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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of The Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported) March 9, 2021

 

General Electric Company

(Exact name of registrant as specified in its charter)

 

New York   001-00035   14-0689340

(State or other jurisdiction

of incorporation)

 

(Commission

File Number)

 

(IRS Employer

Identification No.)

         
5 Necco Street, Boston, MA       02210
(Address of principal executive offices)       (Zip Code)

 

(Registrant’s telephone number, including area code) (617) 443-3000

 

     
  (Former name or former address, if changed since last report.)  

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instructions A.2. below):

 

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class

Trading

Symbol(s)

Name of each exchange

on which registered

Common stock, par value $0.06 per share

GE

New York Stock Exchange

0.375% Notes due 2022

GE 22A

New York Stock Exchange

1.250% Notes due 2023

GE 23E

New York Stock Exchange

0.875% Notes due 2025

GE 25

New York Stock Exchange

1.875% Notes due 2027

GE 27E

New York Stock Exchange

1.500% Notes due 2029

GE 29

New York Stock Exchange

7 1/2% Guaranteed Subordinated Notes due 2035

GE /35

New York Stock Exchange

2.125% Notes due 2037

GE 37

New York Stock Exchange

 

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).

 

Emerging growth company

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards pursuant to Section 13(a) of the Exchange Act. ☐

 

  

 

 

 

Item 1.01. Entry into a Material Definitive Agreement.

 

On March 9, 2021 (the “Signing Date”), General Electric Company (“GE”), GE Ireland USD Holdings ULC (the “Existing Ireland Shareholder 1”), GE Financial Holdings ULC (the “Existing Ireland Shareholder 2” and, together with Existing Ireland Shareholder 1, the “Existing Ireland Shareholders”), and GE Capital US Holdings, Inc. (the “Existing U.S. Shareholder” and, collectively with the Existing Ireland Shareholders, the “Existing Shareholders”) entered into a definitive agreement (the “Transaction Agreement”) with AerCap Holdings N.V. (“AerCap”), AerCap US Aviation LLC (the “U.S. Purchaser”), and AerCap Aviation Leasing Limited (the “Ireland Subscriber” and, together with the U.S. Purchaser, the “AerCap Entities”), pursuant to which, among other things, (i) the Ireland Subscriber will subscribe for 100% of the new A ordinary shares of GE Capital Aviation Funding ULC (the “Ireland Company 1”) and the Existing Ireland Shareholder 1 will accept the subsequent cancellation of 100% of the issued and outstanding share capital of Ireland Company 1 which are held by the Existing Ireland Shareholder 1 at the Signing Date, (ii) the Existing Ireland Shareholder 2 will sell, or cause to be sold, and the Ireland Subscriber will purchase 100% of the issued and outstanding share capital of Celestial Transportation Finance Ireland Limited (the “Ireland Company 2”) and GECAS Trading Ireland Limited (the “Ireland Company 3”), (iii) the Existing U.S. Shareholder will sell, or cause to be sold, and the U.S. Purchaser will purchase 100% of the issued and outstanding shares of the common stock of the U.S. Company, (iv) GE will sell, or cause to be sold, and AerCap or one of its designated affiliates will purchase, the Transferred Assets (as defined in the Transaction Agreement), and (v) the Ireland Subscriber will subscribe for the New Ireland Company Notes (as defined in the Transaction Agreement), the proceeds of which will be used to repay in full the Specified Ireland Company Intercompany Accounts (as defined in the Transaction Agreement) (the transactions described in the foregoing clauses (i), (ii), (iii), (iv) and (v), collectively, the “Transaction”). The aggregate consideration for the Transaction payable by the AerCap Entities will be (a) 111,500,000 ordinary shares of AerCap, (b) an amount in cash equal to approximately $24 billion, as adjusted pursuant to the Transaction Agreement, and (c) non-cumulative subordinated notes and/or senior unsecured notes in the aggregate principal amount of $1 billion (the “AerCap Notes”) (or a combination of such notes and additional cash in the aggregate amount of $1 billion). Based on AerCap’s closing price per share of $56.00 on March 9, 2021, the total value of the consideration was approximately $31 billion. Upon completion of the Transaction, GE will hold approximately 46% of the ordinary shares of AerCap (the “AerCap Shares”).

 

The consummation of the Transaction is subject to the satisfaction or waiver of certain customary and other closing conditions, including receipt of approvals or non-disapprovals from certain regulatory bodies, including, among others, CFIUS and other anti-trust and regulatory agencies and the approval of the Transaction by AerCap shareholders. There is no financing condition for the Transaction.

 

In addition to other customary termination events, the Transaction Agreement allows termination by (i) either GE or AerCap if the closing of the Transaction has not occurred on or before the date that is 12 months after the Signing Date (the “Long-Stop Date”), subject to an extension on one occasion by either GE or AerCap for a period of three months for the receipt of certain approvals, (ii) GE or AerCap, if the AerCap shareholders fail to approve the Transaction, (iii) GE, if the AerCap board of directors withdraws or adversely modifies its approval of the Transaction, or (iv) GE if all conditions are satisfied, GE and the Existing Shareholders are prepared to close but AerCap fails to close the Transaction as required.

 

AerCap has agreed to pay a $100 million fee to GE in the event (i) the Transaction Agreement has been terminated because AerCap has failed to consummate the Transaction within three business days following the date on which the last of the closing conditions has been satisfied or waived or is terminated by AerCap at the Long-Stop Date when GE was entitled to terminate for such a failure to consummate the transaction, (ii) the Transaction Agreement has been terminated because the AerCap board of directors has withdrawn or adversely modified its approval of the Transaction, or (iii) (a) the Transaction Agreement has been terminated because (A) the AerCap shareholders have failed to approve the Transaction and the existence of a competing offer has been disclosed to the public on or prior to the date of the general meeting of the AerCap shareholders or (B) completion of the Transaction has not occurred by the Long-Stop Date, the AerCap shareholders have failed to approve the Transaction prior to the Long-Stop Date and a competing offer has been made to AerCap, and (b) AerCap enters into an alternative transaction within 12 months of the termination of the Transaction Agreement. The parties’ liability for breach of warranties generally terminates at closing, with the exception of (i) actual fraud, (ii) certain warranties relating to fundamental matters which will survive indefinitely after the Completion Date, (iii) certain warranties relating to tax matters which will survive until 36 months after the Completion Date, (iv) certain warranties relating to the sufficiency of properties, assets and rights owned, leased, licensed or otherwise held by the Company Group (as defined in the Transaction Agreement) to operate the business which will survive until 12 months after the Completion Date, and (v) certain other indemnifiable warranties which will survive until 24 months after the Completion Date.

 

 

 

 

Simultaneously with the consummation of the Transaction, the parties will enter into a shareholders’ agreement (the “Shareholders’ Agreement”), a registration rights agreement (the “Registration Rights Agreement”), a noteholder agreement (the “Noteholder Agreement”), and a financial reporting agreement (the “Financial Reporting Agreement”).

 

Pursuant to the Shareholders’ Agreement, GE will have the right to nominate (i) two board members of AerCap so long as the Existing Shareholders and their permitted transferees beneficially own at least 10% of the ordinary shares of AerCap, or (ii) one board member so long as the Existing Shareholders and their permitted transferees beneficially own any of the ordinary shares of AerCap. Except with respect to certain significant transactions of AerCap and certain other matters, during the Voting Agreement Period (as defined in the Shareholders’ Agreement), the Existing Shareholders and their permitted transferees may only vote 24.9% of AerCap’s voting shares (taking into consideration such voting restriction) and abstain with respect to the remainder. Until six months after the Existing Shareholders and their permitted transferees hold less than 10% of AerCap, GE, the Existing Shareholders and their permitted transferees may not (i) acquire securities of AerCap beyond a total ownership of 20% of AerCap, (ii) acquire any of the assets or business of AerCap, (iii) participate in any tender offer involving AerCap, (iv) seek control of or influence AerCap’s board or management, or (v) consummate any Derivative Transaction (as defined in the Shareholders’ Agreement) if the number of the ordinary shares of AerCap specified or referenced in, or that underlie, such Derivative Transaction, when taken together with the aggregate number of the ordinary shares of AerCap that are specified in, referenced in and/or that underlie all other outstanding Derivative Transactions, would exceed 9.9% of the then-issued and outstanding ordinary shares of AerCap, subject to certain exceptions. The Existing Shareholders and their permitted transferees are precluded from selling a portion of their AerCap shares for the first 15 months after the consummation of the Transaction: (i) none of their shares may be sold during the first nine months; (ii) 1/3 of their shares may be transferred after nine months; (iii) 2/3 of their shares may be transferred after 12 months; and (iv) all of their shares may be transferred after 15 months. The Existing Shareholders and their permitted transferees may not sell in excess of 9.9% of AerCap’s common stock to any single buyer or group.

 

Under the Registration Rights Agreement, GE will have demand rights providing for the sale or distribution of its AerCap Shares in SEC registered offerings after the expiry of the initial lock-up period, and will have customary piggyback registration rights.

 

Under the Noteholder Agreement, GE will have demand rights providing for the sale or distribution of the AerCap Notes in underwritten offerings after the expiry of an initial lock-up period.

 

Pursuant to the Financial Reporting Agreement, AerCap has agreed to provide GE with certain information and access rights.

 

The description of the Transaction Agreement, the Shareholders’ Agreement, the Registration Rights Agreement, the Noteholder Agreement, and the Financial Reporting Agreement contained herein does not purport to be complete and is qualified in its entirety by reference to the full text of the Transaction Agreement, which is attached to this Current Report on Form 8-K as Exhibit 2.1 and incorporated in its entirety into this Item 1.01 by reference.

 

 

 

Item 9.01. Financial Statements and Exhibits.

 

  (d) Exhibits.

 

Exhibit No.   Description
     
2.1   Transaction Agreement, dated as of March 9, 2021 by and among GE Ireland USD Holdings ULC, GE Financial Holdings ULC, GE Capital US Holdings, Inc., General Electric Company, AerCap Holdings N.V., AerCap US Aviation LLC, and AerCap Aviation Leasing Limited.
104   The cover page from this Current Report on Form 8-K, formatted in Inline XBRL
     
 

Certain schedules and exhibits have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The Company hereby undertakes to furnish supplementally copies of any of the omitted schedules or exhibits upon request by the SEC.

 

Forward-Looking Statements

This document contains “forward-looking statements”—that is, statements related to future, not past, events. These forward- looking statements often address our expected future business and financial performance and financial condition, and often contain words such as "expect," "anticipate," "intend," "plan," "believe," "seek," "see," "will," "would," "estimate," "forecast," "target," "preliminary," or "range." Forward-looking statements by their nature address matters that are, to different degrees, uncertain, and are subject to risks, uncertainties and assumptions. Should one or more of these risks or uncertainties materialize, or should underlying assumptions prove incorrect, actual results may vary materially from those indicated or anticipated by such forward-looking statements. The inclusion of such statements should not be regarded as a representation that such plans, estimates or expectations will be achieved. Important factors that could cause actual results to differ materially from such plans, estimates or expectations include, among others, (1) that one or more closing conditions to the transaction, including certain regulatory approvals, may not be satisfied or waived, on a timely basis or otherwise, including that a governmental entity may prohibit, delay or refuse to grant approval for the consummation of the proposed transaction, may require conditions, limitations or restrictions in connection with such approvals or that the required approval by the shareholders of AerCap may not be obtained; (2) the risk that the proposed transaction may not be completed in the time frame expected by GE or AerCap, or at all; (3) unexpected costs, charges or expenses resulting from the proposed transaction; (4) uncertainty of the expected financial performance of GE or AerCap following completion of the proposed transaction; (5) failure to realize the anticipated benefits of the proposed transaction, including as a result of delay in completing the proposed transaction; (6) the occurrence of any event that could give rise to termination of the proposed transaction; (7) the risk that stockholder litigation in connection with the proposed transaction or other settlements or investigations may affect the timing or occurrence of the contemplated merger or result in significant costs of defense, indemnification and liability; (8) evolving legal, regulatory and tax regimes; (9) changes in general economic and/or industry specific conditions; (10) actions by third parties, including government agencies; and (11) other risk factors as detailed from time to time in GE’s and AerCap’s reports filed with the SEC, including GE’s and AerCap’s annual reports on Forms 10-K and 20-F, periodic quarterly reports on Form 10-Q, periodic current reports on Forms 8-K and 6-K and other documents filed with the SEC. The foregoing list of important factors is not exclusive.

 

 

 

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

  GENERAL ELECTRIC COMPANY  
  (Registrant)  
         
         
Date: March 12, 2021 By: /s/ Christoph A. Pereira  
    Name: Christoph A. Pereira

 
    Title: Vice President, Chief Risk Officer and Chief Corporate Counsel  

 

 

 

 

 

 

 

 

EXHIBIT 2.1

 

EXECUTION VERSION

 

 

 

     

 

 

TRANSACTION AGREEMENT

by and among

GE IRELAND USD HOLDINGS ULC,

GE FINANCIAL HOLDINGS ULC,

GE CAPITAL US HOLDINGS, INC.,

and

GENERAL ELECTRIC COMPANY,

and

AERCAP HOLDINGS N.V.,

AERCAP US AVIATION LLC

and

AERCAP AVIATION LEASING LIMITED

Dated as of March 9, 2021

 

     

 

 

 

 

 

 

 

Contents

 

Clause

 

Page

     
1. Interpretation 5
2. Subscription of the New Ireland Company Shares, Subscription of the New Ireland Company Notes and Sale and Purchase of the U.S. Company Membership Interests, the Ireland Company 2 Shares, the Ireland Company 3 Shares and the Transferred Assets 37
3. Conditions to Completion 41
4. Agreements to Implement 44
5. Completion 49
6. Warranties 50
7. Remedies and Termination 52
8. Conduct of Business Before the Completion 62
9. AerCap General Meeting 68
10. Debt Financing 70
11. Undertakings 75
12. Access to Information 84
13. Books and Records 87
14. Transitional Services 88
15. Non-solicitation 89
16. Tax Matters 89
17. Confidentiality 96
18. Intellectual Property 97
19. Costs and Expenses 98
20. Notices 99
21. Announcements 101
22. Invalidity and Severability 102
23. Further Assurance 103
24. Litigation Support 103
25. Entire Agreement 103
26. Assignment 104
27. No Third Party Beneficiaries 104
28. Amendment and Waiver 104
29. Counterparts 105

 

 

 

 

30. English Language 105
31. Payment Mechanics 105
32. Governing Law, Dispute Resolution, Consent to Jurisdiction, Waiver of Jury Trial 106
33. Agent for Service of Process 107
34. Miscellaneous 108
35. Adjustment of Consideration 109
36. Guarantee 109
Schedule 1A Company Warranties 113
Schedule 1B AerCap Warranties 134
Schedule 2A Conduct of the Business Prior to Completion Date 152
Schedule 2B Conduct of the AerCap Business Prior to Completion Date 158
Schedule 3 Completion Arrangements 159
Schedule 4A Knowledge of the Parent  
Schedule 4B Knowledge of AerCap  
Schedule 5 Regulatory and Anti-trust Approvals  
Schedule 6

Consideration Allocation Principles

 

 

 

EXHIBIT A Shareholders’ Agreement
EXHIBIT B Registration Rights Agreement
EXHIBIT C Noteholder Agreement
EXHIBIT D Financial Reporting Agreement
EXHIBIT E Transition Services Agreement
EXHIBIT F Transaction Accounting Principles
EXHIBIT G Transitional Trademark License Agreement

 

 

 

  3  

 

 

THIS TRANSACTION AGREEMENT (this “Agreement”) dated as of March 9, 2021

BY AND AMONG

1. GE IRELAND USD HOLDINGS ULC, a private unlimited company incorporated under the laws of Ireland with registration number 568854 (the “Existing Ireland Shareholder 1”);
2. GE FINANCIAL HOLDINGS ULC, a private unlimited company incorporated under the laws of Ireland with registration number 383420 (the “Existing Ireland Shareholder 2” and, together with Existing Ireland Shareholder 1, the “Existing Ireland Shareholders”);
3. GE CAPITAL US HOLDINGS, INC., a Delaware corporation (the “Existing U.S. Shareholder” and, collectively with the Existing Ireland Shareholders, the “Existing Shareholders”);
4. GENERAL ELECTRIC COMPANY, a New York corporation (the “Parent”);
5. AERCAP HOLDINGS N.V., a Netherlands public limited liability company (“AerCap”);
6. AERCAP US AVIATION LLC, a Delaware limited liability company (the “U.S. Purchaser”); and
7. AERCAP AVIATION LEASING LIMITED, a private company limited by shares incorporated under the laws of Ireland with registered number 689205 (the “Ireland Subscriber” and, together with the U.S. Purchaser, the “AerCap Entities”).

BACKGROUND

(A) (i) The Existing Ireland Company 1 Shares (as defined in this Agreement) are legally and beneficially owned by Existing Ireland Shareholder 1, (ii) the Ireland Company 2 Shares and the Ireland Company 3 Shares (each as defined in this Agreement) are each legally and beneficially owned by Existing Ireland Shareholder 2 and (iii) the U.S. Company Membership Interests (as defined in this Agreement) are legally and beneficially owned by the Existing U.S. Shareholder;
(B) (i) the Existing Ireland Shareholder 1 shall effect the Ireland Company 1 F Reorganization (as defined in clause 16.12 of this Agreement), (ii) the Ireland Companies have agreed to issue the New Ireland Company Notes and the Ireland Subscriber has agreed to subscribe for the New Ireland Company Notes, the proceeds of which will be used to repay in full the Specified Ireland Company Intercompany Accounts, (iii) the Ireland Subscriber has agreed to subscribe for the New Ireland Company 1 Shares and the Existing Ireland Shareholder 1 has agreed to accept the subsequent cancellation of the Existing Ireland Company 1 Shares upon a return of capital to the Existing Ireland Shareholder 1, (iv) the Existing Ireland Shareholder 2 has agreed to sell, or cause to be sold, and the Ireland Subscriber has agreed to purchase the Ireland Company 2 Shares and the Ireland Company 3 Shares, which represent all of the issued and outstanding share capital of the Ireland Company 2 (as defined in this Agreement) and the Ireland Company 3 (as defined in this

 

  4  

 

 

Agreement) and (vi) the Parent has agreed to sell, or cause to be sold, and AerCap or one of its Affiliates (as designated by AerCap) has agreed to purchase, the Transferred Assets (as defined in this Agreement), in each case on the terms and subject to the conditions set out in this Agreement (the transactions described in the foregoing clauses (i), (ii), (iii), (iv), (v) and (vi) collectively, the “Transaction”);

 

(C) The Board of Directors of AerCap, at a meeting thereof duly called and held, has (a) approved and supported the Transaction, (b) declared that the Transaction is in the best interests of AerCap and its business, taking into consideration the interests of its shareholders and other stakeholders, (c) directed that the approval of the Transaction be submitted to a vote at a general meeting of AerCap, and (d) recommended to the shareholders of AerCap that they approve the Transaction and the appointment of a single Shareholder Designee (as defined in the Shareholders’ Agreement) (subclause (d), the “AerCap Board Recommendation”);
(D) The Board of Directors of the Parent, at a meeting thereof duly called and held, has (a) approved and declared advisable the Transaction and (b) declared that the Transaction is in the best interests of the Parent; and
(E) To assist AerCap with its financing of the Transaction, AerCap has agreed to issue (or cause to be issued) to the Parent or its designated Affiliate (except any Company Group Member) and the Parent has agreed to purchase (or cause the purchase by such Affiliate), as part of the Consideration (as defined in this Agreement), non-cumulative subordinated notes and/or senior unsecured notes in the aggregate principal amount of up to one billion U.S. dollars (US$1,000,000,000) on and subject to the terms set forth in this Agreement (collectively, the “AerCap Notes”).

NOW IT IS AGREED as follows:

1.       Interpretation

1.1       In this Agreement (unless otherwise specified or inconsistent with the context):

Acceptable Confidentiality Agreement” means a confidentiality agreement that contains terms that are no less favorable in the aggregate to AerCap than those contained in the Confidentiality Agreement (except with regard to standstill provisions); provided that an Acceptable Confidentiality Agreement shall not include any provision having the effect of prohibiting AerCap from satisfying its obligations under this Agreement, including any exclusivity provision.

Action” means any claim, action, suit, arbitration or proceeding by or before any Governmental Authority, court, tribunal or arbitration body.

 

  5  

 

 

Acquisition Proposal” shall mean any bona fide proposal or offer made by any Person for, in a single transaction or a series of transactions, (i) a merger, demerger, reorganization, share exchange, consolidation or similar transaction involving AerCap pursuant to which any Person or group (or the stockholders of any Person) would own, directly or indirectly, (x) fifty percent (50%) or more of the voting power of the outstanding AerCap Ordinary Shares or of the outstanding voting shares of the surviving entity in a merger or demerger or the resulting direct or indirect parent of AerCap or such surviving entity or (y) businesses or assets that constitute fifty percent (50%) or more of the consolidated revenues, net income or total assets of AerCap and its Subsidiaries, (ii) the direct or indirect acquisition by any Person or group of fifty percent (50%) or more of the assets of AerCap and its Subsidiaries, on a consolidated basis, or assets of AerCap and its Subsidiaries representing fifty percent (50%) or more of the consolidated revenues or net income of AerCap and its Subsidiaries or (iii) the direct or indirect acquisition by any Person or group of fifty percent (50%) or more of the voting power of the outstanding AerCap Ordinary Shares, including any tender offer or exchange offer that if consummated would result in any Person or group beneficially owning shares with fifty percent (50%) or more of the voting power of the outstanding shares of AerCap Ordinary Shares.

Adverse Recommendation Change” means that the Board of Directors of AerCap, or any committee thereof, shall have (i) withdrawn (or withheld, modified or qualified in a manner adverse to the Parent and the Existing Shareholders), or publicly proposed to withdraw (or withhold, modify or qualify in a manner adverse to the Parent and the Existing Shareholders), the AerCap Board Recommendation, (ii) made any other public statement in connection with the AerCap General Meeting inconsistent with the AerCap Board Recommendation, (iii) failed to have included such AerCap Board Recommendation in materials communicated to shareholders of AerCap in connection with the AerCap General Meeting, (iv) approved or recommended, or publicly proposed to approve or recommend to the shareholders of AerCap, an AerCap Competing Proposal or, if a tender offer or exchange offer for shares of capital stock of AerCap that constitutes an AerCap Competing Proposal is commenced, failed to recommend against acceptance of such tender offer or exchange offer by the AerCap shareholders (including, for these purposes, by disclosing that it is taking no position with respect to the acceptance of such tender offer or exchange offer by its shareholders, which shall constitute a failure to recommend against acceptance of such tender offer or exchange offer) or (v) authorized, adopted or approved or proposed to authorize, adopt or approve, an AerCap Competing Proposal.

AerCap Aircraft” means, either collectively or individually, as applicable, the aircraft described in Schedule 1.1(a) of the AerCap Disclosure Letter, each with the airframe manufacturer’s serial number as set forth in the AerCap Disclosure Letter, including (a) the airframe, (b) the associated Engines and (c) all appliances, parts, accessories, instruments, navigational and communications equipment, furnishings, modules, components and other items of equipment installed in or furnished with such aircraft, except that, with respect to AerCap Lessee Furnished Equipment, references in this Agreement to an “AerCap Aircraft” shall be deemed to refer only to that interest in AerCap Lessee Furnished Equipment as is held by the owner of the relevant airframe under the applicable AerCap Lease Document.

AerCap Aircraft Trading Agreement” means any Contract (including for the avoidance of doubt any agreement relating to a sale and leaseback transaction and any AerCap Residual Value Guarantee Agreement) pursuant to which any AerCap Group Member agrees to

 

  6  

 

 

purchase an aircraft or an aircraft engine from any third party who is not a Manufacturer or to dispose of an aircraft or an aircraft engine to any third party, in either case for consideration in excess of US$10 million, other than consignment agreements.

AerCap Benefit Plan” means all Benefit Plans sponsored solely by one or more AerCap Group Members.

AerCap Business” means the business conducted by the AerCap Group as at the Signing Date.

AerCap Disclosure Letter” means the disclosure letter (together with its schedules and enclosures) of even date from AerCap and the AerCap Entities to the Parent and the Existing Shareholders.

AerCap Employee” means (i) each Person who as of the Completion Date is an active employee of any AerCap Group Member and (ii) each Person who is an employee of any AerCap Group Member as of the Completion Date who is absent from employment due to illness, vacation, injury, military service or other authorized absence (including an employee who is “disabled” within the meaning of the short-term disability plan currently in place for the AerCap Group or who is on long-term disability leave).

AerCap Engines” means (i) with respect to each AerCap Aircraft, the aircraft engines related to that AerCap Aircraft, title to which aircraft engines has vested in the owner of that AerCap Aircraft or, with respect to all AerCap Aircraft, all of those aircraft engines and (ii) with respect to aircraft engines not related to a AerCap Aircraft, the aircraft engines with the manufacturer’s serial numbers set forth in in Schedule 1.1(a) of the AerCap Disclosure Letter, and together in each case with all equipment and accessories belonging to, installed in or appurtenant to those aircraft engines (other than AerCap Lessee Furnished Equipment). For the avoidance of doubt, references to AerCap Engines shall include aircraft engines which shall have replaced another aircraft engine under the relevant AerCap Lease if title to such replacement aircraft engine shall have passed to the lessor or owner of such AerCap Aircraft under such AerCap Lease.

AerCap ERISA Affiliate” means any entity which, together with AerCap, would be treated as a single employer under Section 414 of the U.S. Tax Code.

AerCap Form 20-F” means the AerCap 2020 annual report on Form 20-F filed with the SEC on March 2, 2021.

AerCap Fundamental Warranties” means each of the warranties made by AerCap and the AerCap Entities in paragraphs 1 (Organization, Authority and Enforceability), 2 (Capitalization) (other than the warranty in paragraph 2.5) and 3 (Ownership and Transfer of Shares) of Schedule 1B.

AerCap Group” means AerCap, the AerCap Entities and the AerCap Subsidiaries from time to time.

 

  7  

 

 

AerCap Group Member” means any corporation, partnership, joint venture, limited liability company, unincorporated association, trust or other entity within the AerCap Group.

 

AerCap Indemnifiable Warranties” means each of the warranties made by AerCap and the AerCap Entities in paragraphs 12 (Material Contracts) (first sentence), 14 (Compliance with Laws) (fourth sentence), 15 (Reports) (with respect to the AerCap Form 20-F), 16 (Litigation and Other Proceedings) (first sentence), 20.1 (Aircraft, Lease Documents, Manufacturer Agreements and Aircraft Trading Agreements) (first sentence), 20.2(a) (first sentence), 20.2(b), 20.3 (first sentence) and 20.4 (first sentence), 21.1 (Employee Benefit Matters), 21.2, 21.5 and 25 (Indemnification Payments) of Schedule 1B, the AerCap Indemnifiable Tax Warranties and the AerCap Fundamental Warranties.

AerCap Indemnifiable Tax Warranties” means the warranties made by AerCap and the AerCap Entities in paragraph 23.1 and 23.2 (The Accounts and Tax) of Schedule 1B.

AerCap Lease” means, with respect to each AerCap Aircraft, any lease agreement relating to the leasing of that AerCap Aircraft between a AerCap Group Member as lessor and any Person as lessee, and, with respect to each AerCap Engine, any lease agreement relating to the leasing of that AerCap Engine between a AerCap Group Member as lessor and any Person as lessee, other than any lease agreement relating to the leasing of an AerCap Engine for a period of less than six (6) months.

AerCap Lease Document” means, with respect to each AerCap Aircraft or AerCap Engine, the AerCap Lease and all other material agreements (including any assignments, novations, side letters, amendments, waivers, modifications, assignment of warranties or option agreements) delivered in connection with, or relating to, the AerCap Lease of that AerCap Aircraft or AerCap Engine, as applicable.

AerCap Lessee” means, with respect to each AerCap Aircraft, or AerCap Engine, the lessee of such AerCap Aircraft, or AerCap Engine, as applicable (disregarding any AerCap Group Member that acts as intermediate lessee of any Aircraft or Engine).

AerCap Lessee Furnished Equipment” means, with respect to each AerCap Aircraft, any appliances, parts, accessories, instruments, navigational and communications equipment, furnishings, modules, components and other items of equipment, installed in or furnished with that AerCap Aircraft which in accordance with the terms of the AerCap Lease Documents are not required to vest in or be transferred to the lessor or owner of such AerCap Aircraft.

AerCap Manufacturer Agreement” means each Contract with a Manufacturer pursuant to which any AerCap Group Member agrees to purchase an aircraft or an aircraft engine for consideration in excess of US$10 million.

AerCap Material Adverse Effect” means a material adverse effect on the business, assets, results of operation or financial condition of the AerCap Group taken as a whole, except any such effect to the extent arising or resulting from: (A) changes after the Signing Date in general business, economic, political or market conditions (including changes generally in prevailing

 

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interest rates, credit availability and liquidity, currency exchange rates and price levels or trading volumes) in the United States, Ireland, the Netherlands or other securities or credit markets; (B) any outbreak or escalation of hostilities, declared or undeclared acts of war or terrorism, in each case after the Signing Date generally affecting the industries or jurisdictions in which the AerCap Group operates; (C) changes after the Signing Date in GAAP, or authoritative interpretations thereof; (D) changes after the Signing Date in securities, aviation and other Laws of general applicability or related authoritative or binding policies or interpretations of Governmental Authorities; (E) any pandemic (including the SARS-CoV-2 virus and COVID-19 disease), epidemic, plague, or other outbreak of illness or public health event, quarantine, hurricane, flood, tornado, earthquake or other natural disaster or act of God or changes resulting from weather conditions; (F) incidents with respect to the Boeing 737 MAX (including any grounding of the Boeing 737 MAX by the FAA or other Governmental Authorities) that have occurred on or prior to the Signing Date or the consequences of such events; (G) actions required to be taken under the Transaction Documents or taken with the Parent’s prior written consent after the Signing Date (other than with respect to paragraph 4 of Schedule 1B); (H) the identity of, or the effects of any facts or circumstances relating to, the Parent, the Existing Shareholders, the Companies or any of their Affiliates, the Business, the effects of any action (including in relation to obtaining any Governmental Approvals) taken or required to be taken by the Parent, the Existing Shareholders, the Companies or any of their Affiliates or Representatives with respect to the transactions contemplated by this Agreement or the effects of the negotiation, execution, public announcement, disclosure or completion of such transactions (and in each case, including the attrition or departure of any employees, independent contractors, consultants or agents of any AerCap Group Member) (other than with respect to paragraph 4 of Schedule 1B); (I) any matter set forth in the AerCap Disclosure Letter which is an exception to a AerCap Warranty to the extent that the relevance of such items is readily apparent from the content and context of such disclosure (other than with respect of paragraph 6.1 of Schedule 1B) or (J) any failure by any AerCap Group Member to achieve any earnings or other financial projections or forecasts, provided that any event, change, occurrence or development or state of facts that may have caused or contributed to such failure shall not be excluded under this subclause (J); or (K) any change in the trading prices or volume of AerCap’s capital stock, provided that any event, change, occurrence or development or state of facts that may have caused or contributed to such change shall not be excluded under this subclause (K); provided that in the case of each of subclauses (A) through (F), such changes or occurrences have not had and would not reasonably be expected to have a materially disproportionate adverse effect on the AerCap Group taken as a whole relative to other comparable participants in the aircraft leasing industry.

AerCap Material Contract” means any Contract, individually or together with related Contracts, to which any AerCap Group Member is a party (other than leases for real property, aircraft and aircraft engine leases and other agreements related thereto (including any Lease Documents), AerCap Aircraft Trading Agreements and Contracts with Manufacturers pursuant to which any AerCap Group Member agrees to purchase an aircraft or aircraft engine, including AerCap Manufacturer Agreements) which (i) calls for the payment by or on behalf of any AerCap Group Member in excess of US$100 million per annum, or the delivery by any AerCap Group Member of goods or services (or license of rights) with a fair market value in excess of US$100 million per annum, during the remaining term thereof, (ii) provides for any AerCap Group Member to receive any payments in excess of, or any rights or property with a fair market value in excess of, US$100 million during the remaining term thereof, (iii) contains covenants

 

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purporting to restrict materially the ability of any AerCap Group Member or its Affiliates to engage in any line of the AerCap Business in any geographical area or otherwise purporting to restrict their ability to lease aircraft or to market or sell products or services (other than as required by applicable Law or pursuant to legal compliance policies of the relevant counterparty), (iv) relates to the acquisition or disposition by any AerCap Group Member within the last three years of any business (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of, US$100 million and which contains material ongoing obligations of any AerCap Group Member, (v) provides for a material partnership, joint venture or other similar agreement or arrangement, (vi) contains the terms of or evidences the Indebtedness covered by paragraph 10 of Schedule 1B, or required to be disclosed in, paragraph 10 of Schedule 1B of the AerCap Disclosure Letter, (vii) would be required to be filed by AerCap as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act (other than a AerCap Benefit Plan), or (viii) contains any provisions regarding a “change of control” or similar event with respect to any AerCap Group Member or contains any provisions regarding the merger or consolidation of any AerCap Group Member and for the purposes of this clause (viii), in each case, which provision would be triggered by the transactions contemplated by this Agreement and (a) if triggered (without obtaining a waiver or consent with respect to the transactions contemplated by this Agreement) would result in damages or additional expenses for the AerCap Group in excess of US$25 million or (b) require payments by the AerCap Group in excess of US$25 million in a year.

AerCap Material Jurisdictions” means the jurisdictions set out in Schedule 1.1(e) of the AerCap Disclosure Letter.

AerCap Material Subsidiary” means any Subsidiary of AerCap that would constitute “a significant subsidiary” of AerCap within the meaning of Rule 1-02 under Regulation S-X promulgated by the SEC.

AerCap Minority Interest Entities” means the Persons that issued the AerCap Minority Interests, as applicable.

AerCap Minority Interests” means the equity interests set forth in Schedule 1.1(b) of the AerCap Disclosure Letter.

AerCap Ordinary Shares” means the ordinary shares of AerCap, each having a nominal value of one eurocent (EUR 0.01).

AerCap Permitted Liens” and “AerCap Permitted Lien” mean: (a) liens for Taxes that are not yet due or payable or that are being contested in good faith by appropriate proceedings and with respect to which reserves have been made on the AerCap Financial Statements to the extent required under GAAP; (b) statutory liens of landlords and liens of carriers, warehousemen, mechanics, material men, repairmen and other liens imposed by Law for amounts not yet due or that are being contested in good faith by appropriate proceedings and with respect to which reserves have been made on the AerCap Financial Statements to the extent required under GAAP; (c) liens incurred or deposits made to a Governmental Authority in the ordinary course of business or as required by applicable Laws in connection with a governmental authorization, registration, filing, license, permit or approval; (d) liens incurred or deposits made in the ordinary course of the business of any AerCap Group Member in connection with workers’ compensation,

 

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unemployment insurance or other types of social security; (e) defects of title, easements, rights of way, covenants, restrictions and other similar charges or encumbrances not materially interfering with the ordinary conduct of business or which are shown by a current title report or other similar report or listing previously provided or made available to the Parent; (f) liens incurred in the ordinary course of the business of any AerCap Group Member that do not secure Indebtedness that are not individually or in the aggregate material to the relevant asset or property, respectively; (g) all licenses, settlements and covenants not to assert entered into in the ordinary course of the business of any AerCap Group Member; (h) zoning, building and other generally applicable land use restrictions; (i) liens that have been placed by a third party on the fee (or any superior leasehold) title of the real property constituting the leased real property or real property over which any AerCap Group Member has easement rights; (j) leases or similar agreements affecting the real property owned by any AerCap Group Member that do not materially interfere with the use of such real property; (k) liens or other restrictions on transfer imposed by applicable Laws; (l) liens granted on securities held for cash management purposes under repurchase and reverse repurchase agreements and liens granted under derivatives entered into in the ordinary course of the business of any AerCap Group Member; (m) clearing and settlement liens on securities and other investment properties incurred in the ordinary course of clearing and settlement transactions in such securities and other investment properties and the holding of legal title or other interests in securities or other investment properties by custodians or depositories in the ordinary course of the business of any AerCap Group Member; (n) agreements with any Governmental Authorities or any public utilities or private suppliers of services, including subdivision agreements, development agreements and site control agreements in the ordinary course of business or as required by applicable Law (provided that such agreements do not materially interfere with the ordinary conduct of business of any AerCap Group Member); (o) rights of any owner trustee with respect to any aircraft owned or beneficially owned by any AerCap Group Member that is registered with the FAA; and (p) with respect to any aircraft, airframe, aircraft engine or aircraft part: (i) the rights conferred by the lease for aircraft and aircraft engine leases and other agreements related thereto; (ii) any “Permitted Liens” (or any other phrase with substantially similar meaning) under the terms of the relevant AerCap Lease Documents; (iii) Encumbrances for which the applicable AerCap Lessee is responsible or for which the applicable AerCap Lessee is to indemnify the lessor under the terms of the applicable AerCap Lease Documents; (iv) in respect of any AerCap Group Member’s aircraft title to which is held by a Person that is not an institutional trust company, any AerCap Group Member in a structure in which the entire economic interest in such aircraft and the right to acquire title thereto for a nominal amount is held by any AerCap Group Member, any Encumbrance created pursuant to a related asset transfer agreement between any AerCap Group Member and the Person who holds title to any such aircraft under such transfer agreement or pursuant to any escrow agreement among the titleholder to any such aircraft, any AerCap Group Member and any other party thereto pertaining to the arrangements regarding any such aircraft; (v) Encumbrances which do not materially detract from the value of such aircraft or any AerCap Group Member’s interest in such aircraft, or materially interfere with the use of such aircraft in substantially the manner used before the Signing Date; (vi) Encumbrances created by, or resulting from the actions or omissions of, AerCap Lessees or third parties during the term of an AerCap Lease Document relating to any such aircraft or thereafter but prior to repossession of the relevant aircraft by any AerCap Group Member; or (vii) Encumbrances securing an obligation incurred by any AerCap Lessee.

 

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AerCap Residual Value Guarantee Agreement” means any Contract to which any AerCap Group Member is a party that provides for a residual value guarantee, asset value guarantee or similar arrangement.

AerCap Shareholder Approval” means the adoption of resolutions at the general meeting of shareholders of AerCap to (i) approve the Transaction pursuant to article 2:107a of the civil code of the Netherlands (Burgerlijk Wetboek) and article 16.7 of AerCap’s articles of association, (ii) approve the appointment of a single Shareholder Designee (as defined in the Shareholders’ Agreement) to the Board of Directors of AerCap in accordance with clause 9.1 (which appointment shall be effective at the Completion), (iii) designate the Board of Directors of AerCap as the corporate body authorized to issue the Stock Consideration and to exclude pre-emption rights of AerCap shareholders in connection therewith (the foregoing clauses (i), (ii) and (iii), collectively, the “Required AerCap Shareholder Approval”) and (iv) amend the articles of association of AerCap to increase the authorized share capital to EUR 4,500,000 divided into 450,000,000 ordinary shares and to permit the interim filling of vacancies on the Board of Directors of AerCap as contemplated by the Shareholders Agreement.

AerCap Subsidiaries” means the Subsidiaries of AerCap from time to time.

AerCap Tax Warranties” means the warranties made by the AerCap in paragraph 23.1 and paragraph 23.2 (The Accounts and Tax) of Schedule 1B.

AerCap Warranties” means the warranties of AerCap and the AerCap Entities set out in Schedule 1B and any other representations and warranties of AerCap and the AerCap Entities contained herein.

Affiliate” means, with respect to any Person, any other Person that, at the time of determination, directly or indirectly through one or more intermediaries, Controls, is Controlled by or is under common Control with such Person; provided that for the avoidance of doubt, (w) the Company Group Members and the AerCap Group Members, on the one hand, and the Existing Shareholders and the Parent, on the other hand, shall not be deemed to be Affiliates of each other after the Completion, (x) the AerCap Group Members, on the one hand, and any Subsidiary of any of the Existing Shareholders and the Parent (other than the Company Group Members), shall not be deemed to be Affiliates of each other at any time and (y) prior to the Completion, the Company Group Members, the Parent and the Existing Shareholders shall be Affiliates of each other.

Aircraft” means, either collectively or individually, as applicable, the aircraft described in Schedule 1.1(a) of the Disclosure Letter, each with the airframe manufacturer’s serial number as set forth in the Disclosure Letter, including (a) the airframe, (b) the associated Engines and (c) all appliances, parts, accessories, instruments, navigational and communications equipment, furnishings, modules, components and other items of equipment installed in or furnished with such aircraft, except that, with respect to Lessee Furnished Equipment, references in this Agreement to an “Aircraft” shall be deemed to refer only to that interest in Lessee Furnished Equipment as is held by the owner of the relevant airframe under the applicable Lease Document.

Aircraft Disclosure Date” means February 28, 2021.

 

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Aircraft Trading Agreement” means any Contract (including for the avoidance of doubt any agreement relating to a sale and leaseback transaction and any Residual Value Guarantee Agreement) pursuant to which any Company Group Member agrees to purchase an aircraft or an aircraft engine from any third party who is not a Manufacturer or to dispose of an aircraft or an aircraft engine to any third party, in either case for consideration in excess of US$10 million, other than consignment agreements.

Aircraft Trading Agreement Disclosure Date” means February 28, 2021.

Associated Person” means any agent or any other person who performs (or has performed) services for or who acts (or has acted) on behalf of any of any Person.

Available Insurance Policies” means all policies or programs set forth on Schedule 1.1(b).

Bankruptcy Exceptions” means the applicable bankruptcy, insolvency, examinership, reorganization, moratorium or similar Laws, including statutory proceedings for the restructuring of debts, affecting the enforcement of creditors’ rights generally and general equitable principles, regardless of whether such enforceability is considered in a proceeding of law or at equity.

Base Cash Consideration” means an amount equal to US$23,905,398,192.

Benefit Plan” means any incentive, profit-sharing, share option, share purchase, other equity-based, employment, consulting, compensation, holiday or other leave, change in control, retention, supplemental retirement, pension, severance, health, medical, disability, life insurance, deferred compensation and other employee compensation and benefit plans, programs, policies or agreements.

Books and Records” has its common law meaning and includes all notices, correspondence, plans, books of account and any other documents and all computer disks or tapes or other machine legible programs or other records.

Business” means (x) the business of providing financing products and services for aircraft, aircraft engines and aircraft parts, including operating leases, asset trading and servicing and aircraft parts management, in each case having the scope reflected in the Financial Statements as of the Reference Balance Sheet Date, as such business is owned, operated, engaged in or conducted by the Parent and its Subsidiaries and (y) the ownership of the Minority Interests. For the avoidance of doubt, the “Business” shall not include the activities listed in Schedule 1.1(c) of the Disclosure Letter.

Business Day” means any day other than a Saturday or a Sunday on which commercial banks in Amsterdam, Dublin and New York are open for normal banking business.

Business Liabilities” means any liability or obligation to the extent arising out of or incurred in connection with the ownership or operation of the Business or the Company Group (in the case of the Company Group, other than any Excluded Liabilities), whether any such liability or obligation arises before or after Completion, is known or unknown or is contingent or accrued.

 

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CFIUS” means the Committee on Foreign Investment in the United States and each member agency thereof, acting in such capacity.

CFIUS Approval” means that (i) CFIUS has issued a written notice to the Parent and AerCap that it has concluded all action pursuant to Section 721 and has determined that there are no unresolved national security concerns with respect to the transactions contemplated by this Agreement; or (ii) CFIUS has sent a report to the President of the United States requesting the President’s decision and either (x) the President has announced a decision not to take any action to suspend or prohibit the transactions contemplated by this Agreement or (y) the President has not taken any action within 15 days from the date the President received the report from CFIUS; or (iii) CFIUS has issued a written notice that the notified transaction is not a “covered transaction” within the meaning of Section 721.

CFMI” means CFM International, Inc., a Delaware corporation.

Companies” means Ireland Company 1, Ireland Company 2, Ireland Company 3 and U.S. Company.

Company Benefit Plan” means any Benefit Plan that is sponsored solely by one or more Company Group Members.

Company Employee” means each Person who immediately prior to the Completion Date is (i) employed by any Company Group Member; or (ii) an Existing Shareholder Business Employee.

Company Group” means the Companies and the Company Subsidiaries from time to time.

Company Group Guarantee” means, collectively, all letters of credit, guarantees, surety bonds, performance bonds and other financial assurance obligations issued or entered into by or on behalf of (or for the account of) a Company Group Member in respect of obligations of a Retained Group Member.

