute a Lien.
"Moody's" means Moody's InvestorService, Inc. or any successor ratings agency.
"Officer" means the Chairman of the Board of Directors, the Chief
ExecutiveOfficer, the President, any Managing Director, Executive Vice
President, Senior Vice President or Vice President, any Treasurer or any
Secretary or other executive officer or any duly authorized attorney in fact
of the Irish Issuer, the U.S. Issueror Holdings, as applicable.
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"Officers' Certificate" means, with respect to any Person, a certificatesigned
on behalf of such Person by two Officers of such Person that meets the
requirements set forth in the Indenture.
"Outstanding" means, as of the date of determination, all Notes theretofore
authenticated and delivered under the Indenture, except:
(1) Notes theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(2) Notes for whose payment or redemption money in the necessary amount
has been theretofore deposited with theTrustee or any paying agent
(other than the Issuers) in trust or set aside and segregated in trust
by the Issuers (if an Issuer shall act as its own paying agent);
(3) Notes that have been defeased pursuant to the procedures specified under the caption "--
LegalDefeasance and Covenant Defeasance
" above; and
(4) Notes that have been paid in lieu of reissuance relating to lost, stolen, destroyed or
mutilated certificates,or in exchange for or in lieu of which other Notes have been
authenticated and delivered pursuant to the Indenture, other than any such Notes in respect
of which there shall have been presented to the Trustee proof satisfactory to it that such
Notesare held by a bona fide purchaser in whose hands such Notes are valid obligations of
the Issuers and the Guarantors; provided, however, that in determining whether the holders
of the requisite principal amount of the Outstanding Notes have given anyrequest, demand,
authorization, direction, notice, consent or waiver under the Indenture, Notes owned by an
Issuer or any other obligor upon the Notes or any Affiliate of an Issuer or of such other
obligor shall be disregarded and deemed not to beOutstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Notes that the Trustee knows to be so
owned shall be so disregarded.Notes so owned that have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Notes and that the pledgee is not an Issuer
orany other obligor upon the Notes or any Affiliate of an Issuer or of such other obligor.
"Par Call Date"means, with respect to the 20 Notes, , 20 (the date that is
months prior to the maturity date of the 20 Notes) and, with respect to the 20
Notes,, 20 (the date that is months prior to the maturity date of the 20
Notes).
"Permitted Holders" means at any time, the Chairman of the Board of Directors,
the Chief Executive Officer, the President, anyManaging Director, Executive
Vice President, Senior Vice President or Vice President, any Treasurer and any
Secretary of Holdings or other executive officer of Holdings or any Subsidiary
of Holdings at such time. Any Person or group whoseacquisition of beneficial
ownership constitutes a Change of Control in respect of which a Change of
Control Offer is made in accordance with the requirements of the Indenture
will thereafter, together with its Affiliates, constitute an additionalPermitted
Holder.
"Permitted Jurisdiction" means any of the United States, any state or
territory thereof, the District ofColumbia, any member state of the
Pre-Expansion
European Union, Switzerland, Bermuda, the Cayman Islands and Singapore.
"Person" means any individual, corporation, unlimited liability company,
limited liability company, partnership, joint venture,association, joint stock
company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Pre-Expansion
European Union" means the European Union as of January 1, 2004, including the
countries of Austria, Belgium, Denmark, Finland, France, Germany, Greece,
Ireland, Italy, Luxembourg, theNetherlands, Portugal, Spain, Sweden and the
United Kingdom, but not including any country which became or becomes a member
of the European Union after January 1, 2004;
provided
that
"Pre-Expansion
European Union" shall not
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include any country whose long-term debt does not have a long-term rating of
at least "Aa2" by Moody's, "AA" by S&P, "AA" by Fitch or the equivalent
ratingcategory of another Rating Organization.
"Qualified Securitization Financing" means any Securitization Financing of
aSecuritization Subsidiary, the financing terms, covenants, termination events
and other provisions of which, including any Standard Securitization
Undertakings, shall be market terms.
"Rating Date" means the date that is the day prior to the initial public
announcement by Holdings or the proposed acquirer that(i) the proposed
acquirer has entered into one or more binding agreements with Holdings or
shareholders of Holdings that would give rise to a Change of Control or (ii)
the proposed acquirer has commenced an offer to acquire outstandingVoting
Stock of Holdings.
"Rating Organizations" means the following nationally recognized rating
organizations: Moody's,S&P and Fitch or, if any of Moody's, S&P or Fitch or
all three shall not make a rating on the Notes of a series publicly available,
a nationally recognized rating organization, or organizations, as the case may
be, selected by theIssuers that shall be substituted for any of Moody's, S&P
or Fitch or all three, as the case may be, with respect to such series of
Notes.
"Restricted Subsidiary" means any Subsidiary of Holdings that is not an
Unrestricted Subsidiary;
provided, however
, that theBoard of Directors of Holdings may, subject to the covenant
described under the caption "--
Certain Covenants--Restrictions on Permitting Restricted Subsidiaries to
Become Unrestricted Subsidiaries and Unrestricted Subsidiaries toBecome
Restricted Subsidiaries
" above, designate any Unrestricted Subsidiary (other than any Unrestricted
Subsidiary of which the majority of the Voting Stock is owned directly or
indirectly by one or more Unrestricted Subsidiaries) as aRestricted
Subsidiary. For the avoidance of doubt, references to Subsidiaries of Holdings
include the Issuers.
"S&P" meansS&P Global Ratings, a division of S&P Global Inc., or any successor
rating agency.
"SEC" means the U.S. Securities andExchange Commission.
"Securitization Assets" means the accounts receivable, lease, royalty or other
revenue streams and otherrights to payment and all related assets (including
contract rights, books and records, all collateral securing any and all of the
foregoing, all contracts and all guarantees or other obligations in respect of
any and all of the foregoing and otherassets that are customarily transferred
or in respect of which security interests are customarily granted in
connection with asset securitization transactions involving any and all of the
foregoing) and the proceeds thereof, in each case pursuant toa Securitization
Financing.
"Securitization Financing" means one or more transactions or series of
transactions that may beentered into by Holdings or any Subsidiary of Holdings
pursuant to which Holdings or any Subsidiary of Holdings may sell, convey or
otherwise transfer Securitization Assets to (a) a Securitization Subsidiary
(in the case of a transfer byHoldings or any of its Subsidiaries that is not a
Securitization Subsidiary) or (b) any other Person (in the case of a transfer
by a Securitization Subsidiary), or may grant a security interest in, any
Securitization Assets of Holdings or anySubsidiary of Holdings.
"Securitization Subsidiary" means a Subsidiary (or another Person formed for
the purposes of engagingin a Qualified Securitization Financing in which
Holdings or any Subsidiary of Holdings makes an investment and to which
Holdings or any Subsidiary of Holdings transfers Securitization Assets and
related assets) that engages in no activities otherthan in connection with the
financing of Securitization Assets of Holdings or a Subsidiary of Holdings,
all proceeds thereof and all rights (contingent and other), collateral and
other assets relating thereto, and any business or activitiesincidental or
related to such business, and that is designated by the Board of Directors of
Holdings or such other Person (as provided below) as a Securitization
Subsidiary and (a) no portion of the indebtedness or any other obligations(conti
ngent or otherwise) of which (i) is guaranteed by Holdings or
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any Subsidiary of Holdings, other than another Securitization Subsidiary
(excluding guarantees of obligations pursuant to Standard Securitization
Undertakings), (ii) is recourse to or obligatesHoldings or any Subsidiary of
Holdings, other than another Securitization Subsidiary, in any way other than
pursuant to Standard Securitization Undertakings or (iii) subjects any
property or asset of Holdings or any Subsidiary of Holdings,other than another
Securitization Subsidiary, directly or indirectly, contingently or otherwise,
to the satisfaction thereof, other than pursuant to Standard Securitization
Undertakings and (b) to which none of Holdings or any other Subsidiaryof
Holdings, other than another Securitization Subsidiary, has any obligation to
maintain or preserve such entity's financial condition or cause such entity to
achieve certain levels of operating results. Any such designation by the Board
ofDirectors of Holdings or such other Person shall be evidenced by a
resolution of the Board of Directors of Holdings or such other Person giving
effect to such designation.
"Significant Subsidiary" means any Restricted Subsidiary that would be a
"significant subsidiary" as defined in Article 1,Rule
1-02
of Regulation
S-X,
promulgated pursuant to the Securities Act of 1933, as amended.
"Standard Securitization Undertakings" means representations, warranties,
covenants and indemnities entered into by Holdings or anyof its Subsidiaries
that are customary for a seller or servicer of assets in a Securitization
Financing.
"Subsidiary" means,with respect to any specified Person, a corporation,
limited liability company, partnership or trust more than 50% of the
outstanding Voting Stock of which is owned, directly or indirectly, by such
Person or one or more of the other Subsidiaries ofsuch Person (or a
combination thereof).
"Subsidiary Guarantor" means each of the Subsidiaries of Holdings (other than
theIssuers) party to the Indenture as of the Issue Date, together with any
other Subsidiary of Holdings required to become a Guarantor under the
Indenture in the future.
"Treasury Rate" means, as of any redemption date, the rate per annum equal to
the yield to maturity of United States Treasurysecurities with a constant
maturity (as compiled and published in the most recent Federal Reserve
Statistical Release H.15 that has become publicly available at least two
Business Days prior to the redemption date (or, if such Statistical Release
isno longer published, any publicly available source of similar market data))
most nearly equal to the period from the redemption date to the applicable Par
Call Date, as determined by the Issuers;
provided
,
however
, that if the periodfrom the redemption date to the applicable Par Call Date
is less than one year, the weekly average yield on actually traded United
States Treasury securities adjusted to a constant maturity of one year will be
used.
"Unrestricted Subsidiary" means (i) any Subsidiary of Holdings (other than the
Issuers and ILFC) that is designated by theBoard of Directors of Holdings as
an Unrestricted Subsidiary (which, as of the Issue Date, will consist of
Setanta Aircraft Leasing Designated Activity Company and Rhenium Aviation
Limited) and (ii) any other Subsidiary of Holdings (other thanthe Issuers and
ILFC) of which the majority of the Voting Stock is owned directly or
indirectly by one or more Unrestricted Subsidiaries.
"U.S. Government Obligations" means securities that are:
(1) direct obligations of the United States of America for the payment of which its full faith and credit ispledged, or
(2) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the UnitedStates of America,
the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America.
In either case, the U.S. Government Obligations may not be callable or
redeemable at the option of the issuer, and shall also include adepository
receipt issued by a bank, as defined in Section 3(a)(2) of the Securities
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Act of 1933, as amended, as custodian with respect to such U.S. Government
Obligation or a specific payment of principal of or interest on such U.S.
Government Obligation held by the custodianfor the account of the holder of
such depository receipt. The custodian is not authorized, however, to make any
deduction from the amount payable to the holder of the depository receipt
except as required by law.
"Voting Stock" of any Person as of any date means the Capital Stock of such
Person that is at the time entitled to vote in theelection of the Board of
Directors of such Person.
"Wholly-Owned Restricted Subsidiary" means any Wholly-Owned Subsidiary thatis
a Restricted Subsidiary.
"Wholly-Owned Subsidiary" of any Person means a Subsidiary of such Person,
100% of the outstandingCapital Stock or other ownership interests of which
(other than directors' qualifying shares) shall at the time be owned by such
Person or by one or more Wholly-Owned Subsidiaries of such Person.
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BOOK-ENTRY, DELIVERY AND FORM OF SECURITIES
We will issue the Notes in the form of one or more global securities. We will
deposit these global securities with, or on behalf of, DTC andregister these
securities in the name of DTC's nominee. Direct and indirect participants in
DTC will record beneficial ownership of the Notes by individual investors. The
transfer of ownership of beneficial interests in a global security willbe
effected only through records maintained by DTC or its nominee, or by
participants or persons that hold through participants.
Investors may elect to hold beneficial interests in the global securities
through either DTC, Clearstream or Euroclear if they areparticipants in these
systems, or indirectly through organizations that are participants in these
systems. Upon receipt of any payment in respect of a global security, DTC or
its nominee will immediately credit participants' accounts withamounts
proportionate to their respective beneficial interests in the principal amount
of the global security as shown in the records of DTC or its nominee. Payments
by participants to owners of beneficial interests in a global security held
throughparticipants will be governed by standing instructions and customary
practices and will be the responsibility of those participants.
DTCholds securities of institutions that have accounts with it or its
participants. Through its maintenance of an electronic book-entry system, DTC
facilitates the clearance and settlement of securities transactions among its
participants andeliminates the need to deliver securities certificates
physically. DTC's participants include securities brokers and dealers,
including the underwriters, banks, trust companies, clearing corporations and
other organizations. DTC is owned by anumber of its participants and by The
New York Stock Exchange and the Financial Industry Regulatory Authority, Inc.
Access to DTC's book-entry system is also available to others such as banks,
brokers, dealers and trust companies that clearthrough or maintain a custodial
relationship with a participant, either directly or indirectly.
DTC agrees with and represents to itsparticipants that it will administer its
book-entry system in accordance with its rules and bylaws and requirements of
law. The rules applicable to DTC and its participants are on file with the SEC.
Clearstream and Euroclear will hold interests on behalf of their participants
through customers' securities accounts inClearstream's and Euroclear's names
on the books of their respective depositaries, which in turn will hold
interests in customers' securities accounts in the depositaries' names on the
books of DTC.
Clearstream holds securities for its participating organizations, or
"Clearstream Participants," and facilitates the clearance andsettlement of
securities transactions between Clearstream Participants through electronic
book-entry changes in accounts of Clearstream Participants, thereby
eliminating the need for physical movement of certificates. Clearstream
provides toClearstream Participants, among other things, services for
safekeeping, administration, clearance and settlement of internationally
traded securities and securities lending and borrowing. Clearstream interfaces
with domestic markets in severalcountries.
Clearstream is registered as a bank in Luxembourg and as such is subject to
regulation by the
Commission de Surveillance duSecteur Financier
and the
Banque Centrale du Luxembourg
, which supervise and oversee the activities of Luxembourg banks. Clearstream
Participants are worldwide financial institutions, including underwriters,
securities brokers anddealers, banks, trust companies and clearing
corporations, and may include the underwriters or their affiliates. Indirect
access to Clearstream is available to other institutions that clear through or
maintain a custodial relationship with aClearstream Participant. Clearstream
has established an electronic bridge with Euroclear as the operator of the
Euroclear System, or the "Euroclear Operator," in Brussels to facilitate
settlement of trades between Clearstream and theEuroclear Operator.
Distributions with respect to the Notes of a series held beneficially through
Clearstream will be credited to cashaccounts of Clearstream Participants in
accordance with its rules and procedures, to the extent received by the U.S.
depositary for Clearstream.
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Euroclear holds securities and book-entry interests in securities for
participatingorganizations, or "Euroclear Participants" and facilitates the
clearance and settlement of securities transactions between Euroclear
Participants, and between Euroclear Participants and participants of certain
other securitiesintermediaries through electronic book-entry changes in
accounts of such participants or other securities intermediaries. Euroclear
provides Euroclear Participants with, among other things, safekeeping,
administration, clearance and settlement,securities lending and borrowing, and
related services.
Euroclear Participants are investment banks, securities brokers and
dealers,banks, central banks, supranationals, custodians, investment managers,
corporations, trust companies and certain other organizations and may include
the underwriters or their affiliates.
Non-participants
inEuroclear may hold and transfer beneficial interests in a global security
through accounts with a Euroclear Participant or any other securities
intermediary that holds a book-entry interest in a global security through one
or more securitiesintermediaries standing between such other securities
intermediary and Euroclear.
Distributions with respect to the Notes of a seriesheld beneficially through
Euroclear will be credited to the cash accounts of Euroclear Participants in
accordance with the terms and conditions of Euroclear, to the extent received
by the U.S. depositary for Euroclear.
Transfers between Euroclear Participants and Clearstream Participants will be
effected in the ordinary way in accordance with their respectiverules and
operating procedures.
Cross-market transfers between DTC's participating organizations, or the
"DTCParticipants," on the one hand, and Euroclear Participants or Clearstream
Participants, on the other hand, will be effected through DTC in accordance
with DTC's rules on behalf of Euroclear or Clearstream, as the case may be, by
its U.S.depositary; however, such cross-market transactions will require
delivery of instructions to Euroclear or Clearstream, as the case may be, by
the counterparty in such system in accordance with the rules and procedures
and within the establisheddeadlines (European time) of such system. Euroclear
or Clearstream, as the case may be, will, if the transaction meets its
settlement requirements, deliver instructions to its U.S. depositary to take
action to effect final settlement on its behalfby delivering or receiving
interests in the global security in DTC, and making or receiving payment in
accordance with normal procedures for
same-day
fund settlement applicable to DTC. Euroclear Participantsand Clearstream
Participants may not deliver instructions directly to their respective U.S.
Depositaries.
Due to time zone differences,the securities accounts of a Euroclear
Participant or Clearstream Participant purchasing an interest in a global
security from a DTC Participant in DTC will be credited, and any such
crediting will be reported to the relevant Euroclear Participantor Clearstream
Participant during the securities settlement processing day (which must be a
business day for Euroclear or Clearstream) immediately following the
settlement date of DTC. Cash received in Euroclear or Clearstream as a result
of salesof interests in a global security by or through a Euroclear
Participant or Clearstream Participant to a DTC Participant will be received
with value on the settlement date of DTC but will be available in the relevant
Euroclear or Clearstream cashaccount only as of the business day for Euroclear
or Clearstream following DTC's settlement date.
The information in this sectionconcerning DTC, Euroclear and Clearstream and
their book-entry systems has been obtained from sources that we believe to be
reliable, but we take no responsibility for the accuracy of that information.
Neither we nor the Trustee will have any responsibility for the performance by
Euroclear or Clearstream or their respective participants oftheir respective
obligations under the rules and procedures governing their operations.
Although DTC, Clearstream and Euroclear haveagreed to the foregoing procedures
in order to facilitate transfers of securities among participants of DTC,
Clearstream and Euroclear, they are under no obligation to perform or continue
to perform such procedures and they may discontinue theprocedures at any time.
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Global Clearance and Settlement Procedures
Initial settlement for the Notes will be made in immediately available funds.
Secondary market trading between DTC Participants will occur inthe ordinary
way in accordance with DTC rules and will be settled in immediately available
funds using DTC's
Same-Day
Funds Settlement System.
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CERTAIN IRISH, DUTCH AND U.S. FEDERAL INCOME TAXCONSEQUENCES
The following discussion, subject to the limitations set forth below,
describes material tax consequences of Ireland,the Netherlands and the United
States relating to your ownership and disposition of the Notes. This
discussion is based on laws, regulations, rulings and decisions now in effect
in Ireland, the Netherlands and the United States, which, in each case,may
change. Any change could apply retroactively and could affect the continued
validity of this discussion. This discussion does not purport to be a complete
analysis of all tax consequences in Ireland, the Netherlands or the United
States, andthis discussion does not describe all of the tax consequences that
may be relevant to you or your situation, particularly if you are subject to
special tax rules. You should consult your own tax advisor about the tax
consequences of holding theNotes, including the relevance to your particular
situation of the considerations discussed below, as well as of state, local
and other tax laws.
Certain Irish Tax Consequences
Thefollowing general summary describes the material Irish tax consequences of
acquisition, holding and disposal of the Notes. This summary is based on the
Irish tax law and published practice of the Revenue Commissioners as in effect
on the date ofthis prospectus supplement and both are subject to change
possibly with retroactive effect. Holders or prospective holders of Notes
should consult with their tax advisors with regard to the tax consequences of
investing in the Notes in theirparticular circumstances. The discussion below
is included for general information purposes only.
