AERCAP IRELAND CAPITAL DESIGNATED ACTIVITY COMPANY
as Irish Issuer,
AERCAP GLOBAL AVIATION TRUST
as U.S. Issuer,
and
AERCAP HOLDINGS N.V.
as Holdings
________________________
SIXTH SUPPLEMENTAL INDENTURE
Dated as of November 22, 2023
to
INDENTURE
Dated as of October 29, 2021
________________________
THE GUARANTORS PARTY HERETO
and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
as Trustee
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS
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2
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SECTION 1.01
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Definitions
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2
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SECTION 1.02
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Other Definitions
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5
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ARTICLE II DESIGNATION AND TERMS OF THE NOTES
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6
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SECTION 2.01
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Title and Aggregate Principal Amount
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6
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SECTION 2.02
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Execution
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6
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SECTION 2.03
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Other Terms and Form of the Notes
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6
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SECTION 2.04
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Further Issues
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6
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SECTION 2.05
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Interest and Principal
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6
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SECTION 2.06
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Place of Payment
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7
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SECTION 2.07
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Form and Dating
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7
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SECTION 2.08
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Depositary; Registrar
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8
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SECTION 2.09
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Optional Redemption
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8
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SECTION 2.10
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Redemption for Changes in Withholding Taxes
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8
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ARTICLE III TRANSFER AND EXCHANGE
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9
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SECTION 3.01
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Transfer and Exchange of Global Notes
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9
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SECTION 3.02
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Transfer and Exchange of Beneficial Interests in the Global Notes
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10
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SECTION 3.03
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Transfer or Exchange of Beneficial Interests in Global Notes for Definitive Notes
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12
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SECTION 3.04
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Transfer and Exchange of Definitive Notes for Beneficial Interests in Global Notes
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12
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SECTION 3.05
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Transfer and Exchange of Definitive Notes for Definitive Notes
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14
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SECTION 3.06
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Legends
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15
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SECTION 3.07
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Cancellation and/or Adjustment of Global Notes
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18
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SECTION 3.08
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General Provisions Relating to Transfers and Exchanges.
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18
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ARTICLE IV LEGAL DEFEASANCE, COVENANT DEFEASANCE AND SATISFACTION AND DISCHARGE
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19
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SECTION 4.01
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Legal Defeasance, Covenant Defeasance and Satisfaction and Discharge
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19
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ARTICLE V COVENANTS
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20
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SECTION 5.01
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Repurchase upon a Change of Control Triggering Event
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20
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SECTION 5.02
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Rule 144A Information
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22
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ARTICLE VI MISCELLANEOUS
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22
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SECTION 6.01
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Ratification of Original Indenture; Supplemental Indenture Part of Original Indenture
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22
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SECTION 6.02
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Concerning the Trustee
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22
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SECTION 6.03
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Shelf Registration Statement
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22
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SECTION 6.04
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Exchange Offer
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22
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SECTION 6.05
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Registration Default
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23
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SECTION 6.06
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Multiple Originals; Electronic Signatures
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23
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SECTION 6.07
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Governing Law
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24
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Exhibit A Form of 6.450% Senior Note due 2027
Exhibit B Forms of Certificate of Transfer / Certificate of Exchange
SIXTH SUPPLEMENTAL INDENTURE, dated as of November 22, 2023 (this “Sixth Supplemental Indenture”), to the Indenture, dated as of October 29, 2021 (the “Original Indenture”),
among AERCAP IRELAND CAPITAL DESIGNATED ACTIVITY COMPANY, a designated activity company limited by shares incorporated under the laws of Ireland with registered number 535682 (the “Irish Issuer”), AERCAP GLOBAL AVIATION TRUST, a statutory
trust organized under the laws of Delaware (the “U.S. Issuer” and, together with the Irish Issuer, the “Issuers,” and each, an “Issuer”), AERCAP HOLDINGS N.V., a public limited liability company organized under the laws of the
Netherlands (“Holdings”), each of the subsidiary guarantors party hereto or that becomes a guarantor pursuant to the terms of the Original Indenture (the “Subsidiary Guarantors” and, together with Holdings, the “Guarantors”) and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association organized under the laws of the United States, as trustee (the “Trustee”).
WHEREAS, the Issuers, the Guarantors and the Trustee have heretofore executed and delivered the Original Indenture to provide for the issuance from time to time of Notes (as defined in the
Original Indenture) of the Issuers, to be issued in one or more Series;
WHEREAS, the Original Indenture provides, among other things, that the Issuers and the Trustee may enter into indentures supplemental to the Original Indenture for, among other things, the
purpose of establishing the form and terms of Notes (as defined in the Original Indenture) of any Series pursuant to the Original Indenture;
WHEREAS, the Issuers (i) desire the issuance of a Series of Notes (as defined in the Original Indenture) to be designated as hereinafter provided and (ii) have requested the Trustee to
enter into this Sixth Supplemental Indenture for the purpose of establishing the form and terms of the Notes (as defined in the Original Indenture) of such Series;
WHEREAS, the Issuers have duly authorized the creation of an issue of their 6.450% Senior Notes due 2027 (the “Notes”), which expression includes any further such Notes issued
pursuant to Section 2.04 hereof; and
WHEREAS, all action on the part of the Issuers necessary to authorize the issuance of the Notes under the Original Indenture and this Sixth Supplemental Indenture (the Original Indenture,
as supplemented by this Sixth Supplemental Indenture, being hereinafter called the “Indenture”) has been duly taken;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That, in order to establish the form and terms of the Notes and in consideration of the acceptance of the Notes by the Holders thereof and of other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions.
(a) Capitalized terms used herein and not otherwise defined herein shall have the respective
meanings ascribed thereto in the Original Indenture.
(b) The rules of interpretation set forth in the Original Indenture shall be applied hereto as
if set forth in full herein.
(c) For all purposes of this Sixth Supplemental Indenture, except as otherwise expressly
provided or unless the context otherwise requires, the following terms shall have the following meanings:
“Applicable Procedures” means, with respect to any transfer or exchange of or for beneficial interests in any Global Note, the rules and procedures of DTC, Euroclear or Clearstream,
as applicable, that apply to such transfer or exchange.
“Below Investment Grade Rating Event” means, with respect to the Notes, that at any time within a 60 day period from the Rating Date, the rating on the Notes is lowered, and the
Notes are rated below an Investment Grade Rating, by two Rating Organizations, if the Notes are rated by all three Rating Organizations, or both Rating Organizations, if the Notes 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 have occurred 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) if the Rating Organizations making the reduction in rating to which this definition would otherwise apply do not announce or publicly confirm or
inform the Issuers in writing that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising 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 for monitoring or charged with knowledge of the ratings on the Notes.
“Change of Control” means:
(1) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange
Act), 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 either Issuer, 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, are sold 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, amalgamates or 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 the applicable surviving or transferee Person (or applicable parent thereof); provided that
this clause (3) shall not apply (i) in the case where immediately after the consummation of the transactions Permitted Holders beneficially own Voting Stock representing 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 Stock representing 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 this Indenture; or
(4) Holdings shall adopt a plan of liquidation or dissolution or any such plan shall be approved
by the shareholders of Holdings.
“Change of Control Triggering Event” means the occurrence of both a (1) Change of Control and (2) Below Investment Grade Rating Event.
“Definitive Note” means a certificated Note registered in the name of the Holder thereof and issued in accordance with Article III hereof substantially in the form of Exhibit A
hereto, except that such Note shall not bear the Global Note Legend and shall not have the “Schedule of Exchanges of Interests in the Global Note” attached thereto.
“Exchange Notes” shall have the meaning assigned to it in the Registration Rights Agreement.
“Exchange Offer” shall have the meaning assigned to it in the Registration Rights Agreement.
“Global Note Legend” means the legend set forth in Section 3.07(c), which is required to be placed on all Global Notes issued hereunder.
“Global Notes” means, individually and collectively, Global Notes deposited with or on behalf of and registered in the name of the Depositary or its nominee, substantially in the
form of Exhibit A and that bears the Global Note Legend and that has the “Schedule of Exchanges of Interests in the Global Note” attached thereto, issued in accordance with Section 2.14 of the Original Indenture and Section 2.07 hereof.
“Indirect Participant” means a Person who holds a beneficial interest in a Global Note through a Participant.
“Investment Grade Rating” means a rating of BBB- or higher by Fitch (or its equivalent under any 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 its equivalent under any successor rating category of S&P).
“Non-U.S. Person” means a Person who is not a U.S. Person (as defined in Regulation S).
“Par Call Date” means March 15, 2027 (one month prior to the maturity date of the Notes).
“Participant” means, with respect to the Depositary, a Person who has an account with the Depositary.
“Permitted Holders” means at any time, (i) the Chairman of the Board of Directors, the Chief Executive Officer, the President, any Managing 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 and (ii) General Electric Company and its Affiliates. Any Person or group whose
acquisition 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 this Indenture will thereafter, together with its Affiliates, constitute an additional
Permitted Holder.
“Qualified Institutional Buyer” means a “qualified institutional buyer” as defined in Rule 144A.
“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 outstanding Voting Stock of Holdings.
“Registration Default” shall have the meaning assigned to it in the Registration Rights Agreement.
“Registration Rights Agreement” means the registration rights agreement, dated as of November 22, 2023, among the Issuers, the guarantors party thereto, Barclays Capital Inc. and TD
Securities (USA) LLC, as amended, supplemented or otherwise modified from time to time.
“Regulation S” means Regulation S promulgated under the Securities Act.
“Regulation S Global Note Legend” means the legend set forth in Section 3.06(b), which is required to be placed on all Regulation S Global Notes issued hereunder.
“Restricted Definitive Note” means Definitive Notes that bear, are required to bear or are subject to the Restricted Note Legend.
“Restricted Note Legend” means the legend set forth in Section 3.06(a), which is required to be placed on all Restricted Notes issued hereunder.
“Rule 144” means Rule 144 promulgated under the Securities Act.
“Rule 144A” means Rule 144A promulgated under the Securities Act.
“Shelf Registration Statement” shall have the meaning assigned to it in the Registration Rights Agreement.
“Transfer Restricted Notes” shall have the meaning assigned to it in the Registration Rights Agreement.
“Treasury Rate” means, as of any redemption date, the rate per annum equal to the yield to maturity of United States Treasury securities 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 is no longer published, any publicly available source of
similar market data)) most nearly equal to the period from the redemption date to the Par Call Date, as determined by the Issuers; provided, however, that if the
period from the redemption date to the 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 Definitive Note” means a Definitive Note that is not required to bear, and are not subject to, the Restricted Note Legend.
“Unrestricted Global Note” means a Global Note that is not required to bear, and are not subject to, the Restricted Note Legend or the Regulation S Global Note Legend.
“Wholly-Owned Restricted Subsidiary” means any Wholly-Owned Subsidiary that is a Restricted Subsidiary.
“Wholly-Owned Subsidiary” of any Person means a Subsidiary of such Person, 100% of the outstanding Capital 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.
SECTION 1.02 Other Definitions.
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Term
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Defined in Section
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“Additional Interest”
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6.05
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“Change of Control Offer”
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5.01(a)
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“Change of Control Payment”
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5.01(a)
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“Change of Control Payment Date”
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5.01(b)(ii)
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“Distribution Compliance Period”
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2.07(a)
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“Interest Payment Date”
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2.05
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“Record Date”
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2.05
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“Regulation S Global Notes”
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2.07(a)
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“Regulation S Notes”
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2.07(a)
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“Restricted Global Notes”
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2.07(a)
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“Restricted Notes”
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2.07(a)
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ARTICLE II
DESIGNATION AND TERMS OF THE NOTES
SECTION 2.01 Title and Aggregate Principal Amount. There is hereby created one Series of
Notes designated: 6.450% Senior Notes due 2027 in an initial aggregate principal amount of $1,500,000,000.
SECTION 2.02 Execution. The Notes may forthwith be executed by the Issuers by manual,
electronic or facsimile signature and delivered to the Trustee for authentication and delivery by the Trustee in accordance with the provisions of Section 2.04 of the Original Indenture.
SECTION 2.03 Other Terms and Form of the Notes. The Notes shall have and be subject to
such other terms as provided in the Original Indenture and this Sixth Supplemental Indenture and shall be evidenced by one or more Global Notes in the form of Exhibit A hereof and as set forth in Section 2.07 hereof.
SECTION 2.04 Further Issues. The Issuers may, from time to time, without the consent of
the Holders of the Notes and in accordance with the Original Indenture and this Sixth Supplemental Indenture, create and issue further notes in an unlimited principal amount having the same terms and conditions as the Notes in all respects (or in
all respects except for the issue date and the amount and the date of the first interest payment thereon) so as to form a single Series with the Notes. The Notes and any such further notes (including any Exchange Notes issued in the Exchange
Offer) shall be treated as a single class for all purposes under this Indenture; provided that if any such further notes are not fungible with the Notes for U.S. Federal income tax purposes, such further
notes will have a separate CUSIP, ISIN or other identifying number, if applicable. Unless the context otherwise requires, all references to the Notes shall include any such further notes (including the Exchange Notes).
SECTION 2.05 Interest and Principal. The Notes will mature on April 15, 2027 and will
bear interest at the rate of 6.450% per annum. The Issuers will pay interest (including Additional Interest, if any) on the Notes on each April 15 and October 15 (each an “Interest Payment Date”), beginning on April 15, 2024, to the Holders
of record on the immediately preceding April 1 and October 1 (each a “Record Date”), respectively. Interest (including Additional Interest, if any) on the Notes shall accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from and including the date of issuance. Additional Interest, if any, shall accrue as set forth in Section 6.05 hereof. Payments of the
principal of and interest (including Additional Interest, if any) on the Notes shall be made in Dollars, and the Notes shall be denominated in Dollars.
SECTION 2.06 Place of Payment. The place of payment where the Notes issued in the form
of Definitive Notes may be presented or surrendered for payment, where the principal of and interest (including Additional Interest, if any) and any other payments due on the Notes issued in the form of Definitive Notes are payable and where the
Notes may be surrendered for registration of transfer or exchange shall be the office or agency of the Issuers maintained for that purpose pursuant to Section 2.05 of the Original Indenture, and the office or agency maintained by the Issuers for
such purpose shall initially be the Corporate Trust Office of the Trustee. All payments on Notes issued in the form of Global Notes shall be made by wire transfer of immediately available funds to the Depositary and, at the option of the Issuers,
payment of interest on the Notes issued in the form of Definitive Notes may be made by check mailed to registered Holders.
SECTION 2.07 Form and Dating.
(a) General. The Notes will be substantially in the form of Exhibit A hereto. The terms
and provisions contained in the Notes will constitute, and are hereby expressly made, a part of this Sixth Supplemental Indenture and the Issuers and the Trustee, by their execution and delivery of this Sixth Supplemental Indenture, expressly agree
to such terms and provisions and to be bound thereby. However, to the extent any provision of any Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.
The Notes will initially be issued only to either (i) in the United States to persons reasonably believed to be Qualified Institutional Buyers pursuant to an exemption from the
registration requirements of the Securities Act provided by Section 4(a)(2) of the Securities Act (“Restricted Notes”) or (ii) to Non-U.S. Persons in offshore transactions in reliance on Regulation S (“Regulation S Notes”). Restricted
Notes and Regulation S Notes may thereafter be transferred to, among others, Qualified Institutional Buyers and purchasers in reliance on Regulation S, subject to the restrictions set forth herein.