Company Group Member” means any corporation, partnership, joint venture, limited liability company, unincorporated association, trust (excluding any Owner Trustee) or other entity within the Company Group.

Company Subsidiaries” means the Subsidiaries of each of the Companies from time to time.

Company Group Transaction Expenses” means, to the extent unpaid immediately prior to the Completion, all third party fees, costs and expenses (including fees of investment bankers, attorneys, accountants and other consultants and advisors) incurred or payable by any Company Group Member in connection with the negotiation, execution and delivery of the Transaction Documents and the execution or consummation of the Transaction, and (ii) all sale, transaction “single-trigger” change-of-control or retention awards (other than any Retention Bonuses)   (in each case, including the employer portion of any associated payroll or withholding Taxes and any social security, Medicare or similar Taxes) (but, for the avoidance of doubt, not

 

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regular annual bonuses assumed pursuant to clause 11.8) payable to Company Employees or any Pre-Completion Company Employees by Parent or any Company Group Member as a result of, or in connection with, the transactions contemplated hereby pursuant to any agreement entered into by Parent or any of its Affiliates prior to the Completion. For purposes of clarification, if Retention Bonuses become due and payable that have been granted by Parent or any Company Group Member within the meaning of Retention Bonuses in Paragraph 8.1 of the Disclosure Schedule, 100% of the amount of any such Retention Bonuses that become due and payable, including the employer portion of any associated payroll or withholding Taxes and any social security, Medicare, or similar Taxes) will not be a Company Group Transaction Expense and shall be borne by AerCap or its Affiliates or a Company Group Member (after Completion).

Completion Date Cash” means the amount of cash and cash equivalents held by the Company Group as of the Effective Time, determined in accordance with the Transaction Accounting Principles.

Compliant” means, with respect to the Required Information, that: (a) such Required Information does not contain any untrue statement of a material fact regarding the Company Group or Business, or omit to state any material fact regarding the Company Group or the Business necessary in order to make such Required Information not materially misleading in light of the circumstances under which such statements were made, (b) such Required Information complies in all material respects with all applicable requirements of Regulation S-K and Regulation S-X under the Securities Act for a registered public offering of securities, and (c) the financial statements and other financial information included in such Required Information would not be deemed stale or otherwise be unusable under the rules and regulations promulgated by the SEC for registered offerings of securities and are sufficient to permit the Business’s independent accountants to issue customary comfort letters in connection with any Debt Financing, including as to customary negative assurances, in order to consummate any portion of the Debt Financing on any day during the Marketing Period.

Conditions” means the conditions to Completion set out in clause 3.1, and “Condition” shall be construed accordingly.

Consent” means any approval, authorization, consent, ratification, permission, exemption or waiver or the expiration, lapse or termination of any waiting period.

Continuing Employees” means (i) Company Employees who continue employment with AerCap or its Affiliates (including any Company Group Member) immediately following the Effective Time and (ii) Company Employees who accept offers of employment and become actively employed by AerCap or its Affiliates in accordance with clause 11.6(a).

Contract” means any contract, agreement, instrument, undertaking, indenture, commitment, loan, license, settlement, consent, note or other legally binding obligation (whether or not in writing) (other than a contract of employment to which any Company Group Member is a party).

Control,” “Controlled,” and “Controlling” means, with respect to any Person, the power to direct or cause the direction of the management and policies of such Person, whether

 

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through the ownership of voting securities, by contract or otherwise, and the terms “Controlled by” and “under common Control with” shall be construed accordingly.

Designated Matter” shall have the meaning set forth in Schedule 1.1(i) of the Disclosure Letter.

Disclosure Letter” means the disclosure letter (together with its schedules and enclosures) of even date from the Parent and the Existing Shareholders to AerCap and the AerCap Entities.

Economic Interest Aircraft” means any Aircraft title which is held by a Person that is not an institutional trust company or any Company Group Member in a structure in which the entire economic interest in such Aircraft and the right to acquire title thereto for a nominal amount (upon payment of other sums due under the relevant agreement) is held by a Company Group Member.

Economic Interest Aircraft Escrow Agreement” means any escrow agreement among the Economic Interest Titleholder, any Company Group Member and any other party thereto pertaining to the arrangements regarding an Economic Interest Aircraft.

Economic Interest Aircraft Transfer Agreements” means the asset transfer agreements each between any Company Group Member and an Economic Interest Titleholder.

Economic Interest Titleholder” means the Person who holds title to an Economic Interest Aircraft under the relevant Economic Interest Aircraft Transfer Agreement.

Effective Time” means 11:59 p.m. Eastern time on the day immediately prior to the Completion Date.

EIH” means Engine Investments Holding Company, a Delaware corporation.

Employment Commencement Date” for a Continuing Employee means the Completion Date; provided, however, that for each Inactive Company Employee, the Employment Commencement Date shall be the date upon which he or she returns to active employment with AerCap or its Affiliates in accordance with clause 11.6.

Encumbrance” means any mortgage, deed of trust, pledge, option, power of sale, retention of title, right of pre-emption, right of first refusal, hypothecation, security interest, encumbrance, claim, lien or charge of any kind, or an agreement, arrangement or obligation to create any of the foregoing.

Engines” means (i) with respect to each Aircraft, the aircraft engines related to that Aircraft, title to which aircraft engines has vested in the owner of that Aircraft or, with respect to all Aircraft, all of those aircraft engines and (ii) with respect to aircraft engines not related to an Aircraft, the aircraft engines with the manufacturer’s serial numbers set forth in Schedule 1.1(a) of the Disclosure Letter, and together in each case with all equipment and accessories belonging to, installed in or appurtenant to those aircraft engines (other than Lessee Furnished Equipment). For the avoidance of doubt, references to Engines shall include aircraft engines which shall have

 

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replaced another aircraft engine under the relevant Lease if title to such replacement aircraft engine shall have passed to the lessor or owner of such Aircraft under such Lease.

 

Equity Arrangement” means each plan, program, agreement or arrangement pursuant to which a Company Employee or a former employee of any Company Group Member holds restricted common stock, options to purchase the common stock, restricted stock units, performance stock units, stock appreciations right or any other rights related to equity, in each case of the Parent or any of its Subsidiaries.

Equity Interests” means, collectively, the New Ireland Company 1 Shares, the Ireland Company 2 Shares, the Ireland Company 3 Shares and the U.S. Company Membership Interests.

ERISA” means the U.S. Employee Retirement Income Act of 1974, as amended from time to time.

ERISA Affiliate” means any entity which, together with the Parent, would be treated as a single employer under Section 414 of the U.S. Tax Code.

ESH” means Engine Support Holdings Limited, a private company limited by shares incorporated under the laws of Ireland with registration number 132070.

Estimated Completion Date Cash” means the Parent’s good faith estimate of Completion Date Cash, as delivered in the Estimated Completion Statement.

Estimated Target Completion Date Cash” means the Parent’s good faith estimate of Target Completion Date Cash, as delivered in the Estimated Completion Statement.

Excluded Liabilities” means any liability or obligation to the extent arising out of or incurred in connection with (i) the ownership or operation of the Retained Group Business, whether any such liability or obligation arises before or after Completion, is known or unknown or is contingent or accrued and (ii) the matters set forth on Schedule 1.1(h) of the Disclosure Letter.

Existing Ireland Company 1 Shares” means 2,274,411 “A” shares, 7,662,771 “B” shares and 1,945,733 preference shares of Ireland Company 1, which represent 100% of the issued and outstanding share capital of Ireland Company 1 and which are held by the Existing Ireland Shareholder 1 at the Signing Date.

Existing Ireland Company Shares” means the Existing Ireland Company 1 Shares, the Ireland Company 2 Shares and the Ireland Company 3 Shares.

Existing Shareholder Business Employee” means each Person who is employed by the Existing Shareholders or any of their Affiliates (excluding any Company Group Member) and whose duties primarily relate to the Business.

Existing Shareholder Indemnifiable Warranties” means each of the warranties made by the Parent and the Existing Shareholders in paragraphs 1.8 (Organization, Authority and Enforceability), 13 (Material Contracts) (first sentence), 14 (Affiliates) (second sentence), 15

 

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(Compliance with Laws) (fourth sentence), 17 (Litigation and Other Proceedings) (first sentence), 18.3 (Properties and Leases), 21.1(a) (Aircraft, Lease Documents, Manufacturer Agreements and Aircraft Trading Agreements) (first sentence), 21.2(a) (first sentence), 21.2(b), 21.3 (first sentence and last sentence) and 21.4 (first sentence), 22.1 (Employee Benefit Matters), 22.5, and 25 (Operations) of Schedule 1A, the Tax Warranties and the Fundamental Warranties.

Export Control Laws” means the applicable Laws or Orders regulating the export, re-export, import, transit, transfer and brokering of any goods, services, software or technology, including the International Traffic in Arms Regulations (22 C.F.R. 120 et seq.), the Export Administration Regulations (15 C.F.R. 730 et seq.), the UK Export Control Act 2002 and the UK Export Control Order 2008, EU Council Regulation (EC) No 428/2009, and all other applicable Laws or Orders relating to export controls and import controls.

FAA” means the Federal Aviation Administration of the United States of America and any successor governmental authority.

Final Completion Date Cash” means the Completion Date Cash as finally determined pursuant to clause 2.5.

Final Target Completion Date Cash” means the Target Completion Date Cash as finally determined pursuant to clause 2.5.

Final Completion Date Cash Consideration” means the sum of the following: (i) the Base Cash Consideration plus (ii) if the amount of the Final Completion Date Cash is greater than the Final Target Completion Date Cash, the amount of the difference between the Final Completion Date Cash and the Final Target Completion Date Cash, minus (iii) if the amount of the Final Target Completion Date Cash is greater than the Final Completion Date Cash, the amount of the difference between the Final Target Completion Date Cash and the Final Completion Date Cash.

Financial Reporting Agreement” means the Financial Reporting Agreement in the form set out in Exhibit D.

Fundamental Warranties” means each of the warranties made by the Parent and the Existing Shareholders to AerCap and the AerCap Entities in paragraphs 1 (Organization, Authority and Enforceability) (other than the warranties in paragraphs 1.8 and 1.9), 2 (Capitalization and Ownership) (other than the warranties in paragraph 2.6) and 3 (Ownership and Transfer of Equity Interests and Transferred Assets) of Schedule 1A (other than the warranties made therein that relate to any Company Group Member that is not one of the Companies or a Material Subsidiary).

GAAP” means generally accepted accounting principles in the United States of America.

GE Aviation Entity” means a Retained Group Member that operates within the Parent’s GE Aviation segment.

 

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Governmental Approvals” means any Consent or other approval, license, permit, order, qualification, authorization of, or registration or other action by, or any filing with or notification to, any Governmental Authority.

Governmental Authority” means any supranational, national, regional, federal, state, municipal or local court, administrative body or other governmental or quasi-governmental entity or authority with competent jurisdiction (including any arbitration panel or body) exercising legislative, judicial, regulatory or administrative functions of or pertaining to supranational, national, regional, federal, state, municipal or local government, including any department, commission, board, agency, bureau, subdivision, instrumentality or other regulatory, administrative, arbitral or judicial authority.

Inactive Company Employee” means a Company Employee in the United States who is on a leave of absence as of immediately prior to the Effective Time.

Income Tax” means any Taxes measured by or imposed on net income.

Indebtedness” means, without duplication, with respect to any Person, all liabilities, obligations and indebtedness for borrowed money of such Person, of any kind or nature, now or hereafter owing, arising, due or payable, howsoever evidenced, created, incurred, acquired or owing, whether primary, secondary, direct, contingent, fixed or otherwise, consisting of indebtedness for borrowed money or the deferred purchase price of property or services, excluding purchases of merchandise and services in the ordinary course of business, but including: (a) all obligations and liabilities of any Person secured by any Encumbrance on such Person’s property, even though such Person shall not have assumed or become liable for the payment thereof (except unperfected Permitted Liens or AerCap Permitted Liens incurred in the ordinary course of business and not in connection with the borrowing of money); (b) all obligations and liabilities of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as finance leases on a balance sheet of such Person in accordance with GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP; (c) all obligations and liabilities created or arising under any conditional sale or other title retention agreement with respect to property used or acquired by such Person, even if the rights and remedies of the lessor, seller or lender thereunder are limited to repossession of such property; (d) all obligations and liabilities under guarantees by such Person of Indebtedness of another Person; (e) all obligations and liabilities of such Person in respect of letters of credit, bankers’ acceptances or similar instruments issued or accepted by banks and other financial institutions for the account of such Person; (f) all obligations of such Person evidenced by bonds, notes, debentures, or similar instruments; (g) all obligations of such Person with respect to deposits or advances of any kind; (h) obligations under Swap Contracts; (i) all obligations and liabilities of such Person as lessee/borrower under any sale and leaseback transaction or any synthetic lease transaction; and (j) all accrued interest, prepayment penalties or premiums, breakage fees and all other amounts owed in respect of any of the foregoing. Notwithstanding anything herein to the contrary, “Indebtedness” shall not include (i) intercompany loans, guarantees or advances made among Company Group Members or among AerCap Group Members, (ii) obligations under or arising out of any employee benefit plan, employment contract, retention agreements (including, for the avoidance of doubt, the Retention Bonuses) or other similar arrangement in existence as of

 

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the Completion Date, (iii) any leases classified as operating leases on a balance sheet of such Person in accordance with GAAP or (iv) obligations under any severance or termination of employment agreement or plan. For the avoidance of doubt, “Indebtedness” shall not include statutory liens incurred or advances or deposits or other security granted to any Governmental Authority in connection with a governmental authorization, registration, filing, license, permit or approval of the ordinary course of business.

Insurance Policies” means all policies of or agreements for insurance and interests in insurance pools and programs held in the name of the Parent or any of its Affiliates (in each case including self-insurance and insurance and reinsurance from Affiliates) and any rights thereunder.

Intellectual Property” means all U.S. and foreign patents, inventions, Trademarks, trade secrets, copyrights and copyrightable works, and all registrations or applications related thereto, and databases and computer software.

Intercompany Accounts” means any intercompany accounts, balances, payables, receivables or indebtedness between any Retained Group Member, on the one hand, and any Company Group Member, on the other hand.

Interest Rate” means an interest rate per annum equal to the average of the three month LIBOR for US dollars that appears on page LIBOR 01 (or, following the discontinuance thereof, a widely accepted benchmark rate replacement therefor as agreed among by the parties) of the Reuters Telerate Screen as at 11:00 a.m. (London time) on each day during the period for which interest is to be paid.

Ireland Companies” means Ireland Company 1, Ireland Company 2 and Ireland Company 3.

Ireland Company 1” means GE Capital Aviation Funding ULC, a private unlimited company incorporated under the laws of Ireland with registration number 393838.

Ireland Company 1 Cancellation Amount” means, with respect to each Existing Ireland Company 1 Share, an amount per share equal to that part of the Consideration that is allocable to the New Ireland Company 1 Shares in accordance with clause 16.2 of this Agreement divided by the total number of Existing Ireland Company 1 Shares in issue at Completion.

Ireland Company 1 Completion Resolutions” means the written shareholder resolutions, in form and substance reasonably acceptable to the Parent and AerCap, to be passed by the Existing Ireland Shareholder 1 and the Ireland Subscriber at Completion pursuant to section 1252 of the Companies Act 2014 of Ireland with regard to the return of capital by the Ireland Company 1 to the Existing Ireland Shareholder 1 and the cancellation of the Existing Ireland Company 1 Shares.

Ireland Company 1 Subscription Amount” means, with respect to each New Ireland Company 1 Share, an amount per share equal to that part of the Consideration that is allocable to the New Ireland Company 1 Shares in accordance with clause 16.2 of the Agreement

 

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divided by the total number of New Ireland Company 1 Shares to be subscribed for by the Ireland Subscriber pursuant to the Ireland Company 1 Subscription Letter.

Ireland Company 1 Subscription Letter” means a letter, in form and substance reasonably acceptable to the Parent and AerCap, pursuant to which Ireland Subscriber agrees to subscribe for the New Ireland Company 1 Shares at Completion.

Ireland Company 2” means Celestial Transportation Finance Ireland Limited, a private company limited by shares incorporated under the laws of Ireland with registration number 404100.

Ireland Company 2 Shares” means 165 ordinary shares of Ireland Company 2, which represent 100% of the issued and outstanding share capital of Ireland Company 2 and which are held by the Existing Ireland Shareholder 2 at the Signing Date.

Ireland Company 3” means GECAS Trading Ireland Limited, a private company limited by shares incorporated under the laws of Ireland with registration number 601289.

Ireland Company 3 Shares” means one (1) ordinary share of Ireland Company 3, which represents 100% of the issued and outstanding share capital of Ireland Company 3 and which is held by the Existing Ireland Shareholder 2 at the Signing Date.

knowledge of AerCap”, “to AerCap’s knowledge”, “awareness of AerCap” or similar phrases means, with respect to any matter, the actual knowledge of any of the individuals listed in Schedule 4B as of the Signing Date after reasonable inquiry of the officers and employees of the AerCap Group Members who would reasonably be expected to have knowledge of such matter.

knowledge of the Parent”, “to the Parent’s knowledge”, “awareness of the Parent” or similar phrases means, with respect to any matter, the actual knowledge of any of the individuals listed in Schedule 4A as of the Signing Date after reasonable inquiry of the officers and employees of the Parent and its Subsidiaries and the officers and employees of the Company Group Members who would reasonably be expected to have knowledge of such matter.

Law” means any supranational, federal, state, local or foreign law (including common law), statute or ordinance, or any rule, regulation, or agency requirement of any Governmental Authority.

Lease” means, with respect to each Aircraft, any lease Contract relating to the leasing of that Aircraft between a Company Group Member as lessor and any Person as Lessee, and, with respect to each Engine, any lease Contract relating to the leasing of that Engine between a Company Group Member as lessor and any Person as Lessee, other than any lease Contract relating to the leasing of an Engine for a period of less than six (6) months.

Lease Disclosure Date” means February 28, 2021.

Lease Document” means, with respect to each Aircraft or Engine, the Lease and all other material Contracts (including any assignments, novations, side letters, amendments,

 

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waivers, modifications, assignment of warranties or option agreements) delivered in connection with, or relating to, the Lease of that Aircraft or Engine, as applicable.

Lenders” means the lenders, arrangers and bookrunners party from time to time to the Debt Financing Commitments or any other commitment letter, engagement letter or Debt Financing Agreements relating to the Debt Financing or any Alternative Financing, as such Person may be replaced pursuant to any amendment, supplement or other modification or replacement or substitution of the Debt Financing Commitments, as permitted in accordance with clause 10.1, or any Alternative Financing obtained pursuant clause 10.1, and shall also include any other Persons (other than AerCap and the AerCap Entities or their respective Affiliates) that have committed or commit to provide or arrange or otherwise entered into Contracts in connection with all or any part of the Debt Financing or other financings in connection with the Transaction and, in each case, their respective Affiliates and their and their respective Affiliates’ respective directors, officers, employees, agents, advisors and other representatives, and their successors and permitted assigns.

Lessee” means, with respect to each Aircraft or Engine, the lessee of such Aircraft or Engine, as applicable (disregarding any Company Group Member that acts as intermediate lessee of any Aircraft or Engine).

Lessee Furnished Equipment” means, with respect to each Aircraft, any appliances, parts, accessories, instruments, navigational and communications equipment, furnishings, modules, components and other items of equipment, installed in or furnished with that Aircraft which in accordance with the terms of the Lease Documents are not required to vest in or be transferred to the lessor or owner of such Aircraft.

Letter of Intent” means a letter of intent, memorandum of understanding or similar writing or instrument that is not a Contract.

Losses” means all losses, damages, liabilities, obligations and claims of any kind together with all costs and expenses reasonably incurred in respect of the same (including reasonable attorneys’ fees).

Manufacturer” means, with respect to an aircraft or aircraft engine, the original equipment manufacturer of such aircraft or aircraft engine.

Manufacturer Agreement” means each Contract with a Manufacturer pursuant to which any Company Group Member agrees to purchase an aircraft or an aircraft engine for consideration in excess of US$10 million.

Manufacturer Agreement Disclosure Date” means February 28, 2021.

Marketing Period” means the first period of 10 consecutive Business Days after the Signing Date (a) throughout and at the end of which AerCap and the AerCap Entities shall have the Required Information and (b) throughout and at the end of which the Conditions shall be satisfied (other than those Conditions that by their nature are to be satisfied at the Completion, but subject to the satisfaction or waiver of those conditions at the Completion). Notwithstanding anything in this definition of “Marketing Period” to the contrary, (A) the Marketing Period shall end on the date on which all of the Debt Financing has closed and (B) the Marketing Period shall

 

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not commence or be deemed to have commenced if, after the Signing Date and prior to the completion of such 10 consecutive Business Day period: (i) the Business’s independent public accounting firm shall have withdrawn its audit opinion with respect to the Business’s audited combined financial statements included in the Required Information, in which case the Marketing Period shall not be deemed to commence unless and until a new unqualified audit opinion is issued with respect to such financial statements of the Business for the applicable periods by such independent public accounting firm or any other independent public accounting firm reasonably acceptable to AerCap, (ii) the Parent or any of its Affiliates shall have determined in writing or publicly announced any intention to restate any historical financial statements included in the Required Information or that any such restatement is under consideration or may be a possibility, in which case the Marketing Period shall not be deemed to commence unless and until such restatement has been completed and the applicable Required Information has been delivered to AerCap and the AerCap Entities or the Parent or any such Affiliate has determined in writing (and so notified AerCap and the AerCap Entities) or publicly announced that it has concluded that no restatement shall be required in accordance with GAAP or (iii) any Required Information is not Compliant at any time during such 10 consecutive Business Day period, in which case the Marketing Period shall not be deemed to commence unless and until the receipt by AerCap and the AerCap Entities of Required Information that is Compliant. Notwithstanding anything herein to the contrary, (i) July 2, 2021 shall not count as a Business Day for purposes of calculating the Marketing Period, (ii) if the Marketing Period shall not have been completed on or prior to August 13, 2021, then it shall not commence prior to September 7, 2021, (iii) November 24, 2021 and November 26, 2021 shall not count as Business Days for purposes of calculating the Marketing Period and (iv) if the Marketing Period shall not have been completed on or prior to December 17, 2021, then it shall not commence prior to January 3, 2022. If at any time on or after the date the Conditions have been satisfied (other than those Conditions that by their nature are to be satisfied at the Completion), the Parent shall in good faith reasonably believe that it has provided the Required Information and the Required Information is Compliant, it may deliver to AerCap and the AerCap Entities a written notice to that effect (stating when it believes the Required Information was delivered), in which case the Parent shall be deemed to have delivered the Required Information that is Compliant to AerCap and the AerCap Entities on the date of delivery of such notice unless AerCap in good faith reasonably believes that the Parent has not completed delivery of the Required Information or the Required Information is not Compliant and, within three (3) Business Days after its receipt of such notice from the Parent, AerCap delivers a written notice to the Parent to that effect (stating with reasonable specificity which Required Information AerCap reasonably believes the Parent has not delivered or the reason for which AerCap reasonably believes the Required Information is not Compliant); provided that it is understood that (i) delivery of such written notice from AerCap to the Parent will not prejudice the Parent’s right to assert that the Required Information has in fact been delivered and is Compliant and (ii) whether or not AerCap or Parent delivers any such written notice, the Marketing Period shall be deemed to commence and be completed as and when provided in this definition.

Material Adverse Effect” means a material adverse effect on the business, assets, results of operation or financial condition of the Company Group or the Business, taken as a whole, except any such effect to the extent arising or resulting from: (A) changes after the Signing Date in general business, economic, political or market conditions (including changes generally in prevailing interest rates, credit availability and liquidity, currency exchange rates and price levels or trading volumes) in the United States, Ireland, the Netherlands or other securities or credit

 

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markets; (B) any outbreak or escalation of hostilities, declared or undeclared acts of war or terrorism, in each case after the Signing Date generally affecting the industries or jurisdictions in which the Company Group or the Business operates; (C) changes after the Signing Date in GAAP, or authoritative interpretations thereof; (D) changes after the Signing Date in securities, aviation and other Laws of general applicability or related authoritative or binding policies or interpretations of Governmental Authorities; (E) any pandemic (including the SARS-CoV-2 virus and COVID-19 disease), epidemic, plague, or other outbreak of illness or public health event, quarantine, hurricane, flood, tornado, earthquake or other natural disaster or act of God or changes resulting from weather conditions; (F) incidents with respect to the Boeing 737 MAX (including any grounding of the Boeing 737 MAX by the FAA or other Governmental Authorities) that have occurred on or prior to the Signing Date or the consequences of such events; (G) actions required to be taken under the Transaction Documents or taken with AerCap’s prior written consent after the Signing Date (other than with respect to paragraph 4 of Schedule 1A); (H) the identity of, or the effects of any facts or circumstances relating to, AerCap, the AerCap Entities or any of their Affiliates, the effects of any action (including in relation to obtaining any Governmental Approvals) taken or required to be taken by AerCap, the AerCap Entities or any of their Affiliates or Representatives with respect to the transactions contemplated by this Agreement or the effects of the negotiation, execution, public announcement, disclosure or completion of such transactions (and in each case, including the attrition or departure of any employees, independent contractors, consultants or agents of any Company Group Member or the Business) (other than with respect to paragraph 4 of Schedule 1A); or (I) any matter set forth in the Disclosure Letter which is an exception to a Warranty to the extent that the relevance of such items is readily apparent from the content and context of such disclosure (other than with respect of paragraph 6.1 of Schedule 1A) or (J) any failure by any Company Group Member or the Business to achieve any earnings or other financial projections or forecasts, provided that any event, change, occurrence or development or state of facts that may have caused or contributed to such failure shall not be excluded under this subclause (J); provided that in the case of each of subclauses (A) through (F), such changes or occurrences have not had and would not reasonably be expected to have a materially disproportionate adverse effect on the Company Group or the Business, taken as a whole, relative to other comparable participants in the aircraft leasing industry.

Material Contract” means any Contract, individually or together with related Contracts, to which any Company Group Member is a party (other than leases for real property, aircraft and engine leases and other agreements related thereto (including any Lease Documents), Aircraft Trading Agreements and Contracts with Manufacturers pursuant to which any Company Group Member agrees to purchase an aircraft or aircraft engine, including Manufacturer Agreements) which (i) calls for the payment by or on behalf of any Company Group Member or the Business in excess of US$100 million per annum, or the delivery by any Company Group Member or the Business of goods or services (or license of rights) with a fair market value in excess of US$100 million per annum, during the remaining term thereof, (ii) provides for any Company Group Member or the Business to receive any payments in excess of, or any rights or property with a fair market value in excess of, US$100 million during the remaining term thereof, (iii) contains covenants purporting to restrict materially the ability of any Company Group Member or its Affiliates or the Business to engage in any line of business in any geographical area or otherwise purporting to restrict their ability to lease aircraft or to market or sell products or services (other than as required by applicable Law or pursuant to legal compliance policies of the relevant counterparty), (iv) relates to the acquisition or disposition by any Company Group Member or the

 

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Business within the last three (3) years of any business (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of, US100 million and which contains material ongoing obligations of any Company Group Member or the Business, (v) provides for a material partnership, joint venture or other similar agreement or arrangement, (vi) contains the terms of or evidences the Indebtedness covered by paragraph 10 of Schedule 1A, or required to be disclosed in paragraph 10 of Schedule 1A of the Disclosure Letter, (vii) would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act (other than a Benefit Plan or a Company Benefit Plan), (viii) is a material Related Party Contract (other than Related Party Contracts entered into on an arm’s-length basis for the provision of products or services related to (A) the maintenance, repair and overhaul of aircraft engines and (B) customary aircraft engine warranties and product support), or (ix) contains any provisions regarding a “change of control” or similar event with respect to any Company Group Member or contains any provisions regarding the merger or consolidation of any Company Group Member, and, for the purposes of this clause (ix), in each case, which provision would be triggered by the transactions contemplated by this Agreement and (a) if triggered (without obtaining a waiver or consent with respect to the transactions contemplated by this Agreement) would result in damages or additional expenses for the Company Group or the Business in excess of US$25 million or (b) require payments by the Company Group or the Business in excess of US$25 million in a year.

Material Jurisdictions” means the jurisdictions set out in Schedule 1.1(e) of the Disclosure Letter.

Material Subsidiary” means any Company Subsidiary set forth on Schedule 1.1(f) of the Disclosure Letter.

Minority Interest Entities” means the Persons that issued the Minority Interests.

Minority Interests” means the equity interests set forth in Schedule 1.1(g) of the Disclosure Letter.

New Ireland Company 1 Note” means one or more debt instruments of Ireland Company 1 or its Subsidiaries, in form and on terms reasonably satisfactory to AerCap and the Parent, with an aggregate face amount equal to the aggregate balance of the Specified Ireland Company 1 Intercompany Accounts on the Completion Date.

New Ireland Company 2 Note” means a debt instrument of Ireland Company 2, in form and on terms reasonably satisfactory to AerCap and the Parent, with an aggregate face amount equal to the aggregate balance of the Specified Ireland Company 2 Intercompany Account on the Completion Date.

New Ireland Company 3 Note” means a debt instrument of Ireland Company 3, in form and on terms reasonably satisfactory to AerCap and the Parent, with an aggregate face amount equal to the aggregate balance of the Specified Ireland Company 3 Intercompany Account on the Completion Date.

New Ireland Company Notes” means the New Ireland Company 1 Note, the New Ireland Company 2 Note and the New Ireland Company 3 Note.

 

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New Ireland Company 1 Shares” means the new A ordinary shares of US$1.00 each in the capital of Ireland Company 1 to be subscribed for in cash by the Ireland Subscriber at Completion.

New Technology Aircraft” means any Aircraft of the following model types: Airbus A320neo family aircraft, Boeing 737 Max, Boeing 787, Airbus A350 and Airbus A220).

Noteholder Agreement” means a Noteholder Agreement in the form set out in Exhibit C.

Notional Interest Rate” means (i) during the period from October 1, 2020 through September 30, 2021, 1.75% per annum and (ii) from and after October 1, 2021, 3.50% per annum.

Order” means any order, injunction, judgment, decree, ruling, writ, assessment or arbitration award by a Governmental Authority of competent jurisdiction.

Owner Trustee” means an owner trustee that is either (i) a U.S. Citizen and that is Wilmington Trust, Wells Fargo, Bank of Utah, U.S. Bank, Bank of New York Mellon or Deutsche Bank (a “US Owner Trustee”) or (ii) an Irish trustee and that is Wilmington Trust (an “Irish Owner Trustee”) or, in either case, another person reasonably acceptable to the Existing Shareholders after consultation with the AerCap Entities.

Ownership Percentage” means, as of any date of determination, (a)(i) 111,500,000 AerCap Ordinary Shares less (ii) the total number of AerCap Ordinary Shares sold by the Parent, the Existing Shareholders and each of their respective Subsidiaries (other than sales to the Parent, the Existing Shareholders or any of their respective Subsidiaries) from the Signing Date through the date of determination divided by (b) the total number of issued and outstanding AerCap Ordinary Shares as of the date of determination; provided that, in the case of clauses (a)(i) and (a)(ii), the number of AerCap Ordinary Shares shall be adjusted to reflect appropriately the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into AerCap Ordinary Shares), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to AerCap Ordinary Shares with a record date occurring on or after the Signing Date and prior to the date of determination.

Parent Benefit Plan” means each Benefit Plan that is or has been entered into, maintained, administered or contributed to, or with respect to which there are obligations to contribute to, by the Retained Group Members.

Parent Group” means the Parent, the Existing Shareholders, each Subsidiary of the Parent, and each Company Group Member.

Parent Group Member” means any corporation, partnership, joint venture, limited liability company, unincorporated association, trust or other entity within the Parent Group.

Parent Settlement Agreement” means the letter agreement dated as of March 6, 2021 among Parent, U.S. Company and Ireland Company 1 relating to the settlement and release of certain Claims between the Business and any GE Aviation Entity. 

 

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Permits” means all permits, licenses, consents, franchises, approvals, authorizations, registrations, notifications, filings and similar rights or instruments obtained from or made to a Governmental Authority, including marketing authorizations, manufacturing authorizations, import authorizations, wholesale distribution authorizations and parallel import authorizations (including any specifications forming part of any of the foregoing).

Permitted Liens” and “Permitted Lien” mean: (a) liens for Taxes that are not yet due or payable or that are being contested in good faith by appropriate proceedings and with respect to which reserves have been made on the Financial Statements to the extent required under GAAP; (b) statutory liens of landlords and liens of carriers, warehousemen, mechanics, material men, repairmen and other liens imposed by Law for amounts not yet due or that are being contested in good faith by appropriate proceedings and with respect to which reserves have been made on the Financial Statements to the extent required under GAAP; (c) liens incurred or deposits made to a Governmental Authority in the ordinary course of business or as required by applicable Laws in connection with a governmental authorization, registration, filing, license, permit or approval; (d) liens incurred or deposits made in the ordinary course of the business of any Company Group Member or the Business in connection with workers’ compensation, unemployment insurance or other types of social security; (e) defects of title, easements, rights of way, covenants, restrictions and other similar charges or encumbrances not materially interfering with the ordinary conduct of business or which are shown by a current title report or other similar report or listing previously provided or made available to AerCap; (f) liens incurred in the ordinary course of the business of any Company Group Member or the Business that do not secure Indebtedness of any Company Group Member or the Business and that are not individually or in the aggregate material to the relevant asset or property, respectively; (g) all licenses, settlements and covenants not to assert entered into in the ordinary course of the business of any Company Group Member or the Business; (h) zoning, building and other generally applicable land use restrictions; (i) liens that have been placed by a third party on the fee (or any superior leasehold) title of the real property constituting the leased real property or real property over which any Company Group Member or the Business has easement rights; (j) leases or similar agreements affecting the real property owned by any Company Group Member or the Business that do not materially interfere with the use of such real property; (k) liens or other restrictions on transfer imposed by applicable Laws; (l) liens granted on securities held for cash management purposes under repurchase and reverse repurchase agreements and liens granted under derivatives entered into in the ordinary course of the business of any Company Group Member or the Business; (m) clearing and settlement liens on securities and other investment properties incurred in the ordinary course of clearing and settlement transactions in such securities and other investment properties and the holding of legal title or other interests in securities or other investment properties by custodians or depositories in the ordinary course of the business of any Company Group Member or the Business; (n) agreements with any Governmental Authorities or any public utilities or private suppliers of services, including subdivision agreements, development agreements and site control agreements in the ordinary course of business or as required by applicable Law (provided that such agreements do not materially interfere with the ordinary conduct of business of any Company Group Member or the Business); (o) rights of any Owner Trustee with respect to any Aircraft owned by it; and (p) with respect to any aircraft, airframe, aircraft engine or aircraft part: (i) the rights conferred by the Lease Documents and Aircraft Trading Agreements; (ii) any “Permitted Liens” (or any other phrase with substantially similar meaning) under the terms of the relevant Lease Documents or analogous Encumbrances created by a Company Group Member or the Business following repossession of

 

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any aircraft or aircraft engine; (iii) Encumbrances for which the applicable Lessee (other than a Company Group Member or the Business) is responsible or for which the applicable Lessee is to indemnify the lessor under the terms of the applicable Lease Documents; (iv) in respect of an Economic Interest Aircraft, any Encumbrance created pursuant to a related Economic Interest Aircraft Transfer Agreement or Economic Interest Aircraft Escrow Agreement; (v) Encumbrances which do not materially detract from the value of such Aircraft or any Company Group Member or the Business’s interest in such Aircraft, or materially interfere with the use of such Aircraft in substantially the manner used before the Signing Date; (vi) Encumbrances created by, or resulting from the actions or omissions of, Lessees or third parties during the term of a Lease Document or thereafter but prior to repossession of the relevant Aircraft by a Company Group Member or the Business; or (vii) Encumbrances securing an obligation incurred by any Lessee.

Person” means any individual, corporation, partnership, limited liability company, firm, joint venture, association, joint-stock company, trust, unincorporated organization, Governmental Authority or other entity.

Pre-Completion Company Employee” means (i), from the Signing Date until the Completion Date, each Person who is a current or former employee of any Company Group Member and (ii), as of and following the Completion Date, each Person who is a former employee of any Company Group Member.

Pre-Completion Covenants” means the covenants contained in this Agreement that by their terms are expected to be complied with prior to Completion.

Pre-Completion Tax Period” means any Tax period ending on or before the Completion Date.

Pre-RBS Tax Period” means any Tax period (or portion thereof) ending on or before the Reference Balance Sheet Date.

Proposed Final Completion Date Cash” means the Parent’s good faith determination of Completion Date Cash, as delivered in the Proposed Final Completion Statement.

Proposed Final Completion Date Cash Consideration” means the sum of the following: (i) the Base Cash Consideration plus (ii) if the amount of the Proposed Final Completion Date Cash is greater than the Proposed Final Target Completion Date Cash, the amount of the difference between the Proposed Final Completion Date Cash and the Proposed Final Target Completion Date Cash, minus (iii) if the amount of the Proposed Final Target Completion Date Cash is greater than the Proposed Final Completion Date Cash, the amount of the difference between the Proposed Final Target Completion Date Cash and the Proposed Final Completion Date Cash.

Proposed Final Target Completion Date Cash” means the Parent’s good faith determination of Target Completion Date Cash, as delivered in the Proposed Final Completion Statement.

Reference Balance Sheet Date” means 11:59 p.m. Eastern time on September 30, 2020.

 

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Registration Rights Agreement” means a Registration Rights Agreement in the form set out in Exhibit B.

Related Party Contract” means any Contract between or among any Company Group Member, on the one hand, and any Retained Group Member, on the other hand.

Reorganization” means the reorganization of the corporate post-Completion structure and assets (including which entities hold which assets) of the Company Group and the AerCap Group which reorganization achieves AerCap’s Tax and financing goals and is otherwise reasonably acceptable to AerCap and Parent.

Representative” of a Person means such Person’s Affiliates and the directors, officers, employees, advisers, agents, consultants, accountants, attorneys, sources of financing, investment bankers and other representatives of such Person and of such Person’s Affiliates.

Required Information” means (a) audited statements of earnings of the Business for the years ended December 31, 2018 and December 31, 2019, the audited statements of financial position of the Business as of December 31, 2018 and December 31, 2019 and the audited statements of cash flows of the Business for the years ended December 31, 2018 and December 31, 2019 and such financial statements as of and for any subsequent fiscal year ended at least 90 days before the Completion Date and (b) unaudited statements of financial position of the Business and the related unaudited statements of earnings and cash flows of the Business as of and for the nine (9) months ended September 30, 2019 and September 30, 2020 and such financial statements as of and for any subsequent quarterly interim period or periods (other than the fourth fiscal quarter) ended after the date of the Business’ most recent audited financial statements (and the corresponding periods of the prior fiscal year) and at least 45 days before the Completion Date, in all cases, prepared in accordance with GAAP.

Residual Value Guarantee Agreement” means any Contract to which any Company Group Member is a party that provides for a residual value guarantee, asset value guarantee or similar arrangement.

Retained Group” means, with the exception of the Company Group Members, the Parent and each Subsidiary of the Parent from time to time.

Retained Group Business” means the business and operations conducted by the Retained Group other than the Business.

Retained Group Member” means any corporation, partnership, joint venture, limited liability company, unincorporated association, trust or other entity within the Retained Group.

Retained Group Member Guarantees” means, collectively, all letters of credit, guarantees, surety bonds, performance bonds and other financial assurance obligations issued or entered into by or on behalf of (or for the account of) a Retained Group Member in respect of obligations of a Company Group Member or the Business.

 

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Retention Bonus” has the meaning set forth in Schedule 8.1 of the Disclosure Letter.

Sanctions Authority” means (a) the United States, (b) the United Nations Security Council, (c) the European Union or any member state thereof, (d) the United Kingdom or (e) the respective governmental institutions of any of the foregoing, including OFAC, the U.S. Department of Commerce, the U.S. Department of State, any other agency of the U.S. government, and Her Majesty’s Treasury.

SEC” means the U.S. Securities and Exchange Commission.

Section 721” means Section 721 of the Defense Production Act of 1950, as amended and codified at 50 U.S.C. Section 4565.

Securities Act” means the U.S. Securities Act of 1933, as amended, and applicable rules and regulations thereunder.

Securities Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended, and applicable rules and regulations thereunder.

Senior Employee” means every employee of the Company Group with an annual base salary rate, in excess of US$400,000 per annum (or its equivalent in local currency at exchange rates prevailing at the Signing Date), and every director of a Company Group Member who is also an employee.

Separate Taxes” means any Income Taxes of any Company Group Member other than Income Taxes with respect to any consolidated, combined, affiliated, controlled or unitary Tax Return that includes a Retained Group Member and where such Retained Group Member is liable (jointly or severally) for such Taxes.

SES” means Shannon Engine Support Limited, a private company limited by shares incorporated under the laws of Ireland with registration number 130807.

SES Tracking Stock” means the shares of tracking stock issued by EIH and held by the U.S. Company.

Shareholders’ Agreement” means a Shareholders’ Agreement in the form set out in Exhibit A.

Signing Date” means the date of this Agreement.

Specified Aircraft Assets” means all of the aircraft, engines and leases of aircraft or aircraft engines of the Business as reflected in the Unaudited Balance Sheet (or that would be reflected in a balance sheet created in accordance with the Transaction Accounting Principles) as of the Completion Date.

 

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Specified Ireland Company Intercompany Accounts” means the Specified Ireland Company 1 Intercompany Accounts, the Specified Ireland Company 2 Intercompany Account and the Specified Ireland Company 3 Intercompany Account.

Specified Ireland Company 1 Intercompany Accounts” means the Intercompany Accounts set forth on Schedule 2.1(c) of the Disclosure Letter, other than the Specified Ireland Company 2 Intercompany Account and the Specified Ireland Company 3 Intercompany Account.

Specified Ireland Company 2 Intercompany Account” means the Intercompany Account set forth on Schedule 2.1(c) of the Disclosure Letter between Ireland Company 2 and GE Financial Holdings Unlimited Company.

Specified Ireland Company 3 Intercompany Account” means the Intercompany Account set forth on Schedule 2.1(c) of the Disclosure Letter between Ireland Company 3 and GE Financial Holdings Unlimited Company.

Specified Warranties” means the warranties made by the Parent and the Existing Shareholders in paragraph 13 (Material Contracts) (first sentence), 17 (Litigation and Other Proceedings) (first sentence) and 22.1 (Employee Benefit Matters) of Schedule 1A and the warranties made by AerCap and the AerCap Entities in paragraphs 12 (Material Contracts) (first sentence), 15 (Reports) (with respect to the AerCap Form 20-F), 16 (Litigation and Other Proceedings) (first sentence) and 21.1 (Employee Benefit Matters) of Schedule 1B.

Straddle Period” means any Tax period that begins on or before the Completion Date and ends after the Completion Date.

Straddle RBS Period” means any Tax period that begins on or before September 30, 2020 and ends after September 30, 2020.

Subsidiary” in respect of a Person, means any corporation, partnership, joint venture, trust, limited liability company, unincorporated association or other entity in respect of which such Person, directly or indirectly: (w) is entitled to more than 50% of the interest in the capital or profits; (x) holds or controls a majority of the voting securities or other voting interests; (y) has rights via holdings of debt or other contract rights that are sufficient for control and consolidation for GAAP purposes; or (z) has the right to appoint or elect a majority of the board of directors or Persons performing similar functions.

Superior Proposal” shall mean any Acquisition Proposal that the Board of Directors of AerCap has determined in its good faith judgment (after consultation with outside legal counsel and its financial advisor) is more favorable to AerCap and its business taking into account its stakeholders than the Transaction, taking into account all of the terms and conditions of such Acquisition Proposal (including the financing, likelihood and timing of consummation thereof) and this Agreement.

Swap Contracts” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions,

 

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interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, emission rights, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement; provided that “Swap Contracts” shall not include (i) any right, option, warrant or other award made under an employee benefit plan, employment contract or other similar arrangement, (ii) any right, warrant or option or other convertible or exchangeable security or other instrument issued by the Parent or any Subsidiary or Affiliate of the Parent or any Subsidiary for capital raising purposes or (iii) any right, warrant or option or other convertible or exchangeable security or other instrument issued by AerCap or any Subsidiary or Affiliate of AerCap or any Subsidiary for capital raising purposes.