Withholding Tax
In general, tax at the standard rate of income tax (currently 20%) is required
to be withheld from payments of Irish source interest. Anexemption from
withholding on interest payments exists, however, under Section 64 of the
Taxes Consolidation Act, 1997 (the "1997 Act") for certain interest bearing
securities issued by a company which are quoted on a recognized stockexchange
(which should include the Global Exchange Market of Euronext Dublin) ("quoted
Eurobonds").
Any interest paid on suchquoted Eurobonds can be paid free of withholding tax
provided:
(1) the person by or through whom the payment is made is not in Ireland; or
(2) the payment is made by or through a person in Ireland, and either:
(a) the quoted Eurobond is held in a clearing system recognized by the Irish Revenue Commissioners
(DTC, Euroclear,Clearstream Banking SA and Clearstream Banking AG are so recognized); or
(b) the person who is the beneficial owner of the quoted Eurobond and who is beneficially entitled to the interestis not
resident in Ireland and has made a declaration to the person by or through whom the payment is made in the prescribed form.
So long as the Notes are quoted on a recognized stock exchange and are held in
DTC, Euroclear, Clearstream Banking SA, Clearstream Banking AGor another
clearing system recognized by the Irish Revenue Commissioners, interest on the
Notes can be paid by the Irish Issuer and any paying agent outside Ireland
without any withholding or deduction for or on account of Irish income tax.
In other circumstances, where the exemption under Section 64 of the 1997 Act
does not apply, interest payments on the Notes should besubject to Irish
withholding tax at the standard income tax rate unless another exemption under
Irish domestic law applies or relief is available and is claimed under the
provisions of a double taxation treaty between Ireland and the country of
taxresidence of the noteholder. In this regard, Ireland has tax treaties with
a number of jurisdictions which, under certain circumstances, reduce the rate
of Irish withholding tax on payments of interest to persons resident in those
jurisdictions.
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Taxation of Noteholders
Notwithstanding that a holder may receive interest on the Notes free of
withholding tax, the holder may still be liable to pay Irish incometax.
Interest paid on the Notes may have an Irish source and therefore be within
the charge to Irish income tax, Pay Related Social Insurance ("PRSI") and the
Universal Social Charge. Ireland operates a self assessment system in respect
ofincome tax and any person, including a person who is neither resident nor
ordinarily resident in Ireland, with Irish source income comes within its
scope.
Certain categories of taxpayer may be exempt from taxation of interest:
. A person will be exempt from Irish tax on interest on the Notes where
the Notes qualify for the quoted Eurobond(Section 64) exemption
from withholding tax as described above; provided that the person
does not carry on a trade in Ireland through a branch or agency
to which the interest is attributable and the person is not resident
in Ireland and is residentin a Member State of the EU under
the law of that Member State or in a country with which Ireland has
a double taxation agreement under the terms of that agreement.
. A person will also be exempt from Irish tax on interest on the Notes where the Notes qualify for the
quotedEurobond (Section 64) exemption from withholding tax as described above and where the person is either:
(1) a company, not resident in Ireland, which is under the control, whether directly or indirectly, of person(s)who by virtue of
the laws of a Member State of the EU (other than Ireland) or a country with which Ireland has a double taxation agreement
are resident for the purposes of tax in that jurisdiction and are not under the control of person(s) who arenot so resident
in a Member State of the EU (other than Ireland) or a country with which Ireland has a double taxation agreement; or
(2) a company not resident
in Ireland, or where the
non-Irish
residentcompany is a 75%-owned subsidiary of a company or companies,
the principal class of shares in which is substantially and
regularly traded on a recognized stock exchange in an EU member
state or in a country with which Ireland has a double taxagreement,
provided
the company in (1) and (2) above does not carry on a trade in Ireland through
a branch or agencyto which the interest is attributable.
. Under Irish domestic law, a company that is not resident in Ireland and is resident either in a Member
State ofthe EU or in a country with which Ireland has a double taxation agreement which imposes a tax
that generally applies to interest receivable in that territory by companies from sources outside that
territory or where the interest payable is exemptedfrom the charge to tax under the relevant double tax
agreement, or would be exempted if the relevant double tax agreement had the force of law when the
interest was paid, will be exempt from Irish tax on any interest received on the Notes providedit does not
carry on a trade in Ireland through a branch or agency to which this interest is attributable and as long
as the Irish Issuer is making the interest payments in the ordinary course of its trade or business.
. In addition, an exemption from Irish tax may also be available under
the terms of an applicable double taxagreement to certain persons
entitled to the benefits of such an agreement (subject to any
applicable administrative requirements for claiming treaty benefits).
Holders receiving interest on the Notes which does not fall within any of the
above exemptions may be liable to Irish income tax, PRSI and theUniversal
Social Charge on such interest.
A corporate noteholder that carries on a trade in Ireland through a branch or
agency in respectof which the Notes are held or attributed or which is a
resident of Ireland, may have a liability to Irish tax on the Notes (including
the interest arising on the Notes).
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Encashment Tax
In certain circumstances, Irish encashment tax may be required to be withheld
from interest on any Notes, where such interest is collected by aperson in
Ireland on behalf of any noteholder. As of January 1, 2024, the applicable
rate of encashment tax is 25%. If a noteholder appoints an Irish collecting
agent, then an exemption from Irish encashment tax should be available where
thebeneficial owner of the interest is not resident in Ireland and has made a
declaration to this effect in the prescribed form to the collecting agent.
Where a
non-Irish
collection agent is appointed by anoteholder, there should not be any
obligation to deduct Irish encashment tax.
Deposit Interest Retention Tax ("DIRT")
The interest on the Notes should not be liable to DIRT on the basis that the
Irish Issuer is not a deposit taker as defined in Irish tax law.
Capital Gains Tax
Capitalgains tax is chargeable at the rate of 33% on taxable capital gains
(calculated in euros). The Notes are chargeable assets for Irish capital gains
tax purposes. Persons who are neither resident nor ordinarily resident in
Ireland, however, are onlyliable for capital gains tax on the disposal of the
Notes where the Notes have been used in, or held, or acquired for use by or
for the purposes of a branch or agency in Ireland.
Domicile Levy
Irish domiciledindividuals in Ireland may be subject to the domicile levy as a
consequence of owning the Notes.
Capital Acquisitions Tax
A gift or inheritance comprising of Notes will be within the charge to capital
acquisitions tax (currently levied at a rate of 33%) if either(i) the disponer
or the donee/successor in relation to the gift or inheritance is resident or
ordinarily resident in Ireland or (ii) if the Notes are regarded as property
situated in Ireland. Special rules with regard to residence applywhere an
individual is not domiciled in Ireland. The Notes may be regarded as situated
in Ireland for Irish capital acquisition tax purposes. Accordingly, if such
Notes are comprised in a gift or inheritance, the gift or inheritance may be
withinthe charge to tax regardless of the residence status of the disponer or
the donee/successor.
Stamp Duty
No stamp duty, stamp duty reserve tax or issue, documentary, registration or
other similar tax imposed by any government department or othertaxing
authority of or in Ireland (collectively "Irish stamp duty") should be payable
on the creation, initial issue or delivery of Notes.
The Notes should be considered loan capital within the meaning of Section 85
of the Stamp Duties Consolidation Act, 1999, and on thebasis that the issue
price is not less than 90% of their nominal value, the transfer of any
interest in such Notes therein by written instrument or by book entry should
not attract Irish stamp duty. Any Irish stamp duty charged would be at the
rateof 7.5% of the amount of the consideration for the transfer or, if
greater, the market value of the interest in the Notes being transferred.
CommonReporting Standard
The Common Reporting Standard ("CRS") requires participating jurisdictions to
exchange certaininformation held by financial institutions (as defined for CRS
purposes) regarding their
non-resident
customers. CRS does not impose any additional requirements to withhold tax on
payments to investors.
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Certain Dutch Tax Consequences
General
This"--
Certain Dutch Tax Consequences
" section only outlines certain material Dutch tax consequences of the
acquisition, holding and disposal of the Notes. This section does not purport
to describe all possible tax considerations orconsequences that may be
relevant to a holder or prospective holder of Notes and does not purport to
deal with the tax consequences applicable to all categories of investors, some
of which (such as trusts or similar arrangements) may be subject tospecial
rules. In view of its general nature, this section should be treated with
corresponding caution.
This section is based on the taxlaws of the Netherlands, published regulations
thereunder and published authoritative case law, all as in effect on the date
hereof, including, for the avoidance of doubt, the tax rates, tax brackets and
deemed returns applicable on the date hereof,and all of which are subject to
change, possibly with retroactive effect. Any such change may invalidate the
contents of this section, which will not be updated to reflect such change.
Where this section refers to "the Netherlands" or"Dutch" it refers only to the
part of the Kingdom of the Netherlands located in Europe.
This section is intended as generalinformation only and is not Dutch tax
advice or a complete description of all Dutch tax consequences relating to the
acquisition, holding and disposal of the Notes. Holders or prospective holders
of Notes should consult their own tax advisorregarding the Dutch tax
consequences relating to the acquisition, holding and disposal of the Notes in
light of their particular circumstances.
Withholding tax on payments by a Dutch Guarantor
Holders of the Notes (other than entities
related (gelieerd)
to the Issuers or the Dutch Guarantors; see below):
All payments of principal or interest made by the Dutch Guarantors under the
Notes to holders of the Notes other than holders that areentities
related (gelieerd)
to the Issuers or the Dutch Guarantors (within the meaning of the Dutch
Withholding Tax Act 2021;
Wet bronbelasting
2021) (see below) may be made free of withholding or deduction of, for or on
account of anytaxes of whatever nature imposed, levied, withheld or assessed
by the Netherlands or any political subdivision or taxing authority thereof or
therein.
Holders of the Notes that are entities
related (gelieerd)
to the Issuers or the Dutch Guarantors:
All payments of interest made or deemed to be made by a Dutch Guarantor under
the Notes to a holder of Notes that is an entity
related
(
gelieerd
) to the Issuers or the Dutch Guarantors (within the meaning of the Dutch
Withholding Tax Act 2021;
Wet bronbelasting
2021) may become subject to a withholding tax at a rate of 25.8% (rate for
2024) if such related entity:
(1) is considered to be resident (
gevestigd
) in a jurisdiction that is listed in the annually updated Dutch Regulation on
low-taxing
jurisdictions and
non-cooperative
jurisdictions for tax purposes (
Regeling laagbelastende staten en
niet-cooperatieve
rechtsgebieden voor belastingdoeleinden
) (a "Listed Jurisdiction"); or
(2) has a permanent establishment located in a Listed Jurisdiction to which
the interest payment is attributable; or
(3) is entitled to the interest payment with the main purpose or one of the
main purposes of avoiding taxation for another person or entityand there is an
artificial arrangement or transaction or a series of artificial arrangements
or transactions; or
(4) is not considered tobe the recipient of the interest in its jurisdiction
of residence because such jurisdiction treats another entity as the recipient
of the interest (a hybrid mismatch); or
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(5) is not resident in any jurisdiction (also a hybrid mismatch); or
(6) is a reverse hybrid (within the meaning of Article 2(12) of the Dutch
Corporate Income Tax Act;
Wet op de vennootschapsbelasting1969
), if and to the extent (x) there is a participant in the reverse hybrid
holding a Qualifying Interest (as defined below) in the reverse hybrid, (y)
the jurisdiction of residence of the participant holding the Qualifying
Interestin the reverse hybrid treats the reverse hybrid as transparent for tax
purposes and (z) such participant would have been subject to Dutch withholding
tax in respect of the payments of interest without the interposition of the
reverse hybrid,
all within the meaning of the Dutch Withholding Tax Act 2021 (
Wet bronbelasting 2021
).
For purposes of the Dutch Withholding Tax Act 2021, an entity is considered an
entity related
(gelieerd)
to the Issuers or the DutchGuarantors if:
(1) such entity has a Qualifying Interest in the relevant Issuer or the
relevant Dutch Guarantor;
(2) the relevant Issuer or the relevant Dutch Guarantor has a Qualifying
Interest in such entity; or
(3) a third party has a Qualifying Interest in both the relevant Issuer or the
relevant Dutch Guarantor and such entity.
The term "Qualifying Interest" means a directly or indirectly held interest -
either by an entity individually or jointly if anentity is part of a
collaborating group (
samenwerkende groep
) - that enables such entity or such collaborating group to exercise a
definitive influence over another entity's decisions and allows it to
determine the otherentity's activities (within the meaning of case law of the
European Court of Justice on the right of freedom of establishment (
vrijheid van vestiging
)).
See "
Risk Factors--Risks Relating to the Notes--If payments made pursuant to either
the Holdings Guarantee or the AerCapAviation Guarantee are subject to
withholding tax in the Netherlands, the relevant Dutch guarantor will make the
required withholding or deduction for the account of the relevant holder of
the Notes and shall not be obliged to pay additional amountsto such holder of
the Notes.
" for more information on the withholding tax on interest in the Netherlands.
Taxes on income and capitalgains
Please note that the summary in this section does not describe the Dutch tax
consequences for:
(1) holders of Notes if such holders
have a substantial interest (
aanmerkelijk belang
) or deemed substantialinterest (
fictief aanmerkelijk belang
) in an Issuer, any of the
Dutch Guarantors or any of the
other guarantors under the
Dutch Income Tax Act 2001 (
Wet inkomstenbelasting 2001
). Generally speaking, a holder of securities in a companyis considered to hold a substantial interest in such company,
if such holder alone or, in the case of an individual, together with such holder's partner for Dutch income tax
purposes, or any relatives by blood or marriage in the direct line(including foster children), directly or indirectly,
holds (i) an interest of 5% or more of the total issued and outstanding capital of that company or of 5% or more of the
issued and outstanding capital of a certain class of shares of thatcompany; or (ii) rights to acquire, directly or
indirectly, such interest; or (iii) certain profit sharing rights in such company that relate to 5% or more of the company's
annual profits or to 5% or more of the company'sliquidation proceeds. A deemed substantial interest may arise if a
substantial interest (or part thereof) in a company has been disposed of, or is deemed to have been disposed of, on a
non-recognition
basis;
(2) pension funds, investment institutions (
fiscale beleggingsinstellingen
), and tax exempt investmentinstitutions (
vrijgestelde beleggingsinstellingen
) (each as defined in the Dutch Corporate Income Tax Act 1969;
Wet op de vennootschapsbelasting
1969
) and other entities that are, in whole or in part, not subject to or exemptfrom Dutch corporate income tax; and
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(3) holders of Notes who are individuals for whom the Notes or any benefit
derived from the Notes are aremuneration or deemed to be a remuneration
for activities performed by such holders or certain individuals related
to such holders (as defined in the Dutch Income Tax Act 2001).
Dutch Resident Entities
Generallyspeaking, if the holder of the Notes is an entity that is a resident
or deemed to be resident of the Netherlands for Dutch corporate income tax
purposes (a "Dutch Resident Entity"), any income derived or deemed to be
derived from the Notesor any capital gains realized on the disposal or deemed
disposal of the Notes is subject to Dutch corporate income tax at a rate of
19% with respect to taxable profits up to 200,000 and 25.8% with respect to
taxable profits in excess of thatamount (rates and brackets for 2024).
Dutch Resident Individuals
If a holder of the Notes is an individual resident or deemed to be resident of
the Netherlands for Dutch income tax purposes (a "DutchResident Individual"),
any income derived or deemed to be derived from the Notes or any capital gains
realized on the disposal or deemed disposal of the Notes is subject to Dutch
personal income tax at the progressive rates (with a maximum of49.5% in 2024),
if:
(1) the Notes are attributable to an enterprise from which the holder of
the Notes derives a share of the profit,whether as an entrepreneur (
ondernemer
) or as a person who has a
co-entitlement
to the net worth (
medegerechtigd tot het vermogen
) of such enterprise without being a shareholder
(as defined inthe Dutch Income Tax Act 2001); or
(2) the holder of the Notes is considered to perform activities with respect to the Notes that go beyond ordinaryasset management (
normaal, actief vermogensbeheer
) or otherwise derives benefits from the Notes that are taxable as benefits from miscellaneous activities (
resultaat uit overige werkzaamheden
).
Taxation of savings and investments
If the above-mentioned conditions (1) and (2) do not apply to the Dutch
Resident Individual, the Notes will be subject to an annualDutch income tax
under the regime for savings and investments (
inkomen uit sparen en
beleggen
). Taxation only occurs insofar the Dutch Resident Individual's net investment
assets for the year exceed a statutory threshold(
heffingvrij vermogen
). The net investment assets for the year are the fair market value of the
investment assets less the fair market value of the liabilities on January 1
of the relevant calendar year (reference date;
peildatum
). Actual income or capital gains realized in respect of the Notes are as such
not subject to Dutch income tax.
The DutchResident Individual's assets and liabilities taxed under this regime,
including the Notes, are allocated over the following three categories: (a)
bank savings (
banktegoeden
), (b) other investments (
overige bezittingen
),including the Notes, and (c) liabilities (
schulden
). The taxable benefit for the year (
voordeel uit sparen en beleggen
) is equal to the product of (x) the total deemed return divided by the sum of
bank savings, otherinvestments and liabilities and (y) the sum of bank
savings, other investments and liabilities minus the statutory threshold, and
is taxed at a flat rate of 36% (rate for 2024).
The deemed return applicable to other investments, including the Notes, is set
at 6.04% for the calendar year 2024. Transactions in thethree-month period
before and after January 1 of the relevant calendar year implemented to
arbitrate between the deemed return percentages applicable to bank savings,
other investments and liabilities will for this purpose be ignored if
theholder of Notes cannot sufficiently demonstrate that such transactions are
implemented for other than tax reasons.
On June 6, 2024,the Dutch Supreme Court (
Hoge Raad
) ruled that the current Dutch income tax regime for savings and investments
in certain specific circumstances contravenes with Section 1 of the First
Protocol to the
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European Convention on Human Rights in combination with Section 14 of the
European Convention on Human Rights (the "Rulings"). This is, in short, the
case in the event the deemedreturn on the investment assets exceeds the actual
return realized in respect thereof (calculated in line with the rules set out
in the Rulings and successfully demonstrated by the taxpayer). Holders of
Notes are advised to consult their own taxadvisor to ensure that the tax in
respect of the Notes is levied in accordance with the applicable Dutch tax
rules at the relevant time.
Non-Residents
of the Netherlands
A holder of the Notes that is neither a Dutch Resident Entitynor a Dutch
Resident Individual will not be subject to Dutch income tax in respect of any
income derived or deemed to be derived from the Notes or in respect of any
capital gains realized on the disposal or deemed disposal of the Notes,
providedthat:
(1) such holder does not have an interest in an enterprise or deemed enterprise (as defined in the Dutch Income TaxAct 2001
and the Dutch Corporate Income Tax Act 1969, as applicable), which, in whole or in part, is either effectively managed
in the Netherlands or carried on through a permanent establishment, a deemed permanent establishment or a
permanentrepresentative in the Netherlands and to which enterprise or part of an enterprise the Notes are attributable; and
(2) in the event the holder is an individual, such holder does not carry out any
activities in the Netherlands withrespect to the Notes that go beyond ordinary
asset management and does not otherwise derive benefits from the Notes that
are taxable as benefits from miscellaneous activities in the Netherlands.
Gift and Inheritance
Residentsof the Netherlands
Gift or inheritance taxes will arise in the Netherlands with respect to a
transfer of the Notes by way of a giftby, or on the death of, a holder of such
Notes who is resident or deemed resident of the Netherlands at the time of the
gift or such holder's death.