Restricted Notes initially shall be represented by one or more global notes in registered form without interest coupons (collectively, the “Restricted Global Notes”). Regulation S
Notes initially shall be represented by one or more global notes in registered form without interest coupons (collectively, the “Regulation S Global Notes”). Regulation S Global Notes shall be deemed to be a “temporary global security” for
purposes of Rule 903 under Regulation S until the expiration of the Distribution Compliance Period. Through and including the 40th day after the later of (i) the day on which such Regulation S Global Notes are first offered to persons other than
distributors (as defined in Regulation S) in reliance on Regulation S and (ii) the date hereof (the “Distribution Compliance Period”), beneficial interests in the Regulation S Global Notes may be held only by Non-U.S. Persons for purposes of
Rule 902 of Regulation S, unless exchanged for interests in the Restricted Global Notes as set forth herein, and may be held only through Euroclear or Clearstream unless delivery is made in accordance
with the applicable provisions of Section 3.02. Restricted Global Notes shall bear the Restricted Note Legend and the Global Note Legend. Regulation S Global Notes shall bear the Regulation S Global Note
Legend and the Global Note Legend.
(b) Global Notes. Notes issued in global form will be substantially in the form of
Exhibit A attached hereto (including the Global Note Legend thereon and the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Notes issued in definitive form will be substantially in the form of Exhibit A attached hereto
(but without the Global Note Legend thereon and without the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Each Global Note will represent such of the outstanding principal amount of the Notes as will be specified
therein and each shall provide that it represents the aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be
reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby will be made
by the Trustee or the Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof as required by Article III hereof.
SECTION 2.08 Depositary; Registrar. The Issuers initially appoint DTC to act as
Depositary with respect to the Global Notes. The Issuers initially appoint the Trustee to act as the Registrar and the Paying Agent with respect to the Notes.
SECTION 2.09 Optional Redemption.
(a) Prior to the Par Call Date, the Issuers may redeem all or part of the Notes, after having
sent a notice of redemption as described in Section 3.03 of the Original Indenture, 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 principal and interest, on such Notes through the 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 30 basis points, plus, in each case, accrued and unpaid interest to, but not including, the redemption date, subject to the right of Holders of record on the relevant Record Date to receive interest due on the relevant Interest Payment
Date.
(b) On or after the Par Call Date, the Notes 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 the principal amount of the Notes being redeemed, plus accrued and unpaid interest to, but not including, the redemption date, subject to the right of Holders of record
on the relevant Record Date to receive interest due on the relevant Interest Payment Date.
SECTION 2.10 Redemption for Changes in Withholding Taxes.
(a) The Issuers are entitled to redeem the Notes, at the option of the Issuers, at any time in
whole but not in part, upon not less than 15 nor more than 45 days’ notice (which notice shall be irrevocable) to the Holders (with a copy to the Trustee) 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 the principal amount of the Notes being redeemed, 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) 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, any Additional Amounts with respect to the Notes as a result of:
(i) a change in or an amendment to the laws (including any regulations,
rulings or protocols promulgated and treaties enacted thereunder) of any Relevant Taxing Jurisdiction affecting taxation; or
(ii) 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 are issued (or, in the case of a jurisdiction that becomes a Relevant Taxing Jurisdiction after such date,
on or after such later date), and where the Issuers cannot avoid such obligation by taking reasonable measures available to the Issuers. Notwithstanding the foregoing, no such notice of redemption will be given (x) earlier than 90 days prior to the
earliest date on which the Issuers would be obliged to make such payment of Additional Amounts and (y) unless at the time such notice is given, such obligation to pay such Additional Amounts remains in effect.
(b) Before the Issuers publish or mail or deliver notice of redemption of the Notes 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 conditions precedent to the
redemption have been complied with. The Issuers will also deliver to the Trustee an Opinion of Counsel from 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 all conditions precedent to the redemption have been complied with.
(c) This Section will apply mutatis mutandis to any
jurisdiction in which any successor Person to an Issuer is incorporated or organized or any political subdivision or taxing authority or agency thereof or therein.
ARTICLE III
TRANSFER AND EXCHANGE
SECTION 3.01 Transfer and Exchange of Global Notes. A Global Note may not be transferred
as a whole except by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary. All Global Notes shall be exchangeable pursuant to Section 2.08 of the Original Indenture for Definitive Notes if:
(a) the Issuers deliver to the Trustee notice from the Depositary that it is unwilling or unable
to continue to act as Depositary or that it is no longer a clearing agency registered under the Exchange Act and, in either case, a successor Depositary is not appointed by the Issuers within 90 days after the date of such notice from the
Depositary;
(b) the Issuers in their sole discretion determine that the Global Notes (in whole but not in
part) should be exchanged for Definitive Notes and deliver a written notice to such effect to the Trustee; or
(c) an Event of Default with respect to the Notes represented by such Global Note shall have
occurred and be continuing and the Holders of a majority in principal amount of the Notes have requested the Issuers to issue Definitive Notes;
provided, that in no event shall Regulation S Global Notes be exchanged by the Issuers for Definitive Notes prior to (x) the
expiration of the Distribution Compliance Period and (y) the receipt by the Trustee of any certificates required pursuant to Rule 903(b)(3)(ii)(B) under the Securities Act. The provisions of “Operating Procedures of the Euroclear System,” “Terms and
Conditions Governing Use of Euroclear,” “General Terms and Conditions of Clearstream Banking Luxembourg” and “CBL Customer Handbook” of Clearstream shall be applicable to transfers of beneficial interests in Regulation S Global Notes that are held by
participants through Euroclear or Clearstream. For the avoidance of doubt, the Trustee shall have no obligation to determine whether any such transfers comply with the requirements of Euroclear or Clearstream.
Upon the occurrence of any of the preceding events in subparagraphs (a), (b) or (c) above, Definitive Notes shall be issued in such names as the
Depositary shall instruct the Issuers and the Trustee. Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 2.09 and 2.11 of the Original Indenture. A Global Note may not be exchanged for a Definitive Note
other than as provided in this Section 3.01; however, beneficial interests in a Global Note may be transferred and exchanged as provided in Section 3.02 or 3.03 hereof.
SECTION 3.02 Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and exchange of beneficial interests in the Global Notes will be effected through the Depositary, in accordance with the provisions of this Sixth Supplemental Indenture and the Applicable Procedures. Beneficial interests in Restricted Global Notes and Regulation S Global Notes shall be subject to restrictions on transfer as set forth herein. Beneficial interests in Global Notes shall be transferred or
exchanged only for beneficial interests in Global Notes. Transfers and exchanges of beneficial interests in the Global Notes also shall require compliance with either subparagraph (a) or (b) below, as applicable, as well as one or more of the
other following subparagraphs, as applicable:
(a) Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in
a Restricted Global Note or Regulation S Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same Restricted Global Note or Regulation S Global Note in accordance with the transfer
restrictions set forth in the Restricted Note Legend or Regulation S Global Note Legend,
as applicable. Prior to the expiration of the Distribution Compliance Period, transfers of beneficial interests in a Regulation S Global Note may not be made to a U.S. Person or for the
account or benefit of a U.S. Person other than to Qualified Institutional Buyers pursuant to Rule 144A. A beneficial interest in an Unrestricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest
in an Unrestricted Global Note. No written orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this Section 3.02(a).
(b) All Other Transfers and Exchanges of Beneficial Interests in Global Notes. In
connection with all transfers and exchanges of beneficial interests in any Global Note that is not subject to Section 3.02(a), (c), (d) or (e), the transferor of such beneficial interest must deliver to the Registrar either:
(i) both:
(A) a written order from a Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to credit or cause to be credited a beneficial interest in another Global Note in an amount equal to the beneficial interest to be transferred or exchanged; and
(B) instructions given in accordance with the Applicable Procedures containing information
regarding the Participant account to be credited with such increase; or
(ii) both:
(A) a written order from a Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to cause to be issued a Definitive Note in an amount equal to the beneficial interest to be transferred or exchanged; and
(B) instructions given by the Depositary to the Registrar containing information regarding
the Person in whose name such Definitive Note shall be registered to effect the transfer or exchange referred to in subclause (A) of this clause (ii).
Upon satisfaction of all of the requirements for transfer or exchange of beneficial interests in Global Notes contained in this Indenture and the Notes, the Trustee shall adjust the
principal amount of the relevant Global Note(s) pursuant to Section 3.07 hereof.
(c) Transfer of Beneficial Interests in a Restricted Global Note or Regulation S Global
Note to Another Restricted Global Note or Regulation S Global Note. A beneficial interest in a Restricted Global Note or Regulation S Global Note may be transferred to a Person who takes delivery thereof in the form of a beneficial interest
in another Restricted Global Note or Regulation S Global Note if the transfer complies with the requirements of Section 3.02(b)(ii) above and the Restricted Note Legend or the Regulation S Global Note Legend, as applicable, and the Registrar
receives a certificate in the form of Exhibit B attached hereto.
(d) Transfer and Exchange of Beneficial Interests in a Restricted Global Note or
Regulation S Global Note for Beneficial Interests in an Unrestricted Global Note. A
beneficial interest in a Restricted Global Note or Regulation S Global Note may be exchanged by any holder thereof for a beneficial interest in an Unrestricted Global Note or transferred
to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note if the exchange or transfer complies with the Restricted Note Legend or the Regulation S Global Note Legend, as applicable, and the
requirements of Section 3.02(b) above, and the Registrar receives a certificate in the form of Exhibit B attached hereto; provided, however, that if the Issuers so
request or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Issuers, to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer
contained herein and in the Restricted Note Legend or Regulation S Global Note Legend, as applicable, are no longer required in order to maintain compliance with the Securities Act, shall also be delivered to the Registrar. If any such transfer or
exchange is effected pursuant to this subparagraph (d) at a time when an Unrestricted Global Note has not yet been issued, the Issuers will issue and, upon receipt of a Company Order in accordance with Section 2.04 and an Officers’ Certificate and
Opinion of Counsel pursuant to Section 11.04 of the Original Indenture, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal amount of beneficial interests transferred
or exchanged pursuant to this subparagraph (d).
(e) Transfer and Exchange of Beneficial Interests in an Unrestricted Global Note for Beneficial Interests in
a Restricted Global Note or Regulation S Global Note. Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or transferred to Persons who take delivery thereof in the form of, a beneficial interest in a Restricted
Global Note or a Regulation S Global Note.
SECTION 3.03 Transfer or Exchange of Beneficial Interests in Global Notes for Definitive
Notes. Subject to the terms hereof, including Section 3.01 hereof, if any holder of a beneficial interest in a Global Note proposes to exchange such beneficial interest for a Definitive Note or to
transfer such beneficial interest to a Person who takes delivery thereof in the form of a Definitive Note, then, upon satisfaction of the conditions set forth in Section 3.02(b) hereof, the Trustee will cause the aggregate principal amount of the
applicable Global Note to be reduced accordingly pursuant to Section 3.07 hereof, and the Issuers will execute and the Trustee, upon receipt of a Company Order in accordance with Section 2.04 of the Original Indenture, will authenticate and deliver
to the Person designated in the instructions a Definitive Note in the appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 3.03 will be
registered in such name or names and in such authorized denomination or denominations as the Holder of such beneficial interest requests through instructions to the Registrar from or through the Depositary and the Participant or Indirect
Participant. The Trustee will deliver such Definitive Notes to the Persons in whose names such Notes are so registered.
In the event that a Restricted Global Note or Regulation S Global Note is exchanged for a Definitive Note prior to the effectiveness of a Shelf Registration Statement
with respect to such Notes, such Notes may be exchanged only in accordance with the provisions of Section 3.02 (including the certification requirements set forth on Exhibit B attached hereto
intended to ensure that such transfers comply with Rule 144A or Regulation S, as the case may be).
SECTION 3.04 Transfer and Exchange of Definitive Notes for Beneficial Interests in Global
Notes. Transfers and exchanges of Definitive Notes for beneficial interests in Global Notes shall also require compliance with subparagraph (a), (b), (c) or (d) below, as applicable:
(a) Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes or
Regulation S Global Notes. If any Holder of a Restricted Definitive Note proposes to exchange such Restricted Definitive Note for a beneficial interest in a Restricted Global Note or Regulation S Global Note or to transfer such Restricted
Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in a Restricted Global Note or Regulation S Global Note, then, upon receipt by the Trustee of a certificate in the form of Exhibit B attached hereto, the
Trustee shall cancel the Restricted Definitive Note and increase or cause to be increased the aggregate principal amount of the appropriate Restricted Global Note or Regulation S Global Note.
(b) Restricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes.
A Holder of a Restricted Definitive Note may exchange such Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note only if the Registrar receives a certificate in the form of Exhibit B attached hereto; provided, however, that if
the Issuers so request or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Issuers, to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions
on transfer contained herein and in the Restricted Note Legend are no longer required in order to maintain compliance with the Securities Act, shall also be delivered to the Registrar. Upon satisfaction of the conditions of this subparagraph (b),
the Trustee shall cancel the Restricted Definitive Note and increase or cause to be increased the aggregate principal amount of the Unrestricted Global Note. If any such transfer or exchange is effected pursuant to this subparagraph (b) at a time
when an Unrestricted Global Note has not yet been issued, the Issuers will issue and, upon receipt of a Company Order in accordance with Section 2.04 and an Officers’ Certificate and Opinion of Counsel pursuant to Section 11.04 of the Original
Indenture, the Trustee will authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal amount of beneficial interests transferred or exchanged pursuant to this subparagraph (b).
(c) Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes.
A Holder of an Unrestricted Definitive Note may exchange such Unrestricted Definitive Note for a beneficial interest in an Unrestricted Global Note or transfer such Unrestricted Definitive Note to a Person who takes delivery thereof in the form of
a beneficial interest in an Unrestricted Global Note at any time. Upon receipt of a request for such an exchange or transfer, the Trustee shall cancel the applicable Unrestricted Definitive Note and increase or cause to be increased the aggregate
principal amount of one of the Unrestricted Global Notes. If any such transfer or exchange is
effected pursuant to this subparagraph (c) at a time when an Unrestricted Global Note has not yet been issued, the Issuers will issue and, upon receipt of a Company Order in accordance
with Section 2.04 and an Officers’ Certificate and Opinion of Counsel pursuant to Section 11.04 of the Original Indenture, the Trustee will authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate
principal amount of beneficial interests transferred or exchanged pursuant to this subparagraph (c).
(d) Unrestricted Definitive Notes to Beneficial Interests in Restricted Global Notes or Regulation S Global
Notes. An Unrestricted Definitive Note cannot be exchanged for, or transferred to a Person who takes delivery thereof in the form of, a beneficial interest in a Restricted Global Note or Regulation S Global Note.
SECTION 3.05 Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder of Definitive Notes and such Holder’s compliance with the provisions of this Section 3.05, the Registrar will register the transfer or exchange of Definitive Notes. Prior to such registration of transfer or exchange, the requesting Holder must present or surrender to the Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory
to the Registrar duly executed by such Holder or by its attorney, duly authorized in writing. In addition, the requesting Holder shall provide any additional certifications, documents and information, as applicable, required pursuant to the
following provisions of this Section 3.05.
(a) Restricted Definitive Notes to Restricted Definitive Notes. A Restricted
Definitive Note may be transferred to and registered in the name of a Person who takes delivery thereof in the form of a Restricted Definitive Note only if the Registrar receives a certificate in the form of Exhibit B attached hereto.
(b) Restricted Definitive Notes to Unrestricted Definitive Notes. Any Restricted
Definitive Note may be exchanged by the Holder thereof for an Unrestricted Definitive Note or transferred to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note only if the Registrar receives a certificate in the form
of Exhibit B attached hereto; provided, however, that if the Issuers so request or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably
acceptable to the Issuers, to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Restricted Note Legend are no longer required in order to maintain
compliance with the Securities Act, shall also be delivered to the Registrar.