Target Completion Date Cash” means the sum of (i) $104,209,001 plus or minus (ii) the net operating, investing and financing cash flows for the Business between the Reference Balance Sheet Date and the Completion Date, adjusted as necessary in accordance with the Transaction Accounting Principles.

Tax Authority” means any government, state or municipality or any regional, provincial, state, federal or other fiscal, revenue, customs and excise authority, body, official or other Governmental Authority having jurisdiction over the assessment, determination, collection or imposition of any Tax.

Tax Returns” means all returns and reports (including notices, accounts, computations, statements, assessments, registrations, elections, declarations, estimates, claims for refund and information and land transaction returns), including any schedule or attachment thereto, required to be supplied to a Tax Authority relating to Taxes.

Tax Warranties” means the warranties made by the Parent and the Existing Shareholders in paragraph 24.1 and paragraph 24.2 (The Accounts and Tax) of Schedule 1A.

Trademarks” means trademarks, service marks, trade names, corporate or business names, tag-lines, service names, service marks, domain names, trade dress, monograms, slogans, logos, brand names and other source identifiers of same, including all goodwill associated therewith, and all common law rights, and registrations and applications for registration thereof, all rights therein provided by international treaties or conventions, and all reissues, extensions and renewals of any of the foregoing.

Transaction Accounting Principles” means the accounting principles, policies and procedures used in preparing the Audited Financial Statements, subject to the adjustments set forth on Exhibit F.

 

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Transaction Documents” means, collectively, this Agreement, the Disclosure Letter, the AerCap Disclosure Letter, the instruments of transfer of the U.S. Company Membership Interests, the Ireland Company 1 Subscription Letter, the instruments of transfer of the Transferred Assets, the Debt Financing Agreements, the AerCap Notes and any related guarantees (if any), the indenture or indentures governing the AerCap Notes (if any), the Shareholders’ Agreement, the Registration Rights Agreement, the Noteholder Agreement (except in the event that no AerCap Notes are issued), the Financial Reporting Agreement, the Transition Services Agreement, the Transitional Trademark License Agreement, the letter agreement entered into by the parties hereto on the date hereof and the officers’ certificates referred to in Schedule 3.

Transferred Asset Companies” means Mubadala Infrastructure Partnership, Mubadala Infrastructure Partners LP and MIP C.I.P. L.P.

Transition Services Agreement” means a Transition Services Agreement in the form set out in Exhibit E.

Transitional Trademark License Agreement” means a Transitional Trademark License Agreement in the form set out in Exhibit G.

Treasury Regulations” means the regulations prescribed under the U.S. Tax Code.

TUPE” means the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 of Ireland and the Transfer of Undertakings (Protection of Employment) Regulations 2006 of the United Kingdom, each as amended, and applicable rules and regulations thereunder.

U.S. Citizen” means a Person who is a citizen of the United States as defined in Section 40102(a)(15) of Title 49 of the U.S. Code.

U.S. Company” means GE Capital Aviation Services LLC, a Delaware limited liability company.

U.S. Company Membership Interests” means 1,000 membership interests of U.S. Company, which represent 100% of the issued and outstanding equity interests of U.S. Company and which are held by the Existing U.S. Shareholder at the Signing Date.

U.S. Tax Code” means the U.S. Internal Revenue Code of 1986, as amended.

Warranties” means the warranties of the Parent and the Existing Shareholders set out in Schedule 1A and any other representations and warranties of the Parent and the Existing Shareholders contained herein.

Term Clause
AerCap Recitals
AerCap Board Recommendation Recitals
AerCap Competing Proposal 11.11
AerCap General Meeting 9.1
AerCap Financial Statements Schedule 1B5

 

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Term Clause
AerCap Notes Recitals
AerCap Permits Schedule 1B14
AerCap Reports Schedule 1B15
AerCap Triggered Facilities 8.5
Adverse Recommendation Change Termination Fee 7.9
Agreement Preamble
Alternative Acquisition Fee 7.10
Alternative Financing 10.1
Announcement 21.1
Audited Financial Statements Schedule 1A5.1
Basket Amount 7.1
Benefits Continuation Period 11.8
Cash Consideration 2.3
Competing Transaction 11.3
Completion 5.1
Completion Date 5.2
Completion Failure Termination Fee 7.8
Confidentiality Agreement 17.1
Consideration 2.3
Conversion Rate 31.3(a)
Debt Financing Schedule 1B24
Debt Financing Agreements 10.1
Debt Financing Commitments Schedule 1B24
Dispositions Schedule 2A11
Dispute Notice 2.5(c)
Environmental Laws Schedule 1A23.1(a)
Estimated Completion Date Cash Consideration 2.4
Estimated Completion Statement 2.4
Excluded Action 4.1
Facilities Amendments 8.3
Financial Statements Schedule 1A5.1
Hazardous Materials Schedule 1A23.1(a)
Indemnified Party 7.3
Indemnifying Party 7.3
Indemnitees 7.2(b)
Independent Accountant 16.2
Independent Accounting Firm 2.5(d)
Initial Long-Stop Date 7.5(b)
IRS Schedule 1A22.3(d)
Legal Restraint 3.1(j)
legislation 1.6
Long-Stop Date 7.5(b)
Master Agreement 1.1
Parent Recitals
Parent Names and Marks 18.1

 

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Term Clause
Permits Schedule 1A15
Personal Information Schedule 1A26
Potential Contributor 7.2(d)
Proposed Final Completion Statement 2.5
Proprietary Rights Schedule 1A20
AerCap Recitals
AerCap Indemnitees 7.2
AerCap Related Parties 7.13
Relevant Date 31.3(b)
Reports Schedule 1A16.1
Resolution Period 2.5(c)
Review Period 2.5(b)
Section 338 Allocation Schedule 16.2
Section 338 Elections 16.1
Retained Group Member Guarantee Release 8.7
Parent Group Indemnitees 7.2(b)
Existing Shareholders Recitals
Stock Consideration 2.3
Tax Schedule 1A24.1
Tax Claim 16.6
Taxes Schedule 1A24.1
Third Party Claim 7.3(a)
Transaction Recitals
Transaction Dispute 32.1
Transfer Taxes 16.8
Transferred Assets 2.1
Triggered Facilities 8.3
Existing U.S. Shareholder Recitals
Unaudited Balance Sheet Schedule 1A5.1(a)
Unaudited Financial Statements Schedule 1A5.1(a)

 

1.2       The headings in this Agreement do not affect its interpretation.

1.3       The schedules form part of this Agreement.

1.4       References to “US$” or “U.S. dollars” are to U.S. dollars.

1.5       Any reference to a “company” includes any company, corporation or other body corporate, wherever and however incorporated or established.

1.6       Any reference to a statute, statutory provision or subordinate legislation (“legislation”) includes references to:

(a)       that legislation as re-enacted or amended by or under any other legislation before or after the Signing Date;

 

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(b)       any legislation which that legislation re-enacts (with or without modification); and

(c)       any subordinate legislation made under that legislation before or after the Signing Date, as re-enacted or amended as described in(a), or under any legislation referred to in (b).

1.7       Any reference to writing shall include any mode of reproducing words in a legible and non-transitory form.

1.8       All computations of interest with respect to any payment due to a Person under this Agreement shall be based on the Interest Rate on the basis of a year of 365 days, in each case for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest is payable. Whenever any payment under this Agreement will be due on a day other than a Business Day, such payment will be made on the next succeeding Business Day, and such extension of time will be included in the computation of payment of interest.

1.9       References to one gender include all genders and references to the singular include the plural and vice versa.

1.10       For the purposes of this Agreement, the Parent shall be deemed not to be Controlled by any Person.

1.11       References to “ordinary course” or words of similar meaning when used in this Agreement shall mean with respect to any Person “the ordinary course of business of such Person, consistent with past practice, subject to such reasonable and prudent changes by such Person and/or its Affiliates as are reasonably necessary in light of the then current operating conditions and developments with respect to such Person and/or its Affiliates, to the extent such operating conditions and developments did not exist prior to the Signing Date, but excluding from the foregoing new operating conditions or developments materially related to the transactions contemplated by this Agreement or the announcement or existence of this Agreement” unless expressly stated otherwise in this Agreement.

1.12       References to “includes” or “including” or words of similar meaning when used in this Agreement shall mean “including without limitation” unless specified otherwise. References to “the transactions contemplated by this Agreement” or words of similar meaning shall mean the Transaction, the entry into and performance under the Transaction Documents, the consummation of the Debt Financing, the transactions contemplated under clause 9.1 and all other transactions contemplated by any provision of this Agreement. For the avoidance of doubt, the consummation of the Debt Financing shall in no event be a condition to the Completion.

1.13       Any reference to “aircraft” includes fixed-wing aircraft and rotary-wing aircraft unless expressly stated otherwise in this Agreement.

 

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1.14       Where any information, document or material is described as “delivered”, “provided” or “made available” prior to the Signing Date (x) to AerCap and/or the AerCap Entities, it shall mean that such information, document or material has been posted to the “Project Jameson” dataroom or the “Project Jameson continued” data room hosted by IntraLinks by or on behalf of Existing Shareholders on or prior to 5:00 p.m. New York City time on the Signing Date or (y) to the Parent and/or the Existing Shareholders, it shall mean that such information, document or material has been posted to the “Project Pilgrim” dataroom or the “Project Pilgrim 2” dataroom hosted by IntraLinks by or on behalf of AerCap on or prior to 5:00 p.m. New York City time on the Signing Date.

2.       Subscription of the New Ireland Company Shares, Subscription of the New Ireland Company Notes and Sale and Purchase of the U.S. Company Membership Interests, the Ireland Company 2 Shares, the Ireland Company 3 Shares and the Transferred Assets

2.1       On the terms of this Agreement and subject to the Conditions, at the Completion (a) (i) Parent shall cause the Ireland Companies and/or one or more of the Subsidiaries of the Ireland Companies to issue, and the Ireland Subscriber shall subscribe for, the New Ireland Company Notes and (ii) Parent shall cause the Ireland Companies (or such Subsidiaries) to repay the Specified Ireland Company Intercompany Accounts with the proceeds of the issuance of the New Ireland Company Notes; (b) immediately after the transactions described in clause 2.1(a)(ii), (i) the Existing U.S. Shareholder shall sell, and the U.S. Purchaser shall purchase, the U.S. Company Membership Interests, (ii) the Ireland Subscriber shall subscribe for the New Ireland Company 1 Shares and the Existing Ireland Company 1 Shares shall be canceled in accordance with and in the sequence set forth in paragraph 1 of Schedule 3, (iii) the Existing Ireland Shareholder 2 shall sell, and the Ireland Subscriber shall purchase, the Ireland Company 2 Shares and the Ireland Company 3 Shares, in each case of clauses (i), (ii) and (iii), free and clear of all Encumbrances (other than restrictions on transfer under applicable securities Laws) and with all rights attached or accruing to such Equity Interests, and (c) the Parent shall, or shall cause one or more of its Affiliates to, sell to AerCap or one of its Affiliates (as designated by AerCap), and such Person shall purchase, the assets of the Parent or such Affiliates set forth on Schedule 2.1 of the Disclosure Letter (such assets, the “Transferred Assets”) free and clear of all Encumbrances (other than (x) in the case of Transferred Assets consisting of equity interests in the Transferred Asset Companies, restrictions on transfer under applicable securities Laws and (y) in the case of all other Transferred Assets, Permitted Liens). Notwithstanding anything to the contrary contained in this Agreement or any other Transaction Document, no AerCap Group Member (including, after consummation of the Transaction, any Company Group Member) shall assume or be obligated to pay, perform or otherwise discharge any Excluded Liability.

2.2       (i) Each of the Parent and the Existing Ireland Shareholder 1 represent to AerCap and the Ireland Subscriber that the Existing Ireland Shareholder 1 and the Ireland Company 1 have the full right to enter into and effect the transactions described in clause 2.1, (ii) each of the Parent and the Existing Ireland Shareholder 2 represent to AerCap and the Ireland Subscriber that the Existing Ireland Shareholder 2 has the right to transfer legal and beneficial title to the Ireland Company 2 Shares and the

 

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Ireland Company 3 Shares and (iii) each of the Parent and the Existing U.S. Shareholder represent to AerCap and the U.S. Purchaser that the Existing U.S. Shareholder has the right to transfer legal and beneficial title to the U.S. Company Membership Interests. The AerCap Entities and AerCap each represent to the Existing Shareholders and the Parent that AerCap, subject to the Required AerCap Shareholder Approval being obtained, has the right to issue the Stock Consideration to the Existing U.S. Shareholder (and, if necessary, to the Existing Ireland Shareholder 2, the sellers of the Transferred Assets and Ireland Company 1).

2.3       The aggregate amount payable by the AerCap Entities for (a) the sale of the U.S. Company Membership Interests, the Ireland Company 2 Shares and the Ireland Company 3 Shares, (b) the subscription for the New Ireland Company 1 Shares, (c) the subscription for the New Ireland Company Notes and (d) the sale of the Transferred Assets shall be (x) 111,500,000 AerCap Ordinary Shares (the “Stock Consideration”), (y) an amount in cash equal to the Base Cash Consideration, as adjusted pursuant to clauses 2.4 and 2.5 (as so adjusted, the “Cash Consideration”), and (z) the AerCap Notes in the aggregate principal amount of up to one billion U.S. dollars (US$1,000,000,000) on and subject to the terms set forth in clause 2.7 (provided that, if AerCap elects to pay cash in lieu of all or any portion of the AerCap Notes, any difference between one billion U.S. dollars and the aggregate principal amount of AerCap Notes issued will be paid in cash) (the AerCap Notes (and any cash paid in lieu of all or any portion thereof), together with the Cash Consideration and the Stock Consideration, the “Consideration”).

2.4       No fewer than five (5) Business Days before the Completion Date, the Parent shall prepare and deliver to AerCap a statement (the “Estimated Completion Statement”) setting forth (a) the Estimated Target Completion Date Cash, (b) the Estimated Completion Date Cash, (c) calculated on the basis of the foregoing, the amount of cash consideration to be paid by the AerCap Entities to the Existing Shareholders at the Completion (the “Estimated Completion Date Cash Consideration”), which shall be equal to the sum of the following: (i) the Base Cash Consideration plus (ii) if the amount of the Estimated Completion Date Cash is greater than the Estimated Target Completion Date Cash, the amount of the difference between the Estimated Completion Date Cash and the Estimated Target Completion Date Cash, minus (iii) if the amount of the Estimated Target Completion Date Cash is greater than the Estimated Completion Date Cash, the amount of the difference between the Estimated Target Completion Date Cash and the Estimated Completion Date Cash, (d) the anticipated balance as of the Completion Date of the Specified Ireland Company Intercompany Accounts and (e) the bank account or accounts to which the AerCap Entities shall pay the Estimated Completion Date Cash Consideration. The Estimated Completion Statement shall be prepared and determined from (i) the Books and Records of the Business and in accordance with the Transaction Accounting Principles and (ii) after taking into account any previous discussions between the Parent, AerCap and their respective Affiliates and Representatives, in connection with the Quarterly Cash Flow Statements (including any previous resolutions between the Parent and AerCap in respect of any amounts set forth in any Quarterly Cash Flow Statement).

 

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2.5       (a) Within sixty (60) days after the Completion Date, the Parent shall provide to AerCap (a) a written statement setting forth (i) the Proposed Final Target Completion Date Cash, (ii) the Proposed Final Completion Date Cash and (iii) calculated on the basis of the foregoing, the Proposed Final Completion Date Cash Consideration, in each case describing in reasonable detail any proposed changes by the Parent to the Estimated Completion Statement that it previously delivered, together with reasonable supporting documentation, or (b) a written statement that Parent proposes no changes to the Estimated Completion Statement that it previously delivered, as applicable (the “Proposed Final Completion Statement”).

(b)       AerCap shall have ninety (90) days (the “Review Period”) after the Parent’s delivery of the Proposed Final Completion Statement to review the same. During the Review Period, AerCap and its Representatives shall be permitted to review such of the Books and Records of the Parent and its Affiliates as are reasonably necessary for AerCap’s review of the Proposed Final Completion Statement, and the Parent shall reasonably promptly make available the individuals in its and its Subsidiaries’ employ as well as Representatives of its independent accountants responsible for and knowledgeable about the information used in, and the preparation of, the Proposed Final Completion Statement, to respond to the reasonable inquiries of, or requests for information by, AerCap or its Representatives subject, in the case of the Parent’s accountants, to the execution of customary release letters.

(c)       If AerCap disputes any item set forth in the Proposed Final Completion Statement, AerCap shall, during the Review Period, deliver written notice to the Parent of the same, specifying in reasonable detail the basis for such dispute and AerCap’s proposed modifications to the Proposed Final Completion Statement (such notice, the “Dispute Notice”). Any matters not subject to any Dispute Notice delivered in accordance with this clause 2.5(c) shall be deemed to have been agreed to and shall be conclusive and binding upon the parties. During the thirty (30) day period immediately following AerCap’s delivery of a Dispute Notice (the “Resolution Period”), the Parent and AerCap shall negotiate in good faith to reach an agreement as to any matters identified in such Dispute Notice as being in dispute, and, to the extent such matters are so resolved within the Resolution Period, then the Proposed Final Completion Statement as revised to incorporate such changes as have been agreed between the Parent and AerCap shall be conclusive and binding upon all parties as the Final Completion Statement.

(d)       If AerCap and the Parent fail to resolve all such matters in dispute within the Resolution Period, then such matters (and only such matters) identified in such Dispute Notice that remain in dispute following the expiration of the Resolution Period shall be finally and conclusively determined by Ernst & Young (or if Ernst & Young is unable or unwilling to serve in such capacity, such other globally recognized accounting firm as shall be agreed upon in writing by the Parent and AerCap) (the “Independent Accounting Firm”).

(e)       The Parent and AerCap shall instruct the Independent Accounting Firm to promptly, but no later than thirty (30) days after its acceptance of its appointment, determine (it being understood that in making such determination, the Independent Accounting Firm shall be functioning as an expert and not as an arbitrator), based solely on written presentations of AerCap and the Parent submitted to the Independent Accounting Firm and not by independent review, only those matters in dispute and will render a written report setting forth its determination as to the

 

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disputed matters and the resulting calculations of the Final Target Completion Date Cash, the Final Completion Date Cash and the Final Completion Date Cash Consideration which report and calculations will be conclusive and binding upon all parties and shall constitute the Final Completion Statement for all purposes hereunder absent manifest mathematical error. A copy of all materials submitted to the Independent Accounting Firm pursuant to the immediately preceding sentence shall be provided by the Parent or AerCap, as applicable, to the other party concurrently with the submission thereof to the Independent Accounting Firm. In resolving any disputed item, the Independent Accounting Firm (a) shall be bound by the provisions of this clause 2.5(e) and clause 2.4 and (b) may not assign a value to any item greater than the greatest value for such item claimed by AerCap or the Parent, or less than the smallest value for such item claimed by AerCap or the Parent.

(f)       The cost of the Independent Accounting Firm’s review and determination shall be borne on a proportionate basis by the Parent, on the one hand, and AerCap, on the other, based on the percentage which the portion of the contested amount not awarded in favor of each such Person bears to the amount actually contested by such Person. By way of illustration, if the Parent’s calculations would have resulted in a one million dollar ($1,000,000) net payment to the Parent, and AerCap’s calculations would have resulted in a one million dollar ($1,000,000) net payment to AerCap, and the Independent Accounting Firm’s final determination as adopted pursuant to clause 2.5(e) results in an aggregate net payment of five hundred thousand dollars ($500,000) to AerCap, then the Parent, on the one hand, and AerCap, on the other hand, shall pay 75% and 25%, respectively, of such fees and expenses.

(g)       If the amount of the Estimated Completion Date Cash Consideration is greater than the Final Completion Date Cash Consideration, the Existing Shareholders shall pay the amount of the difference between the Estimated Completion Date Cash Consideration and the Final Completion Date Cash Consideration to AerCap. If the amount of the Final Completion Date Cash Consideration is greater than the Estimated Completion Date Cash Consideration, AerCap shall pay, or cause to be paid, the amount of the difference between the Final Completion Date Cash Consideration and the Estimated Completion Date Cash Consideration to the Existing Shareholders. Any payment due under this clause 2.5(g) shall be paid by wire transfer of immediately available funds to a bank account designated by the Parent or a bank account designated by AerCap, as applicable, within five (5) Business Days after the date on which the Final Completion Statement becomes conclusive and binding on the parties in accordance with the provisions of this clause 2.5, and, if not paid within such period, shall bear interest at the Interest Rate. All computations of interest shall be made in accordance with clause 1.8.

2.6       The Stock Consideration shall be adjusted to reflect appropriately the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities of a AerCap Subsidiary or of securities convertible into AerCap Ordinary Shares), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to AerCap Ordinary Shares with a record date occurring on or after the date hereof and prior to the Completion Date.

2.7       Unless AerCap elects to pay cash in lieu of all of the AerCap Notes, AerCap shall issue (or cause to be issued) the AerCap Notes to a Retained Group Member to be designated in writing by the Parent no less than two (2) days prior to the Completion

 

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Date. The AerCap Notes shall be issued on the terms set forth in Schedule 2.7 of the Disclosure Letter.

2.8       Except as otherwise provided herein, the AerCap Entities shall be entitled to deduct and withhold (or cause to be deducted and withheld) from the amounts otherwise payable to the Existing Shareholders (or payable to the Ireland Company 1 or by the Ireland Company 1, as the case may be) pursuant to this Agreement such amounts as are required to be deducted and withheld with respect to the making of such payment under applicable Tax Law. If any such withholding or deduction is imposed in a jurisdiction (other than the United States or any jurisdiction therein) as a result of a present or former connection of any AerCap Entity (including of such AerCap Entity’s beneficial owners) to such jurisdiction (other than any connection arising solely from the Transaction Documents or the transactions contemplated therein), the applicable AerCap Entity shall increase the amount of the payment by an amount necessary such that the applicable Existing Shareholders receive (taking into account any cash Tax benefit actually realized by the Existing Shareholders from such deduction or withholding) the amount they would have received had no such deduction and withholding been required. If an AerCap Entity withholds or deducts (or causes to be withheld or deducted) any amounts not subject to the payment of an increased amount pursuant to the foregoing sentence, such amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made; provided that AerCap shall inform the Existing Shareholders at least five (5) Business Days in advance of any such withholding or deduction and shall cooperate with the Existing Shareholders to take commercially reasonable steps to reduce or eliminate such withholding or deduction.

2.9       Each party acknowledges and agrees that, in the event the other party requests a change in the structure of the Transaction in writing, such party shall reasonably consider the other party’s proposed changes in good faith; provided, that no party shall be required to implement any requested changes to the structure of the Transaction without its prior written consent.

3.       Conditions to Completion

3.1       The respective obligations of the Parent and the Existing Shareholders, on the one hand, and AerCap and the AerCap Entities, on the other hand, to complete the transactions contemplated by this Agreement at the Completion shall be subject to the satisfaction or waiver, at or prior to the Completion, of each of the following conditions:

(a)       all applicable waiting periods (and any extensions thereof) listed in Schedule 5 having expired or been terminated and the approvals listed in Schedule 5 being obtained (or deemed to have been obtained by expiration of the applicable waiting period) and Completion being permitted to occur pursuant to the expiration or termination of such waiting periods and the receipt of such approvals;

(b)       the Parent and AerCap shall have obtained CFIUS Approval;

 

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(c)       the title to, and registration with the FAA of, each aircraft (i) (x) title to which was, as of the Lease Disclosure Date, owned directly by a Company Group Member or (y) that is acquired by a Company Group Member after such date and (ii) that, immediately prior to Completion, is beneficially owned by a Company Group Member and registered with the FAA (each such aircraft, an “FAA Aircraft”), being held by, and registered with the FAA in the name of, either (A) a U.S. Owner Trustee, in each case, for the benefit of the applicable Company Group Member either (1) under a trust agreement between the U.S. Owner Trustee and the applicable Company Group Member, as owner participant, in substantially the form of a trust agreement as shall have been approved by the Aeronautical Center Counsel for use with a non-citizen trust or (2) under a trust agreement between the U.S. Owner Trustee and the applicable Company Group Member, as owner participant, in a form of a trust agreement not having been approved by the Aeronautical Center Counsel for use with a non-citizen trust but where the shares, membership interests or other ownership interest of the applicable Company Group Member are held by a U.S. Owner Trustee for the benefit of another Company Group Member under a trust agreement between the U.S. Owner Trustee and such other Company Group Member, as owner participant, in substantially the form of a trust agreement as shall have been approved by the Aeronautical Center Counsel for use with a non-citizen trust of such nature or (B) a U.S. limited liability company, corporation or other entity the shares, membership interests or other ownership interest of which are held by a U.S. Owner Trustee, in each case, for the benefit of the applicable Company Group Member under a trust agreement between the U.S. Owner Trustee and the applicable Company Group Member, as owner participant, in substantially the form of a trust agreement as shall have been approved by the Aeronautical Center Counsel for use with a non-citizen trust of such nature;

(d)       (i) the Fundamental Warranties in paragraphs 1.1, 1.2 (with respect to each Company and each Company Material Subsidiary), 1.4, 1.5, 1.6, 1.7, 2.2 (solely with respect to the Companies), 2.3, 3.1 and 3.2 and the Warranties in paragraph 6.1 of Schedule 1A being true and correct in all respects as of the Completion Date as though made on the Completion Date, (ii) all other Fundamental Warranties being true and correct in all material respects as of the Completion Date as though made on the Completion Date, and (iii) all other Warranties being true and correct as of the Completion Date as though made on the Completion Date (except in each case that those Warranties specified by their terms to be made only as of a specified date shall be true and correct only as of such date), in the case of (iii) without giving effect to any limitations as to materiality or Material Adverse Effect set forth therein, and in the case of (iii) except to the extent that any failure or failures of any such Warranties to be so true and correct as of the Completion Date, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect;

(e)       (i) the AerCap Fundamental Warranties in paragraphs 1.1, 1.2 (with respect to AerCap and each AerCap Material Subsidiary), 1.4, 1.5, 1.6, 1.7, 2.2 (solely with respect to AerCap) and 3 and the AerCap Warranties in paragraph 6.1 of Schedule 1B being true and correct in all respects as of the Completion Date as though made on the Completion Date, (ii) all other AerCap Fundamental Warranties being true and correct in all material respects as of the Completion Date as though made on the Completion Date, (iii) the AerCap Warranty in paragraph 15 in Schedule 1B with respect to the AerCap Form 20-F being true and correct as of March 2, 2021 and (iv) all other AerCap Warranties being true and correct as of the Completion Date as though made on the Completion Date (except in each case that those AerCap Warranties specified by their terms to be made only as of a specified date shall be true and correct only as of such date), in the case of

 

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(iv) without giving effect to any limitations as to materiality or AerCap Material Adverse Effect set forth therein, and in the case of (iv) except to the extent that any failure or failures of any such AerCap Warranties to be so true and correct as of the Completion Date, individually or in the aggregate, has not had and would not reasonably be expected to have a AerCap Material Adverse Effect;

(f)       the covenants in this Agreement required to be complied with by the Parent or the Existing Shareholders on or before the Completion Date shall have been complied with in all material respects;

(g)       the covenants in this Agreement required to be complied with by AerCap or the AerCap Entities on or before the Completion Date shall have been complied with in all material respects;

(h)       no Material Adverse Effect having occurred between the Signing Date and the Completion Date;

(i)       no AerCap Material Adverse Effect having occurred between the Signing Date and the Completion Date;

(j)       no Order by any Governmental Authority of competent jurisdiction shall be in effect, and no Law shall have been enacted by any Governmental Authority of competent jurisdiction that, in any case, restrains, enjoins or otherwise prohibits or makes illegal the consummation of the transactions contemplated by the Transaction Documents or requires the taking of an Excluded Action (such Law or Order, a “Legal Restraint”); provided that the party invoking this condition must have complied in all material respects with its obligations in clause 4;

(k)       the Required AerCap Shareholder Approval shall have been obtained;

(l)       the Registration Rights Agreement, the Noteholder Agreement (except in the event that no AerCap Notes are issued), the Shareholders’ Agreement, the Financial Reporting Agreement, the Transition Services Agreement and the Transitional Trademark License Agreement shall have been executed and delivered by each Parent Group Member party thereto;

(m)       the Registration Rights Agreement, the Noteholder Agreement (except in the event that no AerCap Notes are issued), the Shareholders’ Agreement, the Financial Reporting Agreement, the Transition Services Agreement and the Transitional Trademark License Agreement shall have been executed and delivered by each AerCap Group Member party thereto;

(n)       the Stock Consideration shall have been listed on the New York Stock Exchange, subject to official notice of issuance;

(o)       the Ireland Company 1 and its relevant Subsidiaries shall have complied with the provisions of section 82 (financial assistance) of the Companies Act 2014 of Ireland in connection with the consummation of the transactions contemplated by this Agreement; and

 

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(p)       the Ireland Company 1 F Reorganization shall have occurred, in accordance with clause 16.12(a).

3.2       Only AerCap may assert, or may waive in writing in whole or in part all or any of, the Conditions set out in clauses 3.1(c), (d), (f), (h), (l) or (o), and, to the extent so waived, any such Condition shall no longer operate as a condition to the Completion. Only the Parent may assert, or may waive in writing in whole or in part, the Conditions set out in clauses 3.1(e), (g), (i), (m) and (n) and, to the extent so waived, any such Condition shall no longer operate as a condition to the Completion. The Conditions set out in clauses 3.1(a), (b), (j), (k) and (p) may be waived only by mutual agreement of the Parent and AerCap (and only to the extent permitted by applicable Law) and, to the extent so waived, such Conditions shall no longer operate as a condition to the Completion.

4.       Agreements to Implement

4.1       AerCap and the AerCap Entities agree to use reasonable best efforts to take the steps necessary, proper or advisable (including commercial negotiations or concessions or, in connection with any requirement of any regulatory or anti-trust, competition or anti-monopoly Governmental Authority, committing to take any action, including agreeing to divest Company Group assets or any business or assets of the AerCap Group) to obtain or cause to be obtained as promptly as practicable after the Signing Date (which shall not be later than any date required by applicable Law) all Governmental Approvals that are necessary to complete and make effective the transactions contemplated by the Transaction Documents, including the regulatory and anti-trust approvals listed in Schedule 5. Notwithstanding anything to the contrary herein, neither party will be required to agree to divest, sell, dispose of, hold separate or otherwise take or commit to take any action that limits such party’s freedom of action that (x) is not conditioned on the Completion, (y) when combined with other actions taken pursuant to this ‎clause 4.1, would reasonably be expected to have an adverse impact that is material to the Business, taken as a whole, or if such action is imposed on the AerCap Business, an adverse impact that is material to the AerCap Business, taken as a whole, or (z) is in respect of assets or businesses of the Parent Group other than the Business (any such action, an “Excluded Action”).

4.2       The Parent and AerCap and each of their respective Affiliates shall, and the Existing Shareholders shall cause the Companies to, contest or otherwise resist any Action, including any Action by a private party, challenging any of the transactions contemplated by the Transaction Documents.

4.3       No party shall take any action that it is aware or should reasonably be aware would have the effect of delaying, impairing or impeding the receipt of the Governmental Approvals that are necessary, proper or advisable under the Transaction Documents and applicable to complete and make effective the transactions contemplated by the Transaction Documents.

 

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4.4       Subject to the restrictions set forth in clause 8.1, the Parent and the Existing Shareholders agree to use reasonable best efforts to take the steps necessary, proper or advisable to obtain or cause to be obtained as promptly as practicable after the Signing Date all Governmental Approvals that are necessary to complete and make effective the transactions contemplated by the Transaction Documents, including the regulatory and anti-trust approvals listed in Schedule 5.

4.5       AerCap and the AerCap Entities, on the one hand, and the Parent and the Existing Shareholders, on the other hand, shall promptly make or cause to be made as soon as practicable after the Signing Date with all due dispatch all filings and notifications with all Governmental Authorities that are necessary to complete and make effective the transactions contemplated by the Transaction Documents. Subject to the confidentiality provisions of the Confidentiality Agreement and/or the confidentiality provisions set forth in clause 17 herein and except where prohibited by applicable Law, each party shall promptly supply the other parties with any information which may be required in order to effectuate any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) clause 4.1 hereof. Except where prohibited by applicable Laws or any Governmental Authority, and subject to the confidentiality provisions of the Confidentiality Agreement and/or the confidentiality provisions set forth in clause 17 herein, each of the parties shall, and shall use reasonable best efforts to procure that their respective Affiliates and shall use reasonable best efforts to procure that their respective Representatives: (a) promptly inform the other parties of any communication to or from any Governmental Authority, in each case regarding the Transaction or in connection with an investigation regarding the Transaction; (b) consult with the other parties prior to making any filing, taking a position with respect to any filing, or communicating with any Governmental Authority regarding the Transaction or in connection with an investigation regarding the Transaction; (c) permit the other party to review and discuss in advance, and consider in good faith the views of the other parties in connection with, any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, opinions and proposals before making or submitting any of the foregoing to any Governmental Authority by or on behalf of any party in connection with any legal proceeding related to this Agreement, the Transaction or in connection with an investigation regarding the Transaction (including any such legal proceeding relating to any anti-trust Law); (d) coordinate and cooperate fully with the other party in preparing and exchanging such information and providing such assistance as the other party might reasonably request; (e) to the extent permitted by any Governmental Authority, permit the other parties or its counsel to attend and participate at each meeting or conference regarding the Transaction or in connection with an investigation regarding the Transaction; and (f) promptly provide the other party (and its counsel) with copies of all correspondence, filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted by such party or any of its Affiliates or Representatives with or to any Governmental Authority related to this Agreement or the Transaction or in connection with an investigation regarding the Transaction; provided that the foregoing shall not require any party or any of their respective Affiliates or Representatives to disclose: (x) any information that in the reasonable judgment of such party would result in the disclosure of any trade secrets of third parties or violate any of its obligations with

 

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respect to confidentiality; or (y) any privileged information or confidential competitive information of any party. Each party may, as each deems advisable and necessary, reasonably designate any competitively sensitive or any confidential business material provided to the other under this clause 4.5 as “outside counsel only.” Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and shall not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counsel.

4.6       Each party agrees to supply promptly any additional information and documentary material that may be requested by any Governmental Authority in connection with the aforementioned or any other applicable Laws.

4.7       Subject to the terms and conditions set out in this Agreement, and without limiting the generality of the other undertakings contained in this clause 4, each of the Parent, the Existing Shareholders, AerCap and the AerCap Entities agrees to promptly provide to any relevant Governmental Authority all information, documents or testimony reasonably requested by such Governmental Authority or that are reasonably necessary, proper or advisable to permit completion of the transactions contemplated by this Agreement or the other Transaction Documents.

4.8       The Existing Shareholders and the Parent on the one hand and AerCap and the AerCap Entities on the other undertake to disclose in writing to the other anything of which they become aware which, will or will be reasonably likely to, prevent any of the Conditions set out in clause 3.1 from being satisfied on or prior to the Long-Stop Date, as applicable, as soon as reasonably practicable after it comes to the notice of any of them.

4.9       Subject to clause 4.1, the Existing Shareholders and the Parent shall use their reasonable best efforts to provide, and to procure that the Company Group provides, promptly, all co-operation, information, documentation and assistance which is necessary or reasonably requested by AerCap or the AerCap Entities in connection with:

(a)       fulfillment of the Conditions set out in clauses 3.1(a), (b), (c), (k), (l), (n) and (o);

(b)       making submissions, applications, notifications or filings to, providing information to, engaging in discussions, negotiations, or any other communication with, or obtaining any permission, approval, consent, waiver or other determination (whether binding or not) from (in each case) any Governmental Authority, or evaluating or assessing any matter in connection with any Condition, or otherwise in connection with the Transaction;

which co-operation, information, documentation and assistance shall include:

(c)       the provision of information about the Parent, the Existing Shareholders, any of their respective Affiliates, Company Group Members and any of their directors or managers; 

 

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(d)       making submissions, applications, notifications or filings (whether or not joint) to, providing information to, or engaging in discussions, negotiations, or any other communication with, any Governmental Authority;

(e)       providing access to, and ensuring that assistance is provided by, its professional advisers, including all assistance reasonably required or necessary; and

(f)       signing any shareholder resolutions and agreeing to the early appointment (subject to appropriate safeguards) of the Ireland Subscriber’s nominees to the board of each of the Ireland Companies and its relevant Subsidiaries to facilitate fulfilment of the condition set out at clause 3.1(o).

The Parent and the Existing Shareholders further agree that all information and documentation provided by them pursuant to this clause 4.9 shall be prepared in good faith and shall not, to their knowledge, be misleading in any material respect.

4.10       As promptly as practicable after the Signing Date, the Parent and AerCap shall submit, or cause to be submitted, (i) a draft of the joint notice to CFIUS (“CFIUS Notice”) contemplated under 31 C.F.R. § 800.501(g) with respect to the Transaction, (ii) as promptly as practicable after receiving feedback from CFIUS regarding the draft CFIUS Notice referenced in clause (i), a formal CFIUS Notice as contemplated by 31 C.F.R. § 800.501(a), and (iii) promptly (and in any event in accordance with applicable regulatory requirements) any other submissions that are formally requested by CFIUS to be made, or which the Parent and AerCap mutually agree should be made, in each case in connection with this Agreement and the Transaction. The Parent and AerCap shall cooperate with each other in connection with any such filing or the provision of any such information (including, to the extent permitted by Law, providing copies of all such documents to the non-filing party prior to filing and considering in good faith all reasonable additions, deletions or changes suggested in connection therewith) and in connection with resolving any investigation or other inquiry under Section 721 with respect to any such filing or the Transaction. Further, AerCap shall enter into such reasonable assurances or agreements as are requested or required by CFIUS or the President of the United States to obtain the CFIUS Approval, provided however that AerCap shall not be required to take any Excluded Action.

4.11       Notwithstanding anything to the contrary in this clause 4, as promptly as practicable after the Signing Date, the Parent shall submit, and AerCap shall cause its Subsidiary, Cash Manager Limited, to submit, notifications in the required form to the Central Bank of Ireland (“CBI”) pursuant to Section 39 of the Investment Intermediaries Act 1995 of Ireland (as amended) with respect to the acquisition by the Parent of an indirect qualifying holding in Cash Manager Limited by virtue of the Transaction. The Parent and AerCap shall cooperate with each other in connection with the making of such notifications and with respect to the timely provision of any further information requested or required by CBI.

4.12       Subject to clause 4.1, AerCap and the AerCap Entities shall use reasonable best efforts to provide, promptly, all co-operation, information, documentation

 

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and assistance which is necessary or reasonably requested by the Parent or Existing Shareholders in connection with:

(a)       fulfillment of the Conditions set out in clauses 3.1(a), (b), (m) and (n);

(b)       making submissions, applications, notifications or filings to, providing information to, engaging in discussions, negotiations, or any other communication with, or obtaining any permission, approval, consent, waiver or other determination (whether binding or not) from (in each case) any Governmental Authority, or evaluating or assessing any matter in connection with any Condition, or otherwise in connection with the Transaction;

which co-operation, information, documentation and assistance shall include:

(c)       the provision of information about AerCap, the AerCap Entities, any of their respective Affiliates and any of their directors or managers;

(d)       making submissions, applications, notifications or filings (whether or not joint) to, providing information to, or engaging in discussions, negotiations or any other communication with, any Governmental Authority; and

(e)       providing access to, and ensuring that assistance is provided by, its professional advisers, including all assistance reasonably required or necessary.

AerCap and the AerCap Entities further agree that all information and documentation provided by them pursuant to this clause 4.12 shall be prepared in good faith and shall not, to their knowledge, be misleading in any material respect.

4.13       (a) Prior to Completion, each of AerCap and the Parent shall cooperate with each other and shall, and shall cause each of their respective Affiliates, to use their respective reasonable best efforts to give all notices, and obtain all Consents required or necessary pursuant to any Contract or any Permit in connection with the consummation of the transactions contemplated by this Agreement; provided, however, that neither AerCap nor the Parent shall have any obligation to, or any obligation to cause any of their respective Affiliates to, (i) amend or modify any Contract or otherwise relinquish or forbear any rights under any such Contract, in each case unless such amendment, modification, relinquishment or forbearance is conditioned upon the Completion, (ii) pay any consideration to any Person for the purpose of obtaining any such Consent or (iii) pay any costs and expenses of any other Person (other than ordinary course out-of-pocket costs and expenses, including attorney’s fees) resulting from the process of obtaining such Consent, unless, in the case of clauses (ii) or (iii) the other party agrees to bear such costs and expenses; provided, further, that in no event shall the failure to obtain any such Consent by AerCap, the Parent or any of their respective Affiliates, as applicable, in and of itself constitute a breach of this clause 4.13(a) so long as AerCap or the Parent, as applicable, has otherwise complied with its obligations under this clause 4.13(a).

(b)       If any such Consent pursuant to any Contract or Permit referred to in clause 4.13(a) and relating to a Transferred Asset is not obtained prior to the Completion, AerCap and the Parent shall cooperate (each at its own expense) in any lawful and commercially reasonable

 

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arrangement proposed by AerCap under which AerCap or its designee shall obtain (without infringing upon the legal rights of such third party or violating any applicable Contract, Permit, Law or Order) the rights and benefits and assume the costs, liabilities and obligations with respect to the Transferred Asset with respect to which the Consent has not been obtained in accordance with this Agreement.

(c)       Prior to the Completion, the Parent shall, and shall cause its Affiliates to, use reasonable best efforts to identify any Specified Aircraft Assets that are held by a Retained Group Member (a “Wrong Pocket Specified Aircraft Asset”) and notify AerCap of such Wrong Pocket Specified Aircraft Asset. In the event that prior to the Completion or during the twelve (12) month period following the Completion, the Parent, AerCap or any of their respective Affiliates identify any Wrong Pocket Specified Aircraft Asset, at the request of AerCap, the Parent shall, and shall cause its Affiliates to, use reasonable best efforts to (x) seek the assignment of such Wrong Pocket Specified Aircraft Asset to AerCap or one of its Subsidiaries, or (y) to the extent permitted by applicable Law or Order and by the terms of such Wrong Pocket Specified Aircraft Asset, enter into, or cause its Affiliates to enter into, arrangements with AerCap to provide AerCap with rights and benefits that are similar in all material respects to the rights and benefits applicable to the Retained Group Business under such Wrong Pocket Specified Aircraft Asset; provided, that the Parent and its Affiliates may not implement such arrangements through the provision of additional services under the Transition Services Agreement.

4.14       Promptly following the Signing Date, AerCap, the AerCap Entities, the Parent and the Existing Shareholders shall take, and shall cause their respective Affiliates to take, the actions set forth in Schedule 4.14 of the Disclosure Letter. The parties shall, and shall cause their Affiliates to, comply with the provisions set forth in Schedule 4.14 of the Disclosure Letter.

4.15       None of AerCap or the AerCap Entities shall be in breach of any provision of this clause 4 to the extent that the circumstances that would otherwise constitute a breach arise, directly or indirectly, as a result of a failure by the Existing Shareholders and/or the Parent to comply with its obligations under clauses 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, 4.9, 4.10 or 4.13 or otherwise as a consequence of information on the Company Group or the Parent or its Affiliates that is required not being made available to AerCap, the AerCap Entities and/or any Governmental Authority.

4.16       Neither the Existing Shareholders nor the Parent shall be in breach of any provision of this clause 4 to the extent that the circumstances that would otherwise constitute a breach arise, directly or indirectly, as a result of a failure by AerCap and/or the AerCap Entities to comply with its obligations under clauses 4.1, 4.3¸ 4.5, 4.6, 4.7, 4.8, 4.10, 4.11, 4.12 or 4.13 or otherwise as a consequence of information on AerCap or the AerCap Entities or their respective Affiliates that is required not being made available to the Parent, the Existing Shareholders and/or any Governmental Authority.