Non-Residents
of the Netherlands
No gift or inheritance taxes will arise in the Netherlands with respect to a
transfer of Notes by way of gift by, or on the death of, a holderof Notes who
is neither resident nor deemed to be resident of the Netherlands, unless:
(1) in the case of a gift of a Note by an individual who at the date of the
gift was neither resident nor deemed tobe a resident of the Netherlands,
such individual dies within 180 days after the date of the gift,
while being resident or deemed to be resident of the Netherlands; or
(2) in the case of a gift of a Note made under a condition precedent, the holder of the Notes is
resident or isdeemed to be resident of the Netherlands at the time the condition is fulfilled; or
(3) the transfer is otherwise construed as a gift or inheritance made by, or on behalf of, a person
who, at thetime of the gift or death, is or is deemed to be resident of the Netherlands.
For purposes of Dutch gift andinheritance taxes, amongst others, an individual
holding the Dutch nationality will be deemed to be resident in the Netherlands
if such individual has been resident in the Netherlands at any time during the
ten years preceding the date of the giftor such individual's death.
Additionally, for purposes of Dutch gift tax, amongst others, an individual
not holding the Dutch nationality will be deemed to be resident in the
Netherlands if such individual has been resident in the Netherlandsat any time
during the 12 months preceding the date of the gift. The applicable tax treaty
may override deemed residency.
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Value-Added Tax (VAT)
No Dutch VAT will be payable by the holders of the Notes on (i) any payment in
consideration for the issue of the Notes or (ii) thepayment of interest or
principal under the Notes.
Stamp Duties
No Dutch documentation taxes (commonly referred to as stamp duties) will be
payable by the holders of the Notes in respect of or in connectionwith the
issuance of the Notes, or the payment of interest or principal under the Notes.
Certain U.S. Federal Income Tax Consequences
The following discussion, subject to the limitations and conditions set forth
herein, describes the material U.S. federal income taxconsequences to U.S.
Holders and
Non-U.S.
Holders (each as defined below) of owning and disposing of Notes. The
discussion is only applicable to holders that hold Notes as "capital assets"
(generallyfor investment purposes), and who are initial purchasers of the
Notes at their initial offering price. This discussion also assumes that the
Notes will not be issued with more than a
de minimis
amount of original issue discount for U.S.federal income tax purposes. This
discussion does not address all aspects of U.S. federal income taxation that
may be applicable to a holder subject to special treatment under U.S. federal
income tax law (including, but not limited to, personssubject to alternative
minimum tax, U.S. expatriates, banks,
tax-exempt
organizations, governmental organizations, regulated investment companies,
real estate investment trusts, insurance companies, dealers insecurities or
foreign currencies, traders who elect to mark their securities to market,
partnerships or other pass-through entities, U.S. Holders who have a
functional currency other than the U.S. dollar, holders that hold Notes as
part of a hedge,constructive sale, straddle, conversion or integrated
transaction or persons required to accelerate the recognition of any item of
gross income with respect to the Notes as a result of such income being
recognized on an applicable financialstatement).
In addition, this discussion does not address state, local, or
non-U.S.
taxconsequences of the ownership or disposition of Notes, or any U.S. federal
tax consequences other than U.S. federal income tax consequences, such as the
estate and gift tax and any alternative minimum tax. The discussion below is
based upon theprovisions of the Internal Revenue Code of 1986, as amended (the
"Code"), U.S. Treasury regulations, rulings and other pronouncements of the
IRS and judicial decisions as of the date hereof. Such authorities may be
repealed, revoked ormodified (with possible retroactive effect) so as to
result in U.S. federal income tax consequences different from those discussed
below.
Holders of Notes are urged to consult their own tax advisors concerning the
U.S. federal income tax consequences of ownership and dispositionof Notes in
light of their particular situations, as well as any consequences arising
under the laws of any other taxing jurisdiction.
The treatment of the Notes for U.S. federal income tax purposes is unclear in
certain respects due to the absence of authorities that directlyaddress the
treatment of debt obligations that have both U.S. and
non-U.S.
co-obligors.
All of the proceeds of this offering of the Notes will be received by the
IrishIssuer or a series of the U.S. Issuer that is wholly owned by the Irish
Issuer and is disregarded as separate from the Irish Issuer for U.S. federal
income tax purposes. The Issuers have entered into a Reimbursement Agreement
pursuant to which(i) all payments on the Notes will be made by the Irish
Issuer and (ii) notwithstanding the foregoing, in the event that the U.S.
Issuer makes a payment on or with respect to a Note, the Irish Issuer will
promptly reimburse the U.S. Issuerfor such payment (plus interest thereon).
This Reimbursement Agreement is binding upon the successors (if any) of the
Issuers. For U.S. federal income tax purposes, we intend to treat (i) the
Notes as debt of the Irish Issuer and(ii) interest payments on the Notes as
interest from sources outside the U.S. We cannot assure you, however, that the
IRS will not challenge this treatment or, if the IRS were to challenge this
treatment, that a court would not agree with theIRS. If the IRS were to
successfully challenge this treatment, the tax
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consequences of holders would be different from those described below.
Holders, and
Non-U.S.
Holders in particular, are urged to consult with their own taxadvisors with
regard to the source of interest on the Notes. The following discussion
assumes that our treatment as described above will be respected.
As used herein, the term "U.S. Holder" means a beneficial owner of Notes that
is (i) an individual who is a citizen or residentof the United States, (ii) a
corporation, or other entity treated as a corporation for U.S. federal income
tax purposes, created or organized in or under the laws of the United States,
any State thereof or the District of Columbia,(iii) an estate the income of
which is subject to U.S. federal income taxation regardless of its source, or
(iv) a trust (X) that is subject to the supervision of a court within the
United States and the control of one or more UnitedStates persons as described
in Section 7701(a)(30) of the Code or (Y) that has a valid election in effect
under applicable U.S. Treasury regulations to be treated as a United States
person.
As used herein, the term
"Non-U.S.
Holder" means a beneficial owner of Notes that is neithera U.S. Holder nor a
partnership (or other entity classified as a partnership for U.S. federal
income tax purposes).
If a partnership (oran entity classified as a partnership for U.S. federal
income tax purposes) holds Notes, the tax treatment of a partner in the
partnership will generally depend upon the status of the partner and the
activities of the partnership. A partner of apartnership holding Notes is
urged to consult its own tax advisor regarding the consequences of the
ownership or disposition of Notes.
PotentialContingent Payment Debt Treatment
Certain debt instruments that provide for one or more contingent payments are
subject to U.S.Treasury regulations governing contingent payment debt
instruments. A payment is not treated as a contingent payment under these
regulations if, as of the issue date of the debt instrument, the likelihood
that such payment will be made is remote orthe payments are incidental. In
certain circumstances as set forth in the "
Description of Notes,
" we may redeem or repurchase the Notes in advance of their stated maturity,
in which case we may pay amounts on the Notes that are inexcess of the stated
interest or principal of the Notes. We believe, however, that the potential
under the terms of the Notes for payments in excess of stated interest and
principal, e.g., in the event of a Change of Control Triggering Event,
isremote or incidental and therefore the Notes are not subject to the rules
governing contingent debt instruments. Accordingly, we do not intend to treat
the potential payment of such amounts as part of the yield to maturity of the
Notes. Our positionis binding on you unless you disclose that you are taking a
contrary position in the manner required by applicable U.S. Treasury
regulations. Our position is not, however, binding on the IRS, and if the IRS
were to challenge this position, a U.S.Holder might be required to use the
accrual method, even if such holder were otherwise a cash method taxpayer, to
take into account interest income on the Notes and to treat as ordinary income
rather than capital gain any income realized on thetaxable disposition of a
Note. The remainder of this discussion assumes that the Notes will not be
treated as contingent payment debt instruments.
Taxation of Payments of Interest and Additional Amounts
Interest paid on a Note (including Additional Amounts, if any) will be
included in the gross income of a U.S. Holder as ordinary interestincome at
the time it is paid or accrued, in accordance with the U.S. Holder's regular
method of tax accounting.
If withholdingtaxes are imposed in Ireland or in another jurisdiction, U.S.
Holders will be treated as having actually received an amount equal to the
amount of such taxes and as having paid such amount to the relevant taxing
authority. As a result, the amount ofincome included in gross income by a U.S.
Holder may be greater than the amount of cash actually received by the U.S.
Holder. Subject to certain limitations, including certain requirements imposed
by applicable U.S. Treasury regulations, a U.S.Holder may be entitled to a
credit against its U.S. federal income tax liability for any income taxes
withheld and remitted to the Irish tax authority or other
non-U.S.
taxing authority. The U.S. Department ofthe Treasury and the IRS are
considering proposing
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amendments to such U.S. Treasury regulations. In addition, recent notices from
the IRS provide temporary relief by allowing taxpayers that comply with
applicable requirements to apply manyaspects of the foreign tax credit
regulations as they previously existed (before the release of such U.S.
Treasury regulations) for taxable years ending before the date that a notice
or other guidance withdrawing or modifying the temporary relief isissued (or
any later date specified in such notice or other guidance). Alternatively, a
U.S. Holder may elect to claim a deduction for any income taxes paid to
Ireland or other
non-U.S.
country in computingits U.S. federal taxable income, subject to generally
applicable limitations under U.S. law (including that a U.S. Holder is not
eligible for a deduction for otherwise creditable foreign income taxes paid or
accrued in a taxable year if suchU.S. Holder claims a foreign tax credit for
any foreign income taxes paid or accrued in the same taxable year). U.S.
Holders should consult their own tax advisors concerning the U.S. federal
income tax consequences of the imposition of any suchincome taxes.
Interest received or accrued on the Notes and Additional Amounts generally
will constitute foreign source income to U.S.Holders for U.S. foreign tax
credit purposes. For purposes of the foreign tax credit limitation, foreign
source income is classified in different "baskets," and the credit for foreign
taxes paid or accrued with respect to foreign sourceincome in any basket is
limited to U.S. federal income tax allocable to that income. Interest on the
Notes generally will be in the "passive category income" basket for most U.S.
Holders. The calculation of U.S. foreign tax credits and, inthe case of a U.S.
Holder that elects to deduct foreign taxes, the availability of deductions
involve the application of complex rules that depend on a U.S. Holder's
particular circumstances. U.S. Holders should, therefore, consult their owntax
advisors regarding the application of the U.S. foreign tax credit rules and
the availability of a foreign tax credit or a deduction under their particular
circumstances.
Sale, Redemption, Retirement and Other Taxable Disposition of the Notes
A U.S. Holder will generally recognize gain or loss on the sale, redemption,
retirement or other taxable disposition of a Note in an amountequal to the
difference between (i) the amount of cash and the fair value of property
received by such U.S. Holder on such disposition (including any make-whole
amount received upon redemption, but less any amounts attributable to accrued
butunpaid interest, which will be taxable as ordinary interest income to the
extent not previously included in income), and (ii) the U.S. Holder's adjusted
tax basis in the Note at the time of such disposition. A U.S. Holder's
initialtax basis in a Note will generally equal the acquisition cost of such
Note to the U.S. Holder. A U.S. Holder's adjusted tax basis in a Note
generally will be its cost decreased by the amount of any payments on the Note
other than payments ofstated interest. Gain or loss with respect to a taxable
disposition of a Note generally will be capital gain or loss. Capital gains of
certain
non-corporate
U.S. Holders, including individuals, derived withrespect to capital assets
held for over one year may be eligible for reduced rates of taxation. The
deductibility of capital losses is subject to limitations.
Gain or loss recognized by a U.S. Holder on the sale, redemption, retirement
or other taxable disposition of a Note will generally beU.S.-source gain or
loss. Prospective investors should consult their own tax advisors as to the
U.S. federal income tax implications of such sale, redemption, retirement or
other taxable disposition of a Note.
Additional Tax on Net Investment Income
Certain U.S. Holders that are individuals, trusts or estates are subject to a
3.8% tax, in addition to otherwise applicable U.S. federal incometax, on the
lesser of (1) the U.S. Holder's "net investment income" (or undistributed "net
investment income," in the case of a trust or estate) for the relevant taxable
year and (2) the excess of the U.S.Holder's modified adjusted gross income (or
adjusted gross income, in the case of a trust or estate) for the relevant
taxable year above a certain threshold (which in the case of an individual is
between $125,000 and $250,000, depending on theindividual's circumstances). A
U.S. Holder's "net investment income" generally includes, among other things,
interest income on and capital gain from the disposition of securities like
the Notes, subject to certain exceptions. Ifyou are a U.S. Holder that is an
individual, estate or trust, you are urged to consult your own tax advisor
regarding the applicability of this tax to your investment in the Notes.
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Non-U.S.
Holders
Payments on the Notes (including the amount of any Irish or other
non-U.S.
taxes withheld, if any, andany Additional Amounts) to a
Non-U.S.
Holder will not be subject to U.S. federal withholding tax. A
Non-U.S.
Holder's net income from the Notes also will not besubject to U.S. federal
income taxation unless the income is effectively connected with such
Non-U.S.
Holder's conduct of a United States trade or business. Gain realized by a
Non-U.S.
Holder on its disposition of the Notes will not be subject to U.S. federal
income tax unless (1) the gain is effectively connected with the
Non-U.S.
Holder's conduct of a United States trade or business or (2) the
Non-U.S.
Holder is an individual who is present in the United States for at least 183
days during the taxable year of disposition andcertain other conditions are
met.
Backup Withholding and Information Reporting
In general, payments of principal and interest, and payments of the proceeds
of a sale, exchange or other disposition of Notes, paid within theUnited
States or through certain United States-related financial intermediaries to a
U.S. Holder may be subject to information reporting and backup withholding
unless the U.S. Holder (i) establishes that it is an exempt recipient or(ii)
in the case of backup withholding (but not information reporting), provides an
accurate taxpayer identification number and certifies that no loss of
exemption from backup withholding has occurred, and the payor is not notified
by the IRSor by a broker that the U.S. Holder has underreported interest or
dividend income.
Non-U.S.
Holders will generally not be subject to information reporting and backup
withholding on payments of principal and interest, and payments of the
proceeds of a sale, exchange or other disposition of Notes. Information
reporting and backup withholdingmay apply, however, in cases where amounts are
paid within the United States or through certain United States-related
financial intermediaries, unless the
Non-U.S.
Holder properly certifies as to its foreignstatus or otherwise establishes an
exemption.
Non-U.S.
Holders should consult their own tax advisors regarding the application of
information reporting and backup withholding in their particular situations.
Backup withholding is not an additional tax. The amount of any backup
withholding from a payment to a holder will be allowed as a refundor a credit
against the holder's U.S. federal income tax liability provided the required
information is timely provided to the IRS.
Information with Respect to Foreign Financial Assets
U.S. Holders that are individuals that own "specified foreign financial
assets" with an aggregate value in excess of $50,000 on thelast day of a
taxable year (or in excess of $75,000 at any time during a taxable year) are
generally required to file an information report with respect to such assets
with their tax returns, subject to certain exceptions. "Specified
foreignfinancial assets" include any financial accounts maintained by foreign
financial institutions, as well as any of the following, but only if they are
not held in accounts maintained by financial institutions: (i) stocks and
securitiesissued by
non-U.S.
persons, (ii) financial instruments and contracts held for investment that have
non-U.S.
issuers or counterparties and (iii) interests inforeign entities. U.S.
Treasury regulations extend this reporting requirement to certain entities
that are treated as formed or availed of to hold direct or indirect interests
in specified foreign financial assets based on certain objectivecriteria. The
Notes may be subject to these rules. U.S. Holders are urged to consult their
own tax advisors regarding the application of this legislation to their
ownership of the Notes.
FATCA
Pursuant to Sections 1471through 1474 of the Code (provisions commonly known
as "FATCA"), a "foreign financial institution" may be required to withhold
U.S. tax on certain foreign passthru payments to the extent such payments are
treated as attributableto certain U.S. source payments. However, under
proposed U.S.
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Treasury regulations, such withholding will not apply to payments made before
the date that is two years after the date on which applicable final
regulations defining foreign passthru paymentsare published. Obligations
issued on or prior to the date that is six months after the date on which
applicable final regulations defining foreign passthru payments are filed
generally would be "grandfathered" unless they are characterizedas equity for
U.S. federal income tax purposes, or they are materially modified after such
date. To date, no such regulations have been issued.
Accordingly, if the Irish Issuer is treated as a foreign financial
institution, FATCA would apply to payments on or with respect to the Notesonly
if there is a significant modification of the Notes for U.S. federal income
tax purposes after the expiration of this grandfathering period.
Non-U.S.
governments have entered into agreements with theUnited States to implement
FATCA in a manner that alters the rules described herein. The Irish and U.S.
governments signed an intergovernmental agreement ("Irish IGA") on December
21, 2012. Under the Irish IGA, information aboutrelevant U.S. investors will
be provided on an annual basis by each Irish financial institution (unless the
financial institution is exempted from the FATCA requirements) directly to the
Irish Revenue Commissioners, who will then provide suchinformation to the U.S.
tax authorities. Holders should consult their own tax advisors on how these
rules may apply to their investment in the Notes. In the event any withholding
under FATCA is imposed with respect to any payments on the Notes,there
generally will be no additional amounts payable to compensate for the withheld
amount (see "
Description of Notes--Additional Amounts
").
However, we do not expect to engage in withholding under FATCA with respect to
the Notes.
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IRISH LAW CONSIDERATIONS
Insolvency Under Irish Law
Difference inInsolvency Law
The Irish Issuer and AerCap Ireland Limited, a guarantor, are incorporated
under the laws of Ireland (together, the"Irish Entities" and each an "Irish
Entity"). Holdings, although incorporated under the laws of The Netherlands,
conducts the administration of its business in Ireland, and is likely to have
its center of main interests inIreland (within the meaning of the EU
Insolvency Regulation). Any insolvency proceedings applicable to any of them
will therefore be likely to be governed by Irish insolvency laws. Irish
insolvency laws differ from the insolvency laws of the UnitedStates or The
Netherlands and may make it more difficult for holders of the Notes to recover
the amount due in respect of the Notes or due under Holdings' or an Irish
guarantor's guarantee (as applicable) of the Notes than they would
haverecovered in a liquidation or bankruptcy proceeding in the United States.
Priority of Secured Creditors
Irish insolvency laws generally recognize the priority of secured creditors
over unsecured creditors. The lenders under any secured facilitieshave, or
will have, security interests on certain of the assets of the Issuers, AerCap
Ireland Limited and Holdings. The Notes and the related guarantees are
unsecured.
Preferential Creditors
UnderIrish law, upon the insolvency of a company that is liable to be wound up
under the 2014 Act, which could include the Irish Entities, Holdings and
AerCap U.S. Global Aviation LLC, preferential debts are, pursuant to Section
621 of the 2014 Act,on a liquidation, required to be paid in priority to all
debts other than the expenses of an examinership (if that has occurred prior
to liquidation) and those secured by a fixed security interest. Preferential
debts therefore have priority overunsecured debts. If the assets of the
relevant company available for payment of general creditors are insufficient
to pay all unsecured debts (including preferential debts), the preferential
debts are required to be paid first out of the availableassets.
The preferential debts will comprise, among other things: (i) any amounts owed
to the Irish Revenue Commissioners forincome/corporation/capital gains tax,
VAT, PAYE, social security and pension scheme contributions and remuneration,
salary and wages of employees; and (ii) amounts due to any city or local
council in relation to rates. In addition, the costsand expenses of
liquidation and examinership (should either occur) of the Irish Entities,
Holdings, AerCap U.S. Global Aviation LLC or any other company that is being
wound up under the 2014 Act or having an examiner appointed to it are required
tobe paid ahead of the preferential creditors prescribed by the 2014 Act.
Therefore in a
winding-up
of any of the Irish Issuer, AerCap Ireland Limited, Holdings, AerCap U.S.