(c) Unrestricted Definitive Notes to Unrestricted Definitive Notes. A Holder of an
Unrestricted Definitive Note may transfer such Unrestricted Definitive Note to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note at any time. Upon receipt of a request to register such a transfer, the Registrar
shall register such Unrestricted Definitive Note pursuant to the instructions from the Holder thereof.
(d) Unrestricted Definitive Notes to Restricted Definitive Notes. An Unrestricted Definitive Note cannot
be exchanged for, or transferred to a Person who takes delivery thereof in the form of, a Restricted Definitive Note.
SECTION 3.06 Legends.
(a) The following Restricted Note Legend will appear on the face of all Restricted Notes issued under this Sixth
Supplemental Indenture unless specifically stated otherwise in the applicable provisions of this Sixth Supplemental Indenture:
“THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THIS SECURITY MAY
NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF REPRESENTS THAT IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT).
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE ISSUERS THAT (A) PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF
AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (I) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY
RULE 144 THEREUNDER (IF AVAILABLE), (III) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (IV) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE
MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL “ACCREDITED INVESTOR,” FOR INVESTMENT PURPOSES AND NOT WITH A VIEW
TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (V) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR (VI) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF
THIS SECURITY OF THE RESALE RESTRICTIONS REFERRED TO IN CLAUSE (A) ABOVE. THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THIS SECURITY
PURSUANT TO CLAUSE (A)(VI) ABOVE OR REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. ANY TRANSFER OF THIS SECURITY IN VIOLATION OF THE FOREGOING RESTRICTION SHALL BE VOID.”
(b) The following Regulation S Global Note Legend will appear on the face of all Regulation S Global Notes
issued under this Sixth Supplemental Indenture unless specifically stated otherwise in the applicable provisions of this Sixth Supplemental Indenture:
“THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THIS SECURITY MAY
NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF REGULATION S UNDER THE SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON AND IS ACQUIRING ITS NOTE IN AN “OFFSHORE TRANSACTION” PURSUANT TO RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE ISSUERS THAT (A) PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS 40 DAYS AFTER THE LATER OF THE DATE WHEN THIS SECURITY WAS
FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS IN RELIANCE ON REGULATION S AND THE DATE OF THE COMPLETION OF THE DISTRIBUTION, THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (I) TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE), (III) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (IV) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF
SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL “ACCREDITED INVESTOR,” FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR
OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (V) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR (VI) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY
OF THE RESALE RESTRICTIONS REFERRED TO IN
CLAUSE (A) ABOVE. THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THIS SECURITY PURSUANT TO CLAUSE (A)(VI) ABOVE OR REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. ANY
TRANSFER OF THIS SECURITY IN VIOLATION OF THE FOREGOING RESTRICTION SHALL BE VOID
UNTIL 40 DAYS AFTER THE LATER OF COMMENCEMENT OR COMPLETION OF THE OFFERING OF THIS SECURITY, AN OFFER OR SALE OF NOTES WITHIN THE UNITED STATES BY A DEALER (AS DEFINED IN THE SECURITIES ACT) MAY VIOLATE THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT IF SUCH OFFER OR SALE IS MADE OTHERWISE THAN IN ACCORDANCE WITH RULE 144A THEREUNDER.”
(c) The following Global Note Legend will appear on the face of all Global Notes issued under this Sixth
Supplemental Indenture unless specifically stated otherwise in the applicable provisions of this Sixth Supplemental Indenture:
“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON
UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO ARTICLE III OF THE SIXTH SUPPLEMENTAL
INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.12 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE ISSUERS.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE ISSUERS OR THEIR AGENTS FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”
(d) Upon any sale or transfer of a Restricted Definitive Note, the Holder may exchange such
Restricted Definitive Note for an Unrestricted Definitive Note that does
not bear the legends set forth above if the Holder certifies in writing to the Registrar that its request for such exchange was made in reliance on Rule 144 (such certification to be in
the form of Exhibit B attached hereto).
(e) Upon a sale or transfer after the expiration of the Distribution Compliance Period of any
Note acquired pursuant to Regulation S, all requirements that such Note bear the Regulation S Global Note Legend shall cease to apply and the requirements requiring any such Note be issued in global form shall continue to apply.
SECTION 3.07 Cancellation and/or Adjustment of Global Notes.
At such time as all beneficial interests in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note has been redeemed, repurchased or cancelled in whole and not in part, each such Global Note will be returned
to or retained and cancelled by the Trustee in accordance with Section 2.12 of the Original Indenture. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who will take
delivery thereof in the form of a beneficial interest in another Global Note or for Definitive Notes, the principal amount of Notes represented by such Global Note will be reduced accordingly and an endorsement will be made on such Global Note by
the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in
another Global Note, such other Global Note will be increased accordingly and an endorsement will be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase.
SECTION 3.08 General Provisions Relating to Transfers and Exchanges.
(a) To permit registrations of transfers and exchanges, the Issuers will execute and the Trustee
will authenticate Global Notes and Definitive Notes upon receipt of a Company Order in accordance with Section 2.04 of the Original Indenture and, if required by the provisions of this Article III, an Officers’ Certificate and Opinion of Counsel
pursuant to Section 11.04.
(b) No service charge will be made to a Holder of a Global Note or to a Holder of a Definitive
Note for any registration of transfer or exchange, but the Issuers may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or similar
governmental charge payable upon exchange or transfer pursuant to Sections 2.11, 3.06 and 9.04 of the Original Indenture and Section 5.01 of this Sixth Supplemental Indenture).
(c) The Registrar will not be required to register the transfer of or exchange any Note selected
for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part.
(d) All Global Notes and Definitive Notes issued upon any registration of transfer or exchange
of Global Notes or Definitive Notes will be the valid obligations of the Issuers, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global Notes or Definitive Notes surrendered upon such registration of
transfer or exchange.
(e) The Issuers will not be required:
(A) to issue, to register the transfer of or to exchange any Notes during a
period beginning at the opening of business 15 days before the day of any selection of Notes for redemption under Section 3.02 of the Original Indenture and ending at the close of business on the day of selection;
(B) to register the transfer of or to exchange any Note selected for
redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part; or
(C) to register the transfer of or to exchange a Note between a Record Date
and the next succeeding Interest Payment Date.
(f) Prior to due presentment for the registration of a transfer of any Note, the Trustee, any
Agent and the Issuers may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and interest on such Notes and for all other purposes, and none of the
Trustee, any Agent or the Issuers shall be affected by notice to the contrary.
(g) The Trustee will authenticate Global Notes and Definitive Notes in
accordance with the provisions of Section 2.04 of the Original Indenture.
(h) All certifications, certificates and Opinions of Counsel required to be submitted to the
Registrar pursuant to Article III to effect a registration of transfer or exchange may be submitted by Electronic Means.
(i) Each Holder agrees to indemnify the Issuers, the Registrar and the Trustee against any
liability that may result from the transfer, exchange or assignment of such Holder’s Note in violation of any provision of this Indenture and/or applicable United States federal or state securities law. Neither
the Trustee nor the Registrar shall have any obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law, including, without limitation the Securities
Act, with respect to any transfer of any interest in any Note other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this
Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
ARTICLE IV
LEGAL DEFEASANCE, COVENANT DEFEASANCE
AND SATISFACTION AND DISCHARGE
SECTION 4.01 Legal Defeasance, Covenant Defeasance and Satisfaction and Discharge. Article VIII of the Original Indenture (as modified herein) shall be applicable to the Notes. The Issuers may defease the covenant contained in Section 5.01 of this Sixth
Supplemental Indenture under the provisions of Section 8.03 of the Original Indenture.
ARTICLE V
COVENANTS
SECTION 5.01 Repurchase upon a Change of Control Triggering Event.
(a) Upon the occurrence of a Change of Control Triggering Event after the date of this Sixth
Supplemental Indenture, the Issuers will make an offer to purchase all of the Notes 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 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
relevant Interest Payment Date.
(b) 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 each Holder of Notes to the address of such Holder appearing in the register or otherwise in accordance with the
procedures of DTC, with the following information:
(i) a Change of Control Offer is being made pursuant to this Section 5.01 and
that all Notes properly tendered pursuant to such Change of Control Offer will be accepted for payment;
(ii) the purchase price and the purchase date, which will be no earlier than
30 days nor later than 60 days from the date such notice is mailed or delivered (the “Change of Control Payment Date”);
(iii) any Note not properly tendered will remain Outstanding and continue to
accrue interest;
(iv) unless the Issuers default in the payment of the Change of Control
Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest on, but not including, the Change of Control Payment Date;
(v) the instructions determined by the Issuers consistent with this covenant
that a Holder must follow in order to have its Notes purchased or to cancel a previous order of purchase; and
(vi) if such notice is mailed or delivered prior to the occurrence of a
Change of Control Triggering Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Triggering Event.
(c) While the Notes are in global form, when the Issuers make an offer to purchase all of the
Notes pursuant to the Change of Control Offer, a Holder may exercise its option to elect for the purchase of the Notes through the facilities of DTC, subject to DTC’s rules and regulations.
(d) If Holders of not less than 90% in aggregate principal amount of the Outstanding Notes
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 in lieu of the Issuers as described below, purchase all of the Notes 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 than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes 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).
(e) The Issuers will not be required to make a Change of Control Offer following a Change of
Control Triggering Event 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 this Indenture applicable to a Change of Control Offer made by the Issuers
and purchases all Notes validly tendered and not withdrawn pursuant to such Change of Control Offer or (2) notice of redemption has been given pursuant to this Indenture as described in Section 3.03 of the Original Indenture (as amended and
supplemented by this Sixth Supplemental Indenture), 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 the occurrence of such Change of Control Triggering Event.
(f) Notes repurchased by the Issuers pursuant to a Change of Control Offer will have the status
of Notes issued but not Outstanding or will be retired and cancelled at the option of the Issuers. Notes purchased by a third party pursuant to the preceding paragraph will have the status of Notes issued and
Outstanding.
(g) The Issuers will comply with the requirements of Section 14(e) under the Exchange Act and
any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to a Change of Control Offer. To the extent
that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuers will comply with the applicable securities laws and regulations and shall not be deemed to have breached their obligations
described in this Indenture by virtue thereof.
(h) 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 extent permitted by law,
(i) accept for payment all Notes or portions thereof properly tendered
pursuant to the Change of Control Offer;
(ii) deposit with the Paying Agent an amount equal to the aggregate Change of
Control Payment in respect of all Notes or portions thereof so tendered; and
(iii) 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.
(i) The Paying Agent will promptly mail or otherwise deliver to each Holder of the Notes the
Change of Control Payment for such Notes, and the Issuers shall execute and the Trustee, upon a Company Order, will promptly authenticate and mail, or will cause to be delivered electronically if held by DTC, to each Holder a new Note equal in
principal amount to any unpurchased portion of the Notes surrendered, if any; 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 as practicable after the Change of Control Payment Date.
(j) Other than as specifically provided in this Section, any purchase pursuant to this Section
shall be made pursuant to the provisions of Article III of the Original Indenture.
SECTION 5.02 Rule 144A Information. For so long as
any Notes remains outstanding during any period when Holdings is not subject to the reporting requirements of Section 13(d) or 15 of the Exchange Act, Holdings will furnish to Holders of Notes and to prospective investors, upon their request, the
information required by Rule 144A(d)(4) under the Securities Act.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01 Ratification of Original Indenture; Supplemental Indenture Part of Original
Indenture. Except as expressly amended hereby, the Original Indenture, including, without limitation, Section 11.15 thereof regarding waiver of jury trial and Section 11.18 thereof regarding submission
to jurisdiction, is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Sixth Supplemental Indenture shall form a part of the
Original Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.
SECTION 6.02 Concerning the Trustee. The recitals
contained herein and in the Notes, except with respect to the Trustee’s certificates of authentication, shall be taken as the statements of the Issuers, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representations as to the validity or sufficiency of this Sixth Supplemental Indenture or of the Notes.
SECTION 6.03 Shelf Registration Statement. After a
transfer of any Note pursuant to and during the period of the effectiveness of a Shelf Registration Statement with respect to such Note, all requirements pertaining to the Restricted Notes Legend and the Regulation S Global Note Legend on such Note
will cease to apply and the requirements that any such Note be issued in global form will continue to apply.
SECTION 6.04 Exchange Offer. Upon the occurrence
of the Exchange Offer in accordance with the Registration Rights Agreement, the Issuers will issue, under this
Indenture and, upon receipt of a Company Order in accordance with this Indenture and an Officers’ Certificate and Opinion of Counsel pursuant to Section 11.04 (and, to the extent not previously delivered in
connection with the initial issuance of the Notes, pursuant to Section 2.04) thereof, the Trustee will authenticate (i) one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of the beneficial interests
in the Restricted Global Notes and Regulation S Global Notes validly tendered and accepted for exchange in the Exchange Offer, and (ii) Definitive Notes without the Restricted Notes Legend in an aggregate principal amount equal to the principal
amount of the Definitive Notes validly and accepted for exchange in the Exchange Offer. Following the consummation of the Exchange Offer, the Exchange Notes will be treated as the same series as the original Notes.
Concurrently with the issuance of such Exchange Securities, the Registrar will cause the aggregate principal amount of the Restricted Global Notes and the aggregate principal amount of the
Definitive Notes to be reduced on the register accordingly.
SECTION 6.05 Registration Default. If a
Registration Default occurs with respect to the Notes that are Transfer Restricted Notes (as such term is defined in the Registration Rights Agreement) and remains uncured, then additional interest shall accrue on the principal amount of the Notes
that are Transfer Restricted Notes at a rate of 0.250% per annum for the first 90-day period beginning on the day immediately following such Registration Default (which rate will be increased by an additional 0.250% per annum for each subsequent
90-day period that such additional interest continues to accrue, up to a maximum of 0.500% per annum of additional interest) (any such additional interest, the “Additional Interest”). The Additional Interest (if any) will cease to accrue
when all Registration Defaults are cured. Following the cure of all Registration Defaults relating to any particular Transfer Restricted Notes, the interest rate borne by the relevant Transfer Restricted Notes will be reduced to 6.450% per annum; provided, however, that, if after any such reduction in interest rate, a different Registration Default occurs, the interest rate borne by the relevant
Transfer Restricted Notes shall again be increased pursuant to this Section 6.05. For the avoidance of doubt, the occurrence and continuation of more than one Registration Default shall not result in an increase in the rate of Additional Interest.
Notwithstanding the foregoing, a Holder of Notes who is not entitled to the benefits of a Shelf Registration Statement shall not be entitled to any Additional Interest as a result of a Registration Default that pertains to a Shelf Registration
Statement. Any amounts of Additional Interest due will be payable in cash on the same original interest payment dates as interest on the Notes is payable.
In the event that the Issuers are required to pay Additional Interest to Holders of Notes pursuant to the Registration Rights Agreement, the Issuers will provide written notice to the
Trustee of their obligation to pay Additional Interest no later than fifteen days prior to the proposed payment date for the Additional Interest, and such notice shall set forth the amount of Additional Interest to be paid by the Issuers on such
payment date. The Trustee shall not at any time be under any duty or responsibility to any Holder of the Notes to determine Additional Interest, or with respect to the nature, extent, or calculation of the amount of Additional Interest owed, or with
respect to the method employed in such calculation of Additional Interest.