5.       Completion

5.1       The completion of (x) the sale, purchase and transfer of the U.S. Company Membership Interests, the Ireland Company 2 Shares, the Ireland Company 3

 

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Shares and the Transferred Assets, (y) the subscription by the Ireland Subscriber for the New Ireland Company 1 Shares and cancellation of the Existing Ireland Company 1 Shares held by the Existing Ireland Shareholder 1 and (z) the issuance of the New Ireland Company Notes and the repayment of the Specified Ireland Company Intercompany Accounts, in each case shall take place in the manner and sequence specified herein (the “Completion”) on the third (3rd) Business Day after the date on which the last of the Conditions with respect to the Completion has been satisfied or (if applicable) waived (other than those Conditions that by their nature are to be satisfied at the Completion, but subject to the satisfaction or waiver of those conditions at the Completion), or on such other date as the parties may agree in writing; provided, that, (A) notwithstanding the satisfaction or waiver of such Conditions (other than those Conditions that by their nature are to be satisfied at the Completion, but subject to the satisfaction or waiver of those Conditions at the Completion), unless otherwise agreed by the parties, the parties shall not be required to effect the Completion until the earlier of (i) any Business Day during the Marketing Period specified by AerCap on no less than three (3) Business Days’ prior written notice to the Parent and the Existing Shareholders and (ii) the third (3rd) Business day after the final day of the Marketing Period and (B) the Parent may, at its election, defer the Completion Date to the last Business Day of the calendar month in which the Completion would otherwise occur.

5.2       The Completion shall take place at the offices of Paul, Weiss, Rifkind, Wharton & Garrison LLP, 1285 Avenue of the Americas, New York, NY, 10019-6064, or such other place or time as the parties may agree in writing (the date on which the Completion takes place being the “Completion Date”).

5.3       At the Completion, the parties shall comply with their respective obligations in Schedule 3 in accordance with the timeframes and sequence set out in that schedule.

5.4       Each party acknowledges and agrees that following the Completion, none of the parties shall be entitled to rescind this Agreement (absent fraud) and, accordingly, each party, to the maximum extent permitted by Law, waives all and any rights of rescission it may have in respect of this Agreement after the Completion (absent fraud).

6.       Warranties

6.1       The Parent and the Existing Shareholders hereby warrant to AerCap and the AerCap Entities that all Warranties are true and correct as at the Signing Date and will be true and correct as of the Completion Date as if repeated immediately prior to the Completion (or, where the Warranty is given by reference to another date, at such other date), in each case subject to, and as qualified by, the Disclosure Letter (it being understood and agreed that disclosure of any item in any schedule or paragraph of the Disclosure Letter shall be deemed disclosed with respect to any other schedule or paragraph (other than paragraph 6.1 of Schedule 1A of the Disclosure Letter) of the Disclosure Letter to the extent that the relevance of such item is readily apparent).


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6.2       Except for the Warranties, none of the Parent, the Existing Shareholders and their respective Affiliates and their respective Representatives makes any representation or warranty of any kind, oral or written, express or implied, or nature whatsoever, oral or written, express or implied, with respect to the Existing Shareholders, the Companies, the Company Subsidiaries, the Business, the Transaction Documents or the transactions contemplated by this Agreement, including any representation or warranty relating to the financial condition, operations, assets or liabilities, probable success or profitability of any of the foregoing entities. Except for the Warranties, the Parent and the Existing Shareholders disclaim all liability and responsibility for any other representations or warranties or any other information made or supplied by or on behalf of the Parent, the Existing Shareholders or any of their respective Affiliates or their respective Representatives or any other Person, and all liability and responsibility for any other representation, warranty, opinion, projection, forecast, advice, statement or information made, communicated or furnished (orally or in writing) to the AerCap Entities or their respective Affiliates or Representatives (including any opinion, projection, forecast, advice, statement or information that may have been or may be provided to AerCap or the AerCap Entities by any Representative of the Parent or any of its Affiliates).

6.3       The Existing Shareholders and the Parent undertake (provided that the failure of the Existing Shareholders or the Parent to comply with this clause 6.3 shall not constitute a breach of this Agreement by the Existing Shareholders or the Parent for purposes of clauses 3.1(f) or 7) to disclose in writing to AerCap and the AerCap Entities anything to the knowledge of the Parent that is or is reasonably likely to constitute:

(a)       a breach of Warranty that, without giving effect to any limitations as to materiality or Material Adverse Effect set forth therein, has had, or would reasonably be expected to have, a Material Adverse Effect,

(b)       a material breach of the Parent’s or the Existing Shareholders’ covenants under clauses 4, 8.1, 8.3, 11.4, and 11.6, or Schedule 2A, or

(c)       the occurrence of a Material Adverse Effect after the Signing Date, promptly upon it coming to the notice of the Existing Shareholders or the Parent between the Signing Date and the Completion Date.

6.4       The Existing Shareholders and the Parent undertake, in the absence of fraud, that if any claim is made against them in connection with the transactions contemplated by this Agreement, not to make any claim against any Company Group Member or any past or present director, employee, agent or adviser of any such member on whom it may have relied before agreeing to any term of the Transaction Documents or authorizing any statement in the Disclosure Letter.

6.5       AerCap and the AerCap Entities hereby warrant to the Parent and the Existing Shareholders that (i) the AerCap Warranty in paragraph 15 in Schedule 1B with respect to the AerCap Form 20-F is true and correct as of March 2, 2021 and (ii) all other AerCap Warranties are true and correct as of the Signing Date and will be true and correct as of the Completion Date as if repeated immediately prior to the Completion (or,

 

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where the AerCap Warranty is given by reference to another date, at such other date), in each case subject to, and as qualified by, the AerCap Disclosure Letter (it being understood and agreed that disclosure of any item in any schedule or paragraph of the AerCap Disclosure Letter shall be deemed disclosed with respect to any other schedule or paragraph (other than paragraph 6.1 of Schedule 1B of the AerCap Disclosure Letter) of the AerCap Disclosure Letter to the extent that the relevance of such item is readily apparent).

6.6       Except for the AerCap Warranties and the Warranties, the parties and their respective Affiliates and their respective Representatives:

(a)       do not make any other representation or warranty of any kind, oral or written, express or implied, or of any nature whatsoever, oral or written, express or implied, with respect to themselves, their Affiliates, their respective businesses, the Transaction Documents or the transactions contemplated by this Agreement; and

(b)       disclaim all liability and responsibility for any other representations or warranties or any other information made or supplied by or on behalf of the parties or any of their respective Affiliates or their respective Representatives or any other Person, and all liability and responsibility for any other opinion, projection, forecast, advice, statement or information made, communicated or furnished (orally or in writing) to any party or its Affiliates or their respective Representatives (including any opinion, projection, forecast, advice, statement or information that may have been or may be provided to any party or its Affiliates or Representatives by any Representative of any party or any of its Affiliates or Representatives).

6.7       AerCap and the AerCap Entities undertake (provided that the failure of AerCap or the AerCap Entities to comply with this clause 6.7 shall not constitute a breach of this Agreement by AerCap or the AerCap Entities for purposes of clauses 3.1(g) or 7) to disclose in writing to the Existing Shareholders and the Parent anything to the knowledge of AerCap that is or is reasonably likely to constitute:

(a)       a breach of any AerCap Warranty that, without giving effect to any limitations as to materiality or AerCap Material Adverse Effect set forth therein, has given, or would reasonably be expected to give, rise to a material and adverse effect on the ability of the AerCap Entities to complete the transactions contemplated by this Agreement;

(b)       a material breach of AerCap’s or the AerCap Entities’ covenants under clauses 4, 8.4 or Schedule 2B; or

(c)       the occurrence of a AerCap Material Adverse Effect after the Signing Date, promptly upon it coming to the notice of AerCap or the AerCap Entities between the Signing Date and the Completion Date.

7.       Remedies and Termination

7.1       (a) The Existing Shareholder Indemnifiable Warranties (other than the Fundamental Warranties, the Tax Warranties and the Existing Shareholder Indemnifiable Warranties contained in paragraph 18.3 of Schedule 1A) and the Pre-Completion Covenants to be

 

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performed by the Parent or the Existing Shareholders shall survive until the date that is twenty-four (24) months after the Completion Date. The covenants and agreements contained in this Agreement that are to be performed at or after the Completion shall survive the Completion until fully performed in accordance with their respective terms. The aggregate Losses for which the Parent and the Existing Shareholders shall be liable to the AerCap Indemnitees in respect of all breaches of all Existing Shareholder Indemnifiable Warranties (other than the Fundamental Warranties) shall not exceed one billion U.S. dollars (US$1,000,000,000), provided that with respect to breaches of Existing Shareholder Indemnifiable Warranties (other than the Fundamental Warranties), the Parent and the Existing Shareholders shall not be liable for any Losses unless the aggregate amount of all such Losses exceeds on a cumulative basis forty million U.S. dollars (US$40,000,000) (the “Basket Amount”) and then only to the extent such aggregate Losses exceed the Basket Amount. The aggregate Losses for which the Parent and the Existing Shareholders shall be liable to the AerCap Indemnitees pursuant to clause 16.3(a)(i) (when taken together with the aggregate Losses for which Parent and the Existing Shareholders are liable to the AerCap Indemnitees in respect of all breaches of all Existing Shareholder Indemnifiable Warranties) shall not exceed two billion U.S. dollars (US$2,000,000,000). The Fundamental Warranties shall survive indefinitely after the Completion Date. The Tax Warranties shall survive until the date that is 36 months after the Completion Date. The Existing Shareholder Indemnifiable Warranties contained in paragraph 18.3 of Schedule 1A shall survive until the date that is twelve (12) months after the Completion Date. All Warranties other than the Existing Shareholder Indemnifiable Warranties shall terminate and be extinguished as of the Completion Date, and the Parent and the Existing Shareholders shall have no liability with respect to such Warranties after the Completion Date.

(b)       The AerCap Indemnifiable Warranties (other than the AerCap Fundamental Warranties and the AerCap Indemnifiable Tax Warranties) and the Pre-Completion Covenants to be performed by the AerCap Entities or AerCap, shall survive until the date that is twenty-four (24) months after the Completion Date. The covenants and agreements contained in this Agreement that are to be performed at or after the Completion shall survive the Completion until fully performed in accordance with their respective terms. The aggregate Losses for which AerCap and the AerCap Entities shall be liable to the Parent, Existing Shareholders and the Parent Group Indemnitees in respect of all breaches of all AerCap Indemnifiable Warranties (other than the AerCap Fundamental Warranties) shall not exceed US$1.0 billion, provided that with respect to breaches of the AerCap Indemnifiable Warranties (other than the AerCap Fundamental Warranties), AerCap and the AerCap Entities shall not be liable for any Losses unless the aggregate amount of all such Losses exceeds on a cumulative basis the Basket Amount and then only to the extent such aggregate Losses exceed the Basket Amount. The AerCap Fundamental Warranties shall survive indefinitely after the Completion Date. The AerCap Indemnifiable Tax Warranties shall survive until the date that is 36 months after the Completion Date. All AerCap Warranties other than the AerCap Indemnifiable Warranties shall terminate and be extinguished as of the Completion Date, and AerCap and the AerCap Entities shall have no liability with respect to such AerCap Warranties after the Completion Date.

(c)       The parties agree that notices for claims in respect of a breach of a representation, warranty, covenant or agreement, including with respect to the indemnification for breach of Warranties or AerCap Warranties pursuant to clause 7.2, must be delivered prior to the expiration of any applicable survival period specified herein for such representation or warranty,

 

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covenant or agreement, and any claims for breach, including with respect to the indemnification of Warranties or AerCap Warranties in clause 7.2, for which notice is not timely delivered in accordance with this clause 7 shall be expressly barred and are hereby waived, provided that if, prior to the survival date, a party shall have notified any other party in accordance with the requirements of this clause 7 of a claim for indemnification hereunder (whether or not formal legal action shall have been commenced based upon such claim), such claim shall continue to be subject to indemnification in accordance with this clause 7 notwithstanding the passing of the survival date.

7.2       (a)       Subject to the limitations set forth in this Agreement, from and after the Completion Date, the Parent and the Existing Shareholders, jointly and severally, agree to indemnify, defend and hold harmless the AerCap Group Members and their respective directors, officers, employees and agents (the “AerCap Indemnitees”) from and against any and all Losses incurred by the AerCap Indemnitees to the extent resulting from, relating to or arising out of (A) any breach by the Parent or the Existing Shareholders of (i) the Existing Shareholder Indemnifiable Warranties, (ii) the Pre-Completion Covenants to be performed by the Parent or the Existing Shareholders or (iii) the covenants and agreements of the Parent and the Existing Shareholders contained in this Agreement that are to be performed at or after the Completion or (B) any Excluded Liability.

(b)       Subject to the limitations set forth in this Agreement, from and after the Completion Date, AerCap and the AerCap Entities, jointly and severally, agree to indemnify, defend and hold harmless the Parent Group Members and their respective directors, officers, employees and agents (the “Parent Group Indemnitees” and, together with the AerCap Indemnitees, the “Indemnitees”) from and against any and all Losses incurred by the Parent Group Indemnitees to the extent resulting from, relating to or arising out of (A) any breach by AerCap or the AerCap Entities of (i) the AerCap Indemnifiable Warranties, (ii) the Pre-Completion Covenants to be performed by AerCap or the AerCap Entities or (iii) the covenants and agreements of AerCap and the AerCap Entities contained in this Agreement that are to be performed at or after the Completion or (B) subject to the indemnity set forth in clause 7.2(a)(A), any Business Liability.

(c)       Any Indemnitee shall take all commercially reasonable steps to mitigate any Losses incurred by such party upon and after becoming aware of any event or condition that would reasonably be expected to give rise to any indemnification rights hereunder, including for the avoidance of doubt, pursuant to clause 16.3.

(d)       If the AerCap Indemnitees receive any payment from the Existing Shareholders or the Parent or the Parent Group Indemnitees receive any payment from the AerCap Entities or AerCap in respect of any Losses in connection with an indemnification claim pursuant to this clause 7.2 or clause 16.3 and the AerCap Indemnitees or the Parent Group Indemnitees, as applicable, could have recovered all or a part of such Losses from a third party (a “Potential Contributor”) based on the underlying claim asserted against the Existing Shareholders or the Parent, in the case of the AerCap Indemnitees, or the AerCap Entities or AerCap, in the case of the Parent Group Indemnitees, the applicable Indemnitees shall assign such of their rights to proceed against the Potential Contributor as are necessary to permit the Existing Shareholders or the Parent (in the case of the AerCap Indemnitees) and the AerCap Entities or AerCap (in the case of the Parent Group Indemnitees) to recover from the Potential Contributor the amount of such payment.

 

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(e)       If AerCap and the AerCap Entities are liable to any Parent Group Indemnitee pursuant to this clause 7.2, to the extent such liability results from, relates to or arises out of Losses also incurred by AerCap or any AerCap Group Member, (i) the amount of Losses incurred by the Parent Group Indemnitees shall be deemed to be an amount equal to the product of (x) the amount of the Losses incurred by AerCap or the applicable AerCap Group Member and (y) the Ownership Percentage as of the date on which the Loss is incurred (expressed as a decimal) and (ii) AerCap and the AerCap Entities shall be liable jointly and severally in an amount equal to the Losses incurred or deemed incurred by the Parent Group Indemnitee (as determined pursuant to the foregoing clause (i)) divided by one minus the Ownership Percentage on the day that AerCap and/or an AerCap Entity actually makes the indemnification payment to such Parent Group Indemnitee in respect of such Losses (expressed as a decimal).

7.3       A Person that may be entitled to be indemnified under this Agreement (the “Indemnified Party”) shall promptly notify the party or parties liable for such indemnification (the “Indemnifying Party”) in writing of any claim in respect of which indemnity may be sought hereunder, describing in reasonable detail the facts and circumstances with respect to the subject matter of such claim; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this clause 7 except to the extent the Indemnifying Party is actually prejudiced by such failure in connection with such claim.

(a)       Upon receipt of notice of a claim for indemnity from an Indemnified Party pursuant to this clause 7 in respect of a pending or threatened claim or demand by a third party that the Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement (such claim or demand being a “Third Party Claim” and including a pending or threatened claim or demand asserted by a third party against the Indemnified Party), the Indemnifying Party may, by notice to the Indemnified Party delivered within twenty (20) Business Days of the receipt of notice of such Third Party Claim, assume the defense and control of such Third Party Claim, with its own counsel reasonably satisfactory to the Indemnified Party and at its own expense; provided that, as a condition to assuming such defense and control, the Indemnifying Party agrees and acknowledges its responsibility for Losses resulting from, related to or arising out of such Third Party Claim and shall allow the Indemnified Party a reasonable opportunity to participate in the defense of such Third Party Claim with its own counsel and at its own expense. If the Indemnifying Party has assumed a defense of any Third Party Claim, (i) the Indemnifying Party will keep the Indemnified Party reasonably informed as to the status and progress of the Third Party Claim, including the receipt of material communications related thereto and copy the Indemnified Party on all material pleadings, filings and other correspondence relating thereto and (ii) the Indemnifying Party shall not, without the prior written consent of the Indemnified Party (which shall not be unreasonably withheld, conditioned or delayed), consent to a settlement, compromise or discharge of, or the entry of any judgment arising from, any Third Party Claim, unless such settlement, compromise or discharge does not involve any finding or admission of any violation of Law or admission of any wrongdoing by the Indemnified Party and involves solely money damages payable by the Indemnifying Party, and the Indemnifying Party shall (i) not encumber any of the assets of any Indemnified Party or agree to any restriction or condition that would apply to or adversely affect any Indemnified Party and (ii) obtain, as a condition of any settlement or other resolution, a complete and unconditional release of each Indemnified Party from any and all liability in respect of such Third Party Claim. For the avoidance

 

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of doubt, the Indemnified Party shall not be liable for any compromise or settlement made by the Indemnifying Party which is not entered into in accordance with this Agreement. Notwithstanding anything to the contrary in this Agreement, Parent shall be entitled to control as the Indemnifying Party the defense or settlement of any claim relating to the Designated Matter that is indemnifiable hereunder.

(b)       If the Indemnifying Party does not give notice to the Indemnified Party of its election to assume the defense of a Third Party Claim within twenty (20) Business Days after receipt of such notice, and until the Indemnifying Party assumes such defense, or if the Indemnifying Party does not diligently pursue such defense (following written notice from the Indemnified Party of such failure and such failure continues beyond a reasonable period), the Indemnified Party shall be entitled to proceed with its own defense of the Third Party Claim at the reasonable expense of the Indemnifying Party; provided, however, that the Indemnified Party shall provide at least twenty (20) Business Days’ advance written notice to the Indemnifying Party of any pending compromise or settlement of any Third Party Claim for which the Indemnified Party is proceeding with its own defense (which notice shall set forth or describe all material terms of the pending compromise or settlement in reasonable detail) and the Indemnifying Party shall not be liable for any compromise or settlement made by the Indemnified Party without the Indemnifying Party’s consent (such consent to not be unreasonably withheld, delayed or conditioned). With respect to any Third Party Claim for which the Indemnified Party is proceeding with its own defense in accordance with this clause 7, the Indemnified Party shall keep the Indemnifying Party reasonably informed as to all material developments related to the Third Party Claim and copy the Indemnifying Party on all material pleadings, filings and other correspondence relating thereto. The Indemnified Party shall not settle, compromise or consent to the entry of any judgment with respect to any claim or demand for which it is seeking indemnification from the Indemnifying Party or admit to any liability with respect to such claim (not to be unreasonably withheld or delayed) or demand without the prior written consent of the Indemnifying Party (not to be unreasonably withheld or delayed) and notwithstanding anything to the contrary in this clause 7, no Indemnifying Party shall have any liability under this clause 7 for any Losses arising out of or in connection with any Third Party Claim that is settled or compromised by an Indemnified Party in violation of this Agreement.

(c)       In the event any Indemnifying Party receives notice of a claim for indemnity from an Indemnified Party pursuant to this clause 7 that does not involve a Third Party Claim, the Indemnifying Party shall notify the Indemnified Party within twenty (20) Business Days following its receipt of such notice whether the Indemnifying Party disputes its liability to the Indemnified Party under this clause 7. The Indemnified Party shall reasonably cooperate with and assist the Indemnifying Party in determining the validity of any such claim for indemnity by the Indemnified Party.

(d)       Notwithstanding anything to the contrary in this Agreement, but without limiting any party’s rights with respect to equitable remedies pursuant to clause 34, the Parent, the Existing Shareholders, AerCap and the AerCap Entities hereby agree that following the Completion, except with respect to fraud, the sole and exclusive remedy of a party for any breach or inaccuracy of any Warranties, AerCap Warranties or Pre-Completion Covenants or the covenants and agreements contained in this Agreement that are to be performed at or after the Completion (other than the payment of the Consideration) is pursuant to the indemnification procedures

 

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described in this clause 7 (and clause 16.6 with respect to Taxes). In furtherance of the foregoing, except with respect to fraud but without limiting any party’s rights with respect to equitable remedies pursuant to clause 34, (x) AerCap and each AerCap Entity hereby waive, from and after the Completion Date, any and all other rights, claims and causes of action AerCap or such AerCap Entity may have against the Existing Shareholders, the Parent or any of their Affiliates, or their respective directors, officers, employees, Affiliates, controlling Persons, agents or representatives, successors or assigns in respect of any breach of the Warranties, the Pre-Completion Covenants of the Parent and the Existing Shareholders or the covenants and agreements contained in this Agreement that are to be performed at or after the Completion by Parent or the Existing Shareholders (other than a claim for indemnification pursuant to this clause 7 or for equitable remedies pursuant to clause 34) and (y) the Parent and each Existing Shareholder hereby waive, from and after the Completion Date, any and all other rights, claims and causes of action the Parent or such Existing Shareholders may have against AerCap, the AerCap Entities or any of their Affiliates, or their respective directors, officers, employees, Affiliates, controlling Persons, agents or representatives, successors or assigns in respect of any breach of the AerCap Warranties, the Pre-Completion Covenants of AerCap and the AerCap Entities or the covenants and agreements contained in this Agreement that are to be performed at or after the Completion by AerCap or the AerCap Entities (other than a claim for indemnification pursuant to this clause 7 or for equitable remedies pursuant to clause 34 or for payment of the Consideration).

(e)       Notwithstanding anything to the contrary in this Agreement, but subject to clause 7.1(a), in the event AerCap, the AerCap Entities, the Parent or the Existing Shareholders become aware of any breach or inaccuracy of any Warranties contained in paragraph 18.3 of Schedule 1A, the Parent shall be permitted to cure such breach or inaccuracy, in whole or in part, prior to being subject to any indemnity payment obligation hereunder by (i) transferring or causing to be transferred, at the Parent’s expense, from the Retained Group Members to the AerCap Group Members such assets, rights or properties as would cure such breach or (ii) by providing such services pursuant to the Transition Services Agreement, in each case for the purpose of curing such breach; provided that the cure right set forth in the foregoing clause (ii) shall not be available in respect of any breach or inaccuracy that relates to the ownership of the Specified Aircraft Assets; provided, further, that for the avoidance of doubt, any notice in respect of which indemnity may be sought pursuant to this clause 7.3(e) shall replace any notice required to be delivered pursuant to the introductory paragraph of this clause 7.3; provided, further, that AerCap shall retain its rights hereunder with respect to any Losses that are not cured by the actions in this clause 7.3(e).

7.4       The aggregate Losses for which the Parent and the Existing Shareholders shall be liable in respect of this Agreement (other than in respect of any Excluded Liabilities) to AerCap, the AerCap Entities and any AerCap Indemnitee shall not exceed five billion U.S. dollars (US$5,000,000,000). The aggregate Losses, for which AerCap and the AerCap Entities shall be liable in respect of this Agreement (other than in respect of any Business Liabilities) to the Parent, the Existing Shareholders and any Parent Group Indemnitee shall not exceed two billion U.S. dollars (US$2,000,000,000). For the purposes of determining whether any of the Warranties or the AerCap Warranties have been breached and the amount of Losses that are the subject matter of a claim for indemnification under this clause 7, each Warranty and AerCap Warranty contained in this Agreement (other than, for purposes of determining whether there has been such a breach, the Specified Warranties) shall be read without regard to and without giving effect

 

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to any materiality qualifier, including “Material Adverse Effect,” contained therein. Nothing in this clause 7 shall modify or waive the obligations of AerCap and the AerCap Entities to deliver the Consideration.

7.5       This Agreement may be terminated prior to the Completion:

(a)       by the mutual written consent of the Parent and AerCap;

(b)       by either the Parent or AerCap if the Completion has not occurred on or before the date that is twelve (12) months after the Signing Date (the “Initial Long-Stop Date” and, as the same may be extended pursuant to this clause 7.5(b), the “Long-Stop Date”); provided that the right to terminate this Agreement pursuant to this clause 7.5(b) shall not be available to any party who shall have materially breached or failed to perform any of its Warranties or AerCap Warranties, as applicable, or Pre-Completion Covenants, in each case, in any manner that shall have resulted in the failure of the Completion to occur on or before the Long-Stop Date; provided, further, that if the Marketing Period has commenced and not yet completed prior to the Initial Long-Stop Date, then the Initial Long-Stop Date shall be extended until the date that is five Business Days after the earlier of (x) the expiration of the Marketing Period and (y) the termination of the Marketing Period by AerCap; and provided, further, that if prior to the Initial Long-Stop Date, the Conditions to the Completion set forth in clause 3.1(a) and/or clause 3.1(b) have not been satisfied or waived but all other Conditions to the Completion (other than those conditions which by their terms cannot be satisfied until the Completion) have been satisfied or waived or are capable of being satisfied by the Initial Long-Stop Date, the Initial Long-Stop Date may be extended on one occasion by either the Parent or AerCap, for a period of three (3) months.

(c)       by AerCap, if (i) a breach of Warranty shall have occurred that would cause the condition set forth in clause 3.1(d) not to be satisfied or (ii) a Material Adverse Effect has occurred since the Signing Date, only insofar as such breach or Material Adverse Effect, as applicable, has not been cured by the earlier of the Long-Stop Date and the date falling three (3) months after the date of such breach;

(d)       by AerCap, if a breach of the Parent’s or the Existing Shareholders’ Pre-Completion Covenants shall have occurred that would cause the condition set forth in clause 3.1(f) not to be satisfied, only insofar as such breach has not been cured by the earlier of the Long-Stop Date, and the date falling three (3) months after the date of such breach;

(e)       by the Parent, if (i) a breach of a AerCap Warranty shall have occurred that would cause the condition set forth in clause 3.1(e) not to be satisfied or (ii) a AerCap Material Adverse Effect has occurred since the Signing Date, only insofar as such breach or AerCap Material Adverse Effect, as applicable, has not been cured by the earlier of the Long-Stop Date and the date falling three (3) months after the date of such breach;

(f)       by the Parent, if a breach of AerCap’s or the AerCap Entities’ Pre-Completion Covenants shall have occurred that would cause the condition set forth in clause 3.1(g) not to be satisfied, only insofar as such breach has not been cured by the earlier of the Initial Long-Stop Date, and the date falling three (3) months after the date of such breach;

 

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(g)       by either the Parent or AerCap, if the Required AerCap Shareholder Approval shall not have been obtained at the AerCap General Meeting duly convened therefor or at any adjournment or postponement thereof permitted hereunder;

(h)       [Reserved];

(i)       by any of the Parent or AerCap in the event that a Legal Restraint having the effect set forth in clause 3.1(j) shall be in effect and shall have become final and unappealable; provided that the right to terminate this Agreement pursuant to this clause 7.5(i) shall not be available to any party who shall have materially breached or failed to perform any of its Warranties or AerCap Warranties, as applicable, or Pre-Completion Covenants, in each case in any manner that shall have resulted in the imposition of such Legal Restraint;

(j)       prior to receipt of the Required AerCap Shareholder Approval, by the Parent, if an Adverse Recommendation Change shall have occurred; or

(k)       by the Parent, if (i) all of the conditions set forth in clause 3.1 have been satisfied or waived (other than those conditions that by their terms are to be satisfied by actions taken at Completion), (ii) the Parent has given notice to AerCap in writing that the Parent and the Existing Shareholders are prepared and able to consummate the Completion (assuming the conditions set forth in clause 3.1 that by their terms are to be satisfied at the Completion would be satisfied by actions taken at the Completion), (iii) the Marketing Period has ended and (iv) AerCap or the AerCap Entities fail to consummate the transactions contemplated by this Agreement on the date the Completion should have occurred pursuant to clause 5.1.

7.6       Any party desiring to terminate this Agreement pursuant to clause 7.5 shall give written notice of such termination to the other parties (except that the Parent does not need to give such notice to the Existing Shareholders and vice versa).

7.7       In the event of the termination of this Agreement pursuant to clause 7.5:

(a)        this Agreement shall forthwith become null and void (except for this clause 7, clauses 17.1, 18.1, 19, 20, 21, 22.1, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 36 and clause 1 (to the extent necessary to give meaning to the foregoing), each of which shall survive such termination and remain valid and binding obligations of the parties in accordance with their terms); and

(b)       there shall be no liability or further obligation of any kind pursuant to this Agreement on the part of AerCap, the AerCap Entities, the Parent, the Existing Shareholders or any of their respective current or former directors, officers, employees, shareholders, investors, partners, members, managers, representatives or Affiliates of any of the foregoing; provided, however, that termination (including payment of the Completion Failure Termination Fee, Adverse Recommendation Change Termination Fee or Alternative Acquisition Fee) pursuant to this clause 7 will not relieve any party from such liability (i) pursuant to the sections specified in clause 7.7(a) that survive termination or (ii) for any willful breach of any provision in this Agreement prior to such termination or for fraud.

 

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7.8       In the event that this Agreement is terminated pursuant to clause 7.5(k), or by AerCap pursuant to clause 7.5(b) under circumstances where the Parent or Existing Shareholders could have terminated pursuant clause 7.5(k), then AerCap shall pay, or cause to be paid, US$100 million (the “Completion Failure Termination Fee”) to the Parent (or its designated Affiliates) as promptly as reasonably practicable (and in any event, within five (5) Business Days following such termination).

7.9       In the event that this Agreement is terminated pursuant to clause 7.5(j), then AerCap shall pay, or cause to be paid, US$100 million (the “Adverse Recommendation Change Termination Fee”) to the Parent (or its designated Affiliates) as promptly as reasonably practicable (and in any event, within five (5) Business Days following such termination).

7.10       In the event that (a) this Agreement is terminated pursuant to (i) clause 7.5(g) and the existence of a Superior Proposal has been disclosed by any Person to the public on or prior to the date of the AerCap General Meeting or (ii) clause 7.5(b) and, prior to the Long-Stop Date, the Required AerCap Shareholder Approval has not been obtained and a Superior Proposal has been made to AerCap or any of its Affiliates, and (b) within 12 months of the termination of this Agreement, AerCap or any of its Affiliates enters into any definitive documentation in connection with, or consummates any transaction with respect to, an Acquisition Proposal, then AerCap shall pay, or cause to be paid, US$100 million (the “Alternative Acquisition Fee”) to the Parent (or its designated Affiliates) as promptly as reasonably practicable (and in any event, within five (5) Business Days following the date on which AerCap or any of its Affiliates enters into any definitive documentation in connection with, or consummates any transaction with respect to, such Acquisition Proposal).

7.11       AerCap and the AerCap Entities on the one hand and the Existing Shareholders and the Parent on the other acknowledge and agree that the agreements contained in this clause 7 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the other parties would not enter into this Agreement.

7.12       In the event the Completion Failure Termination Fee, the Alternative Acquisition Fee or the Adverse Recommendation Change Termination Fee are payable, such fee will be paid to the Parent (or its designated Affiliates) by AerCap or one of its Affiliates in immediately available funds. Solely for purposes of establishing the basis for the amount thereof, and without in any way increasing the amount of either the Completion Failure Termination Fee, the Alternative Acquisition Fee or the Adverse Recommendation Change Termination Fee or expanding the circumstances in which the Completion Failure Termination Fee, the Alternative Acquisition Fee or the Adverse Recommendation Change Termination Fee is to be paid, it is agreed that each of the Completion Failure Termination Fee, the Alternative Acquisition Fee and the Adverse Recommendation Change Termination Fee is liquidated damages, and not a penalty, and the payment of the Completion Failure Termination Fee, the Alternative Acquisition Fee or the Adverse Recommendation Change Termination Fee in the circumstances specified herein is supported by due and sufficient consideration. While the Parent may pursue both

 

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a grant of specific performance under clause 34 and the payment of the Completion Failure Termination Fee, the Alternative Acquisition Fee or the Adverse Recommendation Change Termination Fee under this clause 7, under no circumstances shall the Parent be entitled to receive both (x) a grant of specific performance which results in consummation of the Completion and (y) all or any portion of the Completion Failure Termination Fee, the Alternative Acquisition Fee or the Adverse Recommendation Change Termination Fee. AerCap shall (or shall cause one of its Affiliates to) reimburse the Parent and the Existing Shareholders for reasonable fees (including fees and expenses of legal counsel) incurred by the Parent and the Existing Shareholders in enforcing their rights under clauses 7.8, 7.9, and 7.10.

7.13       Notwithstanding anything to the contrary in this Agreement but subject to clause 7.7(b), if AerCap and the AerCap Entities fail to effect the Completion when required by clause 5, then either (a) a decree or order of specific performance or an injunction or injunctions or other equitable relief if and to the extent permitted by clause 34, or (b) the termination of this Agreement pursuant to clause 7.5, any reimbursement and indemnification obligations of the AerCap Entities and AerCap pursuant to clauses 7.12, 10.2, and 11.10, and receipt of payment of the Completion Failure Termination Fee pursuant to clause 7.8, shall be the sole and exclusive remedies (whether at law, in equity, in contract, in tort or otherwise) of the Parent, Existing Shareholders and their Affiliates against AerCap, the AerCap Entities, the Lenders and any of their respective Affiliates or current or former directors, officers, employees, shareholders, investors, partners, members, managers, representatives or Affiliates of any of the foregoing (collectively, the “AerCap Related Parties”). Subject to clause 7.7(b), upon payment of the Completion Failure Termination Fee pursuant to clause 7.8 and payment of any reimbursement and indemnification obligations of AerCap and the AerCap Entities payable pursuant to clauses 7.12, 10.2, and 11.10 to the Parent, none of AerCap, the AerCap Entities or any of the AerCap Related Parties shall have any future liability or obligation relating to or arising out of this Agreement or any of the Transaction Documents or the transactions contemplated by hereby or thereby.

7.14       (a) The amount of any Loss for which indemnification is provided in respect of a breach by the Parent or the Existing Shareholders of the Warranties in paragraph 21.2(b) of Schedule 1A shall be reduced by any benefits actually realized by the AerCap Indemnitees as a result of a failure of the information set forth in paragraph 21.2(b) of Schedule 1A of the Disclosure Letter to be true and correct. The amount of any Loss for which indemnification is provided in respect of a breach by AerCap or the AerCap Entities of AerCap Warranties in paragraph 20.2(b) of Schedule 1B shall be reduced by any benefits actually realized by the AerCap Group as a result of a failure of the information set forth in paragraph 21.2(b) of Schedule 1A of the Disclosure Letter to be true and correct.

(b)        The amount of any Loss for which indemnification is provided in respect of a breach by AerCap or the AerCap Entities of the AerCap Warranties in paragraph 20.2(b) of Schedule 1B shall be reduced by any benefits actually realized by the Parent Group Indemnitees as a result of a failure of the information set forth in paragraph 20.2(b) of Schedule 1B of the AerCap Disclosure Letter to be true and

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correct. The amount of any Loss for which indemnification is provided in respect of a breach by Parent or the Existing Shareholders of the Warranties in paragraph 21.2(b) of Schedule 1A shall be reduced by any benefits actually realized by the Parent Group as a result of a failure of the information set forth in paragraph 20.2(b) of Schedule 1B of the AerCap Disclosure Letter to be true and correct.

8.       Conduct of Business Before the Completion

8.1       Subject to any applicable Laws, during the period from the Signing Date until the Completion, except:

(a)       as otherwise contemplated by or necessary to effect the matters contemplated by the Transaction Documents, including, for the avoidance of doubt, clause 2.9 of this Agreement, and the Reorganization if taken at the AerCap Entities’ request or AerCap’s request;

(b)       for actions contemplated by the Transaction Accounting Principles that would reduce Target Completion Date Cash;

(c)       for matters identified in Schedule 8.1 of the Disclosure Letter;

(d)       as may otherwise be required by applicable Law or by the express terms of a Parent Benefit Plan or Company Benefit Plan; or

(e)       as AerCap otherwise consents in writing in advance (which consent shall not be unreasonably withheld or delayed, it being understood and agreed that AerCap shall notify the Company whether it grants or withholds its consent as promptly as practicable and, in the case of matters described by the Company as exigent, within four (4) Business Days, any such consent to be confirmed by email).

the Parent and the Existing Shareholders shall (i) cause the Business and the business of each Company Group Member, EIH (to the extent related to SES) and, to the extent within the control of the Parent or the Existing Shareholders, SES, to be conducted in the ordinary course, and (ii) cause the Business and each Company Group Member (and, (A) to the extent expressly set forth on Schedule 2A, EIH, and (B) to the extent (x) expressly set forth on Schedule 2A and (y) within the control of the Parent or the Existing Shareholders, SES) not to take any of the actions listed in Schedule 2A.

8.2       The Existing Shareholders and the Parent shall use reasonable best efforts to procure that the Company Group will, except as set forth on Schedule 8.2 of the Disclosure Letter, co-operate fully between the Signing Date and the Completion in order to assist AerCap and the AerCap Entities and their Affiliates to communicate with employees, agents and consultants of the Company Group and take actions to retain such persons as employees, agents and consultants, provided that neither the Existing Shareholders nor the Parent shall be obliged to do anything that would unreasonably interfere with any of the businesses or operations of the Parent or any of its Affiliates (including the Company and the Company Subsidiaries); and provided, further, that, anything to the contrary in this Agreement notwithstanding, nothing herein shall obligate

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or be construed to obligate the Parent or the Existing Shareholders to make, or to cause to be made, any payment to any employee, agent or consultant of the Company Group or any other third party in order to comply with its obligations under this clause 8.2.

8.3       (a)       With respect to any Indebtedness of any Company Group Member, the Parent shall, and shall cause its Affiliates to, use reasonable best efforts to obtain any waivers or amendments required to prevent a default or event of default under, and a breach or acceleration of, such Indebtedness that may arise out of or relate to the transactions contemplated by the Transaction Documents or the Reorganization (any such Indebtedness, the “Triggered Facilities,” and any such waivers or amendments, the “Facilities Amendments”); provided that none of the Parent, Existing Shareholders or the Companies shall have any such obligation with respect to the Facilities Amendments under this clause 8.3(a) until and unless AerCap has provided the Parent and Existing Shareholders with sufficient prior notice of the final structure of the Reorganization, including a reasonably detailed description thereof; provided, further, that notwithstanding anything in this Agreement to the contrary, the reasonable best efforts of the Parent and its Affiliates under this clause 8.3(a) to obtain the Facilities Amendments shall not require the Parent or its Affiliates to (i) pay any commitment or other similar fee or consent fee, (ii) incur prior to the Completion any other liability, other than out-of-pocket and other expenses (except, with respect to the Companies or their Subsidiaries, only if such incurrence does not arise until after the Completion), (iii) take any action that would (x) unreasonably interfere with either the Parent’s or Existing Shareholders’ ongoing business operations (except, with respect to the Companies or their Subsidiaries, only if such effect does not arise until after the Completion) or (y) conflict with or violate Laws, or result in a contravention of, or that would reasonably be expected to result in a violation or breach of, or default under, any material contract to which the Parent or any of its Subsidiaries is a party, (iv) modify, waive, amend or change the terms of the AerCap Notes (as contemplated by Schedule 2.7 of the Disclosure Letter), (v) provide any inducement or business to any of the lenders of the Triggered Facilities or (vi) take any corporate action or execute any consent approving, or executing any document or agreement relating to, the Triggered Facilities (except, with respect to the Companies or their Subsidiaries, only as will be effective at the Completion). In connection with the foregoing, the Parent shall, and shall cause its Affiliates to, use reasonable best efforts to cause the actions set forth on Schedule 8.3(a) of the Disclosure Letter to occur.

(b)       The Parent shall, and shall cause its Affiliates, to (a) cooperate and consult with the AerCap Entities, (b) provide the AerCap Entities with all notices and other material communications with the lenders under the Triggered Facilities related to any proposed waivers or amendments or the transactions contemplated by this Agreement and (c) not object to the attendance of the AerCap Entities and their Representatives at any meetings or discussions with the lenders under the Triggered Facilities related to any proposed amendments or the transactions contemplated by this clause 8.3. Any actions taken in connection with seeking any such amendments or waivers shall be in accordance with applicable Law; accordingly, without the prior written consent of the AerCap Entities, the Parent agrees that it shall not, and shall not permit any of its Affiliates to, take or agree or commit to take any actions under the Triggered Facilities without the prior written consent of the AerCap Entities other than those set forth in Schedule 8.3(b) of the Disclosure Letter. For the avoidance of doubt, in no event shall the failure to obtain any Facilities Amendment by the Parent or any of its Affiliates in and of itself constitute a breach of this clause 8.3 so long as the Parent has otherwise complied with its obligations under this clause 8.3.

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(c)       Notwithstanding anything in this Agreement to the contrary, in the event that any Facilities Amendments are not obtained prior to the date that is ten (10) Business Days prior to the Completion Date, the Parent shall deliver, or shall cause to be delivered, on or prior to the date that is five (5) Business Days prior to the Completion Date, payoff letters (the “Payoff Letters”) in form reasonably satisfactory to AerCap from each of the holders (or an agent on their behalf) of the applicable Triggered Facilities, which Payoff Letters shall (a) specify the aggregate amount required to be paid in order to repay in full all obligations arising under or relating to the Triggered Facility related to such Payoff Letter (including any and all Indebtedness, accrued but unpaid interest and fees and prepayment penalty obligations due upon repayment) on the Completion Date, (b) contain wire transfer instructions to make such payoff and (c) provide that upon payment of the amounts set forth in such Payoff Letters, all guarantees of, and all Encumbrances securing, such obligations shall be released and terminated and include customary undertakings to promptly prepare and file with the appropriate Governmental Authority such instruments as may be required to effect or evidence such release and termination of Encumbrances or shall include authorization for the Parent or another party designated by the Parent to prepare and file any such instruments. For the avoidance of doubt, any payments made in order to repay obligations arising under or relating to the Triggered Facilities pursuant to this clause 8.3(c) shall be made in cash by one or more of the Companies. Such payments shall reduce Target Completion Date Cash and there shall be no deduction from the consideration otherwise payable to the Existing Shareholders pursuant to this Agreement for any such payments.

8.4       Subject to any applicable Laws, during the period from the Signing Date until the Completion, except:

(a)       as otherwise contemplated by or necessary to effect the matters contemplated by the Transaction Documents and the Reorganization;

(b)       for matters identified in Schedule 8.4 of the AerCap Disclosure Letter;

(c)       as may otherwise be required by applicable Law or by the express terms of a AerCap Benefit Plan; or

(d)       as the Parent otherwise consents in writing in advance (which consent shall not be unreasonably withheld or delayed, it being understood and agreed that the Parent shall notify AerCap whether it grants or withholds its consent as promptly as practicable and, in the case of matters described by AerCap as exigent, within four (4) Business Days, any such consent to be confirmed by email).

AerCap shall (i) conduct its business in the ordinary course and (ii) not take any of the actions listed in Schedule 2B.

8.5       AerCap and the AerCap Entities shall use their reasonable best efforts to (a) obtain any waivers or amendments required to prevent a default or event of default under, and a breach or acceleration of, any Indebtedness of any AerCap Group Member that may arise out of or relate to the transactions contemplated by the Transaction Documents or the Reorganization (any such Indebtedness, the “AerCap Triggered

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Facilities”); provided that notwithstanding anything in this Agreement to the contrary, the reasonable best efforts of AerCap and the AerCap Entities shall not require AerCap or any AerCap Entity to (i) pay any commitment or other similar fee or consent fee, (ii) incur any other liability, (iii) take any action that would (x) unreasonably interfere with either AerCap’s or any AerCap Entity’s ongoing business operations or (y) conflict with or violate Laws, or result in a contravention of, or that would reasonably be expected to result in a violation or breach of, or default under, any Material Contract to which AerCap or any of its Subsidiaries is a party, (iv) modify, waive, amend or change the Debt Financing, the terms of the AerCap Notes (as contemplated by Schedule 2.7 of the Disclosure Letter), any Alternative Financing or any other financing to be obtained by AerCap and/or any AerCap Entity in lieu of the Debt Financing, (v) provide any inducement or business to any of the lenders of any such Indebtedness or (vi) take any corporate action or execute any Consent approving, or executing any document or agreement relating to, the AerCap Triggered Facilities (except only as will be effective at the Completion), and (b) as promptly as reasonably practicable after the date hereof, finalize the structure of the Reorganization.

8.6       [Reserved.]