Global Aviation LLC or any company capable of being wound up under the 2014
Act, the liquidator may be required to pay amounts due to preferential
creditors in full in advanceof paying any amounts due to holders of the Notes.
Voidance of Transactions
Under Irish insolvency law, if an Irish company or a company capable of being
wound up under the 2014 Act (which may include Holdings or AerCapU.S. Global
Aviation LLC) goes into liquidation, a liquidator can seek to invoke a number
of provisions of the 2014 Act, further discussed below, to
set-side,
void or render voidable certain transactionsentered into by the company prior
to the appointment of the liquidator. Such provisions may be invoked by a
liquidator to try to void the Notes and the related guarantees.
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Unfair Preference
Under Irish insolvency law, if an Irish company or a company capable of being
wound up under the 2014 Act (which could include Holdings orAerCap U.S. Global
Aviation LLC) goes into liquidation, a liquidator may apply to the court to
have certain transactions set aside if they amounted to an unfair preference.
Section 604 of the 2014 Act ("Section 604") provides that any conveyance,
mortgage, delivery of goods, payment, executionor other act relating to
property made or done by or against a company, which is at the time of the
transaction unable to pay its debts as they become due, in favor of any
creditor or any person on trust for any creditor, with a view to giving
suchcreditor (or any guarantor for the debt due to such creditor) a preference
over the other creditors carried out within six months of the commencement of a
winding-up
of the company (or such longer period asthe court considers just and equitable
having regard to the circumstances of the act concerned) is deemed an unfair
preference of its creditors and shall be invalid. In the case of a connected
person, the look-back period is two years (or suchlonger period as the court
considers just and equitable having regard to the circumstances of the act
concerned) and any such transaction shall, unless the contrary is shown, be
deemed to be an unfair preference without the requirement ofestablishing an
intention to prefer.
Section 604 is only applicable if, at the time of the conveyance, mortgage
payment or otherrelevant act, the Irish company was unable to pay its debts as
they became due.
Improper Transfers
Under Section 608 of the 2014 Act ("Section 608"), if it can be shown on the
application of a liquidator, creditor orcontributory of a company which is
being wound up, to the satisfaction of the Irish High Court, that any property
of such company was disposed of (which would include by way of transfer,
mortgage or security) and the effect of such a disposal was to"perpetrate a
fraud" on the company, its creditors or members, the Irish High Court may, if
it deems it just and equitable, order any person who appears to have use,
control or possession of such property or the proceeds of the sale
ordevelopment thereof to deliver it or pay a sum in respect of it to the
liquidator on such terms as the Irish High Court sees fit. In deciding whether
it is just and equitable to make an order under Section 608, the Irish High
Court must haveregard to the rights of persons who have bona fide and for
value acquired an interest in the property the subject of the application.
Section 608 does not apply to a disposal that would constitute an unfair
preference for the purposes ofSection 604.
Fraudulent Transfer
Section 74(3) of the Land and Conveyancing Law Reform Act 2009 (as amended)
provides that a conveyance of property made with the intentionof defrauding a
creditor or other person is voidable by any person thereby prejudiced. The
foregoing will not apply, however, to any estate or interest in property
conveyed for valuable consideration to any person in good faith not having, at
thetime of the conveyance, notice of the fraudulent intention.
Disclaimer of Onerous Property
Section 615 of the 2014 Act confers power on a liquidator, with the leave of
the court, at any time within 12 months after thecommencement of the
liquidation (or such extended period as may be allowed by the Court), to
disclaim any property of the company being wound up which consists of, amongst
other things, (a) unprofitable contracts or (b) any property whichis
unsaleable or not readily saleable by reason of it binding the possessor to
the performance of any onerous act or to the payment of money. Where a
disclaimer is allowed by the court, the company is relieved of continuous and
onerous obligations(and any future benefits) under the contract, but, the
other party to the contract obtains the right to prove in the liquidation for
the losses sustained by it as a result of the disclaimer. A liquidator must
disclaim the whole of the property; hemay not keep part and disclaim part. A
disclaimer terminates as and from the date of the disclaimer, the rights,
interests and liabilities of the company in the contract or the property, but,
the disclaimer does not affect the rights or liabilitiesof any other person,
except so far as necessary for the purpose of releasing the company from
liability.
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Pooling
Section 600 of the 2014 Act ("Section 600") provides that, where two or more
related companies are being wound up, and if acourt is satisfied that it is
just and equitable to do so, both companies may be wound up together as if
they were one company (a "pooling order"). A pooling order does not affect the
rights of any secured creditor of any companies whichare subject to it. In
deciding whether it is just and equitable to make a pooling order, a court
will have regard (but not exclusively) to the extent to which any of the
companies took part in the management of any of the other companies;
theconduct of any of the companies towards the creditors of any of the other
companies; the extent to which the circumstances that gave rise to the winding
up of any of the companies are attributable to the actions or omissions of any
of the othercompanies; and the extent to which the businesses of the companies
have been intermingled. Section 600(7) provides that it is not just and
equitable to make a pooling order if the only reason for doing so is the fact
that one company is relatedto another; or that the creditors of the company
being wound up have relied on the fact that another company is or has been
related to the first company. In addition, in deciding the terms and
conditions of a pooling order the Irish High Court musthave particular regard
to the interests of those persons who are members of some, but not all, of the
companies. However, the interests of persons who are creditors of one, but not
another, company are not expressly required to be taken intoaccount. There is
no reported judicial authority in Ireland which would assist in clarifying the
circumstances in which the High Court would exercise its discretion to grant a
pooling order in respect of related companies. Where a pooling order ismade in
respect of the Irish Issuer and any other company (including AerCap Ireland
Limited, AerCap U.S. Global Aviation LLC and Holdings as guarantors of the
Notes), this would result in those companies being wound up as a single entity
and theirassets and liabilities being pooled for that purpose. In such event,
this could have potentially adverse consequences for the Irish Issuer's
ability to perform its obligations under the Notes and where applicable for
Holdings, AerCap U.S.Global Aviation LLC or AerCap Ireland Limited's ability
to perform its guarantee in respect of the Notes.
Contribution
Under Section 599 of the 2014 Act ("Section 599"), the Irish High Court may,
on the application of a liquidator or anycreditor or contributory of a company
that is being wound up, if satisfied that it is just and equitable to do so,
order that any company that is or has been related to a company which is being
wound up shall pay to the liquidator of that company anamount equivalent to
the whole or part of all or any of the debts provable in that winding up (a
"contribution order"). Section 599(4) states that, in deciding whether it is
just and equitable to make a contribution order, the courtmust have regard
(but not exclusively) to: the extent to which the related company took part in
the management of the company being wound up; the conduct of the related
company towards the creditors of the company being wound up; the effect
whichsuch order would be likely to have on the creditors of the related
company concerned; the extent to which the circumstances that gave rise to the
winding up are attributable to the actions or omissions of the related
company; and such other mattersas the court considers appropriate. However,
Section 599(6) provides that it is not just and equitable to make a
contribution order if the only reason for doing so is (a) the mere fact that
one of the companies is related to the other, or(b) the mere fact that the
creditors of the company being wound up have relied on the fact that the other
company is or has been related to it.
There is no reported judicial authority in Ireland which would assist in
clarifying the circumstances in which the Irish High Court wouldexercise its
discretion to grant a contribution order in respect of companies which are or
have been related. Where a contribution order is made in respect of the Irish
Issuer or any other company which has obligations related to the Notes(including
AerCap Ireland Limited, AerCap U.S. Global Aviation LLC and Holdings as
guarantors of the Notes), this would result in those companies being required
to contribute to the liabilities of the relevant company being wound up. This
could havepotentially adverse consequences for the Irish Issuer's ability to
perform its obligations under the Notes and where applicable for Holdings,
AerCap U.S. Global Aviation LLC or AerCap Ireland Limited's ability to perform
its guarantee inrespect of the Notes.
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Examinership
Examinership is a court procedure available under Part 10 of the 2014 Act to
facilitate the survival of Irish companies, such as the IrishEntities, in
financial difficulties. Furthermore, following two recent decisions of the
Irish High Court, there is now authority (although each was determined on an
uncontested basis) that:
(1) an examiner can be appointed to a
non-Irish
incorporated company thathas its center of main interests in Ireland (within the meaning
of the EU Insolvency Regulation). An examiner could therefore be appointed to Holdings
and/or AerCap U.S. Global Aviation LLC on the basis that it is capable of being wound up
under the2014 Act and the center of main interests of those companies is in Ireland; and
(2) an examiner can also be appointed to a
non-Irish
company that has itscenter of main interests neither in Ireland nor in any other
EU member state, but has a sufficient connection to Ireland and is related
to another company (e.g., a parent, subsidiary or sister company) that (i)
has its center of main interestsin Ireland and (ii) is also in examinership.
In circumstances where a company is or is likely to be unable to payits debts,
then that company, the directors of that company, a contingent, prospective or
actual creditor of that company, or shareholders of that company holding at
the date of presentation of the petition not less than
one-tenth
of the voting share capital of that company, are each entitled to petition the
court for the appointment of an examiner to that company. The examiner's role
is to formulate proposals for a scheme ofarrangement to secure the survival of
the company as a going concern.
The company, once the examiner is appointed, has the ability toapply to the
Irish Court to repudiate onerous contracts entered into by the company. An
examiner can, in certain circumstances, avoid a negative pledge given by the
company prior to his/her appointment. Furthermore, the examiner may sell
assets thesubject of a fixed security interest. If such power is exercised,
the examiner must account to the holders of the fixed security interest for
the amount realized and discharge the amount due to the holders of the fixed
security interest out of theproceeds of the sale. The remuneration, costs and
expenses of an examiner shall be paid before any other claim, secured or
unsecured, under any scheme of arrangement or in any receivership or
liquidation of the company. Furthermore, if the examinercertifies certain
liabilities during the protection period, these liabilities are treated as
expenses properly incurred by the examiner and shall be paid before any other
claims, including floating charge claims, but after fixed charge claims.
Where the Irish High Court (or the Irish Circuit Court where the petition is
presented in respect of a "small company" as that termis defined in the 2014
Act) appoints an examiner to a company, it may, at the same or any time
thereafter, make an order appointing the examiner to be examiner for the
purposes of the 2014 Act to a related company of such company.
During the period of protection, the examiner will formulate proposals for a
compromise or scheme of arrangement to assist the survival of thecompany, or
of the related company, or both, and the whole or any part of its or their
undertaking as a going concern. A scheme of arrangement may be approved by the
Irish Court when at a minimum at least one class of creditors has voted in
favor ofthe proposals, provided that a majority in number representing a
majority in value of at least one class of impaired creditors has voted in
favor of the proposals. This minimum threshold requirement is subject to the
caveat that the approving classmust be an "in the money" class of creditor,
i.e
., a class that would receive some payment or interest in the event that the
company was liquidated. In addition, the Irish Court must be satisfied that
such proposals are, among otherthings, fair and equitable in relation to any
class of members or creditors that has not accepted the proposals and whose
interests would be impaired by implementation of the scheme of arrangement and
the proposals are not unfairly prejudicial tothe interests of any interested
party. Further, the Irish Court shall not confirm proposals for a scheme of
arrangement which has the effect of impairing the creditors of that company in
such a manner as to unfairly favor the interest of thecreditors or members of
a related company in examinership.
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Under Section 537 of the 2014 Act, where proposals for a compromise or scheme
ofarrangement are to be formulated in relation to a company, for the survival
of the company in examinership and the whole or part of its undertaking as a
going concern, the company (but not the examiner) may, subject to the approval
of the court,affirm or repudiate any contract under which some element of
performance (other than payment) remains to be rendered both by the company
and the other contracting party or parties. Any person who suffers loss or
damage as a result of suchrepudiation stands as an unsecured creditor for the
amount of such loss or damage and his claim may be dealt with by the examiner
under the proposed scheme of arrangement.
The Irish Circuit Court has jurisdiction to hear a petition for the
appointment of an examiner in respect of a small company. A "smallcompany"
under the 2014 Act is a company which satisfies at least two of the following
conditions in the financial year immediately preceding the presentation of the
petition: (i) it has a balance sheet not in excess of 7.5 million; (ii) it has
a turnover not in excess of 15 million; and (iii) it has not more than 50
employees.
The 2014 Act provides, among other things, that no enforcement action or other
proceedings of any sort may be commenced against the company inexaminership or
any guarantor in respect of the debts of the company in examinership. The
primary risks to the holders of the Notes, under the laws of Ireland, if an
examiner were appointed to an Irish Entity, Holdings, AerCap U.S. Global
AviationLLC or a company related to an Irish Entity or Holdings (each a
"Relevant Company") are as follows:
(1) during the period of court protection, generally no action may be taken by creditors to enforce their rights topayment
of amounts due by the company in examinership or any guarantor and no action may be taken to withhold performance,
terminate, accelerate or in any other way modify executory contracts solely because of the appointment of, or
petition for theappointment of, an examiner, or interim examiner, to the company or to a related company and no
action may be taken to withhold performance, terminate, accelerate or in any other way modify essential executory
contracts solely because the company isunable to pay its debts. Accordingly, if an examiner were to be appointed
to such Relevant Company, there may be a delay in enforcing payment obligations of such Relevant Company and any
payment obligations contained in a guarantee given byHoldings, AerCap Ireland Limited or any subsidiary guarantor;
(2) the potential for a compromise or a scheme of arrangement being approved involving the
write-down orrescheduling of the debt due by such Relevant Company to the holders of the Notes;
(3) the potential for a compromise or a scheme of arrangement being approved involving the write-down orrescheduling of any payment
obligations owed by a guarantor under a guarantee where such a guarantor is a related company to such Relevant Company;
(4) the potential for the examiner to seek to set aside any negative pledge
in the Notes prohibiting the creationof security or the incurring
of borrowings by such Relevant Company to enable the examiner to
borrow to fund such Relevant Company during the protection period; and
(5) in the event that a scheme of arrangement is not approved in respect of such Relevant Company and such RelevantCompany
subsequently goes into liquidation, the examiner's remuneration and expenses (including certain borrowings incurred by
the examiner on behalf of such Relevant Company or guarantor and approved by the Irish Court) will take priority overthe
monies and liabilities which from time to time are or may become due, owing or payable to the holders of the Notes.
Irish company law contains certain rules regarding the enforcement of
guarantees in an examinership and in the event of the appointment of
anexaminer to a Relevant Company, there are certain steps which the holder of
the guarantee will have to observe strictly in order to preserve its rights to
enforce the obligations of the guarantor(s) under the guarantee. In this
respect, a noticecontaining an offer by the holder of the guarantee to
transfer to the guarantor(s) such holder's rights to vote on the examiner's
proposals in respect of the Relevant
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Company must be served on guarantor(s) within certain prescribed time limits.
There is no flexibility in relation to the prescribed time limits and they
must be strictly adhered to in order topreserve the guaranteed party's rights.
If the creditor under the guarantee does not comply with the notification
procedure, it may not enforce, by legal proceedings or otherwise, the
obligations of the guarantor(s) in respect of the debts ofsuch Relevant
Company pursuant to the guarantee.
Under Irish law, the remuneration, costs and expenses of an examiner shall be
paidbefore any other claim, secured or unsecured, under any scheme or
arrangement or in any receivership or liquidation of the company. Furthermore,
if the examiner certifies certain liabilities incurred during the protection
period, those liabilitiesare treated as expenses properly incurred by the
examiner and shall be paid before any other claims including floating charge
claims but after any fixed charge claims.
Statutory Scheme of Arrangement
Pursuant to Part 9 of the 2014 Act, a scheme of arrangement ("Part 9 Scheme of
Arrangement") can be proposed by a company whichenables the company to agree
with its creditors or a class of its creditors a composition or arrangement in
respect to its debts or obligations owed to those creditors. Any Irish
registered company (such as the Irish Entities) can propose of a Part9 Scheme
of Arrangement. It is also possible for a company which is capable of being
wound up under the 2014 Act (i.e. a
non-Irish
registered company such as Holdings or AerCap U.S. Global Aviation LLC)
topropose a Part 9 Scheme of Arrangement.
A Part 9 Scheme of Arrangement is not an insolvency process. There is no
requirement for acompany to establish or prove that it is unable to discharge
its debts or that it is otherwise insolvent in order to propose a Part 9
Scheme of Arrangement. A Part 9 Scheme of Arrangement requires the following
to occur in order to become legallybinding:
(1) the approval of a majority in number representing at least 75% in
value of every class of creditors of thecompany present in person
or by proxy and voting at the meeting convened by the permission
of the Irish High Court or by the directors of the company;
(2) the approval of the Irish High Court by the making of an order sanctioning the scheme of arrangement; and
(3) the delivery of the order sanctioning the scheme of arrangement to the Irish registrar of companies.
A Part 9 Scheme of Arrangement cannot be sanctioned by the Irish High Court
unless the Irish High Court is satisfied,among other things, that the relevant
provisions of Part 9 of the 2014 Act have been complied with and an
intelligent and honest person, who is a member of the class concerned and is
acting in respect of his own interest, might reasonably approvethe scheme. If
the Part 9 Scheme of Arrangement is approved by the relevant creditors and
sanctioned by the Irish High Court and the order sanctioning the Scheme is
delivered as above, the scheme will bind all the creditors that are subject to
thescheme (this includes those creditors who voted in favor of it and those
creditors who voted against it or did not vote at all, and their respective
successors and assigns).
The primary risks to the holders of the Notes, under the laws of Ireland, if
an Irish Company, Holdings, AerCap U.S. Global Aviation LLC or aguarantor
company related to an Irish Entity, Holdings or AerCap U.S. Global Aviation
LLC (each a "Relevant Company") propose a Part 9 Scheme of Arrangement are as
follows:
(1) while there is no automatic moratorium which prevents creditors from enforcing their rights after the scheme
isproposed and before the scheme is sanctioned, the Relevant Company can seek orders from the Irish High
Court restraining any proceedings being issued against it for such period as the court deems appropriate.
There may therefore be a delay inenforcing payment obligations of such Relevant Company under the Notes;
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(2) the potential for a scheme of arrangement being approved involving the write-down or
rescheduling of the debtdue by such Relevant Company to the holders of the Notes; and
(3) the potential for a scheme of arrangement being approved involving the
write-down or rescheduling of anypayment obligations owed by a guarantor.
Enforcement Process
Receivership. A receiver could be appointed to the assets and/or undertaking
of the Issuers or guarantors by way of enforcement of the rightsof the holders
of fixed and/ or floating security interests. Receivers are appointed over
specified assets, and not over the company itself, but may be appointed to the
entire assets and undertaking of the company. The realizations from the
assetsto which the receiver is appointed will be applied in accordance with
the priority rules set out in Irish law--first in discharge of the
remuneration, costs and expenses of any examiner (if that has occurred prior
to the appointment of thereceiver), then in discharge of the costs and
expenses of the receivership, then to the debts secured by fixed security,
then to the debts of preferential creditors and then to the debts secured by
floating charge security. In addition, liabilitiesincurred during an
examinership and certified by the examiner are paid before any other claims
including floating charge claims but after any fixed charge claims. Only after
these debts have been fully discharged will any surplus realizations fromthe
secured assets be returned to the company to be applied in satisfaction of the
debts of unsecured creditors, such as the holders of the Notes.