SECTION 6.06 Multiple Originals; Electronic Signatures. This
Sixth Supplemental Indenture or any document to be signed in connection therewith may be executed
by manual, electronic or facsimile signature in any number of counterparts, each of which when so executed shall be deemed to be an original, but all such counterparts shall together constitute one and the
same instrument. The exchange of copies of this Sixth Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Sixth Supplemental Indenture as to the parties hereto and
may be used in lieu of the original Sixth Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes. The words “executed,” “signed,”
“signature,” “delivery,” and words of like import in or relating to this Sixth Supplemental Indenture or any document to be signed in connection with this Sixth Supplemental Indenture shall be deemed to include electronic signatures, deliveries or
the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be,
and the parties hereto consent to conduct the transactions contemplated hereunder by electronic means; provided that, notwithstanding anything herein to the contrary, the Trustee is not under any obligation
to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Trustee pursuant to procedures approved by the Trustee, except such acceptance shall not be unreasonably withheld or delayed.
SECTION 6.07 GOVERNING LAW. THIS SIXTH SUPPLEMENTAL
INDENTURE AND EACH NOTE OF THE SERIES CREATED HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
IN WITNESS WHEREOF, the parties have caused this Sixth Supplemental Indenture to be duly executed by their respective officers thereunto duly authorized as of the date first above written.
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SIGNED and DELIVERED as a DEED for
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/s/ Ken Faulkner
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and on behalf of AERCAP IRELAND CAPITAL DESIGNATED ACTIVITY COMPANY
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in the presence of:
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Signature of Witness:
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/s/ Laura O’Sullivan
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Name of Witness:
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Laura O’Sullivan |
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Address of Witness:
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Aviation House,
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Shannon, Co. Clare
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Occupation of Witness:
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Administrator Corporate Secretary
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SIGNED and DELIVERED as a DEED for
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and on behalf of AERCAP GLOBAL AVIATION TRUST, a Delaware statutory trust by AerCap Ireland Capital Designated Activity Company, its Regular Trustee, by
/s/ Ken Faulkner
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as duly authorised attorney
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in the presence of:
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Signature of Witness:
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/s/ Laura O’Sullivan |
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Name of Witness:
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Laura O’Sullivan |
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Address of Witness:
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Aviation House, |
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Shannon, Co. Clare |
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Occupation of Witness:
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Administrator Corporate Secretary |
[Signature Page to Sixth Supplemental Indenture]
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AERCAP HOLDINGS N.V.
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By:
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/s/ Risteard Sheridan
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Name:
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Risteard Sheridan |
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Title:
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Authorised Signatory
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AERCAP AVIATION SOLUTIONS B.V.
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By:
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/s/ Johan-Willem Dekkers
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Name:
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Johan-Willem Dekkers |
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Title:
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For and on behalf of AerCap Group Services, B.V.
Director
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SIGNED and DELIVERED as a DEED by
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/s/ Peter Juhas
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as duly authorised attorney of
AERCAP IRELAND LIMITED
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in the presence of:
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Signature of Witness:
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/s/ Risteard Sheridan
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Name of Witness:
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Risteard Sheridan |
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Address of Witness:
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Ebeneezer, Sorrento Road,
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Dalky, Ireland
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Occupation of Witness:
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Accountant / Corporate Secretary
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AERCAP U.S. GLOBAL AVIATION LLC
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By:
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/s/ Ken Faulkner
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Name:
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Ken Faulkner |
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Title:
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Authorised Signatory
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INTERNATIONAL LEASE FINANCE CORPORATION
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By:
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/s/ Patrick Ross
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Name:
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Patrick Ross |
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Title:
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Vice President
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[Signature Page to Sixth Supplemental Indenture]
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THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee
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By:
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/s/ Terence Rawlins
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Name:
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Terence Rawlins |
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Title:
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Vice President
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[Signature Page to Sixth Supplemental Indenture]
EXHIBIT A
[Face of Note]
[Insert the Global Note Legend, if applicable pursuant to the provisions of the Indenture]
[Insert the Restricted Note Legend, if applicable pursuant to the provisions of the Indenture]
[Insert the Regulation S Global Note Legend, if applicable pursuant to the provisions of the Indenture]
CUSIP/ISIN: [ ]12 / [ ]34
[RESTRICTED][REGULATION S] [GLOBAL] NOTE
6.450% Senior Notes due 2027
AERCAP IRELAND CAPITAL DESIGNATED ACTIVITY COMPANY and AERCAP GLOBAL AVIATION TRUST promise, jointly and severally, to pay to [ ] or registered assigns, the principal
sum of [ ] Dollars on April 15, 2027 or such greater or lesser amount as may be indicated in Schedule A hereto.
Interest Payment Dates: April 15 and October 15
Record Dates: April 1 and October 1
Additional provisions of this Note are set forth on the other side of this Note.
1 Issue Date Rule 144A CUSIP: 00774M BF1
2 Issue Date Regulation S CUSIP: G0114M AA5
3 Issue Date Rule 144A ISIN: US00774MBF14
4 Issue Date Regulation S ISIN: USG0114MAA56
IN WITNESS WHEREOF, the parties have caused this instrument to be duly executed.
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SIGNED and DELIVERED as a DEED for
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and on behalf of AERCAP IRELAND CAPITAL DESIGNATED ACTIVITY COMPANY
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in the presence of:
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Signature of Witness:
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Name of Witness:
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Address of Witness:
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SIGNED and DELIVERED as a DEED for
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and on behalf of AERCAP GLOBAL AVIATION TRUST, a Delaware statutory trust, by AerCap Ireland Capital Designated Activity Company, its Regular Trustee, by
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as duly authorised attorney
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in the presence of:
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Signature of Witness:
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Name of Witness:
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Address of Witness:
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TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This Note is one of the 6.450% Senior Notes due 2027 referred to in the within-mentioned Indenture.
Dated:
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
[Reverse of Note]
6.450% Senior Notes due 2027
1. Indenture
This Note is one of a duly authorized issue of Notes of the Issuers (as hereinafter defined), designated as their 6.450% Senior Notes due 2027 (herein called the “Notes,” which
expression includes any further notes issued pursuant to Section 2.04 of the Sixth Supplemental Indenture (as hereinafter defined) and forming a single Series therewith), issued and to be issued under an indenture, dated as of October 29, 2021 (the “Original
Indenture”), as further supplemented by a sixth supplemental indenture, dated as of November 22, 2023 (the “Sixth Supplemental Indenture” and, together with the Original Indenture, the “Indenture”), among AERCAP IRELAND CAPITAL
DESIGNATED ACTIVITY COMPANY, a designated activity company limited by shares incorporated under the laws of Ireland with registered number 535682 (the “Irish Issuer”), AERCAP GLOBAL AVIATION TRUST, a statutory trust organized under the laws of
Delaware (the “U.S. Issuer” and, together with the Irish Issuer, the “Issuers,” and each, an “Issuer”), AERCAP HOLDINGS N.V., a public limited liability company organized under the laws of the Netherlands (“Holdings”),
each of Holdings’ subsidiaries signatory thereto or that becomes a Guarantor pursuant to the terms of the Indenture (the “Subsidiary Guarantors”) and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association organized
under the laws of the United States, as trustee (the “Trustee”). Reference is hereby made to the Indenture and all indentures supplemental thereto relevant to the Notes for a complete description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Issuers and the Holders of the Notes. Capitalized terms used but not defined in this Note shall have the meanings ascribed to them in the Indenture.
The Indenture imposes certain limitations on the ability of Holdings and its Restricted Subsidiaries to create or incur Liens. The Indenture also imposes certain limitations on the
ability of the Holdings and its Restricted Subsidiaries to merge, consolidate or amalgamate with or into any other person or sell, transfer, assign, lease, convey or otherwise dispose of all or substantially all of the property of Holdings and its
Restricted Subsidiaries in any one transaction or series of related transactions.
Each Note is subject to, and qualified by, all such terms as set forth in the Indenture, certain of which are summarized herein, and each Holder of a Note is referred to the corresponding
provisions of the Indenture for a complete statement of such terms. To the extent that there is any inconsistency between the summary provisions set forth in the Notes and the Indenture, the provisions of the Indenture shall govern.
2. Interest
The Issuers promise to pay interest on the principal amount of this Note at the rate per annum shown above (including Additional Interest, if any, payable pursuant to the Indenture). The
Issuers will pay interest (including Additional Interest, if any) semiannually on April 15 and October 15 of each year, commencing on April 15, 2024. Interest (including
Additional Interest, if any) on the Notes will accrue from the most recent date to which such interest has been paid or, if no interest has been paid, from and including November 22, 2023. Additional Interest, if any, shall accrue on the Notes as set forth in Section 6.05 of the Sixth Supplemental Indenture. Interest (including Additional Interest, if any) shall be computed on the
basis of a 360-day year of twelve 30 day months.
3. Paying Agent, Registrar and Service Agent
Initially the Trustee will act as paying agent and registrar. Initially, CT Corporation System will act as service agent. The Issuers may appoint and change
any paying agent, registrar or service agent without notice. Holdings or any of its Subsidiaries may act as paying agent, registrar or service agent.
4. Defaults and Remedies; Waiver
Article VI of the Original Indenture (as amended and supplemented by the Sixth Supplemental Indenture) sets forth the Events of Default and related remedies applicable to the Notes.
5. Amendment
Article IX of the Original Indenture sets forth the terms by which the Notes and the Indenture may be amended.
6. Change of Control
Upon the occurrence of a Change of Control Triggering Event, unless a third party makes a Change of Control Offer in accordance with the requirements set
forth in the Indenture or the Issuers have previously or concurrently sent a redemption notice with respect to all the Outstanding Notes as described in Section 3.03 of the Original Indenture (as amended and supplemented by the Sixth
Supplemental Indenture), the Issuers will make an offer to purchase all of the Notes at a price in cash equal to 101% of the aggregate principal amount thereof plus accrued and
unpaid interest (including Additional Interest, if any) to, but not including, the date of purchase, subject to the right of Holders of record on the relevant Record Date to receive interest (including Additional Interest, if any) due on the
relevant Interest Payment Date.
7. Obligations Absolute
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligations of the Issuers, which are
absolute and unconditional, to pay the principal of and any premium, interest (including Additional Interest, if any) on this Note at the place, at the respective times, at the rate and in the coin or currency
herein prescribed.
8. Sinking Fund
The Notes will not have the benefit of any sinking fund.
9. Denominations; Transfer; Exchange
The Notes are issuable in registered form without coupons in minimum denominations of $150,000 principal amount and any integral multiple of $1,000 in excess
thereof. When Notes are presented to the Registrar with a request to register a transfer or to exchange them for an equal principal amount of Notes of the same Series, the Registrar shall register the transfer
or make the exchange in the manner and subject to the limitations provided in the Indenture, without payment of any service charge but the Issuers may require payment of a sum sufficient to cover any transfer tax or similar governmental charge
payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Sections 2.11, 3.06 and 9.04 of the Original Indenture and Section 5.01 of the Sixth
Supplemental Indenture).
The Issuers and the Registrar shall not be required to (a) issue, register the transfer of or to exchange any Notes during a period beginning at the opening of business 15
days before the day of any selection of Notes for redemption under Section 3.02 of the Original Indenture and ending at the close of business on the day of selection; (b) register the transfer of or to exchange any Note selected for redemption in
whole or in part, except the unredeemed portion of any Note being redeemed in part; or (c) register the transfer of or to exchange a Note between a Record Date and the next succeeding Interest Payment Date.
10. Further Issues
The Issuers may from time to time, without the consent of the Holders of the Notes and in accordance with the Indenture, create and issue further notes having the same
terms and conditions as the Notes in all respects (or in all respects except for the issue date and the amount and the date of the first interest payment thereon) so as to form a single Series with the Notes.
11. Optional Redemption
(a) Prior to the Par Call Date, the Issuers may redeem all or part of the Notes, after having
sent a notice of redemption as described in Section 3.03 of the Original Indenture, at a redemption price equal to the greater of (i) 100% of the principal amount of Notes being redeemed or (ii) the sum of the present value at such redemption date
of all remaining scheduled payments of principal and interest on such Notes through the 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 30 basis points, plus, in each case, accrued and unpaid interest to, but not including, the redemption date, subject to the right of Holders of record on the relevant Record Date to receive interest due on the relevant Interest Payment
Date.
(b) On or after the Par Call Date, the Notes 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 the principal amount of the Notes being redeemed, plus accrued and unpaid interest (including Additional Interest, if any) to, but not including, the redemption date,
subject to the right of
Holders of record on the relevant Record Date to receive interest (including Additional Interest, if any) due on the relevant Interest Payment Date.
12. Redemption for Changes in Withholding Taxes
(a) The Issuers are entitled to redeem the Notes, at the option of the Issuers, at any time in
whole but not in part, upon not less than 15 nor more than 45 days’ notice (which notice shall be irrevocable) to the Holders (with a copy to the Trustee) 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 the principal amount of the Notes being redeemed, 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) 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, any Additional Amounts with respect to the Notes as a result of:
(i) a change in or an amendment to the laws (including any regulations,
rulings or protocols promulgated and treaties enacted thereunder) of any Relevant Taxing Jurisdiction affecting taxation; or
(ii) 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 are issued (or, in the case of a jurisdiction that becomes a Relevant Taxing Jurisdiction after such date,
on or after such later date), and where the Issuers cannot avoid such obligation by taking reasonable measures available to the Issuers. Notwithstanding the foregoing, no such notice of redemption will be given (x) earlier than 90 days prior to the
earliest date on which the Issuers would be obliged to make such payment of Additional Amounts and (y) unless at the time such notice is given, such obligation to pay such Additional Amounts remains in effect.
(b) Before the Issuers publish or mail or deliver notice of redemption of the Notes 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 conditions precedent to the
redemption have been complied with. The Issuers will also deliver to the Trustee an Opinion of Counsel from 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 all conditions precedent to the redemption have been complied with.
(c) This Section will apply mutatis mutandis to any
jurisdiction in which any successor Person to an Issuer is incorporated or organized or any political subdivision or taxing authority or agency thereof or therein.
13. Persons Deemed Owners
The ownership of Notes shall be proved by the register maintained by the Registrar.
14. No Recourse Against Others
No director, officer, employee, incorporator or stockholder of the Issuers, as such, will have any liability for any obligations of the Issuers under the Notes, the
Indenture, or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of
the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.
15. Discharge and Defeasance
Subject to certain conditions set forth in the Indenture, the Issuers at any time may terminate some or all of their obligations under the Notes and the Indenture if the
Issuers deposit with the Trustee money and/or U.S. Government Obligations for the payment of principal of, premium, if any, and interest on the Notes to redemption or maturity, as the case may be.
16. Unclaimed Money
Any money deposited with the Trustee or any Paying Agent, or then held by an Issuer, in trust for the payment of the principal of, premium, if any, or
interest on, any Note and remaining unclaimed for two years after such principal, premium, if any, or interest has become due and payable shall be paid to the Issuers on their
request or, if then held by an Issuer, shall be discharged from such trust. Thereafter the Holder of such Note shall look only to the Issuers for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Issuers as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Issuers cause to be published once, in the New York Times and The Wall Street Journal (national edition),
notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining will be repaid to the
Issuers.
17. Trustee Dealings with the Issuers
Subject to certain limitations imposed by the TIA, the Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with
the Issuers or their Affiliates with the same rights it would have if it were not Trustee. Any Paying Agent, Registrar or co-paying agent may do the same with like rights.
18. Abbreviations
Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint
tenants with rights of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors Act).