8.7       (a)       To the Parent’s knowledge, a complete list of Retained Group Member Guarantees is set forth on Schedule 8.7(a) of the Disclosure Letter. AerCap and the AerCap Entities shall, and shall cause their Affiliates to, use reasonable best efforts to (i) (A) arrange for substitute letters of credit, AerCap Entity guarantees and other obligations to replace, on or prior to the Completion Date, any outstanding Retained Group Member Guarantees, or (B) to the extent permitted by applicable Law, assume all obligations (to the extent relating to the Business) under each Retained Group Member Guarantee on or prior to the Completion Date, and (ii) obtain, on or prior to the Completion Date, from the creditor, beneficiary or other counterparty a full release (in a form satisfactory to the Parent) of all parties liable, directly or indirectly, for reimbursement to the creditor or fulfillment of other obligations to a beneficiary or counterparty in connection with amounts drawn under such Retained Group Member Guarantees (to the extent relating to the Business) (a “Retained Group Member Guarantee Release”); provided, that the failure of AerCap or the AerCap Entities to take the actions set forth in the foregoing clauses (i), (ii) and (iii) with respect to any Retained Group Member Guarantee that was not notified in writing to AerCap or the AerCap Entities prior to the Completion shall not in and of itself constitute a breach of this clause 8.7, so long as AerCap and the AerCap Entities have otherwise complied with their obligations under this clause 8.7. In furtherance and not in limitation of the foregoing, the Parent shall, and shall cause its Affiliates to, reasonably cooperate with AerCap and the AerCap Entities. To the extent that a full Retained Group Member Guarantee Release is not obtained with respect to any such Retained Group Member Guarantee prior to or at the Completion, from and after the Completion, AerCap and the AerCap Entities shall, jointly and severally, (x) indemnify, defend and hold harmless the Parent and its Subsidiaries against, and reimburse the Parent and its Subsidiaries for, all amounts paid that are reasonably incurred, including reasonable and documented out-of-pocket costs or expenses in connection with such Retained Group Member Guarantee, including the Parent and its Subsidiaries’ reasonable and documented out-of-pocket costs or expenses in maintaining

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such Retained Group Member Guarantee, whether or not such Retained Group Member Guarantee is drawn upon or required to be performed (and such amounts shall constitute Business Liabilities hereunder), and shall in any event promptly reimburse the Parent and its Subsidiaries to the extent such Retained Group Member Guarantee is drawn upon and the Parent or any of its Subsidiaries makes any payment or reimburses the party issuing the Retained Group Member Guarantee and (y) not, without the Parent’s prior written consent, amend in any manner adverse to the Retained Group Members, or extend (or permit the extension of), any Retained Group Member Guarantee or any obligation supported by any Retained Group Member Guarantee.

(b)       To the Parent’s knowledge, a complete list of Company Group Guarantees is set forth on Schedule 8.7(b) of the Disclosure Letter. The Parent shall, and shall cause its Affiliates to, use reasonable best efforts to (i) (A) arrange for substitute letters of credit, Retained Group Member guarantees and other obligations to replace, on or prior to the Completion Date, any outstanding Company Group Guarantees, or (B) to the extent permitted by applicable Law, assume, on or prior to the Completion Date, all obligations under each Company Group Guarantee, and (ii) obtain, on or prior to the Completion Date, from the creditor, beneficiary or other counterparty a full release (in a form satisfactory to AerCap) of all parties liable, directly or indirectly, for reimbursement to the creditor or fulfillment of other obligations to a beneficiary or counterparty in connection with amounts drawn under the Company Group Guarantees (a “Company Group Guarantee Release”); provided, that the failure of the Parent or its Affiliates to take the actions set forth in the foregoing clauses (i), (ii) and (iii) with respect to any Company Group Guarantee shall not in and of itself constitute a breach of this clause 8.7(b), so long as Parent and its Affiliates have otherwise complied with their obligations under this clause 8.7(b). In furtherance and not in limitation of the foregoing, AerCap shall, and shall cause its Affiliates to, reasonably cooperate with the Parent and its Affiliates. To the extent that a full Company Group Guarantee Release is not obtained with respect to any Company Group Guarantee prior to or at the Completion, from and after the Completion, the Parent and the Existing Shareholders shall, jointly and severally, (x) indemnify, defend and hold harmless AerCap and the AerCap Entities against, and reimburse AerCap and the AerCap Entities for, all amounts paid that are reasonably incurred, including reasonable and documented out-of-pocket costs or expenses in connection with such Company Group Guarantee, including the AerCap Group and Company Group’s reasonable and documented out-of-pocket costs or expenses in maintaining such Company Group Guarantee, whether or not such Company Group Guarantee is drawn upon or required to be performed (and such amounts shall constitute Excluded Liabilities hereunder), and shall in any event promptly reimburse the AerCap Group and the Company Group to the extent such Company Group Guarantee is drawn upon and the Company Group makes any payment or reimburses the party issuing the Company Group Guarantee and (y) not, without AerCap’s prior written consent, amend in any manner adverse to the AerCap Group or the Company Group, or extend (or permit the extension of), any Company Group Guarantee or any obligation supported by any Company Group Guarantee.

8.8       (a) Within fifteen (15) Business Days after the end of each fiscal quarter ending after the date of this Agreement and prior to the Completion Date, the

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Parent shall prepare and deliver to AerCap a true and correct statement (a “Quarterly Cash Flow Statement”) setting forth:

(i)       (x) the net operating, investing and financing cash flows for the Business, (y) the net cash outflows from the Business to Parent and its Affiliates (other than the Company Group) and (z) contributions of Contributed Cash pursuant clause 8.9(a), in each case that occurred during the fiscal quarter ending immediately prior to the delivery of the applicable Quarterly Cash Flow Statement (such fiscal quarter, the “Previous Quarter”) (or, in the case of the first Quarterly Cash Flow Statement delivered pursuant to this clause 8.8, during the period from October 1, 2020 through the end of the fiscal quarter ending immediately prior to the delivery of such Quarterly Cash Flow Statement), which calculation shall be reasonably detailed and prepared and determined from the Books and Records of Company Group and the Business and in accordance with the Transaction Accounting Principles;

(ii)       a reasonably detailed forecast setting forth the amount of all (x) net operating, investing and financing cash flows for the Business, (y) the net cash outflows from the Business to Parent and its Affiliates (other than the Company Group) and (z) contributions of Contributed Cash pursuant clause 8.9(a), in each case that the Parent reasonably estimates in good faith will occur during the fiscal quarter immediately succeeding the Previous Quarter;

(iii)        a reasonably detailed reconciliation of the amounts described in clause 8.8(a) above in respect of the Previous Quarter to the amounts set forth in the forecast in respect of such Previous Quarter that was included in the last Quarterly Cash Flow Statement delivered to AerCap pursuant to this clause 8.8; and

(iv)         a reasonably detailed illustrative calculation of the Cash Consideration that assumes that the last day of the Previous Quarter was the Completion Date and is prepared and determined from the Books and Records of the Company Group and the Business and in accordance with the Transaction Accounting Principles.

(b)       Following the delivery of each Quarterly Cash Flow Statement pursuant to clause 8.8(a), the Parent shall, and shall cause its Affiliates and Representatives to, consult with (and consider in good faith the views) of AerCap and its Representatives in respect of such Quarterly Cash Flow Statement. AerCap and its Representatives shall be permitted to review such of the Books and Records of the Parent and its Affiliates as are reasonably necessary for AerCap’s and its Representatives’ review of each Quarterly Cash Flow Statement, and the Parent shall reasonably promptly make available the individuals in its and its Affiliates’ employ as well as Representatives of its independent accountants responsible for and knowledgeable about the information used in, and the preparation of, such Quarterly Cash Flow Statement, to respond to the reasonable inquiries of, or requests for information by, AerCap and/or its Representatives subject, in the case of the Parent’s accountants, to the execution of customary release letters. If AerCap disagrees with any item set forth in a Quarterly Cash Flow Statement, AerCap shall, as soon as reasonably practicable, deliver written notice to the Parent of the same, specifying in reasonable detail the basis for such disagreement. In that case, Parent and AerCap shall discuss such disagreement in good faith to reach a resolution as to any matters identified in such notice as being in disagreement, and the Parent shall reasonably consider such past discussions and resolutions when preparing each subsequent Quarterly Cash Flow Statement.

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8.9       (a) Notwithstanding anything to the contrary in this Agreement, from time to time during the period from the Reference Balance Sheet Date through the Completion Date, the Parent or any of its Affiliates (excluding any Company Group Member) may, contribute net cash flows to the Business (all such amounts contributed during the period from the Reference Balance Sheet Date through the Completion Date, the “Contributed Cash”) (i) to the extent such Contributed Cash will be used by the Business to make a capital expenditure permitted by clause 8.1 (and the amount of net cash flows of the Business is not sufficient to make such expenditure) or (ii) to the extent the Parent or any of its Affiliates (excluding any Company Group Member) reasonably determines in good faith that the amount of net cash flows of the Business is insufficient for the continued operation of the Business and that such contributions are reasonably necessary to enable the Business to fulfill its obligations as they come due in the then-current fiscal quarter; provided, that this clause 8.9 shall not restrict the ability of the Parent or any of its Affiliates (excluding any Company Group Member) to contribute net cash flows to or sweep net cash flows from the Business in the ordinary course of business consistent with past practice.

(b)       Within five (5) business days after the end of each calendar month, the Parent shall deliver to AerCap a notice specifying whether the Business had negative net cash flows for the recently completed calendar month together with a reasonably detailed schedule setting forth its calculation of its net cash flow for such calendar month. AerCap and its Representatives shall be permitted to review such of the Books and Records that the Parent used to determine that (i) the Business had negative net cash flows for the applicable calendar month or (ii) that Contributed Cash pursuant to clause 8.9(a)(ii) was reasonably necessary to enable the Business to fulfill its obligations as they came due in the applicable calendar month. The Parent shall reasonably promptly make available the individuals in its and its Affiliates’ employ responsible for and knowledgeable about the financial information used by the Parent in determining that the Business’s net cash flows were negative or that such Contributed Cash was reasonably necessary, and to respond to the reasonable inquiries of, or requests for information by, AerCap and/or its Representatives.

9.       AerCap General Meeting

9.1       AerCap shall take all action necessary in accordance with applicable Law and its articles of association to duly call, give notice of, convene and hold an annual or extraordinary general meeting of shareholders to be held as promptly as reasonably practicable after the date hereof (the “AerCap General Meeting”) in order to obtain the AerCap Shareholder Approval. For the avoidance of doubt, nothing contained in this Agreement or any other Transaction Document shall prevent AerCap from including on the agenda for the AerCap General Meeting (i) the items set forth on Schedule 9.1 of the AerCap Disclosure Letter and (ii) any other matters that would not result in the violation of clause 8.4, AerCap shall procure that the appointment of the Shareholder Designee (as defined in, and chosen in accordance with, the Shareholders’ Agreement) set forth on Schedule 9.1 of the Disclosure Letter, or any replacement for such Shareholder Designee designated in writing by the Parent no later than March 12, 2021 and otherwise complying with the Shareholders’ Agreement, is proposed and recommended for approval by AerCap’s shareholders in the agenda, explanatory notes and proxy materials for the

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AerCap General Meeting. The Parent and Existing Shareholders shall provide AerCap all information about such Shareholder Designee as shall be reasonably requested by the Board of Directors of AerCap, any committee thereof, or AerCap (including, at a minimum, any information regarding such proposed Shareholder Designee to the extent required by applicable Law).

9.2       AerCap shall, through its Board of Directors, communicate the AerCap Board Recommendation to its shareholders unless there has been an Adverse Recommendation Change in accordance with clause 9.5 and shall use reasonable best efforts to obtain from its shareholders the AerCap Shareholder Approval.

9.3       AerCap shall use reasonable best efforts to do, and procure to be done, all those things necessary to ensure that the AerCap Shareholder Approval is obtained.

9.4       Notwithstanding anything in this Agreement to the contrary, the Parent shall cause any shares of AerCap Ordinary Shares beneficially owned by it or any of its Subsidiaries to be voted (including by proxy) in favor of the adoption of each of the resolutions included in the AerCap Shareholder Approval.

9.5       Nothing in this clause 9 shall be deemed to prevent AerCap or the Board of Directors of AerCap from taking any action they are required to take under, and in compliance with, applicable Law (after consultation with its independent financial advisor and outside legal counsel); provided that the Board of Directors of AerCap shall not effect an Adverse Recommendation Change unless it has determined in good faith (after consultation with its independent financial advisor and outside legal counsel) that, as a result of a development or change in circumstances that occurs or arises after the execution and delivery of this Agreement that was not known or reasonably foreseeable (or if known, the consequences of which were not known or reasonably foreseeable) to AerCap prior to the execution and delivery of this Agreement (an “Intervening Event”), failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law; provided, however, that AerCap may only take these actions described if:

(a)       AerCap shall have provided prior written notice to the Parent and the Existing Shareholders, of its or its Board of Director’s intention to take such actions at least four (4) Business Days in advance of taking such action, which notice shall specify, as applicable, the details of such Intervening Event;

(b)       after providing such notice and prior to taking such actions, AerCap shall have, and shall have caused its Representatives to have, negotiated with the Parent and the Existing Shareholders in good faith (to the extent the Parent and the Existing Shareholders desire to negotiate) for a period of four (4) Business Days to make adjustments in the terms and conditions of this Agreement as would permit AerCap and the Board of Directors of AerCap not to take such actions; and

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(c)        the Board of Directors of AerCap shall have considered in good faith any changes to this Agreement or other arrangements that may be offered in writing by the Parent and the Existing Shareholders by 5:00 PM Eastern time on the fourth (4th) Business Day of such four (4) Business Day period and shall have determined in good faith, after consultation with its independent financial advisor and outside legal counsel, that it would continue to be inconsistent with the directors’ fiduciary duties under applicable Law not to effect the Adverse Recommendation Change if such changes offered in writing by the Parent were given effect.

9.6       AerCap shall use its reasonable best efforts to cause the Stock Consideration to be listed on the New York Stock Exchange, subject to official notice of issuance, prior to the Completion.

10.       Debt Financing

10.1       AerCap and the AerCap Entities shall use, and shall cause their respective Affiliates to use, reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain the Debt Financing on the terms and conditions described in the Debt Financing Commitments, including using reasonable best efforts to (a) maintain in full force and effect the Debt Financing Commitments until the earliest of the consummation of the transactions contemplated by this Agreement, the termination of this Agreement and the time at which any Alternative Financing is obtained, (b) satisfy (or cause their Affiliates to satisfy) on a timely basis all conditions to obtaining the Debt Financing that are applicable to it and within its control as set forth in the Debt Financing Commitments and such definitive agreements as are to be entered into pursuant thereto (such agreements, the “Debt Financing Agreements”), (c) negotiate and enter into the Debt Financing Agreements on terms and conditions described in the Debt Financing Commitments (including any “flex” provisions contained therein) or otherwise on terms that would not (1) reduce the aggregate principal amount of the Debt Financing below the amount necessary to satisfy the AerCap Entities’ obligation to pay (x) the aggregate Cash Consideration and (y) any fees and expenses of or payable by the AerCap Entities or AerCap in connection with the Completion and the Debt Financing or (2) impose new or additional conditions or otherwise adversely amend or modify any of the conditions to the receipt of the Debt Financing, in each case, in a manner that would reasonably be expected to prevent or materially delay the receipt of the Debt Financing, (d) enforce its rights under the Debt Financing Commitments and (e) consummate the Debt Financing contemplated by the Debt Financing Commitments at or prior to the Completion and to timely cause the Lenders party thereto to fund the Debt Financing. In the event that any portion of the Debt Financing becomes unavailable on the terms and conditions set forth in the Debt Financing Commitments, AerCap shall promptly notify the Parent and the Existing Shareholders in writing of such unavailability and, to its knowledge, the reason therefor, and AerCap and the AerCap Entities shall, and shall cause their respective Affiliates to, use their respective reasonable best efforts to obtain, as promptly as practicable following the occurrence of such event, alternative financing from alternative sources (“Alternative Financing”) on terms that will enable AerCap to consummate the transactions contemplated by this Agreement and that are not materially less favorable, taken as a whole, to the Companies or AerCap (in the reasonable judgment of AerCap) than the terms set forth in the Debt

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Financing Commitments and would not involve any conditions to funding the Debt Financing that (1) are not contained in the Debt Financing Commitments and (2) would reasonably be expected to prevent or materially delay the consummation of the Debt Financing or such Alternative Financing. AerCap shall deliver to the Parent and the Existing Shareholders true and complete copies of all agreements pursuant to which any such alternative source shall have committed to provide AerCap with the Alternative Financing (except for customary non-disclosure agreements and except that fee letters and engagement letters may be redacted in a customary manner). Except for any increased fees or original issue discount as contemplated in the “flex” provisions of the fee letters related to the Debt Financing, AerCap shall not agree to or permit, without the Parent’s prior written consent, any amendment, supplement or other modification of, or any waiver of any of its rights under, the Debt Financing Commitments if such amendment, supplement, modification or waiver (A) reduces the aggregate amount of the Debt Financing below the amount necessary to satisfy the AerCap Entities’ obligation to pay (1) the aggregate Cash Consideration and (2) any fees and expenses of or payable by the AerCap Entities or AerCap in connection with the Completion and the Debt Financing or (B) adds any covenants or conditions, compliance with which would result in a breach or default under any Indebtedness of any Company Group Member, or (C) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of the Debt Financing in a manner that would reasonably be expected to (I) materially delay or prevent the Completion, (II) make the funding of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) less likely to occur, (III) reduce the aggregate amount of the Debt Financing below the amount necessary to satisfy the AerCap Entities’ obligation to pay (x) the aggregate Cash Consideration and (y) any fees and expenses of or payable by the AerCap Entities or AerCap in connection with the Completion and the Debt Financing or (IV) adversely impact the ability of AerCap to consummate the transactions contemplated by this Agreement or the likelihood of AerCap doing so or (V) adversely impact the ability of AerCap to enforce its rights against other parties to the Debt Financing Commitments or the Debt Financing Agreements. AerCap shall promptly deliver to the Parent, Existing Shareholders and the Companies copies of any amendment, supplement or other modification of, and any waiver with respect to, the Debt Financing Commitments promptly upon execution thereof. AerCap shall give the Parent and the Existing Shareholders prompt written notice of (x) any material breach, default, repudiation, cancellation or termination by any party to the Debt Financing Commitments of which AerCap becomes aware or any termination of all or a portion of the Debt Financing Commitments, or (y) any material dispute or disagreement between or among AerCap, on the one hand, and the Lenders on the other hand, or, to the knowledge of AerCap, among any Lenders with respect to the obligation to fund any of the Debt Financing or the amount of the Debt Financing to be funded at Completion. If at any time for any reason AerCap believes in good faith that it will not be able to obtain all or any portion of the Debt Financing on the terms and conditions, in the manner or from the sources contemplated by the Debt Financing Commitments or the Debt Financing Agreements, AerCap shall deliver prompt written notice thereof to the Parent and the Existing Shareholders. AerCap shall keep the Parent and the Existing Shareholders informed on a reasonably current basis in reasonable detail of the status of its efforts to arrange the Debt Financing and provide to the Parent copies of all related

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documents, including drafts of the Debt Financing Agreements and the definitive versions thereof, as is reasonably necessary to keep the Parent and the Existing Shareholders so informed upon request of the Parent. In no event shall the unavailability of any funds or financing (including, for the avoidance of doubt, the Debt Financing) by or to AerCap or any of its Affiliates or compliance by AerCap with this clause 10.1 excuse AerCap or any of its Affiliates from performance of any of its respective obligations hereunder. As applicable, references in this Agreement (other than with respect to representations made by the AerCap Entities or AerCap that speak as of the Signing Date) to (i) the Debt Financing shall include any Alternative Financing, (ii) the Debt Financing Commitments shall include any commitment letter or other agreement pursuant to which any alternative source shall have committed to provide the AerCap Entities or AerCap with any portion of any Alternative Financing and (iii) the Debt Financing Agreements shall include the definitive documentation relating to any Alternative Financing. Notwithstanding anything in this Agreement to the contrary, AerCap and the AerCap Entities shall not incur any Indebtedness that would violate the terms of, or otherwise conflict with the funding conditions to, the Debt Financing.

10.2       Prior to the Completion, the Parent shall use its reasonable best efforts, and shall cause each of its Affiliates to use its reasonable best efforts, and shall cause the respective Representatives of the Parent and its Affiliates to use their reasonable best efforts, in each case at AerCap’s expense, to provide such customary cooperation to AerCap as may be reasonably required or requested in connection with the Debt Financing (or Alternative Financing), including (a) reasonably cooperating with the marketing efforts for the Debt Financing, including participating (including by way of causing management, officers and advisors to so participate) in a reasonable number of meetings, due diligence sessions, “roadshows”, drafting sessions, lender presentations and sessions with rating agencies and prospective lenders and/or investors, (b) reasonably cooperating to facilitate the pledging of, granting of security interests in and obtaining perfection of any liens on, collateral in connection with the Debt Financing (including by executing and delivering as of the Completion Date the Debt Financing Agreements, pledge and security documents and other customary certificates or documents, to the extent reasonably requested by AerCap (provided that (A) none of such documents or certificates shall be executed and/or delivered except in connection with the Completion, (B) the effectiveness thereof shall be conditioned upon, or become operative after, the occurrence of the Completion and (C) no liability shall be imposed on any officers or employees of the Parent, the Existing Shareholders, the Company Group Members or any of their subsidiaries)) and using reasonable best efforts to obtain such Consents, approvals and authorizations which shall be reasonably requested by AerCap to permit pledging of collateral, to the extent required in connection with the Debt Financing, (c) facilitating the receipt of documentation that will evidence the repayment of existing Indebtedness, if any, of each Company Group Member which, by its terms, requires such Indebtedness to be repaid in connection with the consummation of the Transaction in order to avoid a default or event of default arising under such Indebtedness and releases of any Encumbrances on the Equity Interests, the Transferred Assets or any other assets of the Company Group Members securing such Indebtedness, in each case upon the repayment of such Indebtedness substantially concurrently with Completion (for the avoidance of doubt, any payments made in order to repay any such Indebtedness shall be made in cash

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by one or more of the Companies; such payments shall reduce Target Completion Date Cash and there shall be no deduction from the consideration otherwise payable to the Existing Shareholders pursuant to this Agreement for any such payments), (d) reasonably assisting with negotiating, entering into, executing and delivering amendments or waivers to existing Indebtedness of each Company Group Member to the extent that AerCap determines to be necessary or desirable, the Debt Financing Agreements and any intercreditor agreements, guarantee agreements, pledge and security documents, indentures, other definitive financing documents or other requested certificates or documents, including corporate and similar resolutions, closing, officer and secretary certificates, (e) assisting in obtaining customary comfort letters (including customary “negative assurance”) and consents from the independent accountants of the Business for the use of their reports and materials in any offering memorandum or prospectus as a reasonably requested by AerCap in connection with the Debt Financing, including, in each case by executing and delivering customary representation letters to the independent accountants of the Business, (f) providing any information as may be required under “know your customer” and anti-money-laundering rules and regulations, including the USA PATRIOT Act and any certification required under beneficial ownership regulations, (g) assisting in obtaining updated public corporate credit/family ratings from ratings agencies, (h) furnishing AerCap with the Required Information for use in any offering memorandum or prospectus and customary authorization letters addressed to the Lenders authorizing the distribution of information pertaining to the Company Group Members to prospective lenders, containing customary “10b-5” and material non-public information representations with respect to information provided by the Company Group Members; and (i) providing, and causing the accountants for the Business to provide, such reasonable cooperation as may be requested by AerCap to facilitate the preparation of pro forma financial statements by AerCap (provided that (x) AerCap shall provide to the Existing Shareholders reasonably in advance (a) any post-Completion or pro forma cost savings, capitalization and other post-Completion or pro forma adjustments (and the assumptions relating thereto) desired by AerCap to be reflected in such pro forma financial statements to be prepared by AerCap and (b) any other information that may be reasonably and timely requested by the Companies concerning the assumptions underlying the post-Completion or pro forma adjustments to be made in such pro forma financial statements to be prepared by AerCap, which assumptions shall be the responsibility of AerCap and (y) none of the Parent or any Company Group Member shall be required to provide any information or assistance relating to (A) the proposed aggregate amount of debt and equity financing, together with assumed interest rates, dividends (if any) and fees and expenses relating to the incurrence of such debt or equity financing, (B) any post-Completion or pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments desired to be incorporated into any information used in connection with the Debt Financing, or (C) any financial information related to AerCap or any of its subsidiaries (including, for the avoidance of doubt, any pending or completed acquisition or disposition of a subsidiary or business by such issuer or borrower) or any adjustments that are not directly related to the transactions described herein). Notwithstanding anything in this Agreement to the contrary, none of the Parent, the Existing Shareholders or the Companies shall (i) be required to pay any commitment or other fee in connection with the Debt Financing, (ii) incur prior to the Completion any liability or obligation under

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the Debt Financing Commitments, any Debt Financing Agreements or certifications or any related document or any other agreement or document related to the Debt Financing, (iii) be required to incur prior to the Completion any other liability (other than out-of-pocket and other expenses in connection with cooperation with AerCap contemplated by this clause 10.2, it being understood that all such out-of-pocket and other expenses shall be subject to reimbursement by AerCap in accordance with the last sentence of this clause 10.2) in connection with the Debt Financing, (iv) take any action that would (x) unreasonably interfere with its or the Companies’ ongoing business operations (including, for the avoidance of doubt, that the Companies shall not be required to restructure or modify the terms of any Leases) or (y) conflict with or violate Laws or the Debt Financing Commitments, or result in a contravention of, or that would reasonably be expected to result in a violation or breach of, or default under, any Material Contract to which the Companies or any of their Subsidiaries is a party, (v) be required to modify, waive, amend or change the terms of the AerCap Notes (as contemplated by Schedule 2.7 of the Disclosure Letter), (vi) be required to agree to provide any inducement or business to any of the Lenders or (vii) except only as will be effective at the Completion, take any corporate action or execute any consent approving, or executing any document or agreement relating to, the Debt Financing. Nothing contained in this clause 10.2 and under clause 8.3 or otherwise shall require parent or any Company Group Member, prior to Completion, to be an insurer or obligor with respect to the Debt Financing. For the avoidance of doubt, none of the Parent, the Existing Shareholders, the Companies, their Subsidiaries or their respective Representatives shall be required to execute or enter into or perform any agreement with respect to the Debt Financing contemplated by the Debt Financing Commitments that is not contingent upon the Completion or that would be effective prior to the Completion (other than the execution of customary authorization letters and representation letters referenced above). The Existing Shareholders hereby consent to the use of trademarks, service marks and logos of the Company Group Members in connection with the arranging of the Debt Financing (including in any rating agency presentation, bank information memoranda, “road shows” and other investor presentations, offering memoranda, prospectuses and/or any private placement memoranda), provided that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Companies or any of their Subsidiaries or the reputation or the goodwill of the Companies or any of their Subsidiaries or any of their respective intellectual property rights. AerCap (x) shall, promptly upon request by the Parent or the Existing Shareholders, reimburse the Parent and the Existing Shareholders for all reasonable and documented out-of-pocket costs (including reasonable attorney’s fees) incurred by the Parent, the Existing Shareholders or the Companies and their Subsidiaries in connection with such cooperation in compliance with their respective obligations under this clause 10.2 and shall indemnify and hold harmless the Parent, the Existing Shareholders and the Companies and their Subsidiaries, and their respective Representatives, for any and all Losses actually suffered or incurred by them in connection with the arrangement of the Debt Financing, any action taken by them at the request of the Parent pursuant to this clause 10.2 and any information utilized in connection therewith (other than information provided in writing by each of the Companies or their Subsidiaries specifically for use in connection therewith) and (y) acknowledges and agrees that the Parent, the Existing Shareholders, the Companies and their respective

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Representatives shall not have any responsibility for, or incur any liability to any person prior to the Completion under, the Debt Financing. In the event of any inconsistency between this clause 10.2 and clause 8.3, clause 8.3 will prevail.

10.3       AerCap and the AerCap Entities shall cause any Debt Financing, Alternative Financing or any amendments or refinancings of the AerCap Notes or existing AerCap Indebtedness to not include any provision which would prohibit or impede or limit in any way AerCap or the AerCap Entities from making any payments required under clause 7.2 or any other payment to the Parent or Existing Shareholders required pursuant to this Agreement or any other Transaction Document.

11.       Undertakings

11.1       Following the Completion, AerCap and the AerCap Entities on the one hand and the Parent and the Existing Shareholders on the other shall promptly make or cause to be made (which shall in no event be later than any date required by applicable Law) all filings and notifications with all Governmental Authorities that are necessary, proper or advisable to complete and make effective the transactions contemplated by this Agreement or as required by applicable Law. Before making or causing to be made any of the foregoing filings or notifications, subject to applicable Laws relating to the sharing of information, the relevant party shall provide the other with a draft of the filing or notification and a reasonable opportunity to review such draft, and shall consider in good faith the views of such other party regarding such filing or notification. Promptly after any of the foregoing filings or notifications have been made, the relevant party shall provide a copy thereof to the other party, subject to applicable Law.

11.2       Nothing in clause 11.1 shall require any party or any of their respective Affiliates or Representatives to disclose:

(a)       any information that in the reasonable judgment of such party would result in the disclosure of any trade secrets of third parties or violate any of its obligations with respect to confidentiality; or

(b)       any privileged information or confidential competitive information of any party, unless required by, or in accordance with, an order, ruling or determination of a Governmental Authority or applicable Law.

11.3       The Parent and the Existing Shareholders covenant and undertake to AerCap and the AerCap Entities that, except actions involving solely AerCap, the AerCap Entities and their Affiliates, from the Signing Date until the Completion Date (or earlier termination of this Agreement in accordance with the terms contained herein), neither the Parent nor the Existing Shareholders shall, and the Parent and the Existing Shareholders shall cause their respective Affiliates and its and their directors, officers, employees, agents or Representatives not to, directly or indirectly, (i) solicit any offers or proposals from any person relating to the sale, disposition, issuance, grant or other transfer of any securities, material assets or business of any of the Company Group Members or any Transferred Assets (other than the sale of assets in the ordinary course of business or as

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expressly permitted by this Agreement) or any other material transaction that would prevent, materially delay or materially impede the ability of the Existing Shareholders to consummate the transactions contemplated by this Agreement by the Long-Stop Date (other than as permitted by this Agreement) (any of the foregoing other than the transactions contemplated by this Agreement, a “Competing Transaction”), (ii) enter into or continue any discussion or negotiation in respect of a Competing Transaction, or provide any confidential information to any person in connection with a Competing Transaction, or (iii) enter into any definitive documentation in connection with or consummate any Competing Transaction.

11.4       The Existing Shareholders shall procure that, on or prior to the Completion Date, each Company Group Member terminate its participation in each Benefit Plan of the Parent and its Subsidiaries that is not a Company Benefit Plan, and in no event shall any Continuing Employee be entitled to accrue any benefits under any such Benefit Plans with respect to services rendered or compensation paid on or after the Completion Date. Subject to applicable Law, the applicable Company Group Member shall retain all rights, liabilities and obligations under each Company Benefit Plan on and after the Completion Date (whether such rights, liabilities or obligations arose or arise before, on or after the Completion Date), and the Retained Group shall have no liabilities or obligations thereunder and shall be fully indemnified by AerCap, the AerCap Entities and the Company Group Members against any Losses in respect thereof. The Retained Group shall retain all rights, liabilities and obligations in respect of each Benefit Plan of the Parent and its Subsidiaries that is not a Company Benefit Plan on and after the Completion Date (whether such rights, liabilities or obligations arose or arise before, on or after the Completion Date), and AerCap, the AerCap Entities and the Company Group Members shall have no liabilities or obligations thereunder and shall be fully indemnified by the Parent, the Existing Shareholders and each of their respective Subsidiaries against any Losses in respect thereof. For the avoidance of doubt, in no event shall the allocation of liability as between AerCap, the AerCap Entities and the Company Group Members hereunder, on the one hand, or the Parent, the Existing Shareholders and their Subsidiaries (other than the Company Group Members), on the other hand, be construed to enlarge or reduce the amount of any compensation required to be paid to a Continuing Employee or a Pre-Completion Company Employee under the applicable Benefit Plan or require any additional payment or benefit to be provided to a Continuing Employee or a Pre-Completion Company Employee by any Person.

11.5       For the avoidance of doubt and without limiting the generality of clause 11.4 (i) the Parent or one or more of its Affiliates (other than the Companies and their Subsidiaries) shall retain all liabilities and obligations in respect of the Equity Arrangements (whether such liabilities or obligations arose or arise before, on or after the Completion), and (ii) all Equity Arrangements held by Company Employees shall be treated in accordance with the terms thereof.

11.6       (a)       On or prior to the Completion Date, the Existing Shareholders and their Affiliates shall procure that, to the extent permitted by applicable Law:

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(i)       the employment of each Existing Shareholder Business Employee shall be transferred to either of the Companies or any other Company Group Member and following such transfer shall no longer be considered an Existing Shareholder Business Employee; and

(ii)       the employment of each employee of any Company Group Member whose duties do not relate primarily to the Business shall be transferred to the Existing Shareholders or an Affiliate (other than a Company Group Member).

(b)       To the extent necessary to comply with applicable Law, including TUPE, to avoid adverse Tax consequences or as otherwise not covered by clause 11.6(a), the AerCap Entities shall make offers of employment to each Existing Shareholder Business Employee on terms consistent with this clause 11.

(c)       Notwithstanding the provisions of clause 11.6(a) and to the extent allowable under applicable Law, no Inactive Company Employee shall be transferred to or otherwise become employed by AerCap, the AerCap Entities or their respective Affiliates (and no Inactive Company Employee shall remain employed by any Company Group Member) as of the Completion Date. Inactive Company Employees shall become Continuing Employees only upon their return to active employment with AerCap, the AerCap Entities or their respective Affiliates following the receipt and acceptance of an offer of employment from the AerCap Entities in accordance with clause 11.6(b), provided such Inactive Company Employee returns to active employment within 180 days following the Completion Date, except where otherwise required by applicable Law. The Parent and the Existing Shareholders or their respective Affiliates shall notify AerCap or the AerCap Entities upon receiving notice of an Inactive Company Employee’s pending return to work.

(d)       In the event, (i) the AerCap Entities and their Affiliates (A) do not provide an offer of employment on terms consistent with this clause 11 to an Existing Shareholder Business Employee who is required to receive an offer of employment pursuant to clause 11.6(b) or an Inactive Company Employee in accordance with clause 11.6(c), (B) an Inactive Company Employee does not accept an offer of employment with AerCap, the AerCap Entities or their Affiliates in accordance with clause 11.6(c), or (C) an Existing Shareholder Business Employee located outside of the United States refuses a transfer of employment to a Company Group Member and (ii) such individual’s employment with Parent and its Affiliates terminates no later than 30 days following the Completion Date or the Inactive Company Employee’s return to active employment, as applicable, then AerCap or the AerCap Entities shall, or shall cause their Affiliates to, reimburse and otherwise hold harmless the Existing Shareholders and their Affiliates for all severance, termination indemnity and other similar benefits that are incurred by the Existing Shareholders and any of their Affiliates in connection with such termination pursuant to applicable Law or the terms of a Benefit Plan as in effect immediately prior to the Completion Date.

11.7       As to each Continuing Employee, during the period commencing on the Completion Date and ending on the first anniversary of the Completion Date (the “Benefits Continuation Period”), AerCap and the AerCap Entities shall maintain the terms and conditions of the severance policy, practice or arrangement of Parent, the Existing Shareholders or their Affiliates in which the Continuing Employee participates

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immediately before the Completion Date, as disclosed to the AerCap Entities, and taking into account the Continuing Employee’s length of service with Parent, the Existing Shareholders and their Affiliates prior to the Completion Date and length of service with each Company Group Member on and after the Completion Date; provided, however, if Parent or its Subsidiaries increase benefits payable under any existing severance or termination pay policies prior to the Completion Date, in no event shall the severance provided to any Continuing Employee be greater than the severance provided under the applicable AerCap Benefit Plans as disclosed to the Companies.

11.8       AerCap and the AerCap Entities shall, or shall procure that the Company Group Members shall, during the Benefits Continuation Period, pay or provide or cause to be paid or provided to each Continuing Employee, for the period during the Benefits Continuation Period that such Continuing Employee continues as an employee of one of the Company Group Members, (i) salary or wages that are no less favorable than those provided to such Continuing Employee immediately prior to the Completion Date, (ii) target incentive opportunity (excluding equity-based incentive compensation ) that are no less favorable than those provided to such Continuing Employee immediately prior to the Completion Date and (iii) health insurance, life insurance and defined contribution retirement benefits that are comparable in the aggregate to those provided prior to the Completion Date under the Company Benefit Plans or Parent Benefit Plans (excluding severance (for which clause 11.7 shall apply)). In addition, from and after the Completion Date, AerCap and the AerCap Entities shall, or shall cause the Company Group Members to, credit the current Continuing Employees with the same amount of service as was credited by the Company Group Members, or in the case of the Existing Shareholder Business Employees, the Existing Shareholders or their Affiliates prior to the Completion Date (x) for eligibility and vesting purposes under Benefit Plans and (y) for purposes of vacation or other paid time off benefit determinations, in the case of each of (x) and (y) under any AerCap Benefit Plans in which they participate on or after the Completion Date, except to the extent that such a credit would result in the duplication of benefits. AerCap and the AerCap Entities shall, or shall cause their Affiliates to, assume (i) all employment, retention agreements (including, for the avoidance of doubt, the Retention Bonuses) and cash incentive or bonus programs covering Continuing Employees as of the Completion Date and (ii) all accrued but unused vacation by Continuing Employees. For purposes of clarity AerCap and the AerCap Entities agree to pay all accrued but unpaid bonuses for Continuing Employees in accordance with the terms of the applicable Benefit Plan.

11.9       The parties acknowledge and agree that clauses 11.4 through 11.8 are for the sole benefit of the parties. Nothing in this Agreement is intended to or shall (a) be treated as an amendment to, or be construed as amending, any Company Benefit Plan or Parent Benefit Plan, (b) prevent AerCap, the AerCap Entities and their Affiliates from terminating any Company Benefit Plan or Parent Benefit Plan in accordance with its terms, (c) prevent AerCap, the AerCap Entities and their Affiliates, on or after the Completion, from terminating the employment of any Continuing Employee or (d) confer any rights or remedies (including third-party beneficiary rights) on any current or former director, employee, consultant or independent contractor of Parent, any Parent Group Member, Company Group Member or any of their respective Affiliates or any beneficiary

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or dependent thereof or any other Person, including any Continuing Employee or any Pre-Completion Company Employee.

11.10      Prior to the Completion, as may be reasonably requested by AerCap, each of the Parent and the Existing Shareholders shall, and shall cause each Company Group Member to, conduct preparations and related actions in connection with the Reorganization. Notwithstanding the foregoing, neither the Parent nor the Existing Shareholders shall be required to (i) incur any liability (other than out-of-pocket and other expenses pursuant to this clause 11.10, it being understood that all such out-of-pocket and other expenses shall be subject to reimbursement by AerCap in accordance with the last sentence of this clause 11.10) in connection with the Reorganization or (ii) except only as will be effective upon the Completion, take any corporate action approving, or execute any document or agreement to effect the Reorganization. AerCap shall, promptly upon request by the Parent, reimburse the Parent and the Existing Shareholders for all reasonable and documented out-of-pocket costs and expenses (including reasonable professionals’ fees) incurred by the Parent, the Existing Shareholders or any Company Group Member in compliance with their respective obligations under this clause 11.10. For the avoidance of doubt, no liability incurred pursuant to this section shall result in a reduction in the Final Completion Date Cash Consideration.

11.11       (a) Subject to clause 11.11(b) the AerCap Entities and AerCap covenant and undertake to the Parent and Existing Shareholders that, except actions involving solely the Parent and Existing Shareholders, AerCap and its Affiliates, from the Signing Date until the Completion Date (or earlier termination of this Agreement in accordance with the terms contained herein), none of the AerCap Entities or AerCap shall, and AerCap shall cause its Affiliates and its and their directors, officers, employees, agents or Representatives not to, directly or indirectly, (i) solicit any offers or proposals from any Person relating to the sale, disposition, issuance, grant or other transfer of any securities, material assets or business of any of AerCap or its Subsidiaries (other than sales of assets in the ordinary course of business or as expressly permitted by this Agreement) if the public disclosure of such offer or proposal would reasonably be expected to cause the Required AerCap Shareholder Approval to not be obtained or any other material transaction that would prevent, materially delay or materially impede the ability of the AerCap Entities or AerCap to consummate the transactions contemplated by this Agreement by the Long-Stop Date (other than as permitted by this Agreement), including any Acquisition Proposal (any of the foregoing other than the transactions contemplated by this Agreement, an “AerCap Competing Proposal”), (ii) enter into or continue any discussion or negotiation in respect of an AerCap Competing Proposal, or provide any confidential information to any Person in connection with an AerCap Competing Proposal, or (iii) enter into any definitive documentation in connection with or consummate any AerCap Competing Proposal; provided that if prior to the time that the Required AerCap Shareholder Approval is obtained, AerCap receives from any Person a bona fide AerCap Competing Proposal that did not result from a breach of any provision of this clause 11.11, AerCap and its Representatives may contact such Person to (i) request that such Person submit such AerCap Competing Proposal in writing and/or (ii) consult with such Person solely for the purpose of clarifying the terms of the AerCap Competing Proposal.

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(b)       If, prior to the time the Required AerCap Shareholder Approval is obtained, AerCap receives a bona fide written AerCap Competing Proposal from any Person that (i) did not result from a breach of any provision of this clause 11.11 and (ii) the Board of Directors of AerCap concludes in good faith, after consultation with its independent financial advisor and outside legal counsel, constitutes a Superior Proposal or would reasonably be expected to result in a Superior Proposal, (x) AerCap and its Representatives may provide non-public information with regard to AerCap and its Subsidiaries in response to a request therefor by such Person if AerCap receives from such Person (or has received from such Person) an executed Acceptable Confidentiality Agreement (a copy of which AerCap shall promptly (but in any event, within 24 hours) provide to the Parent following execution thereof), provided that AerCap shall promptly (but in any event, within 24 hours) make available to the Parent and Existing Shareholders any non-public information concerning AerCap or its Subsidiaries that is provided to any Person given such access which was not previously made available to the Parent or Existing Shareholders, and (y) AerCap and its Representatives may engage or participate in any discussions or negotiations with such Person, in each case, provided that the Board of Directors of AerCap concludes in good faith, after consultation with its outside legal counsel, that failure to take such action described in the foregoing clauses (x) or (y) would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law.

(c)       From and after the Signing Date until the time the Required AerCap Shareholder Approval is obtained, AerCap shall promptly notify the Parent orally (and then in writing within 24 hours) after it or any of its Subsidiaries has received any request for discussions or negotiations, any request for access to the properties or books and records of AerCap or any of its Subsidiaries of which AerCap or any of its Subsidiaries or any of their respective Representatives is or has become aware, or any request for information relating to AerCap or any of its Subsidiaries, in each case, in connection with an AerCap Competing Proposal or any proposal, inquiry, offer or request relating to or constituting an AerCap Competing Proposal or a potential AerCap Competing Proposal or any amendments to the financial or material terms of the foregoing. Such notice to the Parent shall indicate the identity of the Person making such proposal or request and the material terms and conditions of such proposal, if any. AerCap shall keep the Parent reasonably informed on a current basis (and in any event within 24 hours) of the status of any material developments, discussions or negotiations regarding any such AerCap Competing Proposal (including, with respect to any AerCap Competing Proposal, prior to initially furnishing any information or commencing any discussions or negotiations pursuant to clause 11.11(b), advising the Parent and the Existing Shareholders of any determination by the Board of Directors of AerCap pursuant to clause 11.11(b)(ii)) or any change to the financial or material terms of any such AerCap Competing Proposal, including by providing a copy, if applicable, of any written requests, proposals or offers, including proposed agreements, regarding any such AerCap Competing Proposal within twenty-four (24) hours after the receipt thereof.

11.12      No later than the first date on which the Parent or the Existing Shareholders could make any offering of AerCap Ordinary Shares pursuant to the Registration Rights Agreement, AerCap shall prepare and file a shelf registration statement under the Securities Act on Form F-3 or S-3, as applicable, providing for the public offering and resale of all of the shares of Stock Consideration, on a continuous or delayed basis pursuant to Rule 415 of the Securities Act and to the extent such shelf registration statement has not yet been declared effective or is not automatically effective

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upon filing, cause such shelf registration statement to be declared or become effective, subject to the terms and conditions of the Registration Rights Agreement.