Guarantees. The Notes will be guaranteed by AerCap Ireland Limited, an Irish
incorporated company, to the extent that such guarantee would notconstitute
the giving of unlawful financial assistance within the meaning of Section 82
of the 2014 Act. There is a risk that such guarantee may be challenged as
unenforceable on the basis that there is an absence of corporate benefit on
thepart of a relevant guarantor or that it is not for the purpose of carrying
on the business of a relevant guarantor. Where a guarantor is a direct or
indirect holding company of an Issuer, there is less risk of an absence of a
corporate benefit onthe basis that the holding company could justify the
decision to give a guarantee to protect or enhance its investment in its
direct or indirect subsidiary. Where a guarantor is a direct or indirect
subsidiary of an Issuer or a member of the groupwith a common direct or
indirect holding company, there is a greater risk of the absence of the
corporate benefit. In the case of an Irish guarantor, the Irish courts have
held that corporate benefit may be established where the benefit flows to
thegroup generally rather than specifically to the relevant Irish guarantor.
Enforcement of Civil Liability Judgments Under Irish Law
As the United States is not a party to a convention with Ireland in respect of
the enforcement of judgments, common law rules apply in order todetermine
whether a judgment of the courts of the United States is enforceable in
Ireland. A judgment of a court of the United States (the "Relevant Court")
will be enforced by the courts in Ireland if the following general
requirementsare met:
(1) the Irish court is satisfied (on the basis of Irish conflicts of
laws) that the Relevant Court was a court ofcompetent jurisdiction;
(2) the judgment has not been obtained or alleged to have been obtained by fraud or a trick;
(3) the decision of the Relevant Court and the enforcement thereof was not and
would not be contrary to natural orconstitutional justice under Irish law;
(4) the enforcement of the judgment would not be contrary to public policy as understood by
the Irish court orconstitute the enforcement of a judgment of a penal or revenue nature;
(5) the judgment is not inconsistent with a judgment of the Irish courts in respect of the same matter;
(6) the judgment is final and conclusive and is a judgment against the relevant company for a debt or definite sumof money;
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(7) the procedural rules of the Relevant Court and the Irish courts have been observed;
(8) no fresh evidence is adduced by any party thereto which could not have been discovered prior to the judgment
ofthe Relevant Court by reasonable diligence by such party and which shows such judgment to be erroneous; and
(9) there is a practical benefit to the party in whose favor the judgment of the
Relevant Court is made in seekingto have that judgment enforced in Ireland.
Other Irish Law Considerations
Application will be made to Euronext Dublin for the Notes to be admitted to
the Official List and to trading on the Global Exchange Market ofEuronext
Dublin. We cannot assure you that any such approval will be granted or, if
granted, that such listing will be maintained. This prospectus does not
constitute "listing particulars" for the purposes of admission of the Notes to
theOfficial List and to trading on the Global Exchange Market of Euronext
Dublin. A separate document constituting such "listing particulars" will be
filed with Euronext Dublin for the purposes of such listing.
The Issuers are not and will not be regulated by the Central Bank of Ireland
or any other financial services regulator under Irish law byvirtue of the
issuing of the Notes. Any investment in the Notes does not have the status of
a bank deposit and is not within the scope of the deposit protection scheme
operated by the Central Bank of Ireland. The Issuer is not required to
belicensed, registered or authorized under any current securities, commodities
or banking laws of Ireland by virtue of the issuance of the Notes. There is no
assurance, however, that regulatory authorities having authority in Ireland
would not take acontrary view regarding the applicability of any such laws.
The taking of a contrary view by such a regulatory authority could have an
adverse impact on the Issuers or the holders of the Note.
No action may be taken with respect to the Notes in Ireland otherwise than in
conformity with the provisions of
(1) the European Union (Markets in Financial Instruments) Regulations
2017, Directive 2014/65/EU of the EuropeanParliament and
of the Council of 15 May 2014 on markets in financial instruments,
Regulation (EU) No 600/2014 of the European Parliament
and of the Council of 15 May 2014 on markets in financial
instruments and amending Regulation (EU) No648/2012 and all
implementing measures, delegated acts and guidance in respect
thereof, and the provisions of the Investor Compensation Act 1998;
(2) the 2014 Act, the Central Bank Acts 1942 to 2018 and any code of
conduct rules made under Section 117(1)of the Central Bank Act 1989;
(3) the Prospectus Regulation (EU) 2017/1129, the European Union (Prospectus)
Regulations 2019, the Central Bank(Investment Market Conduct)
Rules 2019 and any other rules made or guidelines issued under
Section 1363 of the 2014 Act by the Central Bank of Ireland; and
(4) if applicable, the Market Abuse Regulation (EU 596/2014), the European Union (Market Abuse) Regulations 2016and
any rules made or guidelines issued under Section 1370 of the 2014 Act by the Central Bank of Ireland.
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DUTCH LAW CONSIDERATIONS
Insolvency Under Dutch Law
Holdings, apublic limited liability company (
naamloze vennootschap
or N.V.), and AerCap Aviation Solutions B.V., a private limited liability
company (
besloten vennootschap met beperkte aansprakelijkheid
or B.V.), are both incorporated under thelaws of the Netherlands. Insolvency
proceedings applicable to AerCap Aviation Solutions B.V. would likely be
governed by Dutch insolvency laws. There are three insolvency regimes under
Dutch law in relation to corporations. The first, suspension ofpayments (
surseance van betaling
), is intended to facilitate the reorganization of a debtor's debts and enable
the debtor to continue as a going concern. The second, a
pre-insolvency
plan(
onderhands akkoord
), is also intended to facilitate the reorganization of a debtor's debts and
enable the debtor to continue as a going concern. The third, bankruptcy (
faillissement
), is primarily designed to liquidate the assetsof a debtor and distribute the
proceeds thereof to its creditors. In practice a suspension of payments nearly
always results in the bankruptcy of the debtor. All insolvency regimes are set
forth in the Dutch Bankruptcy Act(
Faillissementswet
). A general description of the principles of those insolvency regimes is set
out below.
The first insolvencyregime provides for a suspension of payments (
surseance van betaling
). A request for a suspension of payments can only be filed by the debtor
itself if it foresees that it will not be able to continue to pay its debts as
they fall due in thefuture. Upon commencement of suspension of payments
proceedings, the court will immediately (
dadelijk
) grant a provisional suspension of payments, and will appoint an
administrator (
bewindvoerder
). A definitive suspension willgenerally be granted in a creditors' meeting
called for that purpose, unless a qualified minority (more than
one-quarter
in amount of claims held by creditors represented at the creditors' meeting or
one-third
in number of creditors represented at such creditors' meeting) of the unsecured
non-preferential
creditors withholds its consent or if there is noprospect that the debtor will
in the future be able to pay its debts as they fall due (in which case the
debtor will generally be declared bankrupt). During a suspension of payments,
unsecured and
non-preferential
creditors will be precluded from attempting to recover their claims existing
at the moment of the commencement of the suspension of payments from the
assets of the debtor. Secured creditorsand (subject to certain limitations)
preferential creditors (such as tax and social security authorities and
employees) are excluded from the application of the suspension. This implies
that during suspension of payments proceedings securedcreditors are not barred
from taking recourse against the assets that secure their claims to satisfy
their claims, and preferential creditors are also not barred from seeking to
recover their claims. Therefore, during a suspension of payments,certain
assets of the debtor may be sold in a manner that does not reflect their going
concern value. Consequently, Dutch insolvency laws could preclude or inhibit a
restructuring of Holdings or AerCap Aviation Solutions B.V. A competent Dutch
courtmay order a "cooling down period" for a period of two months with a
possible extension of two more months, during which enforcement actions by
secured creditors and preferential creditors are barred, unless such creditors
have obtainedleave for enforcement from the court or the supervisory judge (
rechter-commissaris
).
In a suspension of payments, a composition(
akkoord
) may be offered by the debtor to its creditors. Such a composition will be
binding on all unsecured and
non-preferential
creditors, irrespective whether they voted in favor or against it orwhether
they were represented at the creditor's meeting called for the purpose of
voting on the composition plan, if (i) it is approved by a simple majority of
the recognized and admitted creditors present or represented at the
relevantmeeting, representing at least 50% of the amount of the recognized and
admitted claims and (ii) it is subsequently ratified (
gehomologeerd
) by the court. Consequently, Dutch insolvency laws could reduce the recovery
of holders of theNotes in a Dutch suspension of payments applicable to
Holdings or AerCap Aviation Solutions B.V.
The second insolvency regime providesfor the possibility to enter into a
pre-insolvency
plan (
onderhands
akkoord
). Debtors have the possibility to offer a composition outside of formal
insolvency proceedings under the Act on CourtConfirmation of Extrajudicial
Restructuring Plans (
Wet homologatie onderhands akkoord
) ("Act on Court Confirmation of Extrajudicial Restructuring Plans"). The
pre-insolvency
plan regime hasbeen
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incorporated in the Dutch Bankruptcy Act pursuant to this Act on Court
Confirmation of Extrajudicial Restructuring Plans. Unlike a composition in
suspension of payments and in bankruptcy, acomposition under the Act on Court
Confirmation of Extrajudicial Restructuring Plans can be offered to secured
creditors as well as shareholders. The Act on Court Confirmation of
Extrajudicial Restructuring Plans provides, inter alia, for crossclass
cramdown, the restructuring of group company obligations through either one or
more aligned proceedings, the termination of onerous contracts with
deactivation of ipso facto, and supporting court measures. Such composition
may result in claimsagainst Holdings or AerCap Aviation Solutions being
compromised if the relevant majority of creditors within a class or a more
senior class vote in favor of such a composition. A composition plan under the
Act on Court Confirmation of ExtrajudicialRestructuring Plans can extend to
claims against entities that are not incorporated under Dutch law and/or are
residing outside the Netherlands. Accordingly, the Act on Court Confirmation
of Extrajudicial Restructuring Plans can affect the rights ofthe Trustee
and/or the holders of the Notes under the Indenture and therefore the Notes.
Under the Act on Court Confirmation ofExtrajudicial Restructuring Plans,
voting on a composition plan is done in classes. Approval by a class requires
a decision adopted with a majority of two third of the claims of that class
that have voted on the plan or, in the case of a class ofshareholders, two
thirds of the shares of that class that have voted on the plan. The Act on
Court Confirmation of Extrajudicial Restructuring Plans provides for the
possibility for a composition plan to be binding on a
non-consenting
class (cross class cramdown). Under the Act on Court Confirmation of
Extrajudicial Restructuring Plans, the court will confirm a composition plan
if at least one class of creditors (other than a classof shareholders) that
can be expected to receive a distribution in case of a bankruptcy of the
debtor approves the plan, unless there is a statutory ground for refusal. The
court can, inter alia, refuse confirmation of a composition plan on thebasis
of (i) a request by an affected creditor of a consenting class if the value of
the distribution that such creditor receives under the plan is lower than the
distribution it can be expected to receive in case of a bankruptcy of the
debtoror (ii) a request of an affected creditor of a
non-consenting
class, if the plan provides for a distribution of value that deviates from the
statutory or contractual ranking and priority to the detrimentof that class.
Under the Act on Court Confirmation of Extrajudicial Restructuring Plans, the
court may grant a stay on enforcement of amaximum of 4 months, with a possible
extension of 4 months. During such period, inter alia, all enforcement action
against the assets of (or in the possession of) the debtor is suspended,
including action to enforce security over the assets of thedebtor.
Accordingly, during such stay a pledgee of claims may not collect nor notify
the debtors of such pledged claims of its rights of pledge.
The third insolvency regime is bankruptcy. Bankruptcy can be applied for
either by the debtor itself or by a creditor if the debtor has ceasedto pay
its debts as they fall due. This is deemed to be the case if the debtor has at
least two creditors (at least one of which has a claim that is due and
payable). Simultaneously with the opening of the bankruptcy, a liquidator in
bankruptcy(curator) will be appointed. Under Dutch bankruptcy proceedings, the
assets of an insolvent debtor are generally liquidated and the proceeds
distributed to the debtor's creditors in accordance with the ranking and
priority of their respectiveclaims. The general principle of Dutch bankruptcy
law is the
so-called
paritas creditorum
(principle of equal treatment) which means that the proceeds of the
liquidation of the debtor's assets inbankruptcy proceedings shall be
distributed to the unsecured and
non-preferential
creditors in proportion to the size of their claims. Certain creditors (such
as secured creditors and preferential creditors)have special rights that may
adversely affect the interests of holders of the Notes. For example, a Dutch
bankruptcy in principle does not prohibit secured creditors from taking
recourse against the encumbered assets of the bankrupt debtor tosatisfy their
claims. Furthermore, secured creditors in principle do not have to contribute
to the liquidation costs.
Consequently, Dutchinsolvency laws could reduce the potential recovery of a
holder of the Notes in Dutch bankruptcy proceedings. As a general rule, to
obtain payment on unsecured
non-preferential
claims, such claims need to besubmitted to the liquidator in bankruptcy in
order to be recognized. The liquidator in bankruptcy determines whether a
claim can be provisionally recognized for the purpose of the distribution of
the proceeds, and at what value. The valuation ofclaims that do not by their
terms become payable at the time of the
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commencement of the bankruptcy proceedings may be based on their net present
value. Interest payments that fall due after the date of the bankruptcy will
not be recognized. At a creditors'meeting (
verificatievergadering
) the liquidator in bankruptcy, the insolvent debtor and all relevant
creditors may dispute the provisional recognition of claims of other
creditors. Creditors whose claims or part thereof are disputed in
thecreditors' meeting will be referred to separate court proceedings (
renvooiprocedure
). This procedure could result in holders of the Notes receiving a right to
recover less than the principal amount of their Notes. In addition, in a
Dutchbankruptcy in practice usually no or little funds remain available for
the payment of unsecured and
non-preferential
creditors.
As in suspension of payments proceedings, in a bankruptcy, a composition (
akkoord
) may be offered to the unsecured and
non-preferential
creditors. Such a composition will be binding upon all unsecured and
non-preferential creditors, if (i) it is approved by a simple majority of
unsecured
non-preferential
creditors with recognized and provisionally admitted claims representing at
least 50% of the total amount of the recognized and provisionally admitted
unsecured non preferential claims and(ii) it is subsequently ratified (
gehomologeerd
) by the court.
Secured creditors may, in a Dutch bankruptcy, enforce theirrights against the
assets of the debtor which are subject to their security rights, to satisfy
their claims as if there were no bankruptcy. As in suspension of payments
proceedings, the competent Dutch court or the supervisory judge may order
a"cooling down period" for a maximum of two times two months during which
enforcement actions by those creditors are barred unless they have obtained
leave for enforcement from the supervisory judge. Furthermore, a liquidator in
bankruptcycan force a secured creditor to foreclose its security right within
a reasonable time (as determined by the liquidator in bankruptcy pursuant to
Section 58(1) of the Dutch Bankruptcy Act), failing which the liquidator in
bankruptcy will beentitled to sell the relevant rights or assets and
distribute the net proceeds (after deduction of a pro rata part of the costs
of the bankruptcy proceedings) to the secured party and excess proceeds of
enforcement must be returned to the liquidatorin bankruptcy. Such excess
proceeds may not be offset against an unsecured claim of the secured creditor
against the debtor. Under Dutch law, as soon as a debtor is declared bankrupt,
all pending enforcements of judgments against such debtorterminate by
operation of law and all attachments on the debtor's assets lapse by operation
of law. Litigation against a debtor which is pending on the date on which that
debtor is declared bankrupt and which concerns a claim against thatdebtor
which must be satisfied from the proceeds of the liquidation in bankruptcy, is
automatically stayed.
Enforcement of Civil Liability JudgmentsUnder Dutch Law
The following summary supersedes and replaces in its entirety the statements
in the accompanying prospectus under theheading "Enforcement of Civil
Liability Judgments under Dutch Law."
We are organized and existing under the laws of theNetherlands. As such, under
Dutch private international law, the rights and obligations of our shareholders
vis-a-vis
the Company originating from Dutch corporatelaw and our articles of
association, as well as the civil liability of our officers (
functionarissen
) (including our directors and executive officers) are governed in certain
respects by the laws of the Netherlands.
We are not a resident of the United States and our officers may also not all
be residents of the United States. As a result, depending on thesubject matter
of the action brought against us and/or our officers, United States courts may
not have jurisdiction. If a Dutch court has jurisdiction with respect to such
action, that court will apply Dutch procedural law and Dutch privateinternationa
l law to determine the law applicable to that action. Depending on the subject
matter of the relevant action, a competent Dutch court may apply another law
than the laws of the United States.
Also, service of process against
non-residents
of the United States may, in principle (absent, forexample, a valid choice of
domicile), not be effected in the United States.
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On the date of this prospectus, (i) there is no treaty in force between the
UnitedStates and the Netherlands for the reciprocal recognition and
enforcement of judgments, other than arbitration awards, in civil and
commercial matters and (ii) both the Hague Convention on Choice of Court
Agreements (2005) and the HagueJudgments Convention (2019) have entered into
force for the Netherlands, but have not entered into force for the United
States. Consequently, a judgment rendered by a court in the United States will
not automatically be recognized and enforcedby the competent Dutch courts.
However, if a person has obtained a judgment rendered by a court in the United
States that is enforceable under the laws of the United States and files a
claim with the competent Dutch court, the Dutch court will inprinciple give
binding effect to that United States judgment if (i) the jurisdiction of the
United States court was based on a ground of jurisdiction that is generally
acceptable according to international standards, (ii) the judgment bythe
United States court was rendered in legal proceedings that comply with the
Dutch standards of proper administration of justice including sufficient
safeguards (
behoorlijke rechtspleging
), (iii) binding effect of such United Statesjudgment is not contrary to Dutch
public order (
openbare orde
) and (iv) the judgment by the United States court is not incompatible with a
decision rendered between the same parties by a Dutch court, or with a
previous decision renderedbetween the same parties by a foreign court in a
dispute that concerns the same subject and is based on the same cause,
provided that the previous decision qualifies for recognition in the
Netherlands. Even if such a United States judgment is givenbinding effect, a
claim based thereon may, however, still be rejected if the United States
judgment is not or no longer formally enforceable. Moreover, if the United
States judgment is not final (for instance when appeal is possible or pending)
acompetent Dutch court may postpone recognition until the United States
judgment will have become final, refuse recognition under the understanding
that recognition can be asked again once the United States judgment will have
become final, or imposeas a condition for recognition that security is posted.
A competent Dutch court may deny the recognition and enforcement of
punitivedamages or other awards. Moreover, a competent Dutch court may reduce
the amount of damages granted by a United States court and recognize damages
only to the extent that they are necessary to compensate actual losses or
damages. Thus, United Statesinvestors may not be able, or experience
difficulty, to enforce a judgment obtained in a United States court against us
or our officers.
CorporateBenefit Under Dutch Law
If a Dutch company, such as Holdings or AerCap Aviation Solutions B.V., enters
into a transaction (such as thegranting of the Holdings Guarantee or the
AerCap Aviation Guarantee), the relevant transaction may be nullified by the
Dutch company or its liquidator in bankruptcy and, as a consequence, may not
be valid, binding and enforceable against it, if thattransaction is not within
the company's corporate objects and the other party to the transaction knew or
should have known this without independent investigation. In determining
whether the granting of a guarantee or the giving of security iswithin the
corporate objects of the relevant company, a Dutch court would not only
consider the text of the objects clause in the articles of association of the
company but all relevant circumstances, including whether the company derives
certaincommercial benefits from the transaction in respect of which the
guarantee was granted or the security was given and any indirect benefit
derived by the relevant Dutch company as a consequence of the interdependence
of it with the group of companiesto which it belongs and whether or not the
subsistence of the relevant Dutch company is put at risk by conducting such
transaction.
It isunclear whether a transaction can be nullified for being a transgression
of the corporate objects of a company if that transaction is expressly
permitted according to the wording of the objects clause in the articles of
association of that company.In a recent decision a Dutch court of appeal ruled
that circumstances such as the absence of corporate benefit are in principle
not relevant if the relevant transaction is expressly permitted according to
the objects clause in the articles ofassociation of the company. However,
there is no decision of the Dutch Supreme Court confirming this, and therefore
there can be no assurance that a transaction that is expressly permitted
according to the objects clause in the articles ofassociation of a company
cannot be nullified for being
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a transgression of the corporate objects of that company. The objects clauses
in the articles of association of Holdings and AerCap Aviation Solutions B.V.
include providing security for debts oflegal entities and other companies.