19. Additional Rights of Holders of Restricted Notes and Regulation S Notes
In addition to the rights provided to Holders of Notes under the Indenture, Holders of Restricted Notes and Regulation S Notes shall have all the rights set forth in and be
subject to the provisions of and deemed to be bound by the Registration Rights Agreement.
20. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Issuers have caused CUSIP numbers to be
printed on the Notes and have directed the Trustee to use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of
such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
21. Governing Law
THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW
TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
The Issuers will furnish to any Holder of Notes upon written request and without charge to the Holder a copy of the Indenture and/or the Registration Rights Agreement.
ASSIGNMENT FORM
To assign this Note, fill in the form below:
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(I) or (we) assign and transfer this Note to
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(Insert assignee’s legal name)
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(Insert assignee’s soc. sec. or tax I.D. no.)
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(Print or type assignee’s name, address and zip code)
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and irrevocably appoint to transfer this Note on the books of the Issuers. The agent may substitute another to act for him or her.
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Date:
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Your Signature:
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(Sign exactly as your name appears on the face of this Note)
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Signature Guarantee†:
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Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuers pursuant to Section 5.01 of the Sixth Supplemental Indenture, check the box: ☐
If you want to elect to have only part of the Note purchased by the Issuers pursuant to Section 5.01 of the Sixth Supplemental Indenture, state the amount you elect to have purchased:
Date:
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Your Signature:
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(Sign exactly as your name appears on the face of this Note)
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Signature Guarantee*:
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Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
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Schedule A
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE6
The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this
Global Note, have been made:
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Amount of decrease
in Principal Amount
of this Global Note
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Amount of increase
in Principal Amount
of this Global Note
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Principal Amount of this Global Note following such decrease or increase
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Signature of
authorized officer of Trustee or Custodian
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This schedule should be included only if the Note is issued in Global Form.
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EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
AerCap House
65 St. Stephen’s Green
Dublin D02 YX20
Ireland
Attention: Legal Department
The Bank of New York Mellon Trust Company, N.A.
2 North LaSalle Street, 7th Floor, Suite 700
Chicago, Illinois 60602
Attention: AerCap Ireland Capital Designated Activity Company Administrator
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Re: |
6.450% Senior Notes due 2027 of AerCap Ireland Capital Designated Activity Company and AerCap Global Aviation Trust
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Reference is hereby made to the indenture, dated as of October 29, 2021 (the “Original Indenture”), as further supplemented by a sixth supplemental indenture,
dated as of November 22, 2023 (the “Sixth Supplemental Indenture” and, together with the Original Indenture, the “Indenture”), among AERCAP IRELAND CAPITAL DESIGNATED ACTIVITY COMPANY, a designated activity company limited by shares
incorporated under the laws of Ireland with registered number 535682 (the “Irish Issuer”), AERCAP GLOBAL AVIATION TRUST, a statutory trust organized under the laws of Delaware (the “U.S. Issuer” and, together with the Irish Issuer, the
“Issuers,” and each, an “Issuer”), AERCAP HOLDINGS N.V., a public limited liability company organized under the laws of the Netherlands (“Holdings”), each of Holdings’ subsidiaries signatory thereto or that becomes a Guarantor
pursuant to the terms of the Indenture (the “Subsidiary Guarantors”) and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association organized under the laws of the United States, as trustee (the “Trustee”).
Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
___________________, (the “Transferor”) owns and proposes to transfer the Note[s] or interest in such Note[s] specified in
Annex A hereto, in the principal amount of $___________ in such Note[s] or interests (the “Transfer”), to ___________________________ (the “Transferee”), as further
specified in Annex A hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. ☐ Check if Transferee will take delivery of a beneficial interest in a Restricted Global Note or a Restricted Definitive Note
pursuant to Rule 144A. The Transfer is being effected pursuant to and in accordance with Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, the
Transferor hereby further certifies that the beneficial interest or Definitive Note is being transferred to a Person that the Transferor reasonably believes is purchasing the beneficial interest or Definitive Note for its own account, or for one or
more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a “qualified institutional buyer” within the meaning of
Rule 144A in a transaction meeting the requirements of Rule 144A, and such Transfer is in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Restricted Note Legend printed on the Restricted Global Note and/or the Restricted Definitive Note and in
the Indenture and the Securities Act.
2. ☐ Check if Transferee will take delivery of a beneficial interest in a Regulation S Global Note pursuant to Regulation S. The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor hereby further certifies that (i) the Transfer is not being made to
a Person in the United States and (x) at the time the buy order was originated, the Transferee was outside the United States or such Transferor and any Person acting on its behalf reasonably believed and believes that the Transferee was outside the
United States or (y) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither such Transferor nor any Person acting on its behalf knows that the transaction was prearranged with a buyer in
the United States, (ii) no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act and (iii) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act. Upon consummation of the Transfer in accordance with the terms of the Indenture, the transferred beneficial interest will be subject to the restrictions on Transfer enumerated in the Regulation S
Global Note Legend printed on the Regulation S Global Note and in the Indenture and the Securities Act.
3. ☐ Check if Transferee will take delivery of a beneficial interest in an Unrestricted Global Note or of an Unrestricted
Definitive Note.
(a) ☐ Check if Transfer is pursuant to Rule 144. (i) The Transfer is being effected pursuant to and in accordance with Rule
144 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture
and the Restricted Note Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note
will no longer be subject to the restrictions on transfer enumerated in the Restricted Note Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.
(b) ☐ Check if Transfer is Pursuant to Regulation S. (i) The Transfer is being effected pursuant to and in accordance with
Rule 903 or Rule 904 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Regulation S Global Note Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Regulation S Global Note Legend printed on the Regulation S Global Notes and in the Indenture.
(c) ☐ Check if Transfer is Pursuant to Other Exemption. (i) The Transfer is being effected pursuant to and in compliance with
an exemption from the registration requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any State of
the United States and (ii) the restrictions on transfer contained in the Indenture, the Restricted Note Legend or the Regulation S Global Note Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will not be subject to the restrictions on transfer enumerated in the Restricted Note Legend printed on the Restricted Global
Notes or Restricted Definitive Notes, or the Regulation S Global Note Legend printed on the Regulation S Global Notes, and in the Indenture.
This certificate and the statements contained herein are made for your benefit and the benefit of the Issuers.
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[Insert Name of Transferor]
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By:
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Name:
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Title:
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Dated: _______________________
ANNEX A TO CERTIFICATE OF TRANSFER
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1. |
The Transferor owns and proposes to transfer the following:
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[CHECK ONE OF (a) OR (b)]
(a) a beneficial interest in the:
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(i) |
☐ Restricted Global Note (CUSIP _________), or
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(ii) |
☐ Regulation S Global Note (CUSIP _________), or
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(b) ☐ a Restricted Definitive Note.
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After the Transfer the Transferee will hold:
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[CHECK ONE]
(a) ☐ a beneficial interest in the:
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(i) |
☐ Restricted Global Note (CUSIP _________), or
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(ii) |
☐ Regulation S Global Note (CUSIP _________), or
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☐ Unrestricted Global Note (CUSIP _________); or
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(b) ☐ a Restricted Definitive Note; or
(c) ☐ an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
FORM OF CERTIFICATE OF EXCHANGE
AerCap House
65 St. Stephen’s Green
Dublin D02 YX20
Ireland
Attention: Legal Department
The Bank of New York Mellon Trust Company, N.A.
2 North LaSalle Street, 7th Floor, Suite 700
Chicago, Illinois 60602
Attention: AerCap Ireland Capital Designated Activity Company Administrator
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Re: |
6.450% Senior Notes due 2027 of AerCap Ireland Capital Designated Activity Company and AerCap Global Aviation Trust
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(CUSIP [ ])
Reference is hereby made to the indenture, dated as of October 29, 2021 (the “Original Indenture”), as further supplemented by a sixth supplemental indenture,
dated as of November 22, 2023 (the “Sixth Supplemental Indenture” and, together with the Original Indenture, the “Indenture”), among AERCAP IRELAND CAPITAL DESIGNATED ACTIVITY COMPANY, a designated activity company limited by shares
incorporated under the laws of Ireland with registered number 535682 (the “Irish Issuer”), AERCAP GLOBAL AVIATION TRUST, a statutory trust organized under the laws of Delaware (the “U.S. Issuer” and, together with the Irish Issuer, the
“Issuers,” and each, an “Issuer”), AERCAP HOLDINGS N.V., a public limited liability company organized under the laws of the Netherlands (“Holdings”), each of Holdings’ subsidiaries signatory thereto or that becomes a Guarantor
pursuant to the terms of the Indenture (the “Subsidiary Guarantors”) and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association organized under the laws of the United States, as trustee (the “Trustee”).
Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
__________________________, (the “Owner”) owns and proposes to exchange the Note[s] or interest in such Note[s] specified
herein, in the principal amount of $____________ in such Note[s] or interests (the “Exchange”). In connection with the Exchange, the Owner hereby certifies that:
1. Exchange of Restricted Definitive Notes or Beneficial Interests in
a Restricted Global Note or Regulation S Global Note for Unrestricted Definitive Notes or Beneficial Interests in an Unrestricted Global Note
(a) ☐ Check if Exchange is from beneficial interest in a Restricted Global Note or Regulation S Global Note to beneficial interest in
an Unrestricted Global Note. In connection with the Exchange of the Owner’s beneficial interest in a [Restricted Global Note][Regulation S Global Note] for a beneficial interest in an Unrestricted Global Note in an equal principal amount,
the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account
without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Global Notes and pursuant to and in accordance with the Securities
Act of 1933, as amended (the “Securities Act”), (iii) the restrictions on transfer contained in the Indenture and the [Restricted Note Legend][Regulation S Global Note Legend] are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial interest in an Unrestricted Global Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
(b) ☐ Check if Exchange is from beneficial interest in a Restricted Global Note or Regulation S Global Note to Unrestricted Definitive
Note. In connection with the Exchange of the Owner’s beneficial interest in a [Restricted Global Note][Regulation S Global Note] for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note is being acquired for
the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the [Restricted Note Legend][Regulation S Global Note Legend] are not required in order to maintain compliance with the Securities Act and (iv) the Definitive Note is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.
(c) ☐ Check if Exchange is from Restricted Definitive Note to beneficial interest in an Unrestricted Global Note. In connection
with the Owner’s Exchange of a Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the
Restricted Note Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
(d) ☐ Check if Exchange is from Restricted Definitive Note to Unrestricted Definitive Note. In connection with the Owner’s
Exchange of a Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Restricted Note Legend are not
required in order to maintain compliance with the Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
2. Exchange of Restricted Definitive Notes or Beneficial Interests in
Restricted Global Notes or Regulation S Global Notes for Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes or Regulation S Global Notes
(a) ☐ Check if Exchange is from beneficial interest in a Restricted Global Note or Regulation S Global Note to Restricted Definitive
Note. In connection with the Exchange of the Owner’s beneficial interest in a [Restricted Global Note][Regulation S Global Note] for a Restricted Definitive Note with an equal principal amount, the Owner hereby certifies that the Restricted
Definitive Note is being acquired for the Owner’s own account without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the Restricted Definitive Note issued will continue to be subject to the
restrictions on transfer enumerated in the Restricted Note Legend printed on the Restricted Definitive Note and in the Indenture and the Securities Act.
(b) ☐ Check if Exchange is from Restricted Definitive Note to beneficial interest in a Restricted Global Note or Regulation S Global
Note. In connection with the Exchange of the Owner’s Restricted Definitive Note for a beneficial interest in a [Restricted Global Note][Regulation S Global Note] with an equal principal amount, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner’s own account without transfer and (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the [Restricted Global Note][Regulation S Global Note] and pursuant to and in
accordance with the Securities Act, and in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the beneficial interest
issued will be subject to the restrictions on transfer enumerated in the [Restricted Note Legend][Regulation S Global Note Legend ]printed on the relevant [Restricted Global Note][Regulation S Global Note] and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for your benefit and the benefit of the Issuers.
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[Insert Name of Transferor]
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By:
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Name:
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Title:
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REGISTRATION RIGHTS AGREEMENT
by and among
AerCap Ireland Capital Designated Activity Company and
AerCap Global Aviation Trust,
as the Issuers,
AerCap Holdings N.V.,
AerCap Aviation Solutions B.V.,
AerCap Ireland Limited,
AerCap U.S. Global Aviation LLC and
International Lease Finance Corporation,
as the Guarantors,
and
Barclays Capital Inc.
and
TD Securities (USA) LLC,
as the Lead Dealer-Managers
Dated as of November 22, 2023
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this “Agreement”) is made and entered into as of November 22, 2023, by and among AerCap Ireland Capital DAC, a
designated activity company limited by shares incorporated under the laws of Ireland (the “Irish Issuer”), AerCap Global Aviation Trust, a statutory trust organized under the laws of Delaware (the “Co-Issuer” and, together with the Irish Issuer, the “Issuers” and each an “Issuer”), AerCap Holdings N.V., a public limited liability
company organized under the laws of the Netherlands (the “Parent”), AerCap Aviation Solutions B.V., a private limited liability company organized under the laws of the Netherlands (“Solutions”), AerCap Ireland Limited, a private company limited by shares incorporated under the laws of Ireland (“AIL”), AerCap U.S. Global Aviation LLC, a limited liability company organized
under the laws of Delaware (“AGAL”), International Lease Finance Corporation, a corporation organized under the laws of California (“ILFC” and, together with Solutions,
AIL, AGAL and the Parent, the “Guarantors”), and Barclays Capital Inc. and TD Securities (USA) LLC, as the lead dealer-managers (the “Lead Dealer-Managers”) acting as representatives of the Dealer-Managers (as defined below), in connection with the Issuers’ offers to exchange (the “Initial Exchange
Offers”) their outstanding 1.750% Senior Notes due 2024 (the “1.750% October 2024 Notes”), 2.875% Senior Notes due 2024 (the “August 2024 Notes”), 1.650% Senior
Notes due 2024 (the “1.650% October 2024 Notes”), 3.150% Senior Notes due 2024 (the “February 2024 Notes”), 3.500% Senior Notes due 2025 (the “January 2025 Notes”) and 6.500% Senior Notes due 2025 (the “July 2025 Notes” and, together with the 1.750% October 2024 Notes, the August 2024 Notes, 1.650% October 2024 Notes, the February 2024
Notes and the January 2025 Notes, the “Existing Notes”) for newly issued Senior Notes due 2027 of the Issuers (the “Initial Notes”).
This Agreement is made and entered into pursuant to the Dealer-Manager Agreement, dated November 6, 2023 (the “Dealer-Manager Agreement”), among the
Issuers, the Guarantors and Barclays Capital Inc., TD Securities (USA) LLC, Citigroup Global Markets Inc., Morgan Stanley & Co. LLC, Credit Agricole Securities (USA) Inc., Deutsche Bank Securities Inc., ING Financial Markets LLC, MUFG Securities
Americas Inc. and NatWest Markets Securities Inc., as the dealer-managers (the “Dealer-Managers”) (i) for the benefit of the Dealer-Managers and (ii) for the benefit of the holders from time to time of the
Initial Notes. In order to induce the Dealer-Managers to act as dealer-managers with respect to the Initial Exchange Offers and enter into the Dealer-Manager Agreement, the Issuers have agreed to provide the registration rights set forth in this
Agreement. The execution and delivery of this Agreement is a condition to the obligations of the Dealer-Managers under the Dealer-Manager Agreement as set forth in Section 9(p) of the Dealer-Manager Agreement.
The parties hereby agree as follows:
SECTION 1. Definitions. As used in this Agreement, the following
capitalized terms shall have the following meanings:
“Additional Interest”: As defined in Section 5 hereto.