11.13      (a) Prior to Completion, the Parent shall notify AerCap in writing as soon as practicable upon obtaining knowledge of any Actions (including any proceeding or any investigation by or before any Governmental Authority) pending or threatened in writing against Company Group Member or to which any of their respective assets are subject which would reasonably be expected to result in Losses in excess of US$50.0 million or any permanent injunction or other form of equitable relief which would or would reasonably be expected to have a Material Adverse Effect (provided that the failure of the Parent to comply with this clause 11.13(a) shall not constitute a breach of this Agreement by the Parent for purposes of clause 3.1(f) or clause 7).

(b)       Prior to Completion, AerCap shall notify the Parent in writing as soon as practicable upon obtaining knowledge of any Actions (including any proceeding or any investigation by or before any Governmental Authority) pending or threatened in writing against any AerCap Group Member or to which any of their respective assets are subject which would reasonably be expected to result in Losses in excess of US$50.0 million or any permanent injunction or other form of equitable relief which would or would reasonably be expected to have a AerCap Material Adverse Effect (provided that the failure of AerCap to comply with this clause 11.13(b) shall not constitute a breach of this Agreement by AerCap for purposes of clause 3.1(g) or clause 7).

11.14      Effective as of the Completion, but subject to the occurrence of the Completion, (a) except for the Specified Ireland Company 1 Intercompany Accounts and the Intercompany Accounts set forth on Schedule 11.14(a) of the Disclosure Letter, AerCap, on the one hand, and the Parent, on the other hand, shall, and shall cause each of their respective Affiliates to, use commercially reasonable efforts to eliminate by payment, settlement, capitalization, cancellation, forgiveness, release or otherwise in a manner that is reasonably satisfactory to AerCap and the Parent any obligations or liabilities under the Intercompany Accounts between or among such parties, in each case, such that the Company Group Members and their respective Affiliates, on the one hand, and the Retained Group Members and their respective Affiliates, on the other hand, do not have any further liabilities or obligations to one another (and without any costs or other liabilities or obligations of AerCap or any of its Affiliates (including, following the Completion, the Company Group Members)) in respect of such Intercompany Accounts following the Completion and (b) except for the Related Party Contracts set forth on Schedule 11.14(b) of the Disclosure Letter, the Related Party Contracts shall be terminated in their entirety and shall be without any further force or effect, without any further obligations or liabilities of the Retained Group Members or any of their respective Affiliates, on the one hand, and AerCap or any of its Affiliates (including, following the Completion, the Company Group Members), on the other hand, following the Completion by termination agreements in form and substance reasonably satisfactory to AerCap and the Parent. For the avoidance of doubt, the Specified Ireland Company 1 Intercompany Accounts shall remain outstanding and shall not be repaid, settled, compromised or canceled prior to the Completion. The Parent hereby waives, and shall cause each of its Affiliates to waive, any obligation of any Company Group Member to pay any gross-up

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or additional amounts in respect of any withholding Taxes imposed on any actual or deemed payment by any Company Group Member with respect to or as a result of the repayment of the Specified Ireland Company 1 Intercompany Accounts and the elimination of Intercompany Accounts pursuant to clause 11.14(a) (and in any case no such gross-up or additional amounts shall be paid in connection with such repayment and elimination, respectively). The Parent hereby agrees to accept, and shall cause each relevant Affiliate to accept, the payment of the proceeds of the issuance of the New Ireland Company Notes pursuant to clause 2.1 as a payment in complete satisfaction of the Specified Ireland Company 1 Intercompany Accounts, notwithstanding any terms to the contrary therein. Notwithstanding the foregoing, intercompany accounts and balances solely between or among any of the Company Group Members shall not be affected by this clause 11.14.

11.15      (a) From and after the Completion Date, the Company Group Members shall cease to be in any manner insured by, entitled to any benefits or coverage under or entitled to seek benefits or coverage from or under any Insurance Policies other than (i) any Insurance Policy issued exclusively in the name and for the benefit of any Company Group Member (except for any such Insurance Policy which forms a part of a fronted, or equivalent, insurance program for which any Retained Group Member retains funding responsibility); (ii) with respect to any incident reported under the relevant Insurance Policies prior to the Completion Date; or (iii) with respect to any incident reported under the Available Insurance Policies within a one (1)-year period concluding on the first anniversary of the Completion Date, but solely for such incidents that took place prior to the Completion Date, in each case under clauses (i) through (iii) above subject to the terms and conditions of the relevant Insurance Policies and this Agreement, and except to the extent otherwise mandated by Law. For the avoidance of doubt, there shall be no benefits or coverage under the foregoing clause (iii) for incidents that take place after the Completion Date even if they are related to other similar incidents that took place prior to the Completion Date. From and after Completion, the Company Group Members shall procure all contractual and statutorily obligated insurance in respect of the Company Group Members.

(b)       The rights of the Company Group Members under subclauses 11.15(a)(ii) and (iii) above are subject to and conditioned upon the following:

(i)       The Company Group Members shall be solely responsible for notifications and updates to the applicable insurance companies and compliance with all policy terms and conditions for pursuit and collection of such claims. The Company Group Members shall not, without the written consent of the Parent, amend, modify, waive or release any rights of the Parent or other insureds under any such insurance policies and programs. The Company Group Members shall exclusively bear and be liable (and the Parent shall have no obligation to repay or reimburse the Company Group Members) for all uninsured, uncovered, unavailable or uncollectible amounts relating to or associated with all such claims; and

(ii)       With respect to coverage claims or requests for benefits asserted by the Company Group Members under the Insurance Policies, the Parent shall have the right but not the duty to monitor and/or associate with such claims. The Company Group Members shall be liable for any fees, costs and expenses incurred by the Parent directly or indirectly through the Parent’s insurance Subsidiaries or Affiliates relating to any unsuccessful coverage claims by

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the Company Group Members. The Company Group Members shall not assign any Available Insurance Policies or any rights or claims under the Available Insurance Policies.

For avoidance of doubt, the Parent shall have no responsibilities or obligations with respect to any matters under clause 11.15(a)(i).

(c)       Notwithstanding anything contained in this Agreement, (i) nothing in this Agreement shall limit, waive or abrogate in any manner any rights of the Parent to insurance coverage for any matter, whether relating to the rights of the Company Group Members or otherwise; (ii) the Parent shall retain the exclusive right to control the Insurance Policies, including the right to exhaust, settle, release, commute, buy-back or otherwise resolve disputes with respect to any of its Insurance Policies and to amend, modify or waive any rights under any such Insurance Policies, notwithstanding whether any such Insurance Policies apply to any liabilities or losses as to which any Company Group Members has made, or could in the future, make a claim for coverage; and (iii) the Company Group Members shall cooperate with the Parent with respect to coverage claims and requests for benefits and sharing such information as is reasonably necessary to permit the Parent to manage and conduct its insurance matters.

(d)       Nothing in this clause 11 shall limit, modify or in any way affect the rights and obligations of the Parties under clause 7; provided, however, that any insurance proceeds actually collected with respect to a particular loss shall be taken into account under and to the extent required by clause 7. No payments due under to this clause 11 shall affect, be affected by, or be subject to set off against, any adjustment to the Consideration. Whenever this clause 11 requires any Company Group Member to take any action after the Completion Date, such requirement shall be deemed to constitute an undertaking on the part of Company Group Members to take such action or to cause such Company Group Members to take such action.

11.16      It is the intention of the parties that Parent will, or will cause its Affiliates to, enter into a replacement of each agreement set forth in items 6 and 7 on Schedule 11.14(b) of the Disclosure Letter on terms no less favorable to the Business in any material respect than the form of the draft Delegated Services Agreement made available to AerCap prior to the Signing Date in the “Project Jameson” dataroom hosted by IntraLinks on or before March 31, 2021. Parent shall, or shall cause its Affiliates to, enter into such replacement no later than April 30, 2021.

11.17      The parties shall, and shall cause their respective Affiliates to, comply with the provisions of Schedule 11.17 of the Disclosure Letter.

11.18       With respect to any rotary-wing Aircraft that (a) was not on lease to an operator as of the Lease Disclosure Date, (b) the Company Group Member owner or lessor of which was entitled to PBH Step-In Rights in accordance with the last Lease of such Aircraft and (c) such PBH Step-In Rights were not documented as of the Lease Disclosure Date, Parent shall use commercially reasonable efforts to provide, or cause to provide (except where a Parent Group Member is the relevant PBH Agreement provider or Lessee under the last such Lease, in which case Parent shall provide or cause to provide), AerCap with written evidence that such Company Group Member either (i) has confirmation that the PBH Agreement provider is holding the PBH reserve/accrual for the

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benefit of such Company Group Member and that it is available to be applied towards the buy-in when the equipment is re-enrolled in PBH by the next lessee; (ii) has confirmation from the PBH Agreement provider that the prior operator’s PBH coverage was fully paid-up at lease termination and that, subject to standard conditions, there will be no buy-in payable when the equipment is re-enrolled in PBH by the next lessee; or (iii) in the case of a Safran manufactured engine, has received a 0 TSO engine from Safran at the conclusion of the prior Lease in lieu of a transfer of the reserve/accrual and there is no buy-in required for a 0 TSO engine when being re-enrolled in Safran PBH Agreement coverage.

11.19       The parties shall, and shall cause their respective Affiliates to, comply with the provisions of Schedule 11.19 of the Disclosure Letter.

11.20       The parties shall, and shall cause their respective Affiliates to, comply with the provisions of Schedule 11.20 of the Disclosure Letter.

12.       Access to Information

12.1       In addition to the provisions of clauses 12.5 and 16.5, for a period ending on the later of the expiration of the applicable statute of limitations (including extensions) and six years from the Completion Date, at the request or the direction of or as required by a Governmental Authority, or as required in connection with the preparation of Tax Returns and related financial reporting obligations, in each case subject to any applicable Law and any applicable legal privileges, upon reasonable prior notice, AerCap shall, and shall cause the Company Group Members to:

(a)       afford the Parent, the Existing Shareholders and their respective Affiliates and their respective Representatives reasonable access, during normal business hours, to the offices, properties, books, data, files, information and records of the Company Group in respect of the Business conducted by it as at, and prior to, Completion (including Tax Returns and other information and documents relating to Tax matters);

(b)       furnish to the Parent, the Existing Shareholders or their respective Affiliates and their respective Representatives such additional financial data and other information regarding the Company Group and the Business conducted by it as at, and prior to, Completion as the Parent, the Existing Shareholders, their respective Affiliates or their respective Representatives may from time to time reasonably request (including Tax Returns and other information and documents relating to Tax matters);

(c)       make available to the Parent and its Affiliates and their respective Representatives, reasonable access during regular business hours to the employees and Representatives of AerCap and the Company Group Members in respect of the Company and the Business conducted by it whose assistance, expertise, testimony, notes and recollections or presence is necessary to assist the Parent or its Affiliates in connection with the preparation of Tax Returns (including related discussions with any Tax Authority) and related financial reporting obligations,

in each case to the extent required for the purposes set out in the preamble to this clause 12.1 and provided that: (i) nothing in this clause 12.1 shall require AerCap to do anything which would

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unreasonably interfere with the business or operations of AerCap or any of its Affiliates; (ii) the auditors and independent accountants of AerCap or the Business shall not be obligated to make any work papers available to any Person unless and until such Person has signed a customary confidentiality and hold harmless agreement relating to such access to work papers in form and substance reasonably acceptable to such auditors or accountants; and (iii) subject to using all reasonable efforts to redact or edit the relevant Tax Return (or portion thereof) or Tax related work papers, none of AerCap or any of its Affiliates (including the Company Group) shall be required to disclose any Tax Return (or portion thereof) or Tax related work papers that does not relate exclusively to one or more Company Group Members or the Business. The Parent or the Existing Shareholders shall reimburse AerCap promptly for any reasonable out-of-pocket expenses incurred by AerCap and its Affiliates (including the Company) in complying with any request by or on behalf of the Parent, the Existing Shareholders and their respective Affiliates in connection with this clause 12.1.

12.2       In addition to the provisions of clauses 12.5 and 16.5, for a period ending on the later of the expiration of the applicable statute of limitations (including extensions) and six years from the Completion Date, at the request or direction of or as required by a Governmental Authority or as required in connection with the preparation of Tax Returns and related financial reporting obligations, in each case subject to any applicable Law, any applicable legal privileges, upon reasonable prior notice, the Parent and the Existing Shareholders shall, and shall cause their respective Affiliates and Representatives to:

(a)       afford the AerCap Entities and their Affiliates and their respective Representatives reasonable access, during normal business hours, to the offices, properties, books, data, files, information and records of the Existing Shareholders and their Affiliates in respect of the Business (including, for the avoidance of doubt, Tax Returns and other information and documents relating to Tax matters);

(b)       furnish to the AerCap Entities and their Affiliates and their respective Representatives such additional financial data and other information regarding the Business, as the AerCap Entities, their Affiliates or their respective Representatives may from time to time reasonably request (including, for the avoidance of doubt, Tax Returns and other information and documents relating to Tax matters);

(c)       make available to the AerCap Entities and their Affiliates and their respective Representatives, reasonable access during regular business hours to the employees and Representatives of the Existing Shareholders and their Affiliates in respect of the Business, expertise, testimony, notes and recollections or presence is necessary to assist the AerCap Entities or their Affiliates in connection with the preparation of Tax Returns (including related discussions with any Tax Authority) and related financial reporting obligations; and

in each case to the extent required for the purposes set out in the preamble to this clause 12.2, and provided that (i) nothing in this clause 12.2 shall require the Parent or the Existing Shareholders to do anything which would unreasonably interfere with the business or operations of the Parent, the Existing Shareholders or any of their respective Affiliates; (ii) the auditors and independent accountants of the Parent, the Existing Shareholders or their respective Affiliates shall not be

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obligated to make any work papers available to any Person unless and until such Person has signed a customary confidentiality and hold harmless agreement relating to such access to work papers in form and substance reasonable acceptable to such auditors or accountants; and (iii) subject to using all reasonable efforts to redact or edit the relevant Tax Return (or portion thereof) or Tax related work papers, none of the Parent, the Existing Shareholders or any of their respective Affiliates shall be required to disclose any Tax Return (or portion thereof) or Tax related work papers that does not relate exclusively to a Company Group Member; provided further that, nothing in this clause 12.2 or otherwise in this Agreement shall require the Parent or any Existing Shareholder to make available to the AerCap Entities, any of their Affiliates or any other Person any consolidated, combined, affiliated, controlled or unitary Tax Return that includes a Retained Group Member. AerCap or the AerCap Entities shall reimburse Parent and the Existing Shareholders promptly for any reasonable out-of-pocket expenses incurred by Parent and its Affiliates in complying with any request by or on behalf of AerCap, the AerCap Entities and their respective Affiliates in connection with this clause 12.2.

12.3       If so reasonably requested by the AerCap Entities, the Parent and the Existing Shareholders, for themselves and their respective Affiliates, as applicable, agree that they shall enter into a customary joint defense agreement in connection with obtaining any Governmental Approvals related to the transactions contemplated by this Agreement in a form acceptable to the Parent or the Existing Shareholders (as applicable) acting reasonably with any one or more of the AerCap Entities and their Affiliates (including the Company) with respect to any information to be provided to the Parent, the Existing Shareholders and their respective Affiliates pursuant to clause 12.1. AerCap shall reimburse the Parent or, as applicable, the Existing Shareholders, promptly for any reasonable out-of-pocket expenses incurred by the Parent, the Existing Shareholders, their respective Affiliates, and, if applicable, the Companies in complying with any request by or on behalf of any AerCap Entity or any of its Affiliates in connection with this clause 12.3.

12.4       Subject to clause 13.1, the Parent and its Affiliates shall have the right to retain copies of all books, data, files, information and records in any media (including Tax Returns and other information and documents relating to Tax matters) of each of the Companies and the Company Subsidiaries and their respective businesses, in respect of periods ending on or prior to the Completion Date:

(a)       that are required to be retained by any Governmental Authority, including any applicable Law; or

(b)       that prove necessary to retain in order for the Parent and its Affiliates to perform their respective obligations pursuant to this Agreement, the Transaction Documents or any agreement between the Parent or any of its Affiliates, on the one hand, and any of the Companies or any of the Company Subsidiaries, on the other hand, that will remain in effect after the Completion,

in each case subject to compliance with all applicable privacy and data protection Laws.

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12.5       AerCap and the AerCap Entities agree that, with respect to all original books, data, files, information and records of the Companies existing as of the Completion Date, following Completion, they shall (and shall cause the Companies to) (a) comply in all material respects with all applicable Laws relating to the preservation and retention of records; and (b) apply the Companies’ existing preservation and retention policies in all material respects (as applicable).

12.6       Up to the Completion Date, AerCap shall and shall ensure that its Affiliates comply with applicable Laws relating to the use, storage or handling by AerCap or is Affiliates of (a) any personally identifiable information relating to any employees or customers of the Companies or the Company Subsidiaries and (b) any other information that is protected by applicable Law (including privacy and data protection Laws) and to which AerCap or any of its Affiliates or Representatives is afforded access pursuant to the terms of this Agreement.

13.       Books and Records

13.1       To the extent that any Books and Records (including Tax records and Tax Returns) which relate exclusively to the Business or the Company Group Members are in the possession of the Parent or the Existing Shareholders or any of their respective Affiliates and not already in the possession of a Company Group Member at Completion, the Existing Shareholders and the Parent shall use reasonable best efforts to procure the physical and/or electronic transfer of such Books and Records to the AerCap Entities or their nominee by Completion or as soon as reasonably practicable after Completion. If, notwithstanding the use of its reasonable best efforts, the Parent is not able to procure such physical and/or electronic transfer, then the Parent shall procure that the AerCap Entities are granted reasonable access to such Books and Records (during regular business hours upon reasonable notice).

13.2       For a period ending on the later of the expiration of the applicable statute of limitations (including extensions) and six years from the Completion Date, following Completion, AerCap and the AerCap Entities shall retain and shall procure that each Company Group Member shall retain, and shall allow the Parent, the Existing Shareholders and their respective Affiliates and their respective Representatives access to, in each case in accordance with the provisions of clause 12.1, any Books and Records which (i) are relevant to calculating or to the reporting of any Tax, and (ii) relate (but not exclusively or predominantly) to the Business or the Company Group Members as at or prior to Completion, provided that, if the Parent has notified AerCap and the AerCap Entities in writing no later than ninety (90) days prior to the expiration of such period that such Books and Records should not be disposed of, AerCap and the AerCap Entities shall (at AerCap and the AerCap Entities’ sole option) either (a) continue to preserve such Books and Records until notified by the Parent that the Parent no longer objects to their disposal or (b) provide the Parent the opportunity to remove and retain such Books and Records at the Parent’s expense and if the Parent does not take such opportunity within thirty (30) Business Days of receipt of notice from AerCap or the AerCap Entities, AerCap, the AerCap Entities or their Affiliates, as the case may be, shall be entitled to

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dispose of such Books and Records. Any Books and Records so provided will be subject to the confidentiality restrictions in clause 17.2.

13.3       For a period ending on the later of the expiration of the applicable statute of limitations (including extensions) and six years from the Completion Date, following Completion, the Parent shall retain and shall procure that its Affiliates shall retain, and shall allow the AerCap Entities, and their Affiliates and their respective Representatives access to, in each case in accordance with the provisions of clause 12.2, any Books and Records which (i) are relevant to calculating or to the reporting of any Tax, and (ii) relate (but not exclusively or predominantly) to the Business or the Company Group Members as at or prior to Completion, provided that, if the AerCap Entities have notified the Parent in writing no later than ninety (90) days prior to the expiration of such period that such Books and Records should not be disposed of, the Parent shall (at the Parent’s sole option) either (a) continue to preserve such Books and Records until notified by the AerCap Entities that the AerCap Entities no longer object to their disposal or (b) provide the AerCap Entities the opportunity to remove and retain such Books and Records at the AerCap Entities’ expense and if the AerCap Entities do not take such opportunity within thirty (30) Business Days of receipt of notice from the Parent, the Parent or its Affiliates, as the case may be, shall be entitled to dispose of such Books and Records. Any Books and Records so provided will be subject to the confidentiality restrictions in clause 17.2.

14.       Transitional Services

14.1       Prior to the Completion, each of the parties shall act in good faith to negotiate and document Schedule A and Schedule C of the Transition Services Agreement in accordance with the principles set forth therein. On the Completion Date, each of the parties shall execute and deliver the Transition Services Agreement, in the form attached as Exhibit E hereto (with Schedule A and Schedule C thereof amended pursuant to the foregoing sentence).

14.2       The Parent shall, and shall cause its Affiliates to, use reasonable best efforts to obtain as promptly as possible any Consent of any Person that may be necessary for the performance of the Services (as defined in the Transition Services Agreement) and the parties’ respective obligations pursuant to the Transition Services Agreement and AerCap shall, and shall cause its Affiliates to, provide reasonable assistance as necessary in obtaining such Consents; provided, neither AerCap nor the Parent shall have any obligation to, or any obligation to cause any of their respective Affiliates to, (i) amend or modify any Contract or otherwise relinquish or forbear any rights under any such Contract, in each case unless such amendment, modification, relinquishment or forbearance is conditioned upon the Completion or  (ii) make any concessions or participate in any action, suit or legal proceeding in order to satisfy its obligations pursuant to this clause 14.2; provided that for the avoidance of doubt, the foregoing shall not require Parent and its Affiliates to bear the costs of any third party license fees required for the provision of Parent Services (as defined in the Transition Services Agreement). For the avoidance of doubt, in no event shall the failure to obtain any such Consent by the Parent or any of its

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Affiliates, in and of itself constitute a breach of this clause 14.2 so long as the Parent has otherwise complied with its obligations under this clause 14.2.

15.       Non-solicitation

15.1       The Parent will not, and undertakes to procure that each of its Affiliates will not, directly or indirectly, pending or within two (2) years after the Completion Date, solicit or entice away from the employment of any Company Group Member any Senior Employee of any Company Group Member, provided that this clause 15.1 shall not operate so as to prevent (i) the recruitment of staff by placing a general bona fide recruitment advertisement which may come to the attention of (but is not specifically directed at or brought to the attention of) any such Senior Employee or (ii) any solicitation of a Senior Employee who is no longer employed by any Company Group Member.

15.2       In consideration of the mutual covenants and conditions contained in this Agreement, each of the Parent and the AerCap Entities hereby acknowledge and agree that (a) the AerCap Entities have required the Parent to make the covenants set forth in this clause 15 as a condition to each of the AerCap Entities’ obligations under this Agreement, (b) the Parent’s covenants in this clause 15 are reasonable with respect to their duration and scope and necessary to protect and preserve the goodwill and business of the Company Group to be acquired by the AerCap Entities pursuant to this Agreement, and (c) the business, the value of the operating assets and goodwill of the Company Group acquired by the AerCap Entities would be irreparably damaged if the Parent were to breach the covenants set forth in this clause 15.

15.3       Furthermore, each of the Parent and the AerCap Entities hereby agrees and acknowledges that, if the Parent or the Existing Shareholders breach or threaten to breach any of the covenants contained in this clause 15, the damage or imminent damage to the Business, the value of the operating assets and goodwill of the Company Group would be irreparable and extremely difficult to estimate, making any remedy at law or in damages inadequate. Accordingly, in addition to any damages or other remedy available under applicable Law, the AerCap Entities shall be entitled to injunctive relief from a court of competent jurisdiction against the Parent for any breach or threatened breach of the covenants set forth in this clause 15.

16.       Tax Matters

16.1       AerCap agrees and covenants that (other than with the Parent’s written consent or as otherwise provided in this Agreement) none of AerCap or any Affiliate of AerCap will make any election under Section 338 of the U.S. Tax Code or any U.S. state jurisdiction with respect to any Company Group Member, except for elections under Section 338 as provided herein. Notwithstanding the foregoing, except as otherwise mutually agreed in writing by AerCap and the Parent, (i) AerCap and the Existing U.S. Shareholder shall jointly make, or cause to be made, an election under Section 338(h)(10) of the U.S. Tax Code and related U.S. state or local elections, with respect to each Company Group Member that is a domestic corporation for U.S. federal Income Tax purposes and (ii) to the extent permissible by applicable Law, AerCap shall make, or cause

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to be made, an election under Section 338(g) of the U.S. Tax Code and related U.S. state or local elections with respect to any Company Group Member that is a foreign corporation for U.S. federal Income Tax purposes, in connection with the Transaction, (the elections described in clauses (i) and (ii), the “Section 338 Elections”).

16.2       On or before the Completion Date, AerCap and the Parent shall agree on an allocation of the Consideration among the Equity Interests, the New Ireland Company Notes and the Transferred Assets, in accordance with the principles set forth on Schedule 6 (the “Consideration Allocation”). In addition, AerCap shall prepare and deliver to the Parent (i) a schedule (the “Asset Allocation Schedule”) allocating the allocable portion of the Consideration (or other amounts treated as purchase price for U.S. federal Income Tax purposes), consistent with the Consideration Allocation, among (x) the assets of U.S. Company and the assets of any Company Group Member that is treated as an entity disregarded from U.S. Company, (y) the assets of Ireland Company 1, Ireland Company 2 and Ireland Company 3 and the assets of any Company Group Member that is treated as an entity disregarded from Ireland Company 1 and (z) the Transferred Assets, and (ii) IRS Forms 8883 and a Schedule allocating the “aggregate deemed sale price,” as defined in Treasury Regulation Section 1.338-4, for each Company Group Member with respect to which a Section 338 election is made pursuant to clause 16.1, among the assets of the affected Company Group Member (each a “Section 338 Allocation Schedule”), in each case, at least sixty (60) days prior to the date such IRS Forms 8883 are required to be filed with the IRS. Each Section 338 Allocation Schedule and the Asset Allocation Schedule and any other form or document prepared or provided by AerCap pursuant to this clause 16.2 shall be reasonable and shall be prepared in good faith in accordance with the Consideration Allocation and Section 338 of the U.S. Tax Code and Section 1060 of the U.S. Tax Code and the Treasury Regulations or applicable state Tax regulations thereunder. The Parent and AerCap agree to consult and resolve in good faith any issue arising as a result of the Asset Allocation Schedule, any Section 338 Allocation Schedule and the IRS Forms 8883, and to mutually consent to the filing as promptly as possible of the IRS Forms 8883. In the event the Parent and AerCap are unable to resolve any dispute within thirty (30) calendar days following the delivery of the copies of such Forms 8883 or the Asset Allocation Schedule to the Parent, the Parent and AerCap shall jointly request that an independent accounting firm mutually agreed upon by AerCap and the Parent (“Independent Accountant”) make a determination in resolution of any issue in dispute as promptly as possible. The Existing Shareholders and AerCap shall each bear 50% of the costs and expenses associated with the Independent Accountant. The determinations of the Independent Accountant shall be final, binding and conclusive. The dispute resolution under this clause 16.2 shall constitute arbitration under the Federal Arbitration Act. The arbitration shall have its seat in New York, shall take place in New York City and shall be in the English language. The Existing Shareholders and AerCap agree to file, and cause their respective Affiliates to file, (i) all Tax Returns consistent with the Consideration Allocation and (ii) all U.S. Tax Returns (if any) in accordance with the allocation of the Consideration as set forth in the Consideration Allocation, the Asset Allocation Schedule and the Section 338 Allocation Schedules and the Section 338 Elections, and shall neither take any position contrary thereto (unless and to the extent required to do so pursuant to a determination (as defined in Section 1313(a) of the U.S. Tax Code or any similar U.S. state or local Tax provision)) nor modify or revoke any Section 338 Election. AerCap and

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the Existing Shareholders shall cooperate to file Tax Returns necessary to effectuate the Section 338 Elections.

16.3       (a) The Parent and the Existing Shareholders shall, jointly and severally, indemnify and hold harmless the AerCap Indemnitees and the Company Group Members from and against (i) any Taxes of each Company Group Member for any Pre-RBS Tax Period, (ii) any Taxes of each Company Group Member resulting solely from the Transaction (including any Taxes resulting from the Section 338 Elections and any Taxes arising from a clawback of any relief or exemption previously obtained by a member of the Company Group under Section 79 or Section 80 of the Stamp Duties Consolidation Act 1999, or Part 19 or Part 20 of the Irish Taxes Consolidation Act, 1997, or any similar provision in any jurisdiction, but excluding any Taxes that are the responsibility of AerCap pursuant to clause 16.8), (iii) any Taxes arising under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Law by virtue of any Company Group Member having been a member prior to the Completion of a consolidated, combined, affiliated, controlled or unitary Tax group that includes a Retained Group Member, and (iv) any payment required to be made after the Completion Date to a Person that is not a Company Group Member under any Tax allocation or sharing agreement, other than any commercial agreement entered into in the ordinary course of business (including, without limitation, leases, employment contracts, other agreements relating to the acquisition of goods or services or loan agreements for borrowed money) or of any agreement relating to the purchase or sale of assets, in each case, together with any reasonable out-of-pocket professional fees related thereto, in the case of each of (i), (iii), and (iv), to the extent in excess of any provision for such Taxes reflected on the Unaudited Balance Sheet for the nine (9) months ended on the Reference Balance Sheet Date.

(b)       AerCap and the AerCap Entities shall, jointly and severally, indemnify and hold harmless the Parent Group Indemnitees from and against (i) any Taxes of each Company Group Member for any Tax period or portion thereof beginning after the Reference Balance Sheet Date to the extent such Taxes did not result in a decrease in Target Completion Date Cash and (ii) any Taxes of each Company Group Member for any Pre-RBS Tax Period that are paid by a Retained Group Member, to the extent such Taxes were reflected on the Unaudited Balance Sheet for the nine (9) months ended on the Reference Balance Sheet and did not result in a decrease in Target Completion Date Cash, other than any Taxes described in clause 16.3(a) above, together with any reasonable out-of-pocket professional fees related thereto.

(c)       All indemnification payments made pursuant to this clause 16.3 and with respect to Tax Warranties pursuant to clause 7.2 shall be net of any deduction, credit or other Tax benefit realized or realizable by any Company Group Member or any of its Affiliates with respect to such Taxes. AerCap and the AerCap Entities shall use reasonable best efforts to mitigate the timing of any tax payments required to be indemnified pursuant to this clause 16.3 and with respect to Tax Warranties pursuant to clause 7.2 to the extent permissible under applicable Law.

16.4       The Existing Shareholders shall be responsible for and have sole control over preparing and filing all Tax Returns of each Company Group Member (i) that are due (taking into account permissible extensions) on or prior to the Completion Date or (ii) that are related to any consolidated, combined, affiliated, controlled or unitary group that includes a Retained Group Member, in each case, in a manner consistent with the

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covenants contained in this Agreement, past practice and applicable Law. The parties agree that any deductions or other tax benefits related to obligations under or arising out of any employee benefit plan, employment contract or other similar arrangement in existence as of the Completion Date that are the responsibility of Parent or any other Retained Group Member, regardless of when paid, or are payable on or prior to the Completion Date shall be for the benefit of Parent and, to the extent permissible by applicable Law, claimed on the Tax Returns described in clause (ii) of the immediately preceding sentence. The Companies shall prepare all other Tax Returns of any Company Group Member that are due after the Completion Date and, in case of any such Tax Return for a Pre-Completion Tax Period or a Straddle Period, shall prepare such Tax Returns in a manner consistent with applicable Law and, to the extent consistent with applicable Law, in a manner consistent with past practice, and deliver at least thirty (30) days prior to the due date (including permissible extensions) to the Existing Shareholders a copy of such Tax Returns for the Existing Shareholders’ review and comment. The Companies and the Existing Shareholders agree to consult and resolve in good faith any issue arising as a result of any such Tax Return. In the event the Companies and the Existing Shareholders are unable to resolve any dispute within ten (10) calendar days following the delivery of the copy of such Tax Return to the Existing Shareholders, the Companies and the Existing Shareholders shall jointly request that the Independent Accountant make a determination in resolution of any issue in dispute as promptly as possible. The Companies and the Existing Shareholders shall each bear 50% of the costs and expenses associated with the Independent Accountant. AerCap and the Companies shall not amend or cause to be amended any Tax Return of a Company Group Member for a Pre-Completion Tax Period or a Straddle Period without the consent of the Parent, which shall not be unreasonably withheld, conditioned or delayed.

16.5       The Parent, the Existing Shareholders, each Company Group Member, AerCap and each AerCap Group Member will reasonably cooperate, and shall cause their respective Representatives to reasonably cooperate, in connection with the preparation, filing and execution of Tax Returns and related financial reporting obligations, and any audit, litigation or other proceeding with respect to Taxes. Such cooperation will include the retention and (upon the other party’s request) the provision of records and information that are reasonably relevant to any such audit, litigation or other proceeding and making employees and Representatives available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder or to testify at any such proceeding. In connection with the foregoing, AerCap shall cause the relevant AerCap Group Members to prepare and provide to the Parent a package of tax information materials including a (i) a pro forma Tax Return relating to the operations of the Company Group Members that is either required to be included in any Tax Return of any Retained Group Member or any Tax Return required or permitted to be filed by any Retained Group Member (the “Pro Forma Tax Return”); and (ii) upon specific request, all information relating to the operations of the Business that is reasonably necessary to prepare and file any Tax Return of a Retained Group Member or a Tax Return of a Company Group Member required or permitted to be prepared by a Retained Group Member ((i) and (ii) together the “Tax Package”). The Tax Package shall be completed in a manner consistent with past practice, including past practice as to providing such information and as to the method of computation of separate

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taxable income or other relevant measure of income of each member. AerCap shall use reasonable best efforts to cause (x) with respect to the Parent’s Tax year of the Completion Date, (A) a reasonably accurate draft of each Section 338 Allocation Schedule including state apportionment to be delivered to the Parent no later than sixty (60) days after the Completion Date, and (B) the Tax Package to be delivered within one hundred and eighty (180) days after the Completion Date but, in the case of the Pro Forma Tax Return, to be delivered in any case no later than February 28th of the calendar year following the calendar year in which the Completion Date occurs and (y) if the Completion Date occurs in the Parent’s 2022 Tax Year, with respect to the Parent’s 2021 Tax year, the Tax Package to be delivered within thirty (30) days after the Completion Date. The obligations in this clause 16.5 are subject to the same restrictions as set out in clauses 12.1 or 12.2, as applicable.

16.6       If a claim shall be made by any Governmental Authority, which if successful might result in an indemnity payment to an indemnified party pursuant to clause 16.3 or 7.2, then such indemnified party shall give notice to the indemnifying party in writing of such claim (a “Tax Claim”); provided, however, the failure to give such notice shall not affect the indemnification provided hereunder except to the extent the indemnifying party has been actually prejudiced as a result of such failure. The Existing Shareholders shall have sole control over all proceedings and may make all decisions taken in connection with any Tax Claims for Taxes related to any consolidated, combined, affiliated, controlled or unitary group that includes a Retained Group Member and any Company Group Member for which Existing Shareholders are responsible under clause 16.3. With respect to any Tax Claim that is not covered by the second sentence of this clause 16.6, but that might result in an indemnity payment by the Parent or the Existing Shareholders pursuant to clause 7.2 or clause 16.3 (other than pursuant to clause 16.3(a)(iii)), the Parent may elect, solely at its own cost and expense, to control all proceedings and make all decisions taken in connection with such Tax Claim; provided that the Parent shall keep the AerCap Entities reasonably informed and shall not settle such Tax Claim without the prior written consent of the AerCap Entities, which shall not be unreasonably withheld, and the AerCap Entities and counsel of their own choosing shall have the right to participate fully, at its own expense, in all aspects of the prosecution or defense of such Tax Claim; provided, further, that if the Parent does not elect to control such Tax Claim within thirty (30) days of receiving notice from AerCap or the AerCap Entities of such Tax Claim, the AerCap Entities shall, solely as its own cost and expense, control all proceedings and may make all decisions taken in connection with such Tax Claim but shall keep the Parent reasonably informed and shall not settle such Tax Claim without the prior written consent of the Parent, which shall not be unreasonably withheld. With respect to any Tax Claim that might result in an indemnity payment by AerCap or the AerCap Entities pursuant to clause 7.2 or clause 16.3, AerCap may elect, solely at its own cost and expense, to control all proceedings and make all decisions taken in connection with such Tax Claim; provided that AerCap shall keep the Parent reasonably informed and shall not settle such Tax Claim without the prior written consent of the Parent, which shall not be unreasonably withheld, and the Parent and counsel of its own choosing shall have the right to participate fully, at its own expense, in all aspects of the prosecution or defense of such Tax Claim; provided, further, that if AerCap does not elect to control such Tax Claim within thirty (30) days of receiving notice from the Parent or

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the Existing Shareholders of such Tax Claim, the Parent shall, solely as its own cost and expense, control all proceedings and may make all decisions taken in connection with such Tax Claim but shall keep AerCap reasonably informed and shall not settle such Tax Claim without the prior written consent of AerCap, which shall not be unreasonably withheld. Each of AerCap and the AerCap Entities, on the one hand, and the Parent and the Existing Shareholders, on the other hand, shall promptly (and in any event within thirty (30) days) notify the other party in writing of any Tax Claim made by a Governmental Authority or any payment or action that might result in an indemnity payment to the other party pursuant to clause 7.2 and shall keep the other party reasonably informed of the status of any such Tax Claim. AerCap and the AerCap Entities, on the one hand, and the Parent and the Existing Shareholders, on the other hand, shall provide or make available to the other party any information or documentation reasonably requested by such other party in their determination of the amount of Taxes subject to indemnification under clause 7.2. Notwithstanding anything to the contrary in this Agreement, the provisions of clause 7.3 shall not control with respect to a Tax Claim.

16.7       The Existing Shareholders shall cause all Tax allocation agreements or sharing agreements between a Company Group Member and a Retained Group Member to be terminated as of the Completion Date, and shall ensure that such agreements are of no further force or effect as to any Company Group Member on and after the Completion Date and that there shall be no further liabilities or obligations imposed on any Company Group Member under any such agreements.

16.8       All sales and transfer Taxes, stamp duties, recording charges and similar taxes, fees or charges imposed as a result of the Transaction (collectively, the “Transfer Taxes”) shall be borne by AerCap; provided that to the extent the percentage of AerCap Ordinary Shares beneficially owned by the Parent and its Affiliates, as a group, on the date on which any Transfer Taxes due and owing to any Tax Authority are paid to such Tax Authority (the “Subsequent Ownership Percentage”) is less than the percentage of AerCap Ordinary Shares beneficially owned by the Parent and its Affiliates, as a group, as of the Completion Date (the “Completion Ownership Percentage”), the Parent shall bear the portion of such Transfer Taxes equal to the quotient of (A) the difference between the Completion Ownership Percentage minus the Subsequent Ownership Percentage divided by (B) 1 (one) minus the Subsequent Ownership Percentage. The Parent shall cooperate to mitigate any such Transfer Taxes. The parties shall cooperate in timely making all filings, returns, reports and forms as necessary or appropriate to comply with the provisions of all applicable Laws in connection with the payment of such Transfer Taxes. For the avoidance of doubt, the Transfer Taxes shall not include any Taxes arising out of the Reorganization.

16.9       The Existing Shareholders shall be entitled to receive and retain any refund or other reimbursement or credit (including from any overpayment) actually received (including any amounts received prior to the Completion Date that are included in net operating, investing and financing cash flows for purposes of calculating Target Completion Date Cash) or applied to offset any other Tax liability in respect of Taxes of a Company Group Member for which the Existing Shareholders or the Parent are responsible under clauses 7.2(a) or 16.3, as applicable, other than any refund or other

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reimbursement or credit that is reflected as an asset or receivable on the Unaudited Balance Sheet for the nine (9) months ended on the Reference Balance Sheet Date. The Companies shall be entitled to receive and retain any other refund or other reimbursement or credit (including from any overpayment) actually received (including any amounts received prior to the Completion Date that are included in net operating, investing and financing cash flows for purposes of calculating Target Completion Date Cash) or applied to offset any other Tax liability of a Company Group Member. The Companies and the Existing Shareholders, as the case may be, shall promptly notify the other party of the receipt of any refund or other reimbursement or credit to which the other party is entitled hereunder and pay over such refund or other reimbursement or the amount of such credit, net of any cost attributable to such receipt or recognition. AerCap and the Existing Shareholders shall reasonably cooperate to amend or cause to be amended any Tax Returns to obtain any refunds to which the other party is entitled hereunder.

16.10      The Parent will use reasonable best efforts to determine and disclose to AerCap if the Parent owns any AerCap Ordinary Shares (other than the Stock Consideration) directly or indirectly through the ownership attribution rules under Section 318(a) (other than paragraph (4) thereof) of the U.S. Tax Code, except AerCap Ordinary Shares owned by the Parent through an entity in which the Parent or its Affiliate owns less than 5% of the economic interest. Notwithstanding any other provision of this Agreement, the covenant under this clause 16.10 shall terminate and be extinguished as of the Completion Date, and the Parent shall have no liability with respect to such covenant after the Completion Date.

16.11     From and after the Signing Date, no Company Group Member shall (a) surrender or otherwise make available any Tax Attribute, or (b) amend any previous surrender or claim of any Tax Attribute, in each case to or, solely in the case of clause (b), from any Person that is not a Company Group Member, except to the extent such surrender, availability or amendment is required by applicable Law. For purposes of clause 16.3(c) and this clause 16.11, “Tax Attributes” include, without limitation, any trading loss, charge relief or excess capital allowance arising in relation to activities carried on by any Company which could be surrendered pursuant to Part 12, Chapter 5 of the Irish Taxes Consolidation Act, 1997 or any other similar provision in any jurisdiction, or the reallocation of any Tax payments/refunds due.

16.12     (a) Prior to the Completion,

(i)       Ireland Company 1 shall redeem or otherwise cancel all Existing Ireland Company 1 Shares that are preference shares;

(ii)      Existing Ireland Shareholder 1 shall form a new Irish company as a direct Subsidiary (“Irish Newco”);

(iii)      Existing Ireland Shareholder 1 shall contribute the Existing Ireland Company 1 Shares to Irish Newco; and

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(iv)         Ireland Company 1 shall elect to be treated as disregarded from Irish Newco for U.S. Federal income tax purposes,

with steps (ii)-(iv) intended, when taken together, to qualify as a “reorganization” described in Section 368(a)(1)(F) of the U.S. Tax Code (the steps described in clauses 16.12(a)(i)-(iv), collectively, the “Ireland Company 1 F Reorganization”).

 

(b)       To the extent appropriate, from and after the time of the Ireland Company 1 F Reorganization, (i) references in this Agreement to Existing Ireland Shareholder 1 shall be deemed to refer mutatis mutandis to Irish Newco; and (ii) covenants of Existing Ireland Shareholder 1 in this Agreement to take, or refrain from taking, an action shall be deemed to include an obligation of Existing Ireland Shareholder 1 to cause Irish Newco to take, or refrain from taking, such action.

16.13   Prior to Completion, AerCap shall use reasonable best efforts to make (or cause to be made) an election to treat each AerCap Group Member that is a foreign Subsidiary of AerCap as a disregarded entity for U.S. federal income tax purposes.

16.14   For purposes of this Agreement, in the case of any Taxes of any Company Group Member that are payable with respect to a Straddle Period or a Straddle RBS Period, respectively, the portion of any such Taxes that constitutes Pre-Completion Tax Period Taxes or Pre-RBS Tax Period Taxes, respectively shall: (i) in the case of Taxes that are either (x) based upon or related to income or receipts, or (y) imposed in connection with any sale, transfer or assignment or any deemed sale, transfer or assignment of property (real or personal, tangible or intangible), be deemed equal to the amount that would be payable if the taxable year or period ended on the Completion Date or on September 30, 2020, respectively; and (ii) in the case of Taxes (other than those described in clause (i) above) that are imposed on a periodic basis with respect to the business or assets of the Company Group Members or otherwise measured by the level of any item, be deemed to be the amount of such Taxes for the entire Straddle Period, or for the entire Straddle RBS Period, respectively, or (or, in the case of such Taxes determined on an arrears basis, the amount of such Taxes for the immediately preceding taxable period) multiplied by a fraction the numerator of which is the number of calendar days in the portion of the Straddle Period ending on the Completion Date or the portion of the Straddle RBS Period ending on September 30, 2020, respectively and the denominator of which is the number of calendar days in the entire Straddle Period or Straddle RBS Period, respectively.