If the Holdings Guarantee or the AerCap Aviation Guarantee or any other
guarantee of the Notes wereheld to be unenforceable, it could adversely affect
your ability to collect any amounts you are owed in respect of the Notes.
Fraudulent ConveyanceUnder Dutch Law
Dutch law contains specific provisions dealing with fraudulent transfer or
conveyance both in and outside ofbankruptcy: the
so-called
actio pauliana
provisions. The
actio pauliana
protects creditors against acts that are prejudicial to them. A legal act
performed by a debtor (including, withoutlimitation, an agreement pursuant to
which it guarantees the performance of the obligations of a third party and
any other legal act having similar effect) can be challenged in or outside
bankruptcy of the relevant debtor and may be nullified by theliquidator in
bankruptcy (
curator
) of the relevant debtor or, outside bankruptcy, by any of the creditors of
the relevant debtor, if: (i) the debtor performed such acts without a
pre-existing
legalobligation to do so (
onverplicht
); (ii) the creditor concerned (or, in the case of the debtor's bankruptcy,
any creditor) was prejudiced as a consequence of the act; and (iii) at the
time the act was performed both the debtor andthe counterparty to the
transaction knew or should have known that one or more of its creditors
(existing or future) would be prejudiced, unless the act was entered into for
no consideration (
om niet
), in which case such knowledge of thecounterparty is not necessary for a
successful challenge on grounds of fraudulent transfer or conveyance. For
certain types of transactions that are entered into within one year before (a)
the declaration of the bankruptcy (if the transactionis challenged in
bankruptcy), or (b) the moment the transaction is challenged by a creditor (if
the transaction is challenged outside bankruptcy), the debtor and the
counterparty to the transaction are legally presumed to have knowledge of
thefact that the transaction will prejudice the debtor's creditors (subject to
evidence of the contrary). In addition, the liquidator in bankruptcy of a
debtor may nullify that debtor's performance of any due and payable obligation
if(i) at the time of such performance the payee (
hij die betaling ontving
) knew that a request for bankruptcy of that debtor had been filed, or (ii)
the performance of the obligation was the result of a consultation between the
debtorand the payee with a view to give preference to the latter over the
debtor's other creditors. If the granting of the Holdings Guarantee or AerCap
Aviation Guarantee or any other transaction entered into by Holdings or AerCap
Aviation SolutionsB.V. at any time in connection with the issuance of the
Notes involves a fraudulent conveyance that does not qualify for any valid
defense under Dutch law, then the granting of the Holdings Guarantee or the
AerCap Aviation Guarantee or any suchother transaction may be nullified. As a
result of a successful challenge, holders of the Notes may not enjoy the
benefit of the Holdings Guarantee or the AerCap Aviation Guarantee. In
addition, under such circumstances, holders of the Notes mightbe held liable
for any damages incurred by prejudiced creditors of Holdings or AerCap
Aviation Solutions B.V. as a result of the fraudulent conveyance.
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CERTAIN ERISA CONSIDERATIONS
The following is a summary of certain considerations associated with the
purchase and, in certain instances, holding of the Notes by(i) employee
benefit plans subject to Title I of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), (ii) plans, individual retirement accounts
or other arrangements that are subject to Section 4975 of theCode (including
an individual retirement account ("IRA") and a Keogh plan) or provisions under
other U.S. or
non-U.S.
federal, state, local or other laws or regulations that are similar to
thefiduciary responsibility or prohibited transaction provisions of Title I of
ERISA or Section 4975 of the Code (collectively, "Similar Laws"), and (iii)
entities whose underlying assets are considered to include "planassets"
(within the meaning of regulations issued by the U.S. Department of Labor (the
"DOL"), set forth in 29 C.F.R.
Section 2510.3-101,
as modified by Section 3(42) of ERISA of anysuch plan, account or arrangement
described in clause (i) or (ii) (each of the foregoing described in clause
(i), (ii) or (iii) referred to herein as a "Plan").
General Fiduciary Matters
ERISA and theCode impose certain duties on persons who are fiduciaries of a
Plan subject to Title I of ERISA or Section 4975 of the Code (each, a "Covered
Plan") and prohibit certain transactions involving the assets of a Covered
Plan and itsfiduciaries or other interested parties. Under ERISA and the Code,
any person who exercises discretionary authority or control over the
administration of a Covered Plan or the management or disposition of the
assets of a Covered Plan, or who rendersinvestment advice for a fee or other
compensation to a Covered Plan, is generally considered to be a fiduciary of
the Covered Plan.
Whenconsidering an investment in the Notes with the assets of any Plan, a
fiduciary should determine whether the investment is in accordance with the
documents and instruments governing the Plan and the applicable provisions of
ERISA, the Code or anySimilar Laws relating to a fiduciary's duties to the
Plan including, without limitation, the prudence, diversification, delegation
of control and prohibited transaction provisions of ERISA, the Code and any
applicable Similar Laws.
Plan fiduciaries should consider the fact that none of the Issuers, the
guarantors, the underwriters or certain of their respective affiliates(the
"Transaction Parties") is acting, or will act, as a fiduciary to any Plan with
respect to the decision to purchase and/or hold the Notes in connection with
the initial offer and sale. The Transaction Parties are not undertaking
toprovide impartial investment advice or advice based on any particular
investment need, or to give advice in a fiduciary capacity, with respect to
such decision to purchase and/or hold the Notes.
Prohibited Transaction Issues
Section 406 of ERISA and Section 4975 of the Code prohibit Covered Plans from
engaging in specified transactions involving planassets with persons or
entities who are "parties in interest," within the meaning of Section 406 of
ERISA, or "disqualified persons," within the meaning of Section 4975 of the
Code, unless an exemption is available. Aparty in interest or disqualified
person who engages in a
non-exempt
prohibited transaction may be subject to excise taxes and other penalties and
liabilities under ERISA and the Code and may result in thedisqualification of
an IRA. In addition, the fiduciary of the Plan that engages in such a
non-exempt
prohibited transaction may be subject to penalties and liabilities under ERISA
and/or the Code.
The purchase and/or holding of Notes by a Covered Plan with respect to which a
Transaction Party is considered a party in interest or adisqualified person
may constitute or result in a direct or indirect prohibited transaction under
Section 406 of ERISA and/or Section 4975 of the Code, unless the investment is
acquired and is held in accordance with an applicablestatutory, class or
individual prohibited transaction exemption. Included among these statutory
exemptions are Section 408(b)(17) of ERISA and Section 4975(d)(20) of the
Code, which exempt certain transactions (including, withoutlimitation, a sale
and purchase of securities) between a Covered Plan and a party in interest so
long as (i) such party in interest is treated as such solely by reason of
providing
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services to the Covered Plan, (ii) such party in interest is not a fiduciary
which renders investment advice, or has or exercises discretionary authority
or control, with respect to the planassets involved in such transaction, or an
affiliate of any such person and (iii) the Covered Plan neither receives less
than nor pays more than "adequate consideration" (as defined in such Sections)
in connection with suchtransaction. In addition, the DOL has issued prohibited
transaction class exemptions ("PTCEs") that may apply to the purchase and/or
holding of the Notes. These class exemptions include, without limitation, PTCE
84-14
respecting transactions determined by independent qualified professional asset
managers, PTCE
90-1
respecting insurance company pooled separate accounts, PTCE
91-38
respecting bank collective investment funds, PTCE
95-60
respecting life insurance company general accounts and PTCE
96-23
respecting transactions determined by
in-house
asset managers. Each of the above-noted exemptions contains conditions and
limitations on its application. Fiduciaries of Covered Plans considering
purchasingand/or holding the Notes in reliance on these or any other exemption
should carefully review the exemption to assure it is applicable. There can be
no assurance that all of the conditions of any such exemptions will be
satisfied.
Government plans, foreign plans and certain church plans, while not subject to
the prohibited transaction provisions of Section 406 ofERISA or Section 4975
of the Code, may nevertheless be subject to Similar Laws. Fiduciaries of such
plans should consult with their counsel before acquiring the Notes.
Representations
Accordingly, by itsacceptance of a Note, each purchaser and holder of Notes,
and subsequent transferee of a Note will be deemed to have represented and
warranted that either (i) such purchaser or subsequent transferee is not, and
is not using the assets of, aPlan to acquire or hold the Note or (ii) the
purchase and holding of a Note by such purchaser or transferee does not, and
will not, constitute a
non-exempt
prohibited transaction under Section 406 ofERISA and/or Section 4975 of the
Code or a similar violation under any applicable Similar Laws.
The foregoing discussion is generalin nature and is not intended to be
all-inclusive.
Due to the complexity of these rules and the penalties that may be imposed
upon persons involved in
non-exempt
prohibited transactions, it is particularly important that fiduciaries or
other persons considering purchasing and/or holding the Notes on behalf of, or
with the assets of, any Plan, consult with their counsel regarding the
potential applicabilityof ERISA, Section 4975 of the Code or any Similar Law
and whether an exemption would be required. Neither this discussion nor
anything provided in this prospectus is, or is intended to be, investment
advice directed at any potential Planpurchasers, or at Plan purchasers
generally, and such purchasers of the Notes should consult and rely on their
own counsel and advisers as to whether an investment in the Notes is suitable
for the Plan.
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UNDERWRITING
We are offering the Notes described in this prospectus supplement through the
underwriters named below. RBC Capital Markets, LLC, Wells FargoSecurities,
LLC, BofA Securities, Inc., HSBC Securities (USA) Inc., Fifth Third
Securities, Inc. and SG Americas Securities, LLC (the "representatives") are
acting as the representatives of the underwriters. Subject to the terms
andconditions of the underwriting agreement, we have agreed to sell to the
underwriters, and each underwriter has severally agreed to purchase, the
aggregate principal amount of Notes listed next to its name in the following
table at the applicablepublic offering price less the underwriting discount
set forth on the cover page of this prospectus supplement:
Underwriter Principal Principal
Amount Amount
of the 20 of the 20
Notes Notes
RBC Capital Markets, LLC $
Wells Fargo Securities, LLC
BofA Securities, Inc.
HSBC Securities (USA) Inc.
Fifth Third Securities, Inc.
SG Americas Securities, LLC
Total $ $
The underwriting agreement is subject to a number of terms and conditions and
provides that the underwritersmust buy all of the Notes if they buy any of
them. The underwriters will sell the Notes to the public when and if the
underwriters buy the Notes from us. The offering of the Notes by the
underwriters is subject to receipt and acceptance and subjectto the
underwriters' right to reject any order in whole or part.
The underwriters have advised us that they propose initially tooffer the Notes
to the public for cash at the applicable public offering prices set forth on
the cover of this prospectus supplement and may offer the 20 Notes to certain
dealers at such price less a concession not in excess of% of the principal
amount of the 20 Notes and may offer the 20 Notes to certain dealers at such
price less a concession not in excess of % of the principal amount of the 20
Notes.The underwriters may allow, and such dealers may reallow, a concession
with respect to the 20 Notes not in excess of % of the principal amount of the
20 Notes and a concession with respect to the20 Notes not in excess of % of
the principal amount of the 20 Notes, to certain other dealers. After the
initial public offering of the Notes, the public offering prices and other
selling terms may bechanged.
We estimate that our share of the total expenses of the offering, excluding
underwriting discounts, will be approximately$.
We have agreed to indemnify the underwriters, severally, against, or
contribute to payments that theunderwriters may be required to make in respect
of, certain liabilities, including liabilities under the Securities Act of
1933, as amended.
We have agreed that we and the guarantors will not, for the period from the
date of the underwriting agreement through and including theclosing date of
this offering, without the prior written consent of the representatives,
offer, sell, contract to sell, pledge, otherwise dispose of, or enter into any
transaction that is designed to, or might reasonably be expected to, result
inthe disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by us, any guarantor, or any
controlled affiliate of us or a guarantor, directly or indirectly, or announce
the offering, of anydebt securities issued or guaranteed by us or any
guarantor (other than the Notes to be issued on the issue date).
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The Notes are new issues of securities with no established trading markets.
Other than theGlobal Exchange Market of Euronext Dublin, the Notes will not be
listed on any securities exchange or on any automated dealer quotation system.
The underwriters may make a market in the Notes after completion of the
offering, but will not beobligated to do so and may discontinue any
market-making activities at any time without notice. No assurance can be given
as to the liquidity of any trading market for the Notes or that active trading
markets for the Notes will develop. If activetrading markets for the Notes
does not develop, the market prices and liquidity of the Notes may be
adversely affected.
In connectionwith the offering of the Notes, the underwriters may engage in
transactions that stabilize, maintain or otherwise affect the prices of the
Notes. Specifically, the underwriters may overallot in connection with the
offering, creating a shortposition. In addition, the underwriters may bid for,
and purchase, the Notes in the open market to cover short positions or to
stabilize the prices of the Notes. Any of these activities may stabilize or
maintain the market prices of the Notes aboveindependent market levels, but no
representation is made hereby of the magnitude of any effect that the
transactions described above may have on the market prices of the Notes. The
underwriters will not be required to engage in these activities, andmay engage
in these activities, and may end any of these activities, at any time without
notice.
The underwriters also may impose apenalty bid. This occurs when a particular
underwriter repays to the underwriters a portion of the underwriting discount
received by it because the underwriters have repurchased Notes sold by or for
the account of such underwriter in stabilizing orshort covering transactions.
Neither we nor the underwriters make any representation or prediction as to
the direction or magnitude ofany effect that the transactions described above
may have on the prices of the Notes. In addition, neither we nor the
underwriters make any representation that the underwriters will engage in
these transactions or that these transactions, oncecommenced, will not be
discontinued without notice.
The underwriters and certain of their affiliates are full service
financialinstitutions and have provided from time to time, and may provide in
the future, various services including sales and trading, investment and
commercial banking, advisory, investment management, investment research,
principal investment, hedging,market making, brokerage and other financial and
non-financial
services to us and our affiliates in the ordinary course of business, for
which they have received and may continue to receive customary fees
andcommissions. Certain of the underwriters or their affiliates are acting,
and will continue to act, as arrangers, agents or lenders under our and our
affiliates' various credit facilities and other debt agreements.
If any of the underwriters or their affiliates has a lending relationship with
us or our affiliates, we understand that (1) certain ofthose underwriters or
their affiliates routinely hedge, (2) certain of the underwriters are likely
to hedge or otherwise reduce and (3) certain other of those underwriters or
their affiliates may hedge, their credit exposure to usconsistent with their
customary risk management policies. These underwriters and their affiliates
may hedge such exposure by entering into transactions that consist of either
the purchase of credit default swaps or the creation of short positions inour
securities, including potentially the Notes offered hereby. Any such credit
default swaps or short positions may adversely affect future trading prices of
the Notes offered hereby.
In addition, in the ordinary course of their various business activities, the
underwriters and their respective affiliates may make or hold abroad array of
investments and actively trade debt and equity securities (or related
derivative securities), commodities, currencies, credit default swaps and
other financial instruments (including bank loans) for their own account and
for theaccounts of their customers, and such investment and securities
activities may involve securities and instruments of ours or our affiliates.
The underwriters and their respective affiliates may also make investment
recommendations or publish orexpress independent research views in respect of
such securities or financial instruments and may at any time hold, or
recommend to clients that they acquire, long or short positions in such
securities and instruments.
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We expect that the Notes will be delivered against payment therefor on or
about, 2024, which will be the business day following the date of pricing of
the Notes (this settlement cycle being referred to as "T+"). Under Rule
15c6-1
of the Exchange Act, trades in the secondary market generally are required to
settle in one business day, unless the parties to any such trade expressly
agree otherwise. Accordingly, purchasers who wish totrade the Notes prior to
the first business day before delivery of the Notes hereunder will be
required, by virtue of the fact that the Notes will initially settle in T+, to
specify an alternate settlement cycle at thetime of any such trade to prevent
a failed settlement. Purchasers of the Notes who wish to trade the Notes prior
to the first business day before the date of delivery should consult their own
advisors.
Selling Restrictions
Notice to ProspectiveInvestors in Canada
The Notes may be sold only to purchasers purchasing, or deemed to be
purchasing, as principal that areaccredited investors, as defined in National
Instrument
45-106
Prospectus Exemptions or subsection 73.3(1) of the Securities Act (Ontario),
and are permitted clients, as defined in National Instrument
31-103
Registration Requirements, Exemptions and Ongoing Registrant Obligations. Any
resale of the Notes must be made in accordance with an exemption from, or in a
transaction not subject to, the prospectusrequirements of applicable
securities laws.
Securities legislation in certain provinces or territories of Canada may
provide a purchaserwith remedies for rescission or damages if this prospectus
supplement, the accompanying prospectus (including any amendment thereto) or
the information included or incorporated herein by reference contains a
misrepresentation, provided that theremedies for rescission or damages are
exercised by the purchaser within the time limit prescribed by the securities
legislation of the purchaser's province or territory. The purchaser should
refer to any applicable provisions of the securitieslegislation of the
purchaser's province or territory for particulars of these rights or consult
with a legal advisor.
Pursuant tosection 3A.3 of National Instrument
33-105
Underwriting Conflicts ("NI
33-105"),
the underwriters are not required to comply with the disclosure requirementsof
NI
33-105
regarding underwriter conflicts of interest in connection with this offering.
Notice toProspective Investors in the European Economic Area
The Notes are not intended to be offered, sold or otherwise made available
toand should not be offered, sold or otherwise made available to any retail
investor in the European Economic Area (the "EEA"). For these purposes, a
retail investor means a person who is one (or more) of: (i) a retail client as
definedin point (11) of Article 4(1) of Directive 2014/65/EU (as amended,
"MiFID II"); (ii) a customer within the meaning of Directive (EU) 2016/97,
where that customer would not qualify as a professional client as defined in
point(10) of Article 4(1) of MiFID II; or (iii) not a qualified investor as
defined in the Prospectus Regulation. Consequently, no key information
document required by Regulation (EU) No 1286/2014 (as amended, the "PRIIPs
Regulation")for offering or selling the Notes or otherwise making them
available to retail investors in the EEA has been prepared and therefore
offering or selling the Notes or otherwise making them available to any retail
investor in the EEA may be unlawfulunder the PRIIPs Regulation.
This prospectus supplement and the accompanying prospectus have been prepared
on the basis that any offer ofthe Notes in any Member State of the EEA will be
made pursuant to an exemption under the Prospectus Regulation from the
requirement to publish a prospectus for offers of the Notes. This prospectus
supplement and the accompanying prospectus is not aprospectus for the purposes
of the Prospectus Regulation.
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Notice to Prospective Investors in the United Kingdom
The Notes are not intended to be offered, sold or otherwise made available to
and should not be offered, sold or otherwise made available toany retail
investor in the United Kingdom ("UK"). For these purposes, a retail investor
means a person who is one (or more) of: (i) a retail client, as defined in
point (8) of Article 2 of Regulation (EU) No 2017/565 as it formspart of
domestic law by virtue of the EUWA; (ii) a customer within the meaning of the
provisions of the FSMA and any rules or regulations made under the FSMA to
implement Directive (EU) 2016/97, where that customer would not qualify as
aprofessional client, as defined in point (8) of Article 2(1) of Regulation
(EU) No 600/2014 as it forms part of domestic law by virtue of the EUWA or
(iii) not a qualified investor as defined in Article 2 of UK Prospectus
Regulation.Consequently, no key information document required by Regulation
(EU) No 1286/2014 as it forms part of domestic law by virtue of the EUWA (the
"UK PRIIPs Regulation") for offering or selling the Notes or otherwise making
them available toretail investors in the UK has been prepared and therefore
offering or selling the Notes or otherwise making them available to any retail
investor in the UK may be unlawful under the UK PRIIPs Regulation. This
prospectus supplement has been preparedon the basis that any offer of Notes in
the UK will be made pursuant to an exemption under the UK Prospectus
Regulation from the requirement to publish a prospectus for offers of the
Notes. This prospectus supplement and accompanying prospectus isnot a
prospectus for the purposes of the UK Prospectus Regulation.