“Authorized Agent”: As defined in Section 10(i)(i) hereto.
“Broker-Dealer”: Any broker or dealer registered as such under the Exchange Act.
“Business Day”: Any day other than a Saturday, Sunday or U.S. federal holiday or a day on which banking
institutions or trust companies located in New York, New York are authorized or obligated to be closed.
“Commission”: The Securities and Exchange Commission.
“Consummate” or “Consummation”: The Exchange Offer shall be
deemed “Consummated” for purposes of this Agreement upon the occurrence of (i) the filing and effectiveness under the Securities Act of the Exchange Offer Registration Statement relating to the Exchange Notes
to be issued in the Exchange Offer, (ii) the maintenance of such Registration Statement continuously effective and the keeping of the Exchange Offer open for a period not less than the minimum period required pursuant to Section 3(b) hereof, and
(iii) the delivery by the Issuers to the Registrar under the Indenture of Exchange Notes in the same aggregate principal amount as the aggregate principal amount of Initial Notes that are validly tendered (and not withdrawn) by Holders thereof
pursuant to the Exchange Offer.
“Dealer-Manager Agreement”: As defined in the preamble hereto.
“Dealer-Managers”: As defined in the preamble hereto.
“Exchange Act”: The Securities Exchange Act of 1934, as amended.
“Exchange Date”: As defined in Section 3(b) hereof.
“Exchange Notes”: The 6.450% Senior Notes due 2027 of the same series under the Indenture as the Initial
Notes, as guaranteed by the Guarantors, to be issued to Holders in exchange for Transfer Restricted Notes pursuant to this Agreement.
“Exchange Offer”: The registration by the Issuers under the Securities Act of the Exchange Notes pursuant
to a Registration Statement pursuant to which the Issuers offer, subject to the terms and conditions set forth therein, the Holders of all outstanding Transfer Restricted Notes the opportunity to exchange all such outstanding Transfer Restricted
Notes held by such Holders for Exchange Notes in an aggregate principal amount equal to the aggregate principal amount of the Transfer Restricted Notes tendered in such exchange offer by such Holders.
“Exchange Offer Registration Statement”: The Registration Statement relating to the Exchange Offer,
including the related Prospectus.
“FINRA”: The Financial Industry Regulatory Authority, Inc.
“Holder”: As defined in Section 2(b) hereof.
“Indemnified Holder”: As defined in Section 8(a) hereof.
“Indenture”: The Indenture, dated as of October 29, 2021, by and among the Issuers, the Guarantors, and The Bank of
New York Mellon Trust Company, N.A., a national banking
association organized under the laws of the United States, as trustee (the “Trustee”), as supplemented by the sixth supplemental indenture, dated as of November 22,
2023, pursuant to which the Initial Notes are to be issued, as such Indenture is amended or supplemented from time to time in accordance with the terms thereof.
“Initial Notes”: As defined in the preamble hereto.
“Inspector”: As defined in Section 6(c)(vi) hereof.
“Interest Payment Date”: As defined in the Indenture and the Initial Notes.
“Lead Dealer-Managers”: As defined in the preamble hereto.
“Person”: An individual, partnership, corporation, exempted company, exempted limited partnership, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
“Prospectus”: The prospectus included in a Registration Statement, as amended or supplemented by any prospectus supplement and by all other
amendments thereto, including post-effective amendments, and all material incorporated by reference into such Prospectus.
“Registration Default”: As defined in Section 5 hereof.
“Registration Statement”: Any registration statement of the Issuers relating to (a) an offering of Exchange Notes pursuant to the Exchange Offer or
(b) the registration for resale of Transfer Restricted Notes pursuant to the Shelf Registration Statement, which is filed pursuant to the provisions of this Agreement, in each case, including the Prospectus included therein, all amendments and
supplements thereto (including post-effective amendments) and all exhibits and material incorporated by reference therein.
“Related Judgment”: As defined in Section 10(i)(i) hereof.
“Related Proceedings”: As defined in Section 10(i)(i) hereof.
“Securities Act”: The Securities Act of 1933, as amended.
“Settlement Date”: The last date on which the Initial Notes were issued by the Issuers pursuant to the Initial Exchange Offers.
“Shelf Effectiveness Period”: As defined in Section 4(a) hereof.
“Shelf Filing Deadline”: As defined in Section 4(a) hereof.
“Shelf Registration Statement”: A “shelf” registration statement of the Issuers that covers all or a portion of the Transfer Restricted Notes on an
appropriate form under Rule 415 under the Securities Act (which form shall be selected by the Issuers and the Parent), or any similar rule that may be adopted by the Commission, and all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the Prospectus contained therein or deemed a part thereof, all exhibits thereto and any document incorporated by reference therein.
“Shelf Request”: As defined in Section 4(a) hereof.
“Shelf Suspension Period”: As defined in Section 4(a) hereof.
“Specified Courts”: As defined in Section 10(i)(i) hereof.
“Transfer Restricted Note”: Each Initial Note, until the earliest to occur of (a) the date on which such Initial Note is exchanged in the Exchange
Offer for an Exchange Note, (b) the date on which such Initial Note has been effectively registered under the Securities Act and disposed of in accordance with a Shelf Registration Statement, (c) the date on which such Initial Note is distributed to
the public by a Broker-Dealer pursuant to the “Plan of Distribution” contemplated by the Exchange Offer Registration Statement (including delivery of the Prospectus contained therein), (d) the date on which such Initial Note ceases to be outstanding
for purposes of the Indenture and (e) the date that is three years after the Settlement Date.
“Trust Indenture Act”: The Trust Indenture Act of 1939, as amended.
SECTION 2. Notes Subject to this Agreement.
(a) Transfer Restricted Notes. The notes entitled to the benefits of
this Agreement are the Transfer Restricted Notes.
(b) Holders of Transfer Restricted Notes. A Person is deemed to be a
holder of Transfer Restricted Notes (each, a “Holder”) whenever such Person owns Transfer Restricted Notes.
SECTION 3. Registered Exchange Offer.
(a) Unless the Exchange Offer shall not be permissible under applicable law or Commission policy (after the
procedures set forth in Section 6(a) hereof have been complied with), the Issuers and the Parent shall use commercially reasonable efforts to (i) cause to be filed with the Commission an Exchange Offer Registration Statement under the Securities
Act relating to the Exchange Notes and the Exchange Offer, (ii) cause such Exchange Offer Registration Statement to become effective, (iii) in connection with the foregoing, (A) file all pre-effective amendments to such Exchange Offer Registration
Statement as may be necessary in order to cause such Exchange Offer Registration Statement to become effective, (B) if applicable, file a post-effective amendment to such Exchange Offer Registration Statement pursuant to Rule 430A under the
Securities Act and (C) cause all necessary filings in connection with the registration and qualification of the Exchange Notes to be made under the state securities or blue sky laws of such jurisdictions as are necessary to permit Consummation of
the Exchange Offer; provided, however, that the Issuers and the Guarantors shall not be required to (1) qualify as a foreign corporation or other entity or as a dealer in securities in any jurisdiction
where they would not otherwise be
required to so qualify, (2) file any general consent to service of process in any such jurisdiction or (3) subject themselves to taxation, other than as to matters and transactions relating to the Shelf
Registration Statement, in any jurisdiction where they are not then so subject, and (iv) upon the effectiveness of such Exchange Offer Registration Statement, commence the Exchange Offer. The Exchange Offer Registration Statement shall be on the
appropriate form permitting registration of the Exchange Notes to be offered in exchange for the Transfer Restricted Notes and to permit resales of Exchange Notes received in exchange for Initial Notes held by Broker-Dealers as contemplated by
Section 3(c) hereof, which form shall be selected by the Issuers and the Parent.
(b) The Issuers and the Parent shall cause the Exchange Offer Registration Statement to be effective
continuously and shall keep the Exchange Offer open for a period of not less than the minimum period required under applicable federal securities laws to Consummate the Exchange Offer; provided, however,
that in no event shall such period be less than 20 Business Days after the date notice of the Exchange Offer is delivered to the Holders (the “Exchange Date”). The Issuers shall cause the Exchange Offer to
comply in all material respects with all applicable federal securities laws. No notes other than the Exchange Notes shall be included in the Exchange Offer Registration Statement, except as otherwise provided herein. The Issuers and the Parent
shall use their commercially reasonable efforts to cause the Exchange Offer to be Consummated no later than 90 days after the Exchange Offer Registration Statement has become effective, and in no event later than the date that is 450 days after the
date hereof.
(c) The Issuers shall indicate in a “Plan of Distribution” section contained in the Prospectus forming a part of
the Exchange Offer Registration Statement that any Broker-Dealer who holds Initial Notes that are Transfer Restricted Notes and that were acquired for its own account as a result of market-making activities or other trading activities (other than
Transfer Restricted Notes acquired directly from the Issuer), may exchange such Initial Notes pursuant to the Exchange Offer; however, such Broker-Dealer may be deemed to be an “underwriter” within the meaning of the Securities Act and must,
therefore, deliver a prospectus meeting the requirements of the Securities Act in connection with any resales of the Exchange Notes received by such Broker-Dealer in the Exchange Offer, which prospectus delivery requirement may be satisfied by the
delivery by such Broker-Dealer of the Prospectus contained in the Exchange Offer Registration Statement. Such “Plan of Distribution” section shall also contain all other information with respect to such resales by Broker-Dealers that the
Commission may require in order to permit such resales pursuant thereto, but such “Plan of Distribution” shall not name any such Broker-Dealer or disclose the amount of Initial Notes held by any such Broker-Dealer except to the extent required by
the Commission as a result of a change in policy after the date of this Agreement.
The Issuers and the Parent shall use their commercially reasonable efforts to keep the Exchange Offer Registration Statement continuously effective, supplemented and amended as required by
the provisions of Section 6(c) hereof to the extent necessary to ensure that it is available for resales of Exchange Notes received in exchange for Initial Notes acquired by Broker-Dealers for their own accounts as a result of market-making
activities or other trading activities, and to ensure that it conforms with the requirements of this Agreement, the Securities Act and the policies, rules and regulations of the Commission as announced from time to time, for a period ending on the
earlier of (i) 180 days from the date on which the Exchange Offer Registration
Statement is declared effective and (ii) the date on which a Broker-Dealer is no longer required to deliver a prospectus in connection with market-making or other trading activities. The Issuers shall
provide sufficient copies of the latest version of such Prospectus contained in such Exchange Offer Registration Statement to Broker-Dealers promptly upon request at any time during such 180-day (or shorter as provided in the foregoing sentence)
period in order to facilitate such resales.
SECTION 4. Shelf Registration.
(a) Shelf Registration. In the event that (i) the Issuers determine
that the Exchange Offer provided for in Section 3 hereof is not available because it would violate any applicable law or applicable interpretations of the Commission staff, (ii) such Exchange Offer is not for any other reason completed by the date
that is 450 days after the date hereof or (iii) prior to the Exchange Date, the Issuers receive a written request (a “Shelf Request”) from any Dealer-Manager, representing that it holds Transfer Restricted
Notes that are or were ineligible to be exchanged in the Exchange Offer, the Issuers and the Parent shall use their commercially reasonable efforts to cause to be filed with the Commission, as soon as reasonably practicable after such determination
date or the receipt of a Shelf Request, as the case may be (the “Shelf Filing Deadline”), a Shelf Registration Statement providing for the sale of all the Transfer Restricted Notes by the Holders thereof and
to cause such Shelf Registration Statement to become effective; provided, that (a) no Holder will be entitled to have any Transfer Restricted Notes included in any Shelf Registration Statement, or entitled
to use the Prospectus forming a part of such Shelf Registration Statement, until such Holder shall have provided such other information regarding such Holder to the Issuers as is contemplated by Section 4(b) hereof and, if necessary, the Shelf
Registration Statement has been amended to reflect such information, and (b) the Issuers shall be under no obligation to file any such Shelf Registration Statement before they are obligated to Consummate the Exchange Offer pursuant to Section 3
hereof.
In the event that the Issuers are required to cause to be filed with the Commission a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Issuers and the
Parent shall use their commercially reasonable efforts to cause to be filed with the Commission and have become effective both an Exchange Offer Registration Statement pursuant to Section 3 hereof with respect to all Transfer Restricted Notes and a
Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Transfer Restricted Notes held by such Holders after completion of the Exchange Offer.
The Issuers and the Parent shall use their commercially reasonable efforts to keep the Shelf Registration Statement continuously effective until the
date on which the Initial Notes covered thereby cease to be Transfer Restricted Notes (the “Shelf Effectiveness Period”). The Issuers and the Parent further agree to use their commercially reasonable efforts to
supplement or amend the Shelf Registration Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Issuers for such Shelf Registration
Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Transfer Restricted Notes with respect to information relating to such Holder, and to use their commercially reasonable
efforts to cause any such amendment to become effective, if required, and such Shelf Registration
Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter reasonably practicable. The Issuers agree to furnish to the
Holders copies of any such supplement or amendment promptly after it has been used or filed with the Commission, as reasonably requested by the Holders.
Notwithstanding anything to the contrary in this Agreement, at any time, the Issuers may delay the filing of any Shelf Registration Statement or delay or suspend the effectiveness thereof
(a “Shelf Suspension Period”) if the Board of Directors of the Parent determines reasonably and in good faith that the filing of any such Shelf Registration Statement or the continuing effectiveness thereof
would require the disclosure of non-public material information that, in the reasonable judgment of the Board of Directors of the Parent, would be detrimental to the Parent if so disclosed or would otherwise materially adversely affect a financing,
acquisition, disposition, merger or other material transaction or such action is required by applicable law. Any Shelf Suspension Period pursuant to this Section 4(a) shall begin on the date specified in a written notice given by the Parent to the
Holders and shall end on the date specified in a subsequent written notice given by the Parent to the Holders.
(b) Provision by Holders of Certain Information in Connection with the Shelf
Registration Statement. No Holder of Transfer Restricted Notes may include any of its Transfer Restricted Notes in any Shelf Registration Statement pursuant to this Agreement unless and until such Holder furnishes to the Issuers in
writing, within 10 Business Days after receipt of a request therefor, such information as the Issuers may reasonably request for use in connection with any Shelf Registration Statement or Prospectus or preliminary Prospectus included therein. Each
Holder as to which any Shelf Registration Statement is being effected agrees to furnish promptly to the Issuers all information required to be disclosed in order to make the information previously furnished to the Issuers by such Holder not
materially misleading.
SECTION 5. Additional Interest. If (i) the Exchange Offer has not
been Consummated on or prior to the date that is 450 days after the date hereof or, if a Shelf Registration Statement is required hereunder, a Shelf Registration Statement in accordance with this Agreement has not been declared effective
on or prior to (a) the date that is 450 days after the date hereof and (b) the 270th day after the date, if any, on which the Issuers became obligated to file the Shelf Registration Statement, or (ii) if applicable, a Shelf Registration
Statement covering resales of the Initial Notes has been declared effective and such Shelf Registration Statement ceases to be effective or the Prospectus contained therein ceases to be useable for resales of the Transfer Restricted Notes (a) on
more than two occasions of at least 30 consecutive days during the Shelf Effectiveness Period or (b) at any time in any consecutive 12-month period during the Shelf Effectiveness Period and such failure to remain effective or be usable exists for
more than 90 days (whether or not consecutive) in any consecutive 12-month period (each such event referred to in clause (i) or (ii), a “Registration Default”), the Issuers hereby agree that the interest rate
borne by the Transfer Restricted Notes shall be increased by 0.250% per annum during the 90-day period immediately following the occurrence of any Registration Default and shall increase by 0.250% per annum at the end of each subsequent 90-day
period, but in no event shall such increase exceed 0.500% per annum (such interest, “Additional Interest”). Following the cure of all Registration Defaults relating to any particular Transfer Restricted
Notes, the interest rate borne by the relevant Transfer
Restricted Notes will be reduced to the original interest rate borne by such Transfer Restricted Notes; provided, however, that, if after any such reduction in
interest rate, a different Registration Default occurs, the interest rate borne by the relevant Transfer Restricted Notes shall again be increased pursuant to the foregoing provisions. For the avoidance of doubt, a Registration Default shall be
deemed cured with respect to any Initial Notes when such Initial Notes cease to be Transfer Restricted Notes and the occurrence and continuation of more than one Registration Default shall not result in an increase in the rate of Additional Interest.