17.       Confidentiality

17.1       The terms of the confidentiality agreement, dated December 11, 2020, between the Parent and AerCap and any amendments thereto (collectively, the “Confidentiality Agreement”) are incorporated into this Agreement by reference and shall continue in full force and effect until Completion, at which time the confidentiality obligations under the Confidentiality Agreement shall terminate. If, for any reason, the transactions contemplated by this Agreement are not completed, the Confidentiality Agreement shall nonetheless continue in full force and effect in accordance with its terms.

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17.2       From and after Completion, the Parent and the Existing Shareholders, on the one hand, and AerCap and the AerCap Entities, on the other hand, shall, and shall procure that their respective Affiliates (including with respect to AerCap and the AerCap Entities, the Companies and the Company Subsidiaries) and Representatives shall, maintain in confidence any written, oral or other information relating to or obtained from the other parties or their Affiliates (including with respect to AerCap and the AerCap Entities following Completion, the Companies and the Company Subsidiaries), and following Completion, the Parent and the Existing Shareholders shall maintain in confidence any written, oral or other information relating or obtained from the Companies or any of the Company Subsidiaries except that the foregoing requirements of this clause 17.2 shall not apply to the extent that:

(a)       any such information is or becomes generally available to the public other than (i) in the case of AerCap or the AerCap Entities, as a result of a disclosure by the Parent or its Affiliates or any of their respective Representatives and (ii) in the case of the Parent or the Existing Shareholders, as a result of a disclosure by AerCap or the AerCap Entities, the Companies or any Company Subsidiary (after the Completion Date) or any of their respective Affiliates, or any of their respective Representatives;

(b)       any such information is required by applicable Law, governmental order or a Governmental Authority to be disclosed after prior written notice has been given to the other party (including any report, statement, testimony or other submission to such Governmental Authority);

(c)       any such information is reasonably necessary to be disclosed in connection with any Action or in any dispute with respect to the Transaction Documents (including in response to any summons, subpoena or other legal process or formal or informal investigative demand issued to the disclosing party in the course of any litigation, investigation or administrative proceeding);

(d)       any such information was or becomes available to such party on a non-confidential basis and from a source (other than a party to this Agreement or any Affiliate or Representative of such party) that is not bound by a confidentiality agreement with respect to such information; or

(e)       any such information that becomes known or available pursuant to or as a result of the carrying out of the provisions of a Transaction Document (which information shall be governed by the confidentiality provisions, if any, set out therein).

Each of the parties hereto shall instruct its Affiliates and Representatives having access to such information of such obligation of confidentiality.

18.       Intellectual Property

18.1       AerCap and the AerCap Entities, for themselves and their Affiliates, acknowledge and agree that the AerCap Entities are not purchasing, acquiring or otherwise obtaining any right, title or interest in or to the Trademarks set forth on Schedule 18.1 of the Disclosure Letter or any trade, corporate or business names, trademarks, tag-

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lines, identifying logos, trade dress, monograms, slogans, service marks, domain names, brand names or any other name or source identifiers to the extent employing such Trademarks or any confusingly similar derivation or variation of any of the foregoing or any confusingly similar trade, corporate or business name, trademark, tag-line, identifying logo, trade dress, monogram, slogan, service mark, domain name, brand name or other name or source identifier (including any registrations and applications relating thereto) (the “Parent Names and Marks”), or in or to any other Intellectual Property of Parent or its Affiliates (except the Intellectual Property of the Company Group and any Intellectual Property licensed or otherwise made available to AerCap, the AerCap Entities or the Company Group pursuant to any Transaction Document), and, except as otherwise expressly provided in this clause 18, none of AerCap, the AerCap Entities or any of their Affiliates shall have any rights in or to any of the Parent Names and Marks and none of AerCap, the AerCap Entities or any of their Affiliates shall (i) seek to register in any jurisdiction any trade, corporate or business name, trademark, tag-line, identifying logo, trade dress, monogram, slogan, service mark, domain name, brand name or other name or source identifier that is a confusingly similar derivation, translation, adaptation, combination or variation of the Parent Names and Marks or that is confusingly similar thereto or (ii) contest the use, ownership, validity or enforceability of any rights of the Parent or any of its Affiliates in or to any of the Parent Names and Marks.

18.2       Except as otherwise provided in this clause 18 or the Transitional Trademark License Agreement, following the Completion Date, AerCap shall, and shall cause its Affiliates to, immediately cease and discontinue any and all uses of the Parent Names and Marks, whether or not in combination with other words, symbols or other distinctive or non-distinctive elements and all trade, corporate or business names, trademarks, tag-lines, identifying logos, trade dress, monograms, slogans, service marks, domain names, brand names and other name or source identifiers confusingly similar to any of the foregoing or embodying any of the foregoing whether or not in combination with other words, symbols or other distinctive or non-distinctive elements.

18.3       Notwithstanding the foregoing, at all times after the Completion Date, AerCap and its Affiliates shall be authorized to use the names contained in the Parent Names and Marks to the extent required or permitted by applicable Law and/or in a neutral, text-only, non-trademark manner to describe the history of the businesses of the Company Group, excluding, for clarity, any logos, stylized depictions or devices associated therewith, and subject to the terms and conditions of the Transitional Trademark License Agreement.

19.       Costs and Expenses

Except as may be otherwise specified in the Transaction Documents, all costs and expenses, including fees and disbursements of counsel, financial advisers and accountants, incurred in connection with the Transaction Documents and the transactions contemplated by the Transaction Documents shall be paid by the party incurring such costs and expenses, whether or not Completion shall have occurred; provided that, following Completion, (i) any amounts of Company Group Transaction Expenses paid by the Company Group and not reimbursed by the Retained Group between the Reference Balance Sheet Date and prior to the Completion shall be

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treated as if such amounts did not meet any of the criteria set forth in clauses (a)-(d) of the Transaction Accounting Principles for the purposes of calculating the net cash flows for the Business in “Target Completion Date Cash” and (ii) any amounts of Company Group Transaction Expenses that are incurred and not paid prior to the Completion shall be reimbursed to the Company Group by the Parent.

20.       Notices

20.1       All notices, requests, claims, demands and other communications under this Agreement shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt) by electronic mail, by delivery in person, by overnight courier service or by registered or certified mail (postage prepaid, return receipt requested) to the respective parties at the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this clause 20.1):

(a)       if to the Parent:

General Electric Company

5 Necco Street

Boston, Massachusetts 02210

Attention: Michael S. Buckner

E-mail: michael.buckner@ge.com

 

with a copy to:

Paul, Weiss, Rifkind, Wharton & Garrison LLP

1285 Avenue of the Americas

New York, NY 10019-6064

United States of America

Attention: Scott A. Barshay

Steven J. Williams

Email: sbarshay@paulweiss.com

swilliams@paulweiss.com

 

(b)       if to the Existing Shareholders:

c/o General Electric Company

5 Necco Street

Boston, Massachusetts 02210

Attention: Michael S. Buckner

E-mail: michael.buckner@ge.com

 

with a copy to:

Paul, Weiss, Rifkind, Wharton & Garrison LLP

1285 Avenue of the Americas

New York, NY 10019-6064

 

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United States of America

Attention: Scott A. Barshay

Steven J. Williams

Email: sbarshay@paulweiss.com

swilliams@paulweiss.com

 

(c)       if to AerCap:

AerCap Holdings N.V.
AerCap House
65 St. Stephen’s Green
Dublin D02 YX20
Ireland
Attention: General Counsel

Email: VDrouillard@aercap.com

with a copy to:

Cravath, Swaine & Moore LLP

Worldwide Plaza

825 Eighth Avenue

New York, NY 10019

Attention: Mark I. Greene

O. Keith Hallam, III

G.J. Ligelis Jr.

Email: MGreene@cravath.com

KHallam@cravath.com

GLigelisJr@cravath.com

 

(d)       if to the Ireland Subscriber:

AerCap Aviation Leasing Limited
AerCap House
65 St. Stephen’s Green
Dublin D02 YX20
Ireland
Attention: General Counsel

Email: VDrouillard@aercap.com

with a copy to:

Cravath, Swaine & Moore LLP

Worldwide Plaza

825 Eighth Avenue

New York, NY 10019

Attention: Mark I. Greene

O. Keith Hallam, III

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G.J. Ligelis Jr.

Email: MGreene@cravath.com

KHallam@cravath.com

GLigelisJr@cravath.com

 

(e)       if to the U.S. Purchaser:

AerCap US Aviation LLC
AerCap House
65 St. Stephen’s Green
Dublin D02 YX20
Ireland
Attention: General Counsel

Email: VDrouillard@aercap.com

with a copy to:

Cravath, Swaine & Moore LLP

Worldwide Plaza

825 Eighth Avenue

New York, NY 10019

Attention: Mark I. Greene

O. Keith Hallam, III

G.J. Ligelis Jr.

Email: MGreene@cravath.com

KHallam@cravath.com

GLigelisJr@cravath.com

 

20.2       Any notice given under this Agreement shall, in the absence of earlier receipt, be deemed to have been duly given as follows:

(a)       if delivered by electronic mail, upon confirmation of receipt;

(b)       if delivered personally, on delivery; and

(c)       if sent by registered or certified mail, three (3) clear Business Days after the date of posting.

20.3       For the purposes of this clause 20, any reference to a particular time relates to the time at the location of the party giving notice as set out in clause 20.1.

21.       Announcements

21.1       AerCap shall procure the release of the announcement in the form agreed (the “Announcement”) as soon as practicable on the Signing Date or such other time and date as may be agreed by the Parent and AerCap.

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21.2       Subject to clause 21.3, each party shall not, and shall procure that each of its Affiliates or Representatives shall not, issue or cause the publication of any press release or public announcement or otherwise communicate with any news media in respect of this Agreement or the transactions contemplated by this Agreement without the prior written consent of the other parties (which consent shall not be unreasonably withheld or delayed), except as may be required by Law or applicable securities exchange rules, in which case the party required to publish such press release or public announcement, if feasible, shall allow the other parties a reasonable opportunity to comment on such press release or public announcement in advance of such publication, and the party required to publish shall give reasonable consideration to all such comments.

21.3       Clause 21.2 shall not apply to any press release, public announcement or other communication with the news media made by AerCap or any AerCap Entity (a) which is consistent with the Announcement and the terms of this Agreement and does not contain any further information relating to the Company Group to that which has been previously announced or made public in accordance with the terms of this Agreement or (b) is made in the ordinary course of business and does not relate specifically to the signing of this Agreement or the transactions contemplated by this Agreement.

21.4       Prior to Completion, each of the parties shall not, and shall procure that each of its Affiliates or Representatives shall not, disclose any plans or intentions relating to the customers, agents or employees of, or other Persons with significant business relationships with, the Companies or the Company Subsidiaries without first obtaining the prior written approval of the other parties, which approval shall not be unreasonably withheld or delayed.

22.       Invalidity and Severability

22.1       If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced under any Law or as a matter of public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect. Any term or provision of this Agreement held invalid, illegal or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid, illegal or unenforceable. Upon any determination that any term or provisions of this Agreement is held invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the fullest extent possible.

22.2       Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated by this Agreement be completed as originally contemplated to the greatest extent possible.

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23.       Further Assurance

23.1       Each of the Parent, the Existing Shareholders, AerCap and the AerCap Entities shall, and shall procure that its respective Affiliates shall:

(a)       execute and deliver, or shall cause to be executed and delivered, such documents and other papers and shall take, or shall cause to be taken, such further actions as may be required by Law, as may be necessary or as may reasonably be required by the other party to carry out the provisions, and give effect to the transactions contemplated by, the Transaction Documents; and

(b)       refrain from taking any actions that would reasonably be expected to impair, delay or impede Completion.

24.       Litigation Support

In the event and for so long as AerCap or the Parent, or their respective Affiliates, as applicable, is prosecuting, contesting or defending any Action, other investigation, charge, claim or demand by a third party (including the NYSE or any Governmental Authority) in connection with (a) the transactions contemplated by this Agreement, or (b) any fact, situation, circumstance, status, condition, activity, practice, plan, occurrence, event, incident, action, failure to act, or transaction relating to, in connection with or arising from the Company Group or the Business (in the case of AerCap) or the Retained Group Business (in the case of the Parent), in each case, other than an Action for which indemnification is being sought or is likely to be sought under this Agreement, the other party shall, and shall cause its Affiliates and its and their respective employees to, cooperate with such first party and its counsel, to the extent reasonably requested by and at the expense of the first such party, in such prosecution, contest or defenses, including, by providing, upon reasonable prior notice and subject to any applicable Law, reasonable access, during normal business hours, to its offices, properties, books, data, files, information and records and its personnel, and providing such testimony as shall be reasonably necessary and requested by such first party in connection with such prosecution, contest or defense; provided, that (i) nothing in this clause 24 shall require AerCap, the Parent or any of their respective Affiliates to do anything which would unreasonably interfere with their respective businesses or operations and (ii) the auditors and independent public accountants of AerCap, the Parent or any of their respective Affiliates shall not be obligated to make any work papers available to any Person unless and until such Person has signed a customary confidentiality and hold harmless agreement relating to such access to work papers in form and substance reasonable acceptable to such auditors or accountants; provided, further that the first party shall treat all such information as confidential; and provided, further that no party shall be obliged to disclose or provide access to any documents, records or information subject to attorney-client privilege or attorney work-product protection or that are trade secrets.

25.       Entire Agreement

Except as otherwise expressly provided in the Transaction Documents, the Transaction Documents constitute the entire agreement of the parties hereto with respect to the subject matter of the Transaction Documents and supersede all prior agreements and undertakings,

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both written and oral, other than the Confidentiality Agreement to the extent not in conflict with this Agreement, between or on behalf of the Parent and/or its Affiliates, on the one hand, and AerCap and/or its Affiliates, on the other hand, with respect to the subject matter of the Transaction Documents.

26.       Assignment

26.1       This Agreement shall not be assigned, in whole or in part, by operation of Law or otherwise without the prior written consent of all of the parties hereto; provided that (a) AerCap, with the prior written consent of the Parent and the Existing Shareholders (which shall not be unreasonably withheld, conditioned or delayed), and each AerCap Entity, in its sole discretion, shall be permitted to assign all of their rights and obligations hereunder to any Affiliate of AerCap and (b) the Parent, with the prior written consent of AerCap and the AerCap Entities (which shall not be unreasonably withheld, conditioned or delayed), and each Existing Shareholder, in its sole discretion, shall be permitted to assign all of their rights, obligations and liabilities hereunder to any Affiliate of the Parent, in each case of (a) and (b) so long as (i) such assignee executes a counterpart to this Agreement and each other Transaction Document to which the assigning party (as applicable) is a party, (ii) no such assignment relieves the assigning party of its obligations under this Agreement if such assignee does not perform such obligations and (iii) such assignment shall not materially delay the consummation of any of the transaction contemplated by this Agreement or impose any additional obligations on AerCap, the AerCap Entities, the Parent, the Existing Shareholders or the Companies (including in respect of required consents or approvals or governmental filing objections). Any attempted assignment in violation of this clause 26 shall be void.

26.2       This Agreement shall be binding upon, shall inure to the benefit of, and shall be enforceable by the parties hereto and their successors and permitted assigns.

27.       No Third Party Beneficiaries

Except (i) as provided in clauses 7.2 and 7.3 and (ii) with respect to the provisions of this clause 27, 28.3, 32.3, 32.4 and 34.4, of which the Lenders shall be express third party beneficiaries and shall be entitled to enforce such provisions directly, this Agreement is for the sole benefit of the parties to this Agreement and their permitted successors and assigns and is not intended to and shall not confer upon any other person any rights, benefits or remedies of any nature under or by reason of this Agreement. Accordingly, any Person who is not a party to this Agreement may not enforce any of its terms.

28.       Amendment and Waiver

28.1       No provision of this Agreement or any other Transaction Document may be amended, supplemented or modified except by a written instrument signed by all the parties to such agreement.

28.2       No provision of this Agreement or any other Transaction Document may be waived except by a written instrument signed by the party against whom the waiver is to be effective.

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28.3       Clause 27, this clause 28.3 and clauses 32.3, 32.4 and 34.4 (in each case, together with any related definitions and other provisions of this Agreement to the extent an amendment, supplement or modification would serve to modify the substance or provisions of such sections) may not be amended in a manner that is adverse to the Lenders without the prior written consent of the Lenders. The Lenders are express third party beneficiaries of this clause 28.3.

28.4       No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege.

28.5       The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by Law.

29.       Counterparts

29.1       This Agreement and each of the other Transaction Documents may be executed in one or more counterparts, and by the different parties to each such agreement in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.

29.2       Delivery of an executed counterpart of a signature page to any Transaction Document by email, .pdf or other means of electronic transmission shall be as effective as delivery of a manually executed counterpart of any such agreement.

30.       English Language

30.1       This Agreement is in the English language and if this Agreement is translated into another language, the English language text shall prevail.

30.2       Each notice or other communication under or in connection with this Agreement shall be in English.

31.       Payment Mechanics

31.1       Unless otherwise expressly provided in this Agreement, any and all payments made pursuant to this Agreement shall be made in U.S. dollars.

31.2       Unless otherwise expressly provided in this Agreement, any amount to be converted from one currency into another currency for the purposes of this Agreement shall be converted into an equivalent amount at the Conversion Rate prevailing at the Relevant Date.

31.3       For the purposes of clause 31.2:

(a)       “Conversion Rate” means the rate for a transaction between the two currencies in question as at 11:00 a.m. (London time) on the date immediately preceding the

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Relevant Date as quoted on the Reuters Fixing Screen or, if no such rate is quoted on that date, on the preceding date on which such rates are quoted; and

(b)       “Relevant Date” means, save as otherwise provided in this Agreement, the date on which a payment or an assessment is to be made.

31.4       Any payments made pursuant to this Agreement shall be made in full, without any set-off, counterclaim, restriction or condition and without any deduction or withholding (save as may be required by Law or as otherwise agreed in writing).

32.       Governing Law, Dispute Resolution, Consent to Jurisdiction, Waiver of Jury Trial

32.1       This Agreement, all transactions contemplated by this Agreement, and all claims and defenses of any nature (including contractual and non-contractual claims and defenses) arising out of or relating to this Agreement, any transaction contemplated by this Agreement, and the formation, applicability, breach, termination or validity of this Agreement (each, a “Transaction Dispute”), will be exclusively governed by and construed and enforced in accordance with the internal Laws of the State of Delaware, without giving effect to any Law or rule that would cause the Laws of any jurisdiction other than the State of Delaware to be applied. The parties expressly acknowledge and agree that (a) the requirements of 6 Del. C § 2708 are satisfied by the provisions of this Agreement and that such statute mandates the application of Laws of the State of Delaware to this Agreement, the relationship of the parties, the Transaction and the interpretation and enforcement of the rights and duties of the parties hereunder and (b) the parties have a reasonable basis for the application of the Laws of the State of Delaware to this Agreement, the relationship of the parties, the Transaction and the interpretation and enforcement of the rights and duties of the parties hereunder. The parties shall cause their respective Indemnified Parties to comply with the foregoing as though such Indemnified Parties were a party to this Agreement.

32.2       Any Transaction Dispute will exclusively be brought and resolved in the Court of Chancery of the State of Delaware (or, only if such court declines to accept jurisdiction over a particular matter, then in the United States District Court for the District of Delaware or, if jurisdiction is not then available in the United States District Court for the District of Delaware (but only in such event), then in any Delaware state court sitting in New Castle County) and any appellate court from any of such courts. In that context, and without limiting the generality of the foregoing, each party irrevocably and unconditionally: (i) submits for itself and its property to the exclusive jurisdiction of such courts with respect to any Transaction Dispute and for recognition and enforcement of any judgment in respect thereof, and agrees that all claims in respect of any Transaction Dispute shall be heard and determined in such courts and (ii) agrees that venue would be proper in such courts, and waives any objection that it may now or hereafter have that any such court is an improper or inconvenient forum for the resolution of any Transaction Dispute. The foregoing consent to jurisdiction will not constitute submission to jurisdiction or general consent to service of process in the State of Delaware for any purpose except with respect to any Transaction Dispute.

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32.3       Notwithstanding anything herein to the contrary, each of the parties hereto agrees that (a) any Action of any kind or description, whether in law or in equity, whether in contract or in tort or otherwise, that may be based upon, arise out of or relate to this Agreement, the Debt Financing or any of the agreements(including the Debt Financing Agreements) entered into in connection with the Debt Financing or any of the transactions contemplated hereby or the performance of any services thereunder against the Lenders shall be subject to the exclusive jurisdiction of any New York State court or Federal court of the United States of America sitting in New York County, and any appellate court from any thereof, and any such Action shall be governed by the laws of the State of New York, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws, except as otherwise provided in the Debt Financing Commitments or other applicable definitive document relating to the Debt Financing and (b) it will not bring, or permit any of its Affiliates to bring, any Action of any kind or description, whether in law or in equity, whether in contract or in tort or otherwise, against the Lenders arising out of or relating to (x) the Debt Financing Commitments, any of the transactions contemplated by the Debt Financing Commitments or the performance of services thereunder or (y) this Agreement or any of the transactions contemplated hereby in any forum other than any New York State court or Federal court of the United States of America sitting in New York County, and any appellate court from any thereof, and each of the parties hereto agrees that the waiver of jury trial set forth in clause 32.4 shall be applicable to any such Action. The Lenders are express third party beneficiaries of this clause 32.3.

32.4       To the maximum extent permitted by Law, each party irrevocably and unconditionally waives any right to trial by jury in any forum in respect of any Transaction Dispute or any Action brought against the Lenders of any kind or description, whether in law or in equity, whether in contract or in tort or otherwise, that may be based upon, arise out of or relate to this Agreement, the Debt Financing or any of the agreements (including the Debt Financing Agreements) entered into in connection with the Debt Financing or any of the transactions contemplated hereby or the performance of any services thereunder and covenants that neither it nor any of its Affiliates or Representatives will assert (whether as plaintiff, defendant or otherwise) any right to such trial by jury. Each party certifies and acknowledges that (a) such party has considered the implications of this waiver, (b) such party makes this waiver voluntarily and (c) such waiver constitutes a material inducement upon which such party is relying and will rely in entering into the Transaction Documents. Each party may file an original counterpart or a copy of this clause 32.4 with any court as written evidence of the consent of each party to the waiver of its right to trial by jury. The Lenders are express third party beneficiaries of this clause 32.4.

33.       Agent for Service of Process

33.1       Without prejudice to any other permitted mode of service, each of the Parent and the Existing Shareholders irrevocably agrees that service of any claim form, notice or other document for the purpose of clause 32 shall be duly served upon it if delivered personally or sent by pre-paid recorded delivery, special delivery or registered post to the address of the Parent provided in clause 20.1 or such other Person and address

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in New York, New York as the Parent or the Existing Shareholders shall notify the AerCap Entities of in writing from time to time and the parties agree that failure by such appointed Person to notify their appointor of any such service shall not invalidate the proceedings concerned.

33.2       Without prejudice to any other permitted mode of service, each of AerCap and the AerCap Entities irrevocably agrees that service of any claim form, notice or other document for the purpose of clause 32 shall be duly served upon it if delivered personally or sent by pre-paid recorded delivery, special delivery or registered post to International Lease Financing Corporation, presently located in the United States at 10250 Constellation Blvd., Suite 1500, Los Angeles, California 90067, or such other Person and address in New York, New York as AerCap or the AerCap Entities shall notify the Parent of in writing from time to time and the parties agree that failure by such appointed Person to notify their appointor of any such service shall not invalidate the proceedings concerned.

34.       Miscellaneous

34.1       Without prejudice to any non-monetary rights or remedies available to it, AerCap and the AerCap Entities hereby irrevocably waive any right which it may have to claim damages (or other monetary rights or remedies) from the Existing Shareholders for breach of any of the obligations, commitments, undertakings or warranties given by the Parent or the Existing Shareholders under this Agreement. In consideration of AerCap and the AerCap Entities agreeing to such waiver and without prejudice to the other terms of this Agreement, the Parent agrees to be solely and exclusively responsible to AerCap and the AerCap Entities for any damages (or other monetary rights or remedies) for which the Existing Shareholders would, but for such waiver, have been liable to AerCap, the AerCap Entities or any of their Affiliates under this Agreement.

34.2       The parties hereby agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. Subject to clause 34.3, it is accordingly agreed by the parties hereby that, prior to any termination of this Agreement in accordance with its terms, the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in accordance with clause 32, without proof of damages or otherwise (and each party hereby waives any requirement for the securing or posting of any bond in connection with such remedy), this being in addition to any other remedy to which such party is entitled at law or in equity. The parties hereby agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed by the parties in accordance with their specific terms or were otherwise breached by the parties.

34.3       Notwithstanding anything in this Agreement to the contrary, it is acknowledged and agreed that the Parent and the Existing Shareholders shall be entitled to seek specific performance of AerCap’s and the AerCap Entities’ obligation to consummate the Transaction only in the event that all of the Conditions with respect to

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the Completion have been satisfied or (if applicable) waived, or, with respect to those Conditions that by their nature are to be satisfied at the Completion, are capable of being satisfied at the Completion and the Debt Financing or Alternative Financing has been funded or will be funded at Completion.

34.4       Notwithstanding anything in this Agreement to the contrary, the Parent and the Existing Shareholders agree on their behalf and on behalf of their Affiliates that none of the Lenders shall have any liability or obligation to the Parent and the Existing Shareholders and their respective Affiliates relating to this Agreement, the other Transaction Documents or any of the transactions contemplated hereby (including the Debt Financing). The Lenders are express third-party beneficiaries of this clause 34.4.

34.5       Each party hereby agrees not to raise any objections to the availability of the equitable remedy of specific performance (other than on the basis that such remedy is not available pursuant to the terms of this Agreement in respect of the particular instance in question) to prevent or restrain breaches of this Agreement by such party, and to specifically enforce the terms and provisions of this Agreement, to prevent breaches or threatened breaches of, or to enforce compliance with, the covenants and obligations of such party under this Agreement all in accordance with the terms of this clause 34.5. Any party seeking an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, in each case when expressly available pursuant to the terms of this Agreement, shall not be required to provide any bond or other security in connection with such order or injunction.

34.6       To the extent any party hereto brings any action prior to the Completion to enforce specifically the performance of the terms and provisions of this Agreement when available to such party pursuant to the terms of this Agreement, the Long-Stop Date shall automatically be extended by (i) the amount of time during which such action is pending, plus five (5) Business Days, or (ii) such other time period established by the court presiding over such action.

35.       Adjustment of Consideration

The parties (and their successors and permitted assigns) shall treat any payment made under this Agreement by the Existing Shareholders to the AerCap Entities as an adjustment to the Consideration payable pursuant to clause 2, which shall be allocable consistently with the Consideration Allocation, the Asset Allocation Schedule (if applicable), and any applicable Section 338 Allocation Schedules(s) as such are finally determined in accordance with clause 16.1, and shall use reasonable best efforts to structure the satisfaction of any payment obligation hereunder so as to minimize the amount of Tax that may be required to be deducted or withheld therefrom or charged thereon.

36.       Guarantee

AerCap hereby irrevocably and unconditionally guarantees, and agrees to cause the AerCap Entities to satisfy, all obligations of the AerCap Entities under this Agreement, on the terms and subject to the conditions set forth in this Agreement. The Parent hereby irrevocably and

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unconditionally guarantees, and agrees to cause each Existing Shareholder to satisfy, all of the obligations of such Existing Shareholder under this Agreement, on the terms and subject to the conditions set forth in this Agreement.

[Remainder of page left intentionally blank; Signature page follows.]

 

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IN WITNESS WHEREOF, each of the Parties has duly executed this Agreement as of the date and year set forth above.

GE IRELAND USD HOLDINGS ULC

By: /s/ Shane Pounch
Name: Shane Pounch
Title: Director

GE CAPITAL US HOLDINGS, INC.

By: /s/ Jennifer B. VanBelle
Name: Jennifer B. VanBelle
Title: President, Chief Executive Officer and Treasurer

GE FINANCIAL HOLDINGS ULC

By: /s/ Robert Holmes
Name: Robert Holmes
Title: Director

GENERAL ELECTRIC COMPANY

By: /s/ Michael J. Holston
Name: Michael J. Holston
Title: SVP, General Counsel and Secretary of the Board

AERCAP HOLDINGS N.V.

By: /s/ Michael Walsh
Name: Michael Walsh
Title: Attorney in Fact

 

[Signature Page to Transaction Agreement]

 

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AERCAP US AVIATION LLC

By: /s/ Bashir Hajjar
Name: Bashir Hajjar
Title: CEO

AERCAP AVIATION LEASING LIMITED

By: /s/ Thomas Kelly
Name: Thomas Kelly
Title: Attorney

 

[Signature Page to Transaction Agreement]

 

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Schedule 1A

Company Warranties

1.       Organization, Authority and Enforceability

1.1       The Parent is a corporation duly incorporated and validly existing under the Laws of the State of New York. Each of Existing Ireland Shareholder 1 and Existing Ireland Shareholder 2 is an unlimited liability company duly incorporated and validly existing under the Laws of Ireland. The Existing U.S. Shareholder is a corporation duly incorporated and validly existing under the Laws of the State of Delaware.

1.2       Each of the Company Group Members and SES is duly incorporated or otherwise organized and validly existing under the Laws of its jurisdiction of organization and has the requisite power and authority to own its assets and properties and operate its business as now conducted. Each of the Company Group Members and SES is duly qualified as a foreign corporation or other organization to do business, and is in good standing (where such concept is legally recognized in the applicable jurisdiction), in each jurisdiction where the character of its owned, operated or leased properties or the nature of its activities makes such qualification and good standing necessary, except for failures to so qualify or be in good standing that, individually or in the aggregate, would not have a Material Adverse Effect.

1.3       The Parent has made available to the AerCap Entities prior to the Signing Date true and complete copies of the certificate of incorporation, bylaws or similar constitutional documents of each Company, each Material Subsidiary and SES.

1.4       Each of the Parent and the Existing Shareholders has all requisite power to enter into, complete the transactions contemplated by, and carry out its obligations under, each of the Transaction Documents to which it is a party. At Completion, the Ireland Company 1 will have all requisite power to enter into and complete the transactions described in paragraph 3 of Schedule 3 of this Agreement.

1.5       This Agreement has been duly executed and delivered by the Parent and the Existing Shareholders.

1.6       Assuming due authorization, execution and delivery by the other parties hereto, each of the Transaction Documents to which the Parent or the Existing Shareholders (as applicable) is a party constitutes, or upon execution and delivery thereof, will constitute, the legal, valid and binding obligation of the Parent or the Existing Shareholders (as applicable), enforceable against the Parent or the Existing Shareholders (as applicable) in accordance with its terms, subject to the Bankruptcy Exceptions.

1.7       The execution, delivery and performance by each of the Parent and the Existing Shareholders of this Agreement and the other Transaction Documents to which it is a party, and the consummation by the Parent and the Existing Shareholders (as applicable) of the transactions contemplated hereunder and thereunder, have been duly authorized by all necessary corporate and shareholder action on the part of the Parent and the Existing Shareholders, and no

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further approval or authorization shall be required on the part of the Parent or the Existing Shareholders.

1.8       Each of the Companies has provided the AerCap Entities with true and complete copies of (i) the organizational documents set forth on paragraph 1.8 of Schedule 1A of the Disclosure Letter, (ii) all principal Contracts relating to existing or planned Indebtedness for borrowed money of any such Company over US$10 million as of the Signing Date and (iii) the following information for each Company Group Member legally or beneficially owning Aircraft or Engines: (v) such Company Group Member’s jurisdiction of incorporation or establishment, jurisdiction of intended tax residence, organizational form, classification for U.S. Tax purposes and, to the extent such Company Group Member is a trust or partnership, its beneficial owner and trustee or general partner, as applicable, as of the Signing Date; (w) a description of the Aircraft and/or Engines owned by such Company Group Member as of the Aircraft Disclosure Date (in the case of Engines subject to any transfer of title that may have occurred under or pursuant to any Lease of which the Parent does not have knowledge); (x) whether such Aircraft were subject to Encumbrances to secure the Indebtedness of the Company Group as of the Aircraft Disclosure Date; (y) to the Parent’s knowledge, the jurisdiction in which such Aircraft were registered as of the Aircraft Disclosure Date; and (z) to the Parent’s knowledge, the jurisdiction in which the applicable Lessee was incorporated as of the Aircraft Disclosure Date.

1.9       Paragraph 1.9 of Schedule 1A of the Disclosure Letter contains a correct and complete list of each Minority Interest Entity, including as of the date hereof, the form of entity and jurisdiction of organization. To the Parent’s knowledge, none of the Minority Interests were issued in violation of any Contract or any preemptive or similar rights of any Person. All of the Minority Interests are owned, directly or indirectly, of record and beneficially by a Company Group Member, free and clear of all Encumbrances, other than restrictions on transfer under applicable securities Laws or the organizational documents of the relevant Minority Interest Entity.

2.       Capitalization and Ownership

2.1       The Disclosure Letter sets forth, as of the Signing Date, a true, correct and complete list of (i) the authorized capital of each Company and each Material Subsidiary, (ii) the number of shares (or other applicable units) of each class or series of capital stock of each Company and each Material Subsidiary that are issued and outstanding, together with the name of each holder thereof and the percentage of the aggregate equity or voting interests that are issued and outstanding and owned by each such holder and (iii) the jurisdiction of organization of each Company and each Material Subsidiary.

2.2       All the outstanding shares (or other applicable units) or ownership interests of each Company and each other Company Group Member have been duly authorized and validly issued, are fully paid and non-assessable and were not issued in violation of any pre-emption or subscription rights. All shares of each Material Subsidiary of each Company are owned, directly or indirectly, of record and beneficially by such Company, free and clear of all Encumbrances.

2.3       The U.S. Company Membership Interests and the Existing Ireland Company Shares represent 100% of the issued and outstanding shares of the U.S. Company and the Ireland Companies, respectively, and there are no other shares, other securities or warrants or

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convertible or exchangeable securities convertible into securities in the capital of either of the Companies in issue.

2.4       There are no options, calls, warrants or convertible or exchangeable securities, or conversion, pre-emption, subscription or other rights, or agreements, arrangements or commitments (other than Permitted Liens over the shares or ownership interests of any Company Group Member), in any such case, obligating or which may obligate any Company Group Member to issue, sell, purchase, return or redeem, or otherwise dispose of, transfer or acquire, any respective shares (or other applicable units) or ownership interests convertible into or exchangeable for any of their respective shares (or other applicable units). There are no capital appreciation rights, phantom share plans, securities with participation rights or features, or similar obligations and commitments of any other Company Group Member. There are no bonds, debentures, notes or other Indebtedness issued by any Company Group Member which have the right to vote (or which are convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of any shares (or other applicable units) or ownership interests by stock ownership or otherwise in such Company Group Member are entitled to vote.

2.5       Except for the Transaction Documents and restrictions imposed by applicable Laws or any Governmental Authority or except for trusts holding title to Aircraft or Engines, there are no voting trusts, shareholder agreements, proxies or other rights or agreements to which any Company Group Member is a party in effect with respect to the voting, transfer or dividend rights of the Equity Interests, the SES Tracking Stock or (other than Permitted Liens) of the shares (or other applicable units) or ownership interests of any Company Group Member.

2.6       As of the Signing Date, there are no entities in which any of the Companies directly or indirectly owns or controls any voting power or otherwise owns any equity interests, other than the Company Subsidiaries and the Minority Interest Entities and other than positions taken in connection with ordinary course cash management activities. None of the Companies has agreed, and none of the Companies is under current or prospective obligation (contingent or otherwise), to form or participate in or make any capital contribution to or future investment in, or guarantee any obligations of any Person which is not a Company Subsidiary (other than a Minority Interest Entity pursuant to the organizational documents of such Minority Interest Entity).

2.7       Neither the Parent nor any Affiliate of the Parent owns or has any plan or intention to acquire (i) any interest in AerCap (other than the Stock Consideration or the AerCap Notes) or (ii) any interest in any Company Group Member (other than the Equity Interests or the Stock Consideration or the AerCap Notes), in each case that would be classified as equity for U.S. federal Income Tax purposes and would (taken together with the Stock Consideration, and assuming that the Stock Consideration represents no more than 47% of the equity interests in AerCap for U.S. federal Income Tax purposes) result in stock owned by the Existing Shareholders being attributed to AerCap for purposes of Section 338(h)(3) of the U.S. Tax Code.

2.8       EIH holds 50% of the issued and outstanding common stock of CFMI, and, other than such common stock, there are no other outstanding equity interests of CFMI. There are no options, calls, warrants or convertible or exchangeable securities, or conversion, pre-emption, subscription or other rights, or agreements, arrangements or commitments (other than Permitted Liens over such common stock), in any such case, obligating or which may obligate CFMI to issue,

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sell, purchase, return or redeem, or otherwise dispose of, transfer or acquire, any shares (or other applicable units) or ownership interests convertible into or exchangeable for any shares of its common stock.  CFMI indirectly holds all equity interests of SES.

3.       Ownership and Transfer of Equity Interests and Transferred Assets

3.1       The Existing U.S. Shareholder is the sole legal holder of record and beneficial owner of the U.S. Company Membership Interests, free and clear of any Encumbrances. Existing Ireland Shareholder 1 is the sole legal holder of record and beneficial owner of the Existing Ireland Company 1 Shares, free and clear of any Encumbrances. Existing Ireland Shareholder 2 is the sole legal holder of record and beneficial owner of the Ireland Company 2 Shares and the Ireland Company 3 Shares, in each case free and clear of any Encumbrances.

3.2       (a) The Existing U.S. Shareholder has the power and authority to sell, transfer, assign and deliver the U.S. Company Membership Interests and the Existing Ireland Shareholder 2 has the power and authority to sell, transfer, assign and deliver the Ireland Company 2 Shares and the Ireland Company 3 Shares, in each case as provided in this Agreement, and, together, such deliveries will convey to the AerCap good and valid title to the U.S. Company Membership Interests, the Ireland Company 2 Shares, and the Ireland Company 3 Shares, free and clear of all Encumbrances and any other limitation or restriction (including any restriction on the right to vote, sell or otherwise dispose of the U.S. Company Membership Interests, the Ireland Company 2 Shares and the Ireland Company 3 Shares), other than restrictions on transfer imposed by applicable Law and (b) the Existing Ireland Shareholder 1 has the power and authority to enter into and consummate all of the transactions contemplated by this Agreement to which it is a party pursuant to and on the terms set out in this Agreement. At Completion, the Ireland Company 1 will have the power and authority to issue the New Ireland Company 1 Shares and, when issued to the Ireland Subscriber, the New Ireland Company 1 Shares will be free and clear of all Encumbrances.

3.3       The sellers of the Transferred Assets collectively have good and valid title to (or in the case of leased properties and assets, valid leasehold interests in) the Transferred Assets and have the right to transfer (or caused to be transferred) in accordance with the terms of this Agreement, all Transferred Assets, free and clear of all Encumbrances except Permitted Liens. The sellers of the Transferred Assets have the power and authority to sell, transfer and otherwise assign (or cause to be sold, transferred or otherwise assigned) the Transferred Assets, as provided in this Agreement, and such transfer will convey to AerCap, or such of its Affiliates as AerCap may designate, good and valid title to the Transferred Assets, free and clear of all Encumbrances except Permitted Liens.

4.       No Conflicts

Provided the Governmental Approvals identified in Schedule 5 have been made or obtained, the execution and delivery by each of the Parent and the Existing Shareholders (as applicable) of the Transaction Documents to which it is a party, the performance by each of the Parent and the Existing Shareholders (as applicable) of its obligations under the Transaction Documents to which it is a party and the consummation by each of the Parent and the Existing Shareholders (as applicable) of the transactions contemplated by the Transaction Documents to

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which it is a party do not and will not: (i) violate or result in the breach of any provision of the organizational documents of the Existing Shareholders, the Parent, any Company Group Member or, to the knowledge of Parent, SES; (ii) conflict with or violate in any material respect any Law or Order of any Governmental Authority applicable to the Parent, the Existing Shareholders, any Company Group Member, the Business, any Transferred Assets or, to the knowledge of Parent, SES, or require any Governmental Approvals to be made or obtained by, the Parent, the Existing Shareholders, any Company Group Member or, to the knowledge of Parent, SES (except, in the case of Governmental Approvals, for the Governmental Approvals identified in Schedule 5 and notices, filings, exemptions or reviews or Consents the failure of which to make or obtain that would not, individually or in the aggregate, reasonably be expected to give rise to a material liability or to criminal liability); or (iii) conflict with or violate, result in any breach of, constitute a default (or event which, with the giving or notice or lapse of time, or both, would constitute a default) under, require any consent under or give to any Person any rights of termination, acceleration or cancellation of, or result in a loss of rights under, or result in the creation of any Encumbrance (other than Permitted Liens) on any of the assets or properties of any Company Group Member, the Business or any Transferred Assets, pursuant to, any Material Contract to which the Parent, the Existing Shareholders or any Company Group Member is a party or by which any of them or any of their respective properties, assets or businesses, the Business or any Transferred Assets are bound or subject, except, in the case of clause (ii) and clause (iii), for any such conflicts, violations, breaches, defaults, Consents, terminations, accelerations, cancellations, losses, rights or creations that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.

5.       Financial Statements

(a) The unaudited statements of earnings of the Business for the nine (9) months ended September 30, 2019 and September 30, 2020, the unaudited statements of financial position of the Business as of September 30, 2020 (the “Unaudited Balance Sheet”) and the unaudited statements of cash flows of the Business for the nine (9) months ended September 30, 2019 and September 30, 2020 (collectively, the “Unaudited Financial Statements”), (b) the audited statements of earnings of the Business for the years ended December 31, 2018 and December 31, 2019, the audited statements of financial position of the Business as of December 31, 2018 and December 31, 2019 and the audited statements of cash flows of the Business for the years ended December 31, 2018 and December 31, 2019 (collectively, the “Audited Financial Statements” and, together with the Unaudited Financial Statements, the “Financial Statements”) and (c) the unaudited summary financial information of the Business as of and for the year ended December 31, 2020 set forth in paragraph 5 of Schedule 1A of the Disclosure Letter, (i) have been prepared in accordance with GAAP, which has been consistently applied throughout the periods indicated therein, except as otherwise disclosed in the Financial Statements; and (ii) present fairly, in all material respects, the consolidated financial position of the Business as of the end of such financial periods and the consolidated results of operations and cash flows of the Business for each of the periods then ended, except that the Unaudited Financial Statements are subject to normal recurring year-end adjustments.

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6.       Absence of Certain Changes

6.1       Since the Reference Balance Sheet Date through the Signing Date, there has been no event, change, occurrence or development or state of facts which, individually or in the aggregate, has had, or would reasonably be expected to have, a Material Adverse Effect.

6.2       Since the Reference Balance Sheet Date through the Signing Date, the Company Group and the Business have been conducted in such a manner that the Existing Shareholders’ and the Parent’s obligations under clause 8.1 would have been complied with as if this Agreement were in effect from the Reference Balance Sheet Date. For purposes of this paragraph 6.2, the Parent shall provide a supplement to paragraph 6.2 of Schedule 1A of the Disclosure Letter with respect to paragraph 18 of Schedule 2A within thirty (30) days of the Signing Date, which supplement shall be deemed to be incorporated in the Disclosure Letter.

7.       No Undisclosed Liabilities

The Company Group Members and the Business do not have any liabilities or obligations of any nature (whether due or to become due, and whether known or unknown) which are not properly disclosed or reserved against in the Financial Statements to the extent required to be so disclosed or so reserved against therein in accordance with GAAP, except for (A) liabilities that have arisen since the Reference Balance Sheet Date in the ordinary and usual course of business and consistent with past practice and (B) liabilities that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect.

8.       Internal Control of Financial Reporting

The Company Group has devised and maintains systems of internal accounting and disclosure control procedures with respect to its businesses sufficient to provide reasonable assurances that: (a) material information relating to the Company Group and the Business is made known to senior management of the Parent by others within those entities and (b) the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. There are no significant deficiencies or material weaknesses in the design or the operation of the internal controls over financial reporting (as such term is defined in Rule 13a-15(f) under the Securities Exchange Act) of any of the Company Group Members or the Business which would reasonably be expected to adversely affect in any material respect the ability of the Company Group or the Business, taken as a whole, to record, process, summarize and report financial data and there is no, and there has not been any instances of, fraud that involves or involved management or other employees who have or had a significant role in such internal controls.