Furthermore, this prospectus supplement and any other material inrelation to
the Notes described herein is only being distributed to, and is only directed
at, persons in the United Kingdom that are qualified investors within the
meaning of the UK Prospectus Regulation ("qualified investors") that also(i)
have professional experience in matters relating to investments falling within
Article 19(5) of the Financial Services and Markets Act 2000 (Financial
Promotion) Order 2005, as amended (the "Order"), (ii) who fall within
Article49(2)(a) to (d) of the Order or (iii) to whom it may otherwise lawfully
be communicated (all such persons together being referred to as "relevant
persons"). The Notes are only available to, and any invitation, offer or
agreementto purchase or otherwise acquire such Notes will be engaged in only
with, relevant persons. This prospectus supplement and its contents are
confidential and should not be distributed, published or reproduced (in whole
or in part) or disclosed byrecipients to any other person in the United
Kingdom. Any person in the United Kingdom that is not a relevant person should
not act or rely on this prospectus or any of its contents.
Notice to Prospective Investors in Ireland
The Notes are not being offered or sold to any person, underwritten or placed
in Ireland except in conformity with the provisions of(a) the European Union
(Markets in Financial Instruments) Regulations 2017, MiFID II, Regulation (EU)
No 600/2014 of the European Parliament and of the Council of 15 May 2014 on
markets in financial instruments and amending Regulation (EU)No 648/2012 and
all implementing measures, delegated acts and guidance in respect thereof, and
the provisions of the Investor Compensation Act 1998, (b) the 2014 Act, the
Central Bank Acts 1942 to 2018 and any code of conduct rules made underSection
117(1) of the Central Bank Act 1989, (c) the Prospectus Regulation (EU)
2017/1129, the European Union (Prospectus) Regulations 2019, the Central Bank
(Investment Market Conduct) Rules 2019 and any other rules made or guidelines
issuedunder Section 1363 of the 2014 Act by the Central Bank of Ireland and
(d) if applicable, the Market Abuse Regulation (EU 596/2014), the European
Union (Market Abuse) Regulations 2016 and any rules made or guidelines issued
underSection 1370 of the 2014 Act by the Central Bank of Ireland.
Notice to Prospective Investors in Hong Kong
The Notes may not be offered or sold in Hong Kong by means of any document
other than (i) in circumstances which do not constitute anoffer to the public
within the meaning of the Companies (Winding Up and Miscellaneous Provisions)
Ordinance (Cap. 32 of the Laws of Hong Kong) ("Companies (Winding Up and
Miscellaneous Provisions) Ordinance") or which do not constitute aninvitation
to the public within the meaning of the Securities and Futures Ordinance (Cap.
571 of the Laws of Hong Kong) ("Securities and Futures
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Ordinance"), (ii) to "professional investors" as defined in the Securities and
Futures Ordinance and any rules made thereunder or (iii) in other
circumstances which donot result in the document being a "prospectus" as
defined in the Companies (Winding Up and Miscellaneous Provisions) Ordinance,
and no advertisement, invitation or document relating to the Notes may be
issued or may be in the possessionof any person for the purpose of issue (in
each case whether in Hong Kong or elsewhere), which is directed at, or the
contents of which are likely to be accessed or read by, the public in Hong
Kong (except if permitted to do so under the securitieslaws of Hong Kong)
other than with respect to Notes which are or are intended to be disposed of
only to persons outside Hong Kong or only to "professional investors" in Hong
Kong as defined in the Securities and Futures Ordinance and anyrules made
thereunder.
Notice to Prospective Investors in People's Republic of China (excluding Hong
Kong, Macau and Taiwan)
The underwriters will be required to represent and agree that the Notes are
not being offered or sold and may not be offered or sold, directlyor
indirectly, in the People's Republic of China, or the "PRC" (for such
purposes, not including the Hong Kong and Macau Special Administrative Regions
or Taiwan), except as permitted by all relevant laws and regulations of the
PRC.
This prospectus supplement and the accompanying prospectus (i) have not been
filed with or approved by the PRC authorities and(ii) do not constitute an
offer to sell, or the solicitation of an offer to buy, any Notes in the PRC to
any person to whom it is unlawful to make the offer of solicitation in the PRC.
The Notes may not be offered, sold or delivered, or offered, sold or delivered
to any person for reoffering or resale or redelivery, in anysuch case directly
or indirectly (i) by means of any advertisement, invitation, document or
activity which is directed at, or the contents of which are likely to be
accessed or read by, the public in the PRC, or (ii) to any person withinthe
PRC, other than in full compliance with the relevant laws and regulations of
the PRC.
Investors in the PRC are responsible forobtaining all relevant government
regulatory approvals/licenses, verification and/or registrations themselves,
including, but not limited to, those which may be required by the China
Securities Regulatory Commission, the State Administration ofForeign Exchange
and/or the China Banking Regulatory Commission, and complying with all
relevant PRC laws and regulations, including, but not limited to, all relevant
foreign exchange regulations and/or securities investment regulations.
Notice to Prospective Investors in Taiwan
The Notes have not been and will not be registered or filed with, or approved
by, the Financial Supervisory Commission of Taiwan and/or anyother regulatory
authorities of Taiwan pursuant to relevant securities laws and regulations of
Taiwan and may not be sold, issued or offered within Taiwan through a public
offering or in circumstances which constitute an offer or a solicitation ofan
offer within the meaning of the Securities and Exchange Act or relevant laws
and regulations of Taiwan that requires a registration, filing or approval of
the Financial Supervisory Commission of Taiwan and/or any other regulatory
authorities ofTaiwan. No person or entity in Taiwan has been authorized to
offer or sell the Notes in Taiwan.
Notice to Prospective Investors in Singapore
This prospectus supplement has not been registered as a prospectus with the
Monetary Authority of Singapore. Accordingly, eachunderwriter has represented
and agreed that it has not offered or sold any Notes or caused the Notes to be
made the subject of an invitation for subscription or purchase and will not
offer or sell any Notes or cause the Notes to be made the subjectof an
invitation for subscription or purchase, and has not circulated or
distributed, nor will it circulate or distribute, this prospectus supplement
or any other document or
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material in connection with the offer or sale, or invitation for subscription
or purchase, of the Notes, whether directly or indirectly, to any person in
Singapore other than:
(1) to an institutional investor (as defined in Section 4A of the Securities and Futures Act (Chapter 289)
ofSingapore, as modified or amended from time to time (the "SFA")) pursuant to Section 274 of the SFA;
(2) to a relevant person (as defined in Section 275(2) of the SFA) pursuant to Section 275(1) of the SFA,or any person
pursuant to Section 275(1A) of the SFA, and in accordance with the conditions specified in Section 275 of the SFA; or
(3) otherwise pursuant to, and in accordance with the conditions of, any other applicable provision of the SFA.
Where the Notes are subscribed or purchased under Section 275 of the SFA by a
relevant person which is:
(1) a corporation (which is not an accredited investor (as defined
in Section 4A of the SFA)) the solebusiness of which is to hold
investments and the entire share capital of which is owned by one
or more individuals, each of whom is an accredited investor; or
(2) a trust (where the trustee is not an accredited investor) whose sole
purpose is to hold investments and eachbeneficiary of the trust is an
individual who is an accredited investor, securities or securities-based
derivatives contracts (each term as defined in Section 2(1) of
the SFA) of that corporation or the beneficiaries' rights and
interest(howsoever described) in that trust shall not be transferred within
six months after that corporation or that trust has acquired the
Notes pursuant to an offer made under Section 275 of the SFA except:
(a) to an institutional investor or to a relevant person, or to any person arising
from an offer referred to inSection 275(1A) or Section 276(4)(i)(B) of the SFA;
(b) where no consideration is or will be given for the transfer;
(c) where the transfer is by operation of law;
(d) as specified in Section 276(7) of the SFA; or
(e) as specified in Regulation 37A of the Securities and Futures (Offers of Investments)
(Securities andSecurities-based Derivatives Contracts) Regulations 2018.
Singapore Securities and Futures Act Product Classification- Solely for the
purposes of its obligations pursuant to sections 309B(1)(a) and 309B(1)(c) of
the SFA, the Issuers have determined, and hereby notify all relevant persons
(as defined in Section 309A of the SFA) that the Notes are"prescribed capital
markets products" (as defined in the Securities and Futures (Capital Markets
Products) Regulations 2018) and Excluded Investment Products (as defined in
MAS Notice SFA
04-N12:
Notice on the Sale of Investment Products and MAS Notice
FAA-N16:
Notice on Recommendations on Investment Products).
Notice to Prospective Investors in Japan
The Notes have not been and will not be registered under the Financial
Instruments and Exchange Act of Japan (Act No. 25 of 1948, asamended) (the
"FIEA"). The Notes may not be offered or sold, directly or indirectly, in
Japan or to or for the benefit of any resident of Japan (including any person
resident in Japan or any corporation or other entity organized under thelaws
of Japan) or to others for reoffering or resale, directly or indirectly, in
Japan or to or for the benefit of any resident of Japan, except pursuant to an
exemption from the registration requirements of the FIEA and otherwise in
compliance withany relevant laws and regulations of Japan.
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Notice to Prospective Investors in Australia
No prospectus or other disclosure document (as defined in the Corporations Act
2001 (Cth) of Australia (the "Corporations Act")) inrelation to the Notes has
been, or will be, lodged with the Australian Securities and Investments
Commission ("ASIC"), the Australian Securities Exchange operated by ASX
Limited or any other regulatory body or agency in Australia. Thisdocument has
not been lodged with ASIC and is only directed to certain categories of exempt
persons. Accordingly, if you receive this document in Australia:
(1) you confirm and warrant that you are either:
(a) a "sophisticated investor" under section 708(8)(a) or (b) of the Corporations Act;
(b) a "sophisticated investor" under section 708(8)(c) or (d) of the Corporations
Act and that youhave provided an accountant's certificate to us which
complies with the requirements of section 708(8)(c)(i) or (ii) of the
Corporations Act and related regulations before the offer has been made;
(c) a person associated with the company under section 708(12) of the Corporations Act; or
(d) a "professional investor" within the meaning of section 708(11)(a) or (b) of the CorporationsAct,
and to the extent that you are unable to confirm or warrant that you are an exempt
sophisticated investor, associated person or professional investor under the Corporations
Act any offer made to you under this document is void and incapable ofacceptance; and
(2) you warrant and agree that you will not offer any of the Notes for
resale in Australia within 12 months ofthose Notes being issued
unless any such resale offer is exempt from the requirement to issue
a disclosure document under section 708 of the Corporations Act.
Notice to Prospective Investors in Switzerland
This prospectus supplement is not intended to constitute an offer or
solicitation to purchase or invest in the Notes. The Notes may not bepublicly
offered, directly or indirectly, in Switzerland within the meaning of the
Swiss Financial Services Act ("FinSA") and no application has or will be made
to admit the Notes to trading on any trading venue (exchange or multilateraltrad
ing facility) in Switzerland. Neither this prospectus supplement nor any other
offering or marketing material relating to the Notes constitutes a prospectus
pursuant to the FinSA, and neither this prospectus supplement nor any other
offering ormarketing material relating to the Notes may be publicly
distributed or otherwise made publicly available in Switzerland.
Notice to ProspectiveInvestors in the United Arab Emirates
The Notes have not been, and are not being, publicly offered, sold, promoted
or advertisedin the United Arab Emirates (including the Abu Dhabi Global
Market and the Dubai International Financial Centre) other than in compliance
with the laws, regulations and rules of the United Arab Emirates, the Abu
Dhabi Global Market and the DubaiInternational Financial Centre governing the
issue, offering and sale of securities. Further, this prospectus supplement
and the accompanying prospectus do not constitute a public offer of securities
in the United Arab Emirates (including the AbuDhabi Global Market and the
Dubai International Financial Centre) and are not intended to be a public
offer. This prospectus supplement and the accompanying prospectus have not
been approved by or filed with the Central Bank of the United ArabEmirates,
the Securities and Commodities Authority, the Financial Services Regulatory
Authority or the Dubai Financial Services Authority.
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LEGAL MATTERS
Certain legal matters in connection with the offering of the Notes will be
passed upon for us by Cravath, Swaine & Moore LLP, NewYork, New York (with
respect to New York and United States federal law), McCann FitzGerald LLP,
Dublin, Ireland (with respect to Irish law), NautaDutilh N.V., Amsterdam, the
Netherlands (with respect to Dutch law), Morris, Nichols, Arsht &Tunnell LLP
(with respect to Delaware law) and Smith, Gambrell & Russell, LLP, Los
Angeles, California (with respect to California law). Certain legal matters
with respect to the Notes will be passed upon for the underwriters by
SimpsonThacher & Bartlett LLP, New York, New York.
EXPERTS
The consolidated financial statements of AerCap Holdings N.V. and subsidiaries
as of December 31, 2023 and 2022 and for each of the yearsin the three-year
period ended December 31, 2023 and management's assessment of the
effectiveness of internal control over financial reporting as of December 31,
2023, have been incorporated by reference herein and in the registrationstatemen
t in reliance upon the report of KPMG, independent registered public
accounting firm, incorporated by reference herein, and upon the authority of
said firm as experts in accounting and auditing.
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PROSPECTUS
AerCap Ireland Capital Designated Activity Company
AerCap Global Aviation Trust
Debt securities (guaranteed to the extent provided herein)
AerCap Ireland Capital Designated Activity Company (the "Irish Issuer") and
AerCap Global Aviation Trust (the "U.S.Issuer" and, together with the Irish
Issuer, the "Issuers"), each a wholly owned subsidiary of AerCap Holdings
N.V., may offer and sell from time to time debt securities as separate series
in amounts, at prices and on terms to bedetermined at the time of sale. The
debt securities may consist of debentures, notes or other types of debt. For
each offering, a prospectus supplement will accompany this prospectus and will
contain the specific terms of the series of debtsecurities for which this
prospectus is being delivered.
The Issuers may sell debt securities to or through one or more underwriters
ordealers, and also may sell debt securities directly to other purchasers or
through agents. The accompanying prospectus supplement will set forth
information regarding the underwriters or agents involved in the sale of the
debt securities for whichthis prospectus is being delivered. See "Plan of
Distribution" for possible indemnification arrangements for underwriters,
agents and their controlling persons.
This prospectus may not be used for sales of securities unless it is
accompanied by a prospectus supplement.
Investing in the debt securities to be offered by this prospectus and any
applicable prospectus supplement involves risk. You shouldcarefully review the
risks and uncertainties described under the heading "
Risk Factors
" on page 3 of this prospectus, any risk factors included in any accompanying
prospectus supplement and in the reports filedwith the Securities and Exchange
Commission (the "SEC") that are incorporated by reference in this prospectus,
before you make an investment in our debt securities.
Neither the SEC nor any other state securities commission has approved or
disapproved of these securities or passed upon the accuracy oradequacy of this
prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus isOctober 19, 2021.
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TABLE OF CONTENTS
Page
ABOUT THIS PROSPECTUS 1
COMPANY INFORMATION 2
RISK FACTORS 3
FORWARD LOOKING STATEMENTS 4
WHERE YOU CAN FIND MORE INFORMATION 5
INCORPORATION BY REFERENCE 6
USE OF PROCEEDS 7
DESCRIPTION OF DEBT SECURITIES AND GUARANTEES 8
CERTAIN IRISH, DUTCH AND U.S. FEDERAL INCOME TAX CONSEQUENCES 9
PLAN OF DISTRIBUTION 10
ENFORCEMENT OF CIVIL LIABILITY JUDGMENTS UNDER IRISH LAW 12
ENFORCEMENT OF CIVIL LIABILITY JUDGMENTS UNDER DUTCH LAW 13
LEGAL MATTERS 14
EXPERTS 14
DISCLOSURE OF SEC POSITION ON INDEMNIFICATION FOR SECURITIES ACT LIABILITIES 15
Rather than repeat certain information in this prospectus that we have already
included in reports filed withthe SEC, we are incorporating this information
by reference, which means that we can disclose important business, financial
and other information to you by referring to those publicly filed documents
that contain the information. The informationincorporated by reference is not
included or delivered with this prospectus.
We will provide without charge to each person to whom aprospectus is
delivered, upon written or oral request of such person, a copy of any or all
documents that are incorporated into this prospectus by reference, other than
exhibits to such documents, unless such exhibits are specifically
incorporatedby reference into the documents that this prospectus incorporates.
Requests should be directed to AerCap Holdings N.V., AerCap House, 65 St.
Stephen's Green, Dublin D02 YX20, Ireland, or by telephoning us at +353 1 819
2010.
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we have filed with
the SEC on Form
F-3,
utilizing a "shelf" registration process, relating to the debt securities and
guarantees described in this prospectus. Under this shelf registration
process, the Issuers may, from time to time, sell the debt securities
described in thisprospectus and any applicable prospectus supplement in one or
more offerings. Each time the Issuers sell debt securities, they will provide
a prospectus supplement that will contain specific information about the terms
of that specific offering,including the offering price of the debt securities.
The prospectus supplement may also add, update or change information contained
in this prospectus. You should carefully read both this prospectus and the
applicable prospectus supplement relatingto any specific offering of debt
securities, together with additional information described below under the
headings "Where You Can Find More Information" and "Incorporation by
Reference," before you decide to invest in any ofthe debt securities.
This prospectus and any accompanying prospectus supplements, or any free
writing prospectus, do not contain all ofthe information included in the
registration statement. We have omitted parts of the registration statement in
accordance with the rules and regulations of the SEC. For further information,
we refer you to the registration statement on Form
F-3,
including its exhibits, of which this prospectus is a part. Statements
contained in this prospectus and any accompanying prospectus supplements about
the provisions or contents of any agreement or otherdocument are not
necessarily complete. If the SEC rules and regulations require that an
agreement or document be filed as an exhibit to the registration statement,
please see that agreement or document for a complete description of these
matters.You should not assume that the information in this prospectus, any
prospectus supplements, any free writing prospectus or in any documents
incorporated herein or therein by reference is accurate as of any date other
than the date on the front ofeach of such documents.
Unless indicated otherwise or the context otherwise requires, references in
this prospectus to the terms"our," "us," "we," "AerCap" or the "Company"
include AerCap Holdings N.V. and its subsidiaries as a combined entity.
Currency amounts in this prospectus are stated in U.S. dollars, unless
indicated otherwise.
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COMPANY INFORMATION
AerCap is the global leader in aircraft leasing. Our ordinary shares are
listed on The New York Stock Exchange (the "NYSE") underthe ticker symbol
"AER." Our headquarters is located in Dublin, and we have offices in Shannon,
Los Angeles, Singapore, Amsterdam, Shanghai and Abu Dhabi. We also have
representative offices at the world's largest aircraftmanufacturers, Boeing in
Seattle and Airbus in Toulouse.
AerCap Holdings N.V.