Notwithstanding the foregoing, a Holder of Initial Notes who is not entitled to the benefits of a Shelf Registration Statement shall not be entitled to any Additional Interest as a result of a Registration Default that pertains to a Shelf
Registration Statement.
SECTION 6. Registration Procedures.
(a) Exchange Offer Registration Statement. As a condition to its
participation in the Exchange Offer pursuant to the terms of this Agreement, each Holder of Transfer Restricted Notes shall furnish, upon the request of the Issuers, prior to the Consummation thereof, a written representation to the Issuers (which
may be contained in a letter of transmittal contemplated by the Exchange Offer Registration Statement) to the effect that (A) it is not an affiliate of the Issuers, (B) it is not engaged in, and does not intend to engage in, and has no arrangement
or understanding with any Person to participate in, a distribution of the Exchange Notes to be issued in the Exchange Offer and (C) it is acquiring the Exchange Notes in its ordinary course of business. In addition, all such Holders of Transfer
Restricted Notes shall otherwise cooperate in the Issuers’ preparations for the Exchange Offer. Each Holder hereby acknowledges and agrees that any Broker-Dealer and any such Holder using the Exchange Offer to participate in a distribution of the
notes to be acquired in the Exchange Offer (1) could not under Commission policy as in effect on the date of this Agreement rely on the position of the Commission enunciated in Morgan Stanley and Co., Inc. (available June 5, 1991) and Exxon
Capital Holdings Corporation (available May 13, 1988), as interpreted in the Commission’s letter to Shearman & Sterling dated July 2, 1993, and similar no-action letters (which may include any no-action letter obtained pursuant to clause
(i) above), and (2) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with a secondary resale transaction and that such a secondary resale transaction should be covered by an effective
registration statement containing the selling security holder information required by Item 507 or 508, as applicable, of Regulation S‑K if the resales are of Exchange Notes obtained by such Holder in exchange for Initial Notes acquired by such
Holder directly from the Issuers.
(b) [Reserved].
(c) General Provisions. In connection with any Registration Statement
and any Prospectus required by this Agreement to permit the sale or resale of Transfer Restricted Notes (including, without limitation, any Registration Statement and the related Prospectus required to
permit resales of Initial Notes by Broker-Dealers), the Issuers shall use their commercially reasonable efforts to:
(i) keep such Registration Statement continuously effective and provide all requisite
financial statements; upon the occurrence of any event that would cause any such Registration Statement or the Prospectus contained therein (A) to contain a material misstatement or omission or (B) not to be effective and usable for resale of
Transfer Restricted Notes during the period required by this Agreement, the Issuers shall file promptly an appropriate amendment to such Registration Statement, in the case of clause (A), correcting any such misstatement or omission, and, in the
case of either clause (A) or (B), use their commercially reasonable efforts to cause such amendment to be declared effective and such Registration Statement and the related Prospectus to become usable for their intended purpose(s) as soon as
reasonably practicable thereafter;
(ii) prepare and file with the Commission such amendments and post-effective amendments to
the applicable Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period set forth in Section 3 or 4 hereof, as applicable, or such shorter period as will terminate when all Transfer
Restricted Notes covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act, and to comply
in all material respects with the applicable provisions of Rules 424 and 430A under the Securities Act in a timely manner; and comply in all material respects with the provisions of the Securities Act with respect to the disposition of all notes
covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus;
(iii) advise counsel for the Dealer-Managers (or, in the case of a Shelf Registration
Statement, counsel for the selling Holders) promptly and, if requested by such Persons, confirm such advice in writing, (A) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to any
Registration Statement or any post-effective amendment thereto, when the same has become effective, (B) of any request by the Commission for amendments to the Registration Statement or amendments or supplements to the Prospectus or for additional
information relating thereto, (C) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement under the Securities Act or of the suspension by any state securities commission of the qualification
of the Transfer Restricted Notes for offering or sale in any jurisdiction, or the initiation of any proceeding for any of the preceding purposes, or (D) of the existence of any fact or the happening of any event that makes any statement of a
material fact made in the Registration Statement, the Prospectus, any amendment or supplement thereto, or any document incorporated by reference therein untrue (in each case, as amended or
supplemented, including by any information incorporated by reference therein), or that requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at
any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, or any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption
from qualification of the Transfer Restricted Notes under state securities or blue sky laws, the Issuers and the Parent shall use their commercially reasonable efforts to obtain the withdrawal or lifting of such order at the earliest possible time;
(iv) in the case of a Shelf Registration Statement, furnish without charge to each selling
Holder named in such Shelf Registration Statement, before filing with the Commission, copies of any such Shelf Registration Statement or any Prospectus included therein or any amendments or supplements to any such Shelf Registration Statement or
Prospectus (including all documents incorporated by reference after the initial filing of such Shelf Registration Statement), which documents will be subject to the reasonable review and comment of such Holders in connection with such sale, if any,
for a period of at least five Business Days, and the Issuers will not file any such Shelf Registration Statement or Prospectus or any amendment or supplement to any such Shelf Registration Statement or Prospectus (including all such documents
incorporated by reference) to which any such Holder of Transfer Restricted Notes covered by such Shelf Registration Statement shall reasonably object in writing within three Business Days after the receipt thereof (such objection to be deemed
timely made upon confirmation of telecopy transmission within such period). The objection of a Holder shall be deemed to be reasonable if such Shelf Registration Statement, amendment, Prospectus or supplement, as applicable, as proposed to be
filed, contains a material misstatement or omission;
(v) [Reserved];
(vi) in the case of a Shelf Registration Statement, make available for inspection by a
representative of the selling Holders (an “Inspector”), any underwriters participating in any disposition pursuant to such Shelf Registration Statement, one firm of attorneys and one firm of accountants
designated by the selling Holders of a majority in aggregate principal amount of the Transfer Restricted Notes held by the selling Holders and one firm of attorneys and one firm of accountants designated by such underwriters, at reasonable times
and in a reasonable manner, all pertinent financial and other records, documents and properties of the Parent and its subsidiaries reasonably requested by any such Inspector, underwriter, attorney or accountant, and cause the respective officers,
directors and employees of the Parent to supply all information and access reasonably requested by any such Inspector, underwriter, attorney or accountant in connection with a Shelf Registration Statement; provided
that if any such information is identified by the Parent as being confidential or proprietary, each Person receiving such information shall take such actions as are reasonably necessary to protect the confidentiality of such information to the
extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of any Inspector, selling Holder or underwriter;
(vii) in the case of a Shelf Registration Statement, if requested by any selling Holders,
promptly incorporate in any Registration Statement or Prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such selling
Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Transfer Restricted Notes and any other
terms of the offering of the Transfer Restricted Notes to be sold in such offering; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after the Issuers are notified of the
matters to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) in the case of a Shelf Registration Statement, furnish to each selling Holder, without
charge, at least one copy of the Shelf Registration Statement, as first filed with the Commission, and of each amendment thereto, including financial statements and schedules, all documents incorporated by reference therein and all exhibits
(including exhibits incorporated therein by reference) if such documents are not available via EDGAR;
(ix) in the case of a Shelf Registration Statement, deliver to each selling Holder, without
charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons reasonably may request; the Issuers hereby consent to the use of the Prospectus and any amendment or supplement
thereto by each of the selling Holders in connection with the offering and the sale of the Transfer Restricted Notes covered by the Prospectus or any amendment or supplement thereto if such documents are not available via EDGAR;
(x) in the case of a Shelf Registration Statement, enter into such agreements, and make
such representations and warranties, and take all such other actions in connection therewith in order to expedite or facilitate the disposition of the Transfer Restricted Notes, to such extent as may be requested by the Lead Dealer-Managers or any
selling Holder of Transfer Restricted Notes in connection with any sale or resale pursuant to any Shelf Registration Statement contemplated by this Agreement; and the Issuers shall:
(A) furnish to each selling Holder and each underwriter, if any, in such substance and scope
as they may reasonably request and as are customarily made by issuers to underwriters in primary underwritten offerings:
(1) a customary certificate, dated the date of effectiveness of the Shelf Registration
Statement, signed by (y) the Chairman of the Board or the Chief Executive Officer of the Issuers and (z) a principal financial or accounting officer of the Issuers, confirming such matters as such parties may reasonably request;
(2) customary opinions, dated the date of effectiveness of the Shelf Registration Statement,
of New York, Delaware, California, Dutch and Irish counsel for the Issuers, as applicable, covering such matters as such parties may reasonably request and customarily covered in opinions requested in primary underwritten offerings;
(3) a customary comfort letter, dated the date of effectiveness of the Shelf Registration
Statement, from KPMG, in the customary form and covering matters of the type customarily requested to be covered in comfort letters by underwriters in connection with primary underwritten offerings;
(B) set forth in full the indemnification provisions and procedures of Section 8 hereof with
respect to all parties to be indemnified pursuant to said Section; and
(C) deliver such other documents and certificates as may be reasonably requested by such
parties to evidence compliance with Section 6(c)(x)(A) hereof and with any customary conditions contained in any agreement entered into by the Issuers pursuant to this Section 6(c)(x), if any.
If at any time the representations and warranties of the Issuers contemplated in Section 6(c)(x)(A)(1) hereof cease to be true and correct, the Issuers shall so advise
each selling Holder and any underwriter(s) promptly and, if requested by such Persons, shall confirm such advice in writing;
(xi) prior to any public offering of Transfer Restricted Notes, cooperate with the selling
Holders and their respective counsel in connection with the registration and qualification of the Transfer Restricted Notes under the state securities or blue sky laws of such jurisdictions as the selling Holders may request and do any and all
other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Transfer Restricted Notes covered by the Shelf Registration Statement; provided, however, that the Issuers
and the Guarantors shall not be required (1) qualify as a foreign corporation or other entity or as a dealer in securities in any jurisdiction where they would not otherwise be required to so qualify, (2) file any general consent to service of
process in any such jurisdiction or (3) subject themselves to taxation, other than as to matters and transactions relating to the Shelf Registration Statement, in any jurisdiction where they are not then so subject;
(xii) [Reserved];
(xiii) cooperate with the selling Holders to facilitate the timely preparation and delivery
of certificates representing Transfer Restricted Notes to be sold and not bearing any restrictive legends; and enable such Transfer Restricted Notes to be in such denominations and registered in such names as the Holders may request at least two
Business Days prior to any sale of Transfer Restricted Notes made by such Holders;
(xiv) cause the Transfer Restricted Notes covered by the Registration Statement to be
registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Transfer Restricted Notes, subject to the proviso contained in Section
6(c)(xi) hereof;
(xv) if any fact or event contemplated by Section 6(c)(iii)(D) hereof shall exist or have
occurred, prepare a supplement or post-effective amendment to the Registration Statement or related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers
of Transfer Restricted Notes, the Prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein not misleading;
(xvi) provide a CUSIP number for all Exchange Notes not later than the effective date of
the Registration Statement covering such Initial Notes and provide the Trustee under the Indenture with printed certificates for such Exchange Notes which are in a form eligible for deposit with The Depository Trust Company and take all other
action necessary to ensure that all such Exchange Notes are eligible for deposit with The Depository Trust Company;
(xvii) cooperate and assist in any filings required to be made with FINRA;
(xviii) otherwise comply in all material respects with all applicable rules and regulations
of the Commission, and make generally available to their security holders, as soon as reasonably practicable, a consolidated earnings statement meeting the requirements of Rule 158 (which need not be audited) for the 12-month period beginning with
the first month of the Parent’s first fiscal quarter commencing after the effective date of the Registration Statement;
(xix) cause the Indenture to be qualified under the Trust Indenture Act not later than the
effective date of the first Registration Statement required by this Agreement, and, in connection therewith, cooperate with the Trustee and the Holders of Initial Notes to effect such changes to the Indenture as may be required for such Indenture
to be so qualified in accordance with the terms of the Trust Indenture Act; and to execute and use their commercially reasonable efforts to cause the Trustee to execute, all documents that may be required to effect such changes and all other forms
and documents required to be filed with the Commission to enable such Indenture to be so qualified in a timely manner; and
(xx) provide promptly to each Holder upon request each document filed with the Commission
pursuant to the requirements of Section 13 and Section 15 of the Exchange Act if not available via EDGAR.
Each Holder agrees by acquisition of a Transfer Restricted Note that, upon receipt of any notice from the Issuers of the existence of any fact of the kind described in Section 6(c)(iii)(D)
hereof, such Holder will forthwith discontinue disposition of Transfer Restricted Notes pursuant to the applicable Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section
6(c)(xv) hereof, or until it is advised in writing (the “Advice”) by the Issuers that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings that are
incorporated by reference in the Prospectus. If so directed by the Issuers, each Holder will deliver to the Issuers (at the Issuers’ expense) all copies, other than permanent file copies then in such Holder’s possession, of
the Prospectus covering such Transfer Restricted Notes that was current at the time of receipt of such notice. In the event the Issuers shall give any such notice with respect to an Exchange Offer
Registration Statement, the time period regarding the effectiveness of such Exchange Offer Registration Statement set forth in Section 3 hereof shall be extended by the number of days during the period from and including the date of the giving of
such notice pursuant to Section 6(c)(iii)(D) hereof to and including the date when each selling Holder covered by such Registration Statement shall have received the copies of the supplemented or amended Prospectus contemplated by Section 6(c)(xv)
hereof or shall have received the Advice; provided, however, that no such extension shall be made in the case where such suspension is solely a result the Issuers’
compliance with Section 4(b) or any other suspension at the request of a Holder.
SECTION 7. Registration Expenses.
(a) All expenses incident to the Issuers’ and the Guarantors’ performance of or compliance with this Agreement
will be borne by the Issuers and the Guarantors, regardless of whether a Registration Statement becomes effective, including, without limitation: (i) all registration and filing fees and expenses (including filings made by any Dealer-Manager or
Holder with FINRA); (ii) all fees and expenses of compliance with federal securities and state securities or blue sky laws; (iii) all expenses of printing (including printing certificates for the Exchange Notes to be issued in the Exchange Offer
and printing of Prospectuses), messenger and delivery services and telephone; (iv) all fees and disbursements of counsel for the Issuers and the Guarantors and, subject to Section 7(b) hereof, the Holders of Transfer Restricted Notes; (v) all
reasonable and documented fees and expenses of the Trustee and any exchange agent and their counsel; (vi) all application and filing fees in connection with listing the Exchange Notes on a securities exchange or automated quotation system pursuant
to the requirements thereof; and (vii) all reasonable and documented fees and disbursements of independent certified public accountants of the Issuers and the Guarantors (including the expenses of any special audit and comfort letters required by
or incident to such performance).