9.       Stock Lending

No Company Group Member is a party to any stock lending or similar agreements or similar arrangements or has any obligations or liabilities (whether or not contingent) under or in connection with any such agreements or arrangements. No Company Group Member has any obligations or liabilities (whether or not contingent) under or in connection with any stock lending agreements or arrangements which are no longer outstanding but under which obligations or liabilities (whether or not contingent) exist or may arise.

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10.       Indebtedness

Paragraph 10 of Schedule 1A of the Disclosure Letter describes all Indebtedness for borrowed money of each Company Group Member as of the Signing Date that has in excess of US$50 million outstanding.

11.       Brokers and Finders

No broker, finder or investment banker is entitled to any financial advisory, brokerage, finder’s or other fee or commission in connection with this Agreement or the transactions contemplated by this Agreement based upon arrangements made by or on behalf of the Parent, the Existing Shareholders, any Company Group Member or any of their respective Affiliates.

12.       Offering of Securities

Neither the Parent, the Existing Shareholders, the Companies nor any Person acting on their behalf has taken any action (including any offering of any securities of either of the Companies under circumstances which would require the integration of such offering with the offering of any of the Equity Interests under the Securities Act or New Ireland Company Notes), which might subject the issuance or sale, as applicable, of any of the Equity Interests or New Ireland Company Notes to the AerCap Entities pursuant to this Agreement to the registration requirements of the Securities Act.

13.       Material Contracts

The Disclosure Letter contains a true and complete list of all Material Contracts as of the Signing Date, true and complete copies of which have been made available to the AerCap Entities. Each Material Contract is a valid and binding obligation of each of the Company Group Member(s) (as applicable) that is party thereto and, to the knowledge of the Parent, each other party to such Material Contract, except for such failures to be valid and binding as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. Each such Material Contract is enforceable against the Company Group Member(s) that is party thereto and, to the knowledge of the Parent, and, to the knowledge of the Parent without inquiry of each such other party, each other party to such Material Contract in accordance with its terms (subject in each case to the Bankruptcy Exceptions), except for such failures to be enforceable as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. No Company Group Member or, to the knowledge of the Parent, any other party to a Material Contract, is in material default or material breach of a Material Contract and, to the knowledge of the Parent, there does not exist any event, condition or omission that would constitute such a default or breach (whether by lapse of time or notice or both), in each case, except as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.

14.       Affiliates

Each Related Party Contract has been entered into, and contains terms and conditions that have been negotiated, on an arm’s-length basis. Paragraph 14 of Schedule 1A of the Disclosure Letter contains a true and complete list of all Related Party Contracts as of the

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Signing Date (other than Related Party Contracts entered into on an arm’s-length basis for the provision of products or services related to (i) the maintenance, repair and overhaul of engines and (ii) customary engine warranties and product support), true and complete copies of which have been made available to the AerCap Entities prior to the Signing Date. No transactions, Contracts, or understandings or a series of related transactions, Contracts or understandings exist between, among or involving any Company Group Member, on the one hand, and any current or former director, officer or employee of such Company Group Member in respect of any loans to such director, officer or employee or similar obligations.

15.       Compliance with Laws

Each of the Company Group Members and, to the knowledge of Parent, SES has all material Permits, and has made all material filings, applications and registrations with, Governmental Authorities, that are required in order to permit it to own or lease its properties and assets and carry on the Business as presently conducted (the “Business Permits”), and the sellers of any Transferred Assets have all material Business Permits required to or own, lease or operate the Transferred Assets, including all material Permits that are required to be obtained from any Governmental Authority in connection with the operation, ownership or transaction of an aircraft leasing business. To the knowledge of the Parent, all Business Permits are valid and in full force and effect. To the knowledge of the Parent, none of the Company Group Members or SES or, in the case of any Transferred Assets, any seller of such Transferred Assets is in default under or the subject of a proceeding for suspension or revocation of, and, to the knowledge of the Parent, no condition exists that with notice or lapse of time or both would constitute a default under, or basis for suspension or revocation of, any Business Permit. Each Company Group Member, the Business and, to the knowledge of Parent, SES, and, with respect to the Transferred Assets, each seller of such Transferred Assets has complied in all respects and is not in default or violation of, and none of the Business, the Company Group Members, SES or any such seller is, to the knowledge of the Parent, under investigation with respect to or has been threatened to be charged with or given notice of any violation of, any Law applicable to the Company Group, SES, such seller, the Business or the Transferred Assets, other than such noncompliance, defaults or violations that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Except for statutory or regulatory restrictions of general application or applicable to aircraft leasing companies generally, no Governmental Authority has placed any material restriction (other than Permitted Liens) on the business or properties of any Company Group Member, SES, the sellers of any Transferred Assets, the Business or any Transferred Assets that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. This paragraph 15 shall not apply with respect to Taxes.

16.       Reports

Since February 24, 2020, each Company Group Member has, and each applicable seller of Transferred Assets has with respect to such Transferred Assets, timely filed (subject to any permitted extension) all material reports, forms, certifications, registrations, documents, filings, statements and submissions, together with any exhibits, amendments and supplements thereto, that it was required to file with any Governmental Authority (the foregoing, collectively, the “Reports”) and has paid all material fees and assessments due and payable in connection therewith. As of their respective dates of filing, to the knowledge of the Parent, each Report

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complied in all material respects with all statutes and applicable rules and regulations of the applicable Governmental Authorities and was complete and accurate in all material respects. This paragraph 16 shall not apply with respect to Tax Returns.

17.       Litigation and Other Proceedings

As of the Signing Date, there are no Actions (including any proceeding or, to the knowledge of the Parent, any investigation by or before any Governmental Authority) pending or, to the knowledge of the Parent, threatened in writing against any Company Group Member or SES or to which any of their respective assets, the Business or the Transferred Assets are subject which would reasonably be expected to result in Losses in excess of US$50 million or any permanent injunction or other form of equitable relief which would or would reasonably be expected to have a Material Adverse Effect. None of the Company Group Members, the sellers of Transferred Assets or, to the knowledge of Parent, SES is subject to, and none of its assets, properties or businesses, the Business or any Transferred Assets is bound by, any Order in a Material Jurisdiction and, to the knowledge of the Parent, in any jurisdiction (other than a Material Jurisdiction), in each case which would reasonably be expected to result in Losses in excess of US$50 million or any permanent injunction or other form of equitable relief which would or would reasonably be expected to have a Material Adverse Effect. As of the Signing Date, there are no Actions (including any investigation or proceeding by or before any Governmental Authority) pending or, to the knowledge of the Parent, threatened in writing against any Company Group Member, any seller of any Transferred Assets or SES or to which any of their respective assets, the Business or any Transferred Assets are subject questioning the legality of the transactions contemplated by any of the Transaction Documents.

18.       Properties and Leases; Assets

18.1       No Company Group Member owns any real property. None of the Transferred Assets are real property.

18.2       Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, the Company Group Members (as applicable) hold all leased real property (i) under valid and enforceable leases with no exceptions (other than Permitted Liens) that would interfere with the use made or to be made thereof by them and (ii) no Company Group Member or, to the knowledge of the Parent, any other party thereto, is in default or breach (whether by lapse of time or notice or both) under any such lease.

18.3       The assets, properties, and rights owned, leased, licensed or otherwise held by the Company Group (including, for the avoidance of doubt, any Proprietary Rights) constitute all of the material assets, properties and rights necessary to operate the Business conducted as of the Signing Date and the Completion Date, other than services, assets and properties to be received by the Company Group or are expressly made available to the Company Group, in each case, pursuant to any Transaction Document. As at Completion, there will be no material assets, properties or rights (including, for the avoidance of doubt, any Proprietary Rights) that are necessary for the conduct of such Business that are owned, leased or otherwise held by the Retained Group, other than services, assets and properties to be received by the Company Group or are expressly made available to the Company Group, in each case, pursuant to any Transaction

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Document. This paragraph 18.3 shall not apply with respect to infringement, misappropriation or other violation of Proprietary Rights, which matters are addressed exclusively by paragraph 20.

19.       Insurance

All current property and liability insurance policies maintained by and covering any Company Group Member, the Business or Transferred Assets and all current insurance policies covering Aircraft for which one of the Company Group Members is the named insured are, in each case, in full force and effect (and all premiums due and payable thereon have been paid in full on a timely basis), and no written notice of cancellation, termination or revocation or other written notice that any such insurance policy is no longer in full force or effect or that the issuer of any such insurance policy is not willing or able to perform its obligations thereunder has been received by any Company Group Member, and no Company Group Member is in default of any provision thereof, except, in each case, that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. All certificates of insurance for the insurance policies referred to in the preceding sentence have been made available to AerCap.

20.       Intellectual Property

Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (1) each Company Group Member owns or otherwise has a license or other valid right to use, all intellectual property rights, including all Trademarks, patents, inventions, trade secrets, know-how, software, works of authorship and copyrights therein (“Proprietary Rights”), that are used in the conduct of the Business, free and clear of any and all Encumbrances and any claims of ownership by current or former employees, contractors, designers or others, except for any Permitted Liens, and (2) to the knowledge of the Parent, no Company Group Member is infringing, diluting, misappropriating or violating, nor has any Company Group Member received within the last two years any written (or, to the knowledge of the Parent, oral) communications alleging that any of them has infringed, diluted, misappropriated or violated, any of the Proprietary Rights owned by any other Person. Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, to the knowledge of the Parent, no other Person is infringing, diluting, misappropriating or violating, nor has any Company Group Member sent any written communications since December 31, 2018 alleging that any Person has infringed, diluted, misappropriated or violated, any of the Proprietary Rights owned by any Company Group Member.

21.       Aircraft, Lease Documents, Manufacturer Agreements and Aircraft Trading Agreements

21.1       Aircraft

(a)        Exhibit 21.1(a)(i) of the Disclosure Letter lists each aircraft and aircraft engine owned by any Company Group Member as of the Aircraft Disclosure Date (including through any trustee or Economic Interest Titleholder thereof), and Exhibit 21.1(a)(ii) of the Disclosure Letter lists each Economic Interest Aircraft as of the Aircraft Disclosure Date, in each case including the manufacturer, model and the manufacturer’s serial number of such aircraft or aircraft engine (but excluding the manufacturer’s serial number of any aircraft engines

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associated with any rotary-wing aircraft) and, if applicable, the name of the Lessee thereof and identifies each such Aircraft or Engine which was on ground and/or not under the operational control of a Lessee as of the Aircraft Disclosure Date. As of the Aircraft Disclosure Date, a Company Group Member is either (x) the sole legal and beneficial owner of each Aircraft (other than each Economic Interest Aircraft) and Engine or (y) the beneficial owner of each Aircraft (other than each Economic Interest Aircraft) and legal title to such Aircraft is held by a trustee. As of the Aircraft Disclosure Date, a Company Group Member is the holder of a lessor’s interest in any Aircraft or Engine which are, as of such date, on lease to a Lessee, under the applicable Lease Documents; which Aircraft or Engine and which interest under those Lease Documents are, in each case, free and clear of all Encumbrances, other than Permitted Liens. Each purchase or sale of an aircraft or aircraft engine by any Company Group Member after the Aircraft Disclosure Date until the Signing Date was (A) pursuant to a Letter of Intent or Contract, a true and complete copy of which has been made available to the AerCap Entities or (B) in compliance with clause 8.1 as if such clause was in effect as of the Aircraft Disclosure Date (provided that for purposes of subclause (B) of this paragraph 21.1(a) of Schedule 1A all references to “Signing Date” in clause 8.1 and Schedule 2A shall be deemed to be references to the “Aircraft Disclosure Date”). In the case of any Engine, any warranty as to a Company Group Member having title to such Engine is subject to any transfer of title that may have occurred under or pursuant to any Lease of which the Parent does not have knowledge.

(b)        If the Lease of a rotary-wing Aircraft to a Lessee provides for the Company Group Member party thereto as lessor to receive the benefit of security over, or step-in rights in respect of, “power-by-the-hour” maintenance arrangements (“PBH Agreements”) entered into by the Lessee of such aircraft (or certain specific engines or parts thereof) with a manufacturer or other maintenance and repair organization (“PBH Step-In Rights”), then as of the Completion Date (a) to the extent the underlying Lease requires that the Lessee must deliver a copy (which may be redacted) or summary of such PBH Agreement, it shall have been made available to the AerCap Entities and (b) the agreements documenting such PBH Step-In Rights shall exist to the extent, and substantially in the structure, provided for in such Lease unless, in either case, the same has been temporarily waived in accordance with standard leasing company practice and except as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.

21.2       Lease Documents

(a)        Parent and Existing Shareholders have made available to the AerCap Entities, as of the Lease Disclosure Date, true and complete copies of each Lease Document (insofar as material). As of the Lease Disclosure Date, there were no other material agreements between any Lessee and any Company Group Member concerning any Aircraft that is the subject of the Lease Documents that has not been made available to the AerCap Entities. Each aircraft or aircraft engine lease or other agreements related thereto entered into by any Company Group Member after the Lease Disclosure Date through the Signing Date was entered into in compliance with clause 8.1 as if such clause was in effect as of the Lease Disclosure Date (provided that for purposes of this sentence of this paragraph 21.2(a) of Schedule 1A all references to “Signing Date” in clause 8.1 and Schedule 2A shall be deemed to be references to the “Lease Disclosure Date”). Each Lease Document is a valid and binding obligation of each Company Group Member that is party thereto and, to the knowledge of the Parent as of the Lease Disclosure

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Date each other party to such Lease Document, except for such failures to be valid and binding as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. Each Lease Document is enforceable against each Company Group Member that is party thereto and, to the knowledge of the Parent, as of the Lease Disclosure Date, each other party to such Lease Document in accordance with its terms (subject in each case to the Bankruptcy Exceptions), except for such failures to be enforceable as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. No Company Group Member or, to the knowledge of the Parent as of the Lease Disclosure Date, any other party to a Lease Document, (i) (a) is in material breach of any payment obligation of any Lease Document (including the relevant Lessee’s obligations therein with respect to payment of rentals) and, (b) to the knowledge of the Parent, as of the Lease Disclosure Date, there does not exist any event, condition or omission that would constitute such a default or breach (whether by lapse of time or notice or both), in each case of (a) and (b), except as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect, or (ii) has the right (which is exercisable) to, or, to the knowledge of the Parent, has provided notice of any intent to, cancel or terminate, except for such cancelations or terminations as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. As of the Lease Disclosure Date, no Company Group Member has received any notice from a Lessee of its exercise of an existing option to purchase any Aircraft or Engine under the applicable Lease Documents. To the knowledge of the Parent, as of the Lease Disclosure Date, no Company Group Member has received notice under any Lease of any Event of Loss (as such term or any comparable term thereto is defined in the Lease) with respect to a total loss of any airframe of any Aircraft.

(b)        The information set forth in paragraph 21.2(b) of Schedule 1A of the Disclosure Letter is true and correct in all material respects.

(c)        Paragraph 21.2(c) of Schedule 1A of the Disclosure Letter lists, as of the Lease Disclosure Date (i) all failures by Lessees to make any basic rental cash payment or, to the knowledge of the Parent based on the most recent utilization report received from each Lessee, any cash maintenance rent payment, in each case required under a Lease Document that remains unpaid after its respective due date, (ii) all notices of termination, in each case delivered by any Company Group Member to any Lessees in the last sixty (60) days (and not withdrawn), and (iii) all Aircraft which is subject to a Lease due to expire within twelve (12) months of the date hereof that is not subject to a lease that is scheduled to commence within the same month as, or the month immediately following, the expiration of the current Lease.

21.3       Paragraph 21.3(A) of Schedule 1A of the Disclosure Letter contains a true and complete list, as of the Manufacturer Agreement Disclosure Date, of (x) each Manufacturer Agreement and (y) each Letter of Intent which contemplates the entry into a Manufacturer Agreement, and true and complete copies of each such Manufacturer Agreement and Letter of Intent have been made available to the AerCap Entities. Each Manufacturer Agreement is a valid and binding obligation of each Company Group Member that is party thereto and, to the knowledge of the Parent, as of the Manufacturer Agreement Disclosure Date, each other party to such Manufacturer Agreement, except for such failures to be valid and binding as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. Each such Manufacturer Agreement is enforceable against each Company Group Member that is party thereto and, to the knowledge of the Parent, as of the Manufacturer Agreement Disclosure Date, each other

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party to such Manufacturer Agreement in accordance with its terms (subject in each case to the Bankruptcy Exceptions), except for such failures to be enforceable as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. No Company Group Member or, to the knowledge of the Parent, as of the day prior to the Manufacturer Agreement Disclosure Date, any other party to a Manufacturer Agreement, (i) is in material default or material breach of a Manufacturer Agreement and, to the knowledge of the Parent, as of the Manufacturer Agreement Disclosure Date, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both), in each case, except as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect or (ii) has the right (which is exercisable) to, or, to the knowledge of the Parent, has provided notice of any intent to, cancel or terminate, except for such cancelations or terminations as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. The Disclosure Letter sets forth, all purchase orders and other commitments made by each Company Group Member to purchase aircraft from original equipment manufacturers that are outstanding as of the Manufacturer Agreement Disclosure Date. The Disclosure Letter identifies whether any material Manufacturer Agreement contains (i) change of control, cross default or event of default provisions that would reasonably be expected to be triggered by the transactions contemplated by the Transaction Documents, (ii) covenants purporting to restrict materially the ability of any Company Group Member or its Affiliates or the Business to engage in any line of business in any geographical area or otherwise purporting to restrict their ability to sell or lease Aircraft or aircraft assets other than as required by applicable Law or pursuant to legal compliance policies of the relevant counterparty or (iii) terms or conditions that permit the termination of such Manufacturer Agreement or the rescheduling of deliveries of aircraft thereunder based on the financial condition of the Business, other than terms or conditions relating to bankruptcy, insolvency and failure to pay as required thereunder.

21.4       The Disclosure Letter contain a true and complete list, as of the Aircraft Trading Agreement Disclosure Date, of (x) each Aircraft Trading Agreement and (y) each Letter of Intent which contemplates the entry into an Aircraft Trading Agreement, in each case, where the delivery of any aircraft thereunder has not yet occurred (and which has not been terminated or cancelled prior to the Aircraft Trading Agreement Disclosure Date). True and complete copies of each such Aircraft Trading Agreement and Letter of Intent have been made available to the AerCap Entities. Each Aircraft Trading Agreement entered into after the Aircraft Trading Agreement Disclosure Date until the Signing Date was entered into (a) pursuant to a Letter of Intent listed in the Disclosure Letter, a true and complete copy of which has been made available to the AerCap Entities, or (b) in compliance with clause 8.1 as if such clause was in effect as of the Aircraft Trading Agreement Disclosure Date (provided that for purposes of this paragraph 21.4 of Schedule 1A all references to “Signing Date” in subclause (b) of clause 8.1 and Schedule 2A shall be deemed to be references to the “Aircraft Trading Agreement Disclosure Date”). Each Aircraft Trading Agreement is a valid and binding obligation of each Company Group Member that is party thereto and, to the knowledge of the Parent, each other party to such Aircraft Trading Agreement, except for such failures to be valid and binding as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. Each such Aircraft Trading Agreement is enforceable against each Company Group Member that is party thereto and, to the knowledge of the Parent, as of the Aircraft Trading Agreement Disclosure Date, each other party to such Aircraft Trading Agreement in accordance with its terms (subject in each case to the Bankruptcy Exceptions), except for such failures to be enforceable as, individually or in the aggregate, would

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not reasonably be expected to have a Material Adverse Effect. No Company Group Member or, to the knowledge of the Parent, as of the Aircraft Trading Agreement Disclosure Date, any other party to an Aircraft Trading Agreement, (i) is in material default or material breach of an Aircraft Trading Agreement and, to the knowledge of the Parent, as of the Aircraft Trading Agreement Disclosure Date, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both), in each case, except as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect or (ii) has the right (which is exercisable) to, or, to the knowledge of the Parent, has provided notice of any intent to, cancel or terminate, except for such cancelations or terminations as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.

21.5       Paragraph 21.5 of Schedule 1A of the Disclosure Letter sets forth all letter agreements and other commitments made or entered into by each Company Group Member to purchase aircraft or aircraft engines (excluding aircraft engines to be installed on aircraft at the time of delivery by Manufacturers) from a Retained Group Member or CFMI that are outstanding as of the Manufacturer Agreement Disclosure Date.

22.       Employee Benefit Matters

22.1       The Disclosure Letter contains a true and complete list as of the date hereof of each material Company Benefit Plan and each material Parent Benefit Plan in which any Pre-Completion Company Employee participates.

22.2       The Existing Shareholders have made available to AerCap or the AerCap Entities prior to the Signing Date true, correct and complete copies, to the extent applicable, of each material Company Benefit Plan and each material Parent Benefit Plan in which any Pre-Completion Company Employee located in the United States or Ireland participates, and any other Company Benefit Plans or Parent Benefit Plan which could result in material liabilities to the Company Group, AerCap or the AerCap Entities, including under clauses 11.7 and 11.8; provided that, if a copy of such Benefit Plan is not reasonably accessible to any individual set forth on Schedule 4A, then the Existing Shareholders may provide a material summary of the terms of such Benefit Plan. With respect to each material Company Benefit Plan in which any Pre-Completion Company Employee participates, the Existing Shareholders will make available to AerCap or the AerCap Entities prior to the Completion Date (A) the most recent plan document and any related trust documents and the most recent summary plan description; (B) the most recent financial statements; (C) the most recent IRS determination letter or request for such determination letter, as applicable; (D) any material associated administrative agreements; (E) insurance policies covering any such Company Benefit Plans; and (F) for the most recent plan year for which the deadline for filing such form has expired, the IRS Form 5500. To the knowledge of the Parent, prior to the Signing Date, the Existing Shareholders have made available to AerCap or the AerCap Entities true and complete copies of each form of employment, deferred compensation or other similar agreement with any current or former director, officer or management employee of any Company Group Member or Existing Shareholder Business Employee as well as any such agreement the terms of which are materially different from such form; provided that, if providing any such form or agreement prior to the Signing Date would violate any provision of applicable Law, including after reasonable redactions have been made, or is not reasonably accessible to any

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individual set forth on Schedule 4A, then the Existing Shareholders shall instead provide such form or agreement as soon as practicable following the Signing Date, but no later than sixty (60) days following the Signing Date. For purposes of clarity, Benefit Plans and employment agreements will not be deemed to be reasonably accessible to the individuals set forth in Schedule 4A, if such persons have not been able to locate them following a good faith careful review of their files.

22.3       Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect:

(a)        each Company Benefit Plan has been operated and administered (including with respect to any applicable funding and registration requirements in the case of any pension fund) in compliance with its terms and with applicable Law, including ERISA and the U.S. Tax Code;

(b)        no Company Group Member, has engaged in a transaction with respect to any Company Benefit Plan or any Parent Benefit Plan that, assuming the taxable period of such transaction expired on December 31, 2017 would reasonably be expected to subject any Company Group Member or any Company Benefit Plan to any Tax or penalty under applicable Law;

(c)        all contributions required to be made by any Company Group Member (as applicable) under the terms of any Company Benefit Plan or any Parent Benefit Plan have been timely made when due and are appropriately reflected in all respects in the Financial Statements; and

(d)        each Company Benefit Plan that is intended to be qualified under Section 401(a) of the U.S. Tax Code has received a favorable determination letter from the Internal Revenue Service (the “IRS”) and, to the knowledge of the Parent, there are no facts or circumstances that would be reasonably likely to adversely affect the qualified status of any such Company Benefit Plan.

22.4       No Company Group Member has any obligations for, and no Pre-Completion Company Employee has any rights under any Parent Benefit Plan to receive any, retiree welfare benefits other than (A) benefits mandated by applicable Law or (B) coverage that continues during an applicable severance period.

22.5       No Company Benefit Plan is subject to Title I or Title IV of ERISA, and no Company Employee or Pre-Completion Company Employee participates in, or is eligible for, any Parent Benefit Plan that is subject to Title IV of ERISA or is a defined benefit pension plan that is reasonably expected to become a liability of the AerCap Entities. Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, neither the Parent nor any of its ERISA Affiliates has incurred any liability under Title IV of ERISA or otherwise arising in connection with the termination of or complete or partial withdrawal from any plan covered or previously covered by Title IV of ERISA or that is or was a defined benefit pension plan that is or could become, after the Completion Date, an obligation of any Company Group Member.

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22.6       There is no contract, plan or arrangement (written or otherwise) covering any Pre-Completion Company Employee that, individually or collectively, gives rise to the payment of any amount or the provision of any benefit as a result of the transactions contemplated hereby (whether alone or in combination with any other event) that would not be deductible pursuant to the terms of Section 280G or 162(m) of the U.S. Tax Code.

22.7       Except as required by applicable Law, no director, Pre-Completion Company Employee or Existing Shareholder Business Employee or individual or former director, employee or individual consultant of any Company Group Member will become entitled to any bonus, retirements, severance or similar benefit or enhanced benefit (including acceleration of vesting or exercise of an incentive award) as a result of the transactions contemplated hereby (whether alone or in combination with any other event).

22.8       Except as required by applicable Law, no Company Group Member is a party to or bound by any collective bargaining agreement and no Pre-Completion Company Employee or Existing Shareholder Business Employee is subject to any collective bargaining, works council or other similar agreement in respect of his or her employment with the Parent and its Subsidiaries. There is no labor strike, labor dispute, or work stoppage or lockout pending or, to the knowledge of the Parent, threatened in writing against or affecting any Company Group Member. To the knowledge of the Parent, (A) no union organization campaign is in progress with respect to any Pre-Completion Company Employee or Existing Shareholder Business Employee, (B) there is no material unfair labor practice charge, arbitration or complaint pending against any Company Group Member, and (C) except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, each Company Group Member is in compliance with all applicable Laws in respect of the Pre-Completion Company Employees or Existing Shareholder Business Employees, relating to the proper classification of employees as exempt or nonexempt from overtime pay requirements, the provision of required meal and rest breaks, the proper classification of individuals as contractors or employees, and the Worker Adjustment Retraining and Notification Act of 1988, as amended, or any similar state or local plant closing or mass layoff statute, rule or regulation.

23.       Environmental Matters

23.1       Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect:

(a)        no Company Group Member has owned, leased or otherwise operated, or has formerly owned, leased or otherwise operated, any property at which any substance listed, defined, designated, classified or regulated under any Laws relating to pollution or to the protection of human health (as it relates to exposure to toxic or hazardous substances or wastes), natural resources or the environment, including Laws relating to the use, treatment, disposal, storage, management, handling, manufacture, generation, processing, recycling, distribution, transport, release or threatened release of or exposure to toxic, hazardous, harmful or deleterious substances or wastes (collectively, “Environmental Laws”) as a waste, pollutant or contaminant or as hazardous, toxic, radioactive or dangerous, or any other term of similar import under any Environmental Law, including for the avoidance of doubt petroleum, petroleum distillates, products and by-products, asbestos and asbestos-containing materials, metals, volatile

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organic compounds, solvents and radon and other radioactive substances (“Hazardous Materials”) is present in a condition or under circumstances that would reasonably be expected to result in any liability or obligation of any Company Group Member or the Business or interfere in any respect with any of their operations;

(b)        no Company Group Member has released, or arranged for the storage, transportation, treatment or disposal of, any Hazardous Materials at any location in a manner or under circumstances that would reasonably be expected to result in any liability or obligation of any Company Group Member or the Business or to interfere in any respect with any of their operations; and

(c)        except as otherwise disclosed on paragraph 23.1(c) of Schedule 1A of the Disclosure Letter no Company Group Member has assumed or retained, by contract or operation of Law, any liability or obligation under any Environmental Law that would reasonably be expected to affect any Company Group Member or the Business.

23.2       The Parent has made available to the AerCap Entities copies of all material environmental reviews, site assessments, compliance audits, investigations and documents containing information concerning compliance with or liability under or potential business impacts of any Environmental Laws, which compliance, liability or impacts relate to any Company Group Member or the Business, to the extent such report or other document is in the Parent’s or the Existing Shareholders’ possession or control as of the Signing Date and prepared after December 31, 2018.

24.       The Accounts and Tax

To the Parent’s knowledge:

24.1       Each Company Group Member has timely filed all material federal Income Tax Returns and all other material Tax Returns required to be filed by it, subject to permitted extensions, and has timely paid all material Taxes due and payable by it on or prior to the Reference Balance Sheet Date (whether or not shown as due on such returns) or, where payment is not yet due, has made adequate provision for all such Taxes on the Financial Statements in accordance with GAAP. All such Tax Returns are true, accurate and complete in all material respects. “Tax” or “Taxes” means (A) any federal, state, local or foreign income, gross receipts, property, sales, use, VAT, license, excise, franchise, employment, payroll, withholding, alternative or add on minimum, ad valorem, transfer or excise tax, or any other tax, custom, duty, levy, impost or other like assessment or charge, together with any interest, charge or penalty with respect thereto, imposed by any Tax Authority and (B) any liability of a Person for the payment of any amount of the type described in clause (A) as a result of such Person being or having been before Completion a member of an affiliated, consolidated, combined, controlled or unitary group, or a party to any agreement or arrangement, as a result of which liability of such Person to a Tax Authority is determined or taken into account with reference to the activities of any other individual, corporation, partnership, limited liability company, association, trust or other entity or organization.

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24.2       (A) The charges, accruals and reserves for Taxes with respect to each Company Group Member reflected on the books of such Company Group Member (including any provision for deferred Income Taxes reflecting either differences between the treatment of items for accounting and Income Tax purposes or carryforwards) are adequate to cover any material Tax liabilities accruing through the end of the last period, or portion thereof, beginning on or after the Reference Balance Sheet Date, for which each Company Group Member ordinarily record items on their respective books; and (B) all information set forth in the Financial Statements (including the notes thereto) relating to material Tax matters is true, accurate and complete in all material respects.

24.3       (A) All material Income Tax Returns filed with respect to Tax years of each Company Group Member through the Tax year ended 2007 have been examined and closed or are Tax Returns with respect to which the applicable period for assessment under applicable Law, after giving effect to extensions or waivers, has expired; (B) no Company Group Member is delinquent in the payment of any material Income Tax due and payable by them (whether or not shown due on a Tax Return) or has requested any extension of time within which to file any material Income Tax Return and has not yet filed such Tax Return; (C) no Company Group Member has been granted any extension or waiver of the statute of limitations period applicable to any material Income Tax Return, which period (after giving effect to such extension or waiver) has not yet expired; (D) there is no claim, audit, action, suit, proceeding, or investigation now pending or threatened against or with respect to any Company Group Member in respect of any material Tax; (E) there are no requests for rulings or determinations in respect of any material Tax pending between any Company Group Member and any Tax Authority; (F) no Company Group Member will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Completion Date as a result of any: (i) change in method of accounting for a taxable period ending on or prior to the Completion Date, (ii) “closing agreement” as described in Section 7121 of the U.S. Tax Code (or any corresponding or similar provision of state, local, or foreign Income Tax Law) executed on or prior to the Completion Date, (iii) installment sale made on or prior to the Completion Date or (iv) an election under Section 965(h) of the U.S. Tax Code; (G) there are no Tax Liens upon any of the assets or properties of any Company Group Member, other than Permitted Liens; (H) no written claim has been made by any Tax Authority in a jurisdiction where any Company Group Member does not file Tax Returns that any such Company Group Member is or may be subject to taxation by that jurisdiction; (I) no Company Group Member is or has been a party to any “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(c) within the past seven years; (J) neither of the Companies has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the U.S. Tax Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the U.S. Tax Code; (K) no Company Group Member has been either a “distributing corporation” or a “controlled corporation” in a distribution, within the five years preceding the Completion Date, in which the parties to such distribution treated the distribution as one to which Section 355 of the U.S. Tax Code is applicable; (L) each Company Group Member has withheld and paid all material Taxes required to have been withheld and paid in connection with any amounts paid or owing to any employee, independent contractor, creditor, stockholder, or other third party for all periods under all applicable Laws; (M) no Company Group Member has since 2016 been a member of an affiliated group of corporations that filed Tax Returns on a combined, consolidated, controlled or unitary basis for which the common parent is a Person other than a Retained Group Member; (N) no Company Group Member is a party to or bound by

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any Tax allocation or sharing Agreement, other than any Tax allocation or Tax sharing agreement with a Retained Group Member, or commercial agreements entered into in the ordinary course of business (including, without limitation, leases, employment contracts, other agreements relating to the acquisition of goods or services or loan agreements for borrowed money or of any agreement relating to the purchase or sale of assets); (O) no Company Group Member is resident for Tax purposes or has a permanent establishment in any jurisdiction other than the one in which it is incorporated or otherwise organized or in which it has filed a Tax Return; (P) no Company Group Member has knowledge of any existing liability (either on a primary or secondary basis) in respect of any material withholding Taxes imposed on any payment under any Lease or Lease Document; and (Q) no Company Group Member has deferred or delayed any payment of Tax under measures relating to COVID-19.

25.       Operations

During the period from the Reference Balance Sheet Date through and including the Signing Date, the Business and the business of each Company Group Member has been conducted in the ordinary course and did not engage in any of the actions described in Schedule 2A; provided that for the purposes of this paragraph 25 all references to “Signing Date” in Schedule 2A shall be deemed to be references to the Reference Balance Sheet Date. For purposes of this paragraph 25, the Parent shall provide a supplement to paragraph 25 of Schedule 1A of the Disclosure Letter with respect to paragraph 18 of Schedule 2A within thirty (30) days of the Signing Date, which supplement shall be deemed to be incorporated in the Disclosure Letter.

26.       Data Privacy and Security

Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, since January 1, 2018, (1) the Company Group and the Business has had in place a privacy policy (the “Privacy Policy”) and has acted in compliance with the Privacy Policy and with all applicable Laws regarding the collection, use, access, processing, disclosure and protection of personally identifiable information (“Personal Information”); (2) to the knowledge of the Parent, no person has gained unauthorized access to or made any unauthorized use of any Personal Information maintained by the Business; (3) the Business has had adequate security measures in place to protect Personal Information stored in their computer systems from unlawful use, access, processing or disclosure by any third party or any other use by a third party and to comply with all applicable Laws concerning the collection, use and protection of Personal Information; and (4) no Actions have been brought, are pending or, to the knowledge of the Parent, are threatened against the Company Group or the Business relating to the collection, use, access, processing or disclosure of Personal Information.

27.       Corruption; Sanctions; Export Controls; Money Laundering.

27.1       Within the past five (5) years, none of (i) the Company Group Members, (ii) any director, officer or employee of the Company Group Members (iii) to the Parent’s knowledge, any Associated Person in connection with the Business or SES or (iv) in connection with the Business, the Parent or any of its Subsidiaries has committed a material violation of the U.S. Foreign Corrupt Practices Act, the UK Bribery Act 2010 or any other applicable anti-bribery or anticorruption Laws (collectively, the “Anticorruption Laws”).

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27.2       None of (i) the Existing Shareholders, (ii) the Company Group Members, (iii) any director, officer or employee of any Company Group Member or (iv) to the Parent’s knowledge, SES is a Person with whom dealings are prohibited under the economic or financial sanctions, or trade embargos imposed, administered or enforced from time to time by any Sanctions Authority (“Sanctions”), to the extent applicable, whether as a result of the specific designation of that Person, its ownership or control, the jurisdiction in which it is located, organized or resident, or otherwise.

27.3       Each Company Group Member, the Business and, to the Parent’s knowledge, SES is operating and, within the past five (5) years, has been operated in all material respects in compliance with applicable financial recordkeeping and reporting requirements, including those of the Currency and Foreign Transactions Reporting Act of 1970, the applicable anti-money laundering statutes of all jurisdictions where the Business is conducted, the rules and regulations thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by any governmental or regulatory agency (collectively, the “Anti-Money Laundering Laws”).

27.4       To the Parent’s knowledge, no Action by or before any Governmental Authority and no internal investigation involving any Company Group Member, the Business or SES with respect to the Anti-Corruption Laws, Sanctions, the Anti-Money Laundering Laws or Export Control Laws is pending or threatened.

27.5       The Existing Shareholders, the Company Group Members, the Business and, to the Parent’s knowledge, SES have established, maintained and implemented policies, procedures and controls designed to promote compliance with the Anticorruption Laws, Sanctions, Anti-Money Laundering Laws and Export Control Laws.

27.6       Within the past five (5) years, no Company Group Member has, and neither the Business nor, to the Parent’s knowledge, SES has, (i) violated any applicable Sanctions in any material respect or (ii) exported, re-exported or retransferred any article, item, component, software, technology, service or technical data or taken any other act in material violation of any applicable Export Control Laws.

28.       No Registration of AerCap Notes

28.1       If AerCap Notes are issued at Completion, the Parent and the Existing Shareholders acknowledge that any such issuance of the AerCap Notes (including the issuance of any guarantees) will not be registered under the Securities Act, that any AerCap Notes will be issued to the Parent or its designated Affiliate in a transaction not involving any public offering within the meaning of the Securities Act and that such AerCap Notes cannot be offered, sold, pledged or otherwise transferred unless they are registered under the Securities Act or are transferred in a transaction exempt from, or not subject to, registration under the Securities Act.

28.2       The Parent and any designated Affiliate that acquires any AerCap Notes is a qualified institutional buyer within the meaning of Rule 144A under the Securities Act or an accredited investor within the meaning of Rule 501(a) under the Securities Act.

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28.3       The Parent and any designated Affiliate that acquires any AerCap Notes will do so for its own account and for investment purposes only and not with a view to any distribution thereof within the meaning of the Securities Act.

29.       No Other Warranties

The Parent and the Existing Shareholders further acknowledge and agree that (i) the only representations, warranties, covenants and agreements made by AerCap, the AerCap Entities, any of their Affiliates or Representatives or any other Person are the representations, warranties, covenants and agreements made in this Agreement and (ii) except for the AerCap Warranties, none of AerCap, the AerCap Entities or their Affiliates or Representatives makes any representation or warranty of any kind oral or written, express or implied, or nature whatsoever, oral or written, express or implied, with respect to AerCap, the AerCap Entities, the AerCap Subsidiaries, the AerCap Business, the Transaction Documents or the transactions contemplated by this Agreement, including any representation or warranty relating to the financial condition, operations, assets or liabilities, the probable success or profitability of any of the foregoing entities. Except for the AerCap Warranties, the Parent and the Existing Shareholders have not relied upon any other representations or warranties or any other information made or supplied by or on behalf of AerCap, the AerCap Entities or any of their Affiliates or Representatives, and the Parent and the Existing Shareholders acknowledge and agree that none of AerCap, the AerCap Entities, their Affiliates or their Representatives has any liability or responsibility for any other representation, warranty, opinion, projection, forecast, advice, statement or information made, communicated or furnished (orally or in writing) to the Parent or the Existing Shareholders or their respective Affiliates or Representatives (including any opinion, projection, forecast, advice, statement or information that may have been or may be provided to the Parent and the Existing Shareholders by any Representative of AerCap, the AerCap Entities or any of their Affiliates), and the Parent and the Existing Shareholders acknowledge, agree with and affirm the statements made in this paragraph 29.

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Schedule 1B

AerCap Warranties

1.       Organization, Authority and Enforceability

1.1       AerCap is validly existing and is a company duly incorporated under the Laws of the Netherlands; U.S. Purchaser is a limited liability company duly organized, validly existing and in good standing under the Laws of the State of Delaware; and the Ireland Subscriber is validly existing and is a private company limited by shares duly incorporated under the Laws of Ireland.

1.2       Each AerCap Group Member is duly incorporated or otherwise organized and validly existing under the Laws of its jurisdiction of organization and has the requisite power and authority to own its assets and properties and operate its business as now conducted. Each AerCap Group Member is duly qualified as a foreign corporation or other organization to do business, and is in good standing (where such concept is legally recognized in the applicable jurisdiction), in each jurisdiction where the character of its owned, operated or leased properties or the nature of its activities makes such qualification and good standing necessary, except for failures to so qualify or be in good standing that, individually or in the aggregate, would not have a AerCap Material Adverse Effect.

1.3       AerCap has made available to the Parent prior to the Signing Date true and complete copies of the articles of association or similar constitutional documents of AerCap and each AerCap Material Subsidiary.

1.4       Each of AerCap and the AerCap Entities has all requisite power to enter into, complete the transactions contemplated by, and carry out its obligations under, each of the Transaction Documents to which it is a party.

1.5       This Agreement has been duly executed and delivered by AerCap and the AerCap Entities.

1.6       Assuming due authorization, execution and delivery by the other parties hereto, each of the Transaction Documents to which AerCap or any AerCap Entity (as applicable) is a party constitutes, or upon execution and delivery thereof, will constitute, the legal, valid and binding obligation of AerCap or such AerCap Entity (as applicable), enforceable against AerCap or such AerCap Entity (as applicable) in accordance with its terms, subject to the Bankruptcy Exceptions.

1.7       The execution, delivery and performance by each of AerCap and the AerCap Entities of this Agreement and the other Transaction Documents to which it is a party, and the consummation by AerCap and the AerCap Entities (as applicable) of the transactions contemplated hereunder and thereunder, have been duly authorized by all necessary corporate and shareholder action on the part of AerCap and the AerCap Entities, subject to the receipt of the AerCap Shareholder Approval, and no further approval or authorization shall be required on the part of AerCap or the AerCap Entities.

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1.8       Paragraph 1.8 of Schedule 1B of the Disclosure Letter contains a correct and complete list of each AerCap Minority Interest Entity, including as of the date hereof, the form of entity and jurisdiction of organization. To AerCap’s knowledge, none of the AerCap Minority Interests were issued in violation of any Contract or any preemptive or similar rights of any Person. All of the AerCap Minority Interests are owned, directly or indirectly, of record and beneficially by a AerCap Group Member, free and clear of all Encumbrances, other than restrictions on transfer under applicable securities Laws or the organizational documents of the relevant AerCap Minority Interest Entity.

2.       Capitalization

2.1       The AerCap Disclosure Letter sets forth, as of the Signing Date, a true, correct and complete list of (i) the authorized capital of AerCap and each AerCap Material Subsidiary, (ii) the number of shares (or other applicable units) of each class or series of capital stock of AerCap and each AerCap Material Subsidiary that are issued and outstanding, together with the name of each holder thereof and the percentage of the aggregate equity or voting interests that are issued and outstanding and owned by each such holder and (iii) the jurisdiction of organization of each AerCap Material Subsidiary.

2.2       All the outstanding shares (or other applicable units) or ownership interests of AerCap and each other AerCap Group Member have been, and the Stock Consideration will be, duly authorized and validly issued, are, and in the case of the Stock Consideration, will be, fully paid and non-assessable and were not, and in the case of the Stock Consideration, will not be, issued in violation of any pre-emption or subscription rights. All shares of each AerCap Material Subsidiary are owned, directly or indirectly, of record and beneficially by AerCap, free and clear of all Encumbrances.

2.3       There are no options, calls, warrants or convertible or exchangeable securities, or conversion, pre-emption, subscription, registration or other rights, or agreements, arrangements or commitments (other than AerCap Permitted Liens over the shares or ownership interests of any AerCap Group Member), in any such case, obligating or which may obligate any AerCap Group Member to issue, sell, purchase, register, return or redeem, or otherwise dispose of, transfer or acquire, any respective shares (or other applicable units) or ownership interests convertible into or exchangeable for any of their respective shares (or other applicable units). There are no capital appreciation rights, phantom share plans, securities with participation rights or features, or similar obligations and commitments of any other AerCap Group Member. There are no bonds, debentures, notes or other Indebtedness issued by any AerCap Group Member which have the right to vote (or which are convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of any shares (or other applicable units) or ownership interests by stock ownership or otherwise in such AerCap Group Member are entitled to vote.

2.4       Except for the Transaction Documents and restrictions imposed by applicable Laws or any Governmental Authority or except for trusts holding title to AerCap Aircraft or Engines, there are no voting trusts, shareholder agreements, proxies or other rights or agreements to which any AerCap Group Member is a party in effect with respect to the voting, transfer or dividend rights of the AerCap Ordinary Shares or (other than AerCap Permitted Liens)

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of the shares (or other applicable units) or ownership interests of any AerCap Group Member. AerCap has not agreed, and is not under current or prospective obligation (contingent or otherwise), to form or participate in or make any capital contribution to or future investment in, or guarantee any obligations of any Person).

2.5       As of the Signing Date, there are no entities in which AerCap directly or indirectly owns or controls any voting power or otherwise owns any equity interests, other than AerCap Subsidiaries and other than positions taken in connection with ordinary course cash management activities.

3.       Ownership and Transfer of Shares