AerCap Holdings N.V., the Parent Guarantor, was incorporated in the
Netherlands with registered number 34251954 on July 10, 2006 as apublic
limited company under the Dutch Civil Code. The Parent Guarantor's principal
executive offices are located at AerCap House, 65 St. Stephen's Green, Dublin
D02 YX20, Ireland, its general telephone number is +353 1 819 2010, and
itswebsite address is www.aercap.com. The reference to the website is an
inactive textual reference only and the information contained on, or
accessible through, such website is not a part of this prospectus. Puglisi &
Associates is the ParentGuarantor's authorized representative in the United
States. The address of Puglisi & Associates is 850 Liberty Avenue, Suite 204,
Newark, DE 19711 and their general telephone number is +1 (302)
738-6680.
AerCap Ireland Capital Designated Activity Company
AerCap Ireland Capital Designated Activity Company, the Irish Issuer, was
incorporated in Ireland with registered number 535682 onNovember 22, 2013 as a
private limited company under the Companies Acts 1963 to 2013 and was
converted to a designated activity company on October 7, 2016 under Part 16 of
the Companies Act 2014. The registered office of the Irish Issueris at 4450
Atlantic Avenue, Westpark, Shannon, Co. Clare, Ireland (telephone number +353
61 723600).
AerCap Global Aviation Trust
AerCap Global Aviation Trust, the U.S. Issuer, is a statutory trust formed on
February 5, 2014 with registration number 5477349 under theDelaware Statutory
Trust Act, 12 Del. C.(s)(s) 3801 et.seq. (the "Delaware Act"), pursuant to a
trust agreement between the Irish Issuer and Wilmington Trust, National
Association, as the Delaware Trustee. The principal office of theU.S. Issuer
is at 4450 Atlantic Avenue, Westpark, Shannon, Co. Clare, Ireland (telephone
number +353 61 723600).
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RISK FACTORS
Investing in the securities to be offered by this prospectus and any
applicable prospectus supplement involves risk. Before you make adecision to
buy such securities, you should read and carefully consider the risks and
uncertainties discussed in the section captioned "Risk Factors" in Item 3 of
our Annual Report on Form
20-F
forthe year ended December 31, 2020, filed with the SEC on March 2, 2021 and
in Part II, Item 1 of our interim financial reports contained in our Reports
on Form
6-K
subsequently filed under theExchange Act and incorporated by reference herein,
as well as any risks described in any applicable prospectus supplement and any
related free writing prospectus or in other documents, including our Reports
on Form
6-K,
that are incorporated by reference therein. Additional risks not currently
known to us or that we currently deem immaterial may also have a material
adverse effect on us. You should carefully consider theaforementioned risks
together with the other information in this prospectus and incorporated by
reference herein before deciding to invest in the debt securities. If any of
those risks actually occur, our business, financial condition and results
ofoperations could be materially and adversely affected. In that case, we may
be unable to make required payments of principal of, or premiums, if any, and
interest on, the debt securities.
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FORWARD LOOKING STATEMENTS
This prospectus and the documents incorporated by reference herein may contain
"forward looking statements" within the meaning ofthe Private Securities
Litigation Reform Act of 1995. We have based these forward looking statements
largely on our current beliefs and projections about future events and
financial trends affecting our business. Many important factors, in additionto
those discussed in this prospectus, could cause our actual results to differ
substantially from those anticipated in our forward looking statements,
including, among other things:
. the severity, extent
and duration of the
Covid-19
pandemic, including theimpact of
Covid-19
vaccine distribution and vaccination rates, and the rate of recovery in
air travel, the aviation industry and global economic conditions; the
potential impacts of the pandemic and responsivegovernment actions on our
business and results of operations, financial condition and cash flows;
. the availability of capital to us and to our customers and changes in interest rates;
. the ability of our lessees and potential lessees to make lease payments to us;
. our ability to successfully negotiate aircraft purchases, sales and leases, to collect outstanding
amounts dueand to repossess aircraft under defaulted leases, and to control costs and expenses;
. changes in the overall demand for commercial aircraft leasing and aircraft management services;
. the effects of terrorist attacks on the aviation industry and on our operations;
. the economic condition of the global airline and cargo industry and economic and political conditions;
. development of increased government regulation, including travel restrictions, regulation
of trade and theimposition of import and export controls, tariffs and other trade barriers;
. competitive pressures within the industry;
. the negotiation of aircraft management services contracts;
. regulatory changes affecting commercial aircraft operators, aircraft
maintenance, engine standards, accountingstandards and taxes; and
. the risks described or referred to in "
Risk Factors
" in this prospectus or any prospectussupplement, in our Annual Report on Form
20-F
for the year ended December 31, 2020 and in our Reports on
Form 6-K.
The words "believe", "may", "will", "aim", "estimate", "continue","anticipate",
"intend", "expect" and similar words are intended to identify forward looking
statements. Forward looking statements include information concerning our
possible or assumed future results of operations,business strategies,
financing plans, competitive position, industry environment, potential growth
opportunities, the effects of future regulation and the effects of
competition. Forward looking statements speak only as of the date they were
madeand we undertake no obligation to update publicly or to revise any forward
looking statements because of new information, future events or other factors.
In light of the risks and uncertainties described above, the forward looking
events andcircumstances described in this prospectus might not occur and are
not guarantees of future performance. The factors described above should not
be construed as exhaustive and should be read in conjunction with the other
cautionary statements and therisk factors that are included under "
Risk Factors
" herein, any prospectus supplement, in our Annual Report on Form
20-F
for the year ended December 31, 2020 incorporated by referenceherein and in
our Reports on Form
6-K
incorporated by reference herein. Except as required by applicable law, we do
not undertake any obligation to publicly update or review any forward looking
statement,whether as a result of new information, future developments or
otherwise.
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WHERE YOU CAN FIND MORE INFORMATION
We have filed a registration statement on Form
F-3,
including the exhibits and schedules thereto, withthe SEC under the Securities
Act, and the rules and regulations thereunder, for the registration of the
debt securities that are being offered by this prospectus. This prospectus
does not include all of the information contained in the registrationstatement.
You should refer to the registration statement and its exhibits for additional
information. Whenever we make reference in this prospectus to any of our
contracts, agreements or other documents that we filed as exhibits to the
registrationstatement, the references are not necessarily complete and you
should refer to the exhibits attached to the registration statement for copies
of the actual contract, agreements or other documents.
We are subject to the information reporting requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), asapplicable to foreign
private issuers. As a "foreign private issuer," we are exempt from the rules
under the Exchange Act prescribing certain disclosure and procedural
requirements for proxy solicitations. We file with the SEC an AnnualReport on
Form
20-F
containing financial statements audited by an independent registered public
accounting firm. We also file Reports on Form
6-K
containing unauditedinterim financial information for the first three quarters
of each fiscal year.
You may read and copy any document we file with orfurnish to the SEC at the
SEC's Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. You
may also obtain copies of the documents at prescribed rates by writing to the
Public Reference Section of the SEC at 100 F Street, N.E.,Washington, DC
20549. Please call the SEC at
1-800-SEC-0330
to obtain information on the operation of the Public Reference Room.In
addition, the SEC maintains an Internet site that contains reports, proxy and
information statements, and other information regarding issuers that file
electronically with the SEC. You can review our SEC filings, including the
registrationstatement, by accessing the SEC's Internet website at www.sec.gov.
We will provide each person to whom a prospectus is delivered a copy of any or
all of the information that has been incorporated by reference into this
prospectus but notdelivered with this prospectus upon written or oral request
at no cost to the requester. Requests should be directed to: AerCap Holdings
N.V., AerCap House, 65 St. Stephen's Green, Dublin D02 YX20, Ireland,
Attention: Compliance Officer, or bytelephoning us at +353 1 819 2010. Our
website is located at www.aercap.com. The reference to the website is an
inactive textual reference only and the information contained on, or
accessible through, our website is not a part of this prospectus.
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INCORPORATION BY REFERENCE
The following documents filed with or furnished to the SEC are incorporated
herein by reference:
. AerCap's Annual Report on
Form
20-F
for the year ended December 31, 2020, as filed with the SEC on March 2, 2021; and
. AerCap's Reports on Form
6-K,
furnished to the SEC on
March 10, 2021
(solely with respect to the first three paragraphs contained therein),
March 12, 2021
(solely with respect to exhibit 99.3),
April 2, 2021
(solely with respect to the first two paragraphs contained therein),
April 28, 2021
,
May 12, 2021
,
July 29, 2021
and
October 19, 2021
.
All documents subsequently filed by us with the SEC pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act and, solely to theextent designated
therein, reports made on Form
6-K
that we furnish to the SEC, prior to the filing of a post-effective amendment
to the registration statement that contains this prospectus that indicates
thatall securities offered have been sold or that deregisters all securities
then remaining unsold, shall be incorporated by reference in this prospectus
and be a part hereof from the date of filing or furnishing of such documents.
Any statementcontained herein or in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this prospectus to the extent that a statement contained
herein or in any subsequently fileddocument that also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of thisprospectus.
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USE OF PROCEEDS
Unless the prospectus supplement states otherwise, we intend to use the
proceeds from the sale of the securities to acquire, invest in,finance or
refinance aircraft assets, to repay indebtedness and for other general
corporate purposes.
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DESCRIPTION OF DEBT SECURITIES AND GUARANTEES
The debt securities covered by this prospectus may be issued under one or more
indentures. Unless otherwise specified in the applicableprospectus supplement,
the trustee under the applicable indenture will be The Bank of New York Mellon
Trust Company, N.A. The particular terms of the debt securities offered and
their guarantees, if any, will be outlined in a prospectus supplement.The
discussion of such terms in the prospectus supplement is subject to, and
qualified in its entirety by, reference to all provisions in the applicable
indenture and any applicable supplemental indenture.
As noted above, the debt securities may be guaranteed by AerCap and one or
more of AerCap's subsidiaries if so provided in the applicableprospectus
supplement. The prospectus supplement will describe the terms of any
guarantees, including, among other things, the ranking of the guarantee, the
method for determining the identity of the guarantors and the conditions under
whichguarantees will be added or released. Any guarantees will be joint and
several obligations of the guarantors.
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CERTAIN IRISH, DUTCH AND U.S. FEDERAL INCOME TAX CONSEQUENCES
The material Irish, Dutch and U.S. federal income tax consequences relating to
the purchase and ownership of the debt securitiesoffered by this prospectus
will be set forth in a prospectus supplement.
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PLAN OF DISTRIBUTION
We may sell the debt securities offered by this prospectus:
. through underwriters;
. through dealers;
. through agents; or
. directly to other purchasers.
The prospectus supplement relating to any offering will identify or describe:
. any underwriters, dealers or agents;
. compensation of any underwriters, dealers or agents;
. the net proceeds to us;
. the purchase price of the debt securities;
. the initial public offering price of the debt securities; and
. any exchange on which the securities will be listed.
Underwriters
If we use underwriters inthe sale, they will acquire the debt securities for
their own account and may resell the debt securities from time to time in one
or more transactions, including negotiated transactions, at a fixed public
offering price or at varying pricesdetermined at the time of sale. Unless we
otherwise state in the prospectus supplement, various conditions to the
underwriters' obligation to purchase the debt securities apply, and the
underwriters will be obligated to purchase all of the debtsecurities
contemplated in an offering if they purchase any of the debt securities. Any
initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time.
Dealers
If we use dealers in the sale,unless we otherwise indicate in the prospectus
supplement, we will sell debt securities to the dealers as principals. The
dealers may then resell the debt securities to the public at varying prices
that the dealers may determine at the time ofresale.
Agents and direct sales
Wemay sell debt securities directly or through agents that we designate, at a
fixed price or prices which may be changed, or at varying prices determined at
the time of sale. Any such agent may be deemed to be an underwriter as that
term is defined inthe Securities Act. The prospectus supplement will name any
agent involved in the offering and sale and will state any commissions we will
pay to that agent. Unless we indicate otherwise in the prospectus supplement,
any agent is acting on a bestefforts basis for the period of its appointment.
Contracts with institutional investors and delayed delivery
If we indicate in the prospectus supplement, we will authorize underwriters,
dealers or agents to solicit offers from various institutionalinvestors to
purchase debt securities from it pursuant to contracts providing for payment
and delivery on a future date that the prospectus supplement specifies. The
underwriters, dealers or agents may impose limitations on the minimum amount
thatthe institutional investor can purchase. They may also impose limitations
on the portion of the aggregate amount of the debt securities that they may
sell. These institutional investors include:
. commercial and savings banks;
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. insurance companies;
. pension funds;
. investment companies;
. educational and charitable institutions; and
. other similar institutions as we may approve.
The obligations of any of these purchasers pursuant to delayed delivery and
payment arrangements will not be subject to any conditions.However, one
exception applies. An institution's purchase of the particular debt securities
cannot at the time of delivery be prohibited under the laws of any
jurisdiction that governs the validity of the arrangements or the performance
by usor the institutional investor.
Indemnification
Agreements that we enter into with underwriters, dealers or agents may entitle
them to indemnification by us against various civil liabilities.These include
liabilities under the Securities Act. The agreements may also entitle them to
contribution for payments that they may be required to make as a result of
these liabilities. Underwriters, dealers and agents may be customers of,
engage intransactions with, or perform services for, us in the ordinary course
of business.
Market making
Unless otherwise noted in the applicable prospectus supplement, each series of
debt securities will be a new issue of securities without anestablished
trading market. Various broker-dealers may make a market in the debt
securities, but will have no obligation to do so, and may discontinue any
market making at any time without notice. Consequently, it may be the case
that nobroker-dealer will make a market in debt securities of any series or
that the liquidity of the trading market for the debt securities will be
limited.
Expenses
The expenses of any offering ofdebt securities will be detailed in the
relevant prospectus supplement.
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ENFORCEMENT OF CIVIL LIABILITY JUDGMENTS UNDER IRISH LAW
As the United States is not a party to a convention with Ireland in respect of
the enforcement of judgments, common law rules applyin order to determine
whether a judgment of the courts of the United States is enforceable in
Ireland. A judgment of a court of the United States (the "Relevant Court")
will be enforced by the courts in Ireland if the following generalrequirements
are met:
(a) the Irish court is satisfied (on the basis of Irish conflicts of
laws) that the Relevant Court was a court ofcompetent jurisdiction;
(b) the judgment has not been obtained or alleged to have been obtained by fraud or a trick;
(c) the decision of the Relevant Court and the enforcement thereof was not and
would not be contrary to natural orconstitutional justice under Irish law;
(d) the enforcement of the judgment would not be contrary to public policy as understood by
the Irish court orconstitute the enforcement of a judgment of a penal or revenue nature;
(e) the judgment is not inconsistent with a judgment of the Irish courts in respect of the same matter;
(f) the judgment is final and conclusive and is a judgment against the relevant company for a debt or definite sumof money;
(g) the procedural rules of the Relevant Court and the Irish courts have been observed;
(h) no fresh evidence is adduced by any party thereto which could not have been discovered prior to the judgment
ofthe Relevant Court by reasonable diligence by such party and which shows such judgment to be erroneous; and
(i) there is a practical benefit to the party in whose favor the judgment of the
Relevant Court is made in seekingto have that judgment enforced in Ireland.
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ENFORCEMENT OF CIVIL LIABILITY JUDGMENTS UNDER DUTCH LAW
We are advised that there is no enforcement treaty between the Netherlands and
the United States providing for reciprocal recognitionand enforcement of
judgments, other than arbitration awards, in civil and commercial matters.
Therefore, a judgment rendered by any federal or state court in the United
States in such matters cannot automatically be enforced in the Netherlands.
Anapplication will have to be made to the competent Dutch Court in order to
obtain a judgment that can be enforced in the Netherlands. The Dutch courts
can in principle be expected to give conclusive effect to a final and
enforceable judgment of acompetent United States court in respect of the
contractual obligations under the relevant document without
re-examination
or
re-litigation,
but would require(i) that the relevant court in the United States had
jurisdiction in the matter in accordance with standards that are generally
accepted internationally, (ii) the proceedings before such court to have
complied with principles of properprocedure (
behoorlijke rechtspleging
), (iii) such judgment not being contrary to the public policy of the
Netherlands or the European Union, and (iv) that recognition and/or
enforcement of the judgment is not irreconcilable with adecision of a Dutch
court rendered between the same parties or with an earlier decision of a
foreign court rendered between the same parties in a dispute that is about the
same subject matter and that is based on the same cause, provided that
suchearlier decision can be recognized in the Netherlands, but the court will
in either case have discretion to attach such weight to the judgment of any
federal or state court in the United States as it deems appropriate and may
re-examine
or
re-litigate
the substantive matters adjudicated upon. Furthermore, a Dutch court may
reduce the amount of damages granted by a federal or state court in theUnited
States and recognize damages only to the extent that they are necessary to
compensate actual losses or damages.
Dutch civilprocedure differs substantially from U.S. civil procedure in a
number of respects. Insofar as the production of evidence is concerned, U.S.
law and the laws of several other jurisdictions based on common law provide for
pre-trial
discovery, a process by which parties to the proceedings may prior to trial
compel the production of documents by adverse or third parties and the
deposition of witnesses. Evidence obtained in this mannermay be decisive in
the outcome of any proceeding. No such
pre-trial
discovery process exists under Dutch law. In addition, it is doubtful whether
a Dutch court would accept jurisdiction and impose civil orother liability in
an original action commenced in the Netherlands and predicated solely upon
United States federal securities laws.
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LEGAL MATTERS
The validity of the debt securities will be passed upon for us by Cravath,
Swaine & Moore LLP, New York, New York (with respect toNew York and United
States federal law), McCann FitzGerald, Dublin, Ireland (with respect to Irish
law), NautaDutilh N.V., Rotterdam, the Netherlands (with respect to Dutch
law), Morris, Nichols, Arsht & Tunnell LLP, Wilmington, Delaware(with respect
to Delaware law) and Smith, Gambrell & Russell, LLP, Los Angeles, California
(with respect to California law).
EXPERTS
The consolidated financial statements of AerCap Holdings N.V. and its
subsidiaries as of December 31, 2020 and 2019 and for each of thethree years
in the period ended December 31, 2020 and AerCap Holdings N.V.'s management's
assessment of the effectiveness of internal control over financial reporting
(which is included in AerCap Holdings N.V.'s management'sannual report on
internal control over financial reporting) as of December 31, 2020
incorporated in this prospectus by reference to the Annual Report on
Form 20-F for
the year endedDecember 31, 2020 have been so incorporated in reliance on the
report of PricewaterhouseCoopers, an independent registered public accounting
firm, given on the authority of said firm, as experts in auditing and
accounting.
The audited historical financial statements of GE Capital Aviation Services,
the aviation leasing business of General Electric Company,incorporated in this
prospectus by reference to AerCap Holdings N.V.'s Report on
Form 6-K
dated October 19, 2021, have been so incorporated in reliance on the report of
KPMG LLP, an independentregistered public accounting firm, given on the
authority of said firm, as experts in auditing and accounting.
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DISCLOSURE OF SEC POSITION ON INDEMNIFICATION FOR SECURITIES ACTLIABILITIES
Under Dutch law, AerCap is permitted to purchase directors' and officers'
insurance. AerCap carries suchinsurance. In addition, the articles of
association of AerCap Holdings N.V., the constitution of the Irish Issuer and
the trust agreement relating to the U.S. Issuer each include indemnification
of their respective directors and officers againstliabilities, including
judgments, fines and penalties, as well as against associated reasonable legal
expenses and settlement payments, to the extent this is allowed under Dutch,
Irish or U.S. law, respectively. To be entitled to indemnification,these
persons must not have engaged in an act or omission of willful misconduct or
bad faith. Insofar as such indemnification for liabilities arising under the
Securities Act of 1933, as amended, may be permitted to directors, officers or
personscontrolling the applicable registrant pursuant to the foregoing
provisions, AerCap has been informed that in the opinion of the SEC such
indemnification is against public policy as expressed in the said Act and is
therefore unenforceable.
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