(b) In connection with any Shelf Registration Statement required by this Agreement, the Issuers will reimburse
the Holders of Transfer Restricted Notes being registered pursuant to the Shelf Registration Statement for the reasonable and documented fees and disbursements of not more than one counsel, who shall be Simpson Thacher & Bartlett LLP.
SECTION 8. Indemnification.
(a) The Issuers and the Guarantors, jointly and severally, agree to indemnify and hold harmless (i) each Holder
and (ii) each Person, if any, who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any Holder (any of the Persons referred to in this clause (ii) being hereinafter referred to as a “controlling
person”) and (iii) the respective officers, directors, partners, employees, representatives and agents of any Holder or any controlling person (any Person referred to in clause (i), (ii) or (iii) may hereinafter be referred to as an “Indemnified Holder”), to the fullest extent lawful, from and against any and all losses, claims, damages, liabilities, judgments, actions and expenses (including, without limitation, and as incurred,
reimbursement of all reasonable costs of investigating, preparing, pursuing, settling,
compromising, paying or defending any claim or action, or any investigation or proceeding by any governmental agency or body, commenced or threatened, including the reasonable fees and expenses of one
counsel to any Indemnified Holder), joint or several, directly or indirectly caused by, related to, based upon, arising out of or in connection with (i) any untrue statement or alleged untrue statement of a material fact contained in any Registration
Statement (or any amendment or supplement thereto), or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading or (ii) any untrue statement or alleged
untrue statement of a material fact contained in any Prospectus (or any amendment or supplement thereto), or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading, in each case except insofar as such losses, claims, damages, liabilities or expenses are caused by an untrue statement or omission or alleged untrue statement or omission that
is made in reliance upon and in conformity with information relating to any of the Holders furnished in writing to the Issuers by any of the Holders expressly for use therein. This indemnity agreement shall be in addition to any liability which the
Issuers and the Guarantors may otherwise have.
In case any action or proceeding (including any governmental or regulatory investigation or proceeding) shall be brought or asserted against any of the Indemnified Holders with respect to
which indemnity may be sought against the Issuers or the Guarantors, such Indemnified Holder (or the Indemnified Holder controlled by such controlling person) shall promptly notify the Issuers and the Guarantors in writing; provided, however, that the failure to give such notice shall not relieve the Issuers and the Guarantors of their obligations pursuant to this Agreement except to the extent that the Issuer or any Guarantor has been prejudiced by
such failure and shall not relieve the Issuers and the Guarantors from any liability which they may have to any Indemnified Holder other than under this Agreement. The Issuers and the Guarantors shall be entitled to participate therein and, to the
extent that they shall elect, jointly with any other indemnifying party similarly notified, by written notice delivered to the Indemnified Holder promptly after receiving the aforesaid notice from such Indemnified Holder, to assume the defense
thereof, with counsel reasonably satisfactory to such Indemnified Holder and, after notice from the Issuers and the Guarantors of their election to assume the defense thereof, the Issuers and the Guarantors shall not be liable to such Indemnified
Holder for any legal expenses of other counsel or other expenses, in each case subsequently incurred by such Indemnified Holder, in connection with the defense thereof other than reasonable costs of investigation. If the Issuers and the Guarantors do
not elect to so assume the defense thereof within a reasonable time after notice of commencement of the action, the Indemnified Holders shall have the right to employ one counsel of their own in any such action and the reasonable fees and expenses of
such counsel shall be paid, as incurred, by the Issuers and the Guarantors. The Issuers and the Guarantors shall not, in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the
same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any one local counsel in each applicable jurisdiction) at any
time for such Indemnified Holders, which firm shall be designated by the Issuers and be reasonably satisfactory to the Indemnified Holders. The Issuers and the Guarantors, jointly and severally, shall be liable for any settlement of any such action
or proceeding effected with the Issuers’ or the Guarantors’ prior written consent, which
consent shall not be withheld unreasonably, and the Issuers and the Guarantors agree to indemnify and hold harmless any Indemnified Holder from and against any loss, claim, damage, liability or expense by
reason of any settlement of any action effected with the written consent of the Issuers. The Issuers and the Guarantors shall not, without the prior written consent of each Indemnified Holder, settle or compromise or consent to the entry of judgment
in or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any Indemnified Holder is a party thereto), unless such
settlement, compromise, consent or termination includes an unconditional release of each Indemnified Holder from all liability arising out of such action, claim, litigation or proceeding.
(b) Each Holder of Transfer Restricted Notes agrees, severally and not jointly, to indemnify and hold harmless
the Issuers, the Guarantors and their respective directors, officers who sign a Registration Statement, and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) an Issuer or a Guarantor,
and the respective officers, directors, partners, employees, representatives and agents of each such Person, to the same extent as the foregoing indemnity from the Issuers and the Guarantors to each of the Indemnified Holders, but only with respect
to claims and actions based on information relating to such Holder furnished in writing by such Holder expressly for use in any Registration Statement. In case any action or proceeding shall be brought against the Issuers, the Guarantors or their
respective directors or officers or any such controlling person in respect of which indemnity may be sought against a Holder of Transfer Restricted Notes, such Holder shall have the rights and duties given the Issuers and the Guarantors, and the
Issuers and Guarantors, their respective directors and officers and such controlling person shall have the rights and duties given to each Holder by the preceding paragraph.
(c) If the indemnification provided for in this Section 8 is unavailable to an indemnified party under Section
8(a) or (b) hereof (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments, actions or expenses referred to therein, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative benefits
received by the indemnifying party or parties, on the one hand, and the indemnified party or parties, on the other hand, from the Initial Exchange Offer, or if such allocation is not permitted by applicable law, the relative fault of the Issuers
and the Guarantors, on the one hand, and the Holders, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable
considerations. The relative fault of the Issuers and the Guarantors on the one hand and of the Indemnified Holder on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to information supplied by the Issuers and the Guarantors, on the one hand, or the Indemnified Holders, on the other hand, and the parties’ relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to
the limitations set forth in the
second paragraph of Section 8(a) hereof, any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim.
The Issuers, the Guarantors and each Holder of Transfer Restricted Notes agree that it would not be just and equitable if contribution pursuant to this Section 8(c) were determined by pro
rata allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8, no Holder shall be required to contribute any amount in excess of the amount by
which the total price at which the Initial Notes or Exchange Notes sold by such Holder exceeds the amount of any damages that such Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The Holders’
obligations to contribute pursuant to this Section 8(c) are several in proportion to the respective principal amount of Initial Notes held by each of the Holders hereunder and not joint.
SECTION 9. Rule 144A. Parent hereby agrees with each Holder, for so
long as any Transfer Restricted Notes remain outstanding (unless Parent is subject to and complies with Section 13 or 15(d) of the Exchange Act or files the periodic reports contemplated by such provisions pursuant to the Indenture), to make
available to any Holder or beneficial owner of Transfer Restricted Notes in connection with any sale thereof and any prospective purchaser of such Transfer Restricted Notes from such Holder or beneficial owner, the information required by Rule
144A(d)(4) under the Securities Act in order to permit resales of such Transfer Restricted Notes pursuant to Rule 144A under the Securities Act.
SECTION 10. Miscellaneous.
(a) Remedies. The Issuers hereby agree that monetary damages would
not be adequate compensation for any loss incurred by reason of a breach by them of the provisions of this Agreement and hereby agree to waive the defense in any action for specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Issuers and the Guarantors will
not, on or after the date of this Agreement, enter into any agreement with respect to the Issuers’ notes that is inconsistent with the rights granted to the Holders in this Agreement or otherwise conflicts with the provisions hereof. The Issuers
and the Guarantors have not previously entered into any agreement granting any registration rights with respect to the Initial Notes to any Person. The rights
granted to the Holders hereunder do not in any way conflict with and are not inconsistent with the rights granted to the holders of the Issuers’ notes under any agreement in effect on the date hereof.
(c) Adjustments Affecting the Initial Notes. The Issuers will not
take any action, or permit any change to occur, with respect to the Initial Notes that would materially and adversely affect the ability of the Holders to Consummate any Exchange Offer.
(d) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to or departures from the provisions hereof may not be given, unless the Issuers and the Guarantors have (i) in the case of this Section 10(d)(i), obtained the written consent of Holders
of all outstanding Transfer Restricted Notes and (ii) in the case of all other provisions hereof, obtained the written consent of Holders of a majority of the outstanding principal amount of Transfer Restricted Notes (excluding any Transfer
Restricted Notes held by an Issuer or any of the Issuers’ affiliates) affected by such amendment, modification, supplement, waiver, consent or departure. Notwithstanding the foregoing, a waiver or consent to or departure from the provisions hereof
that relates exclusively to the rights of Holders whose Initial Notes are being tendered pursuant to the Exchange Offer and that does not affect directly or indirectly the rights of other Holders whose Initial Notes are not being tendered pursuant
to such Exchange Offer may be given by the Holders of a majority of the outstanding principal amount of Transfer Restricted Notes being tendered or registered; provided, however, that, with respect to any
matter that directly or indirectly affects the rights of any Dealer-Manager hereunder, the Issuers and the Guarantors shall obtain the written consent of such Dealer-Manager with respect to which such amendment, modification, supplement, waiver,
consent or departure is to be effective.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail (registered or certified, return receipt requested), telex, telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the Registrar under the
Indenture, with a copy to the Registrar under the Indenture; and
AerCap House
65 St. Stephen’s Green
Dublin D02 YX20
Ireland
Attention: Legal Department
with copies for information purposes only to:
Cravath, Swaine & Moore LLP
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019-7475
Attention: Craig F. Arcella; Douglas Dolan
Email: carcella@cravath.com; ddolan@cravath.com
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(iii) |
if to the Dealer-Managers:
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Barclays Capital Inc.
745 Seventh Avenue, 5th Floor
New York, NY 10019
Attention: Liability Management Group
Telephone: (212) 528-7581
Toll-Free: (800) 438-3242
TD Securities (USA) LLC
1 Vanderbilt Avenue, 11th Floor
New York, NY 10017
Attention: Transaction Advisory
Email: USTransactionadvisory@tdsecurities.com
with copies for information purposes only to:
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, NY 10017
Fax: (212) 455-2502
Attention: David Azarkh, Esq.
All such notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt acknowledged, if telecopied; and on the next Business Day, if timely delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be concurrently delivered by the Person giving the same to the Trustee at the address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties, including, without limitation, and without the need for an express assignment, Holders of Transfer Restricted Notes. For the avoidance of doubt, Holders of Transfer
Restricted Notes shall be deemed to have agreed to be bound by the provisions of this Agreement whether or not such Holder has signed this Agreement. If any transferee of any Holder shall acquire Transfer Restricted Notes in any manner, whether by
operation of law or otherwise, such Holder shall be deemed to have agreed to be bound by and subject to all the terms of this Agreement, and by taking and holding such Transfer Restricted Notes such transferee shall be conclusively deemed to have
agreed to be bound by and to perform all of the terms and provisions of this Agreement.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. The words “execution,” “signed,”
“signature,” “delivery,” and words of like import in or relating to this Agreement or any document to be signed in connection with this Agreement shall be deemed to include electronic signatures, deliveries or the keeping of records in electronic
form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, and the parties hereto consent to
conduct the transactions contemplated hereunder by electronic means. For the avoidance of doubt, delivery of an executed counterpart of a signature page to this Agreement by telecopier, facsimile, electronic mail (including any electronic signature
complying with the New York Electronic Signatures and Records Act (N.Y. State Tech. §§ 301-309), as amended from time to time, or other applicable law) or other transmission method shall be deemed to have been duly and validly delivered and be
valid and effective for all purposes.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR
DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(i) Consent to Jurisdiction. Any legal suit,
action or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby (“Related Proceedings”) may be instituted in the federal courts of the United States of America located
in the City and County of New York or the courts of the State of New York in each case located in the City and County of New York (collectively, the “Specified Courts”), and each party irrevocably submits to
the exclusive jurisdiction (except for suits, actions, or proceedings instituted in regard to the enforcement of a judgment of any Specified Court in a Related Proceeding, a “Related Judgment”, as to which
such jurisdiction is non-
exclusive) of the Specified Courts in any Related Proceeding. Each of the Issuers and the Guarantors hereby appoints CT Corporation System, with offices at 28 Liberty Street, New York, NY,
10005 as its authorized agent (the “Authorized Agent”) upon whom process may be served in any suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated herein that
may be instituted in the Specified Courts. Service of any process, summons, notice or document by mail to such party’s address set forth above shall be effective service of process for any Related Proceeding brought in any Specified Court. Each of
the Issuers and the Guarantors hereby represents and warrants that the Authorized Agent has accepted such appointment and has agreed to act as said agent for service of process, and each of the Issuers and the Guarantors agrees to take any and all
action, including the filing of any and all documents, that may be necessary to continue such appointment in full force and effect as aforesaid. Service of process upon the Authorized Agent shall be deemed, in every respect, effective service of
process upon any Issuer or any Guarantor. For the Holders and the Dealer-Managers, service of any process, summons, notice or document by mail to the address set forth above shall be effective service of process for any Related Proceeding brought in
any Specified Court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any Related Proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim in any Specified
Court that any Related Proceeding brought in any Specified Court has been brought in an inconvenient forum. Notwithstanding the foregoing, any action arising out of or based upon this Agreement may be instituted by any Dealer-Manager, Holder, the
directors, officers, employees, affiliates and agents of any Dealer-Manager or Holder, or by any person who controls any Dealer-Manager or Holder, in any court of competent jurisdiction in the Netherlands or Ireland.
(j) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions contained herein
shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement, together with the
Dealer-Manager Agreement and the Indenture, is intended by the parties as a final expression of their agreement and intended to be a complete and exclusive statement of the agreement and understanding of the parties hereto in respect of the subject
matter contained herein. There are no restrictions, promises, warranties or undertakings, other than those set forth or referred to herein with respect to the registration rights granted by the Issuers with respect to the Transfer Restricted
Notes. This Agreement supersedes all prior agreements and understandings between the parties with respect to such subject matter.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
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Very truly yours,
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AerCap Ireland Capital DAC
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By:
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/s/ Ken Faulkner |
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Name:
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Ken Faulkner
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Title:
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Attorney
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AerCap Global Aviation Trust
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By:
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/s/ Ken Faulkner |
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Name:
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Ken Faulkner |
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Title:
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Authorised Signatory
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AerCap Holdings N.V.
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By:
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/s/ Risteard Sheridan |
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Name:
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Risteard Sheridan
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Title:
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Authorised Signatory
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AerCap Aviation Solutions B.V.
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By:
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/s/ Johan-Willem Dekkers |
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Name:
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Johan-Willem Dekkers
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Title:
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For and on behalf of AerCap Group Services, B.V. Director
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AerCap Ireland Limited
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By:
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/s/ Ken Faulkner |
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Name:
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Ken Faulkner
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Title:
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Attorney
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International Lease Finance Corporation
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By:
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/s/ Patrick Ross |
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Name:
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Patrick Ross
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Title:
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Vice President
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AerCap U.S. Global Aviation LLC
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By:
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/s/ Ken Faulkner |
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Name:
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Ken Faulkner
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Title:
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Authorised Signatory
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The foregoing Registration Rights Agreement is hereby confirmed and accepted as of the date first above written:
Barclays Capital Inc.
TD Securities (USA) LLC
As the Lead Dealer-Managers,
representing the Dealer-Managers
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By:
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Barclays Capital Inc.
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By:
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/s/ Masid Cader
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Authorized Signatory
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By:
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TD Securities (USA) LLC
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By:
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/s/ Luiz Lanfredi
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Authorized Signatory
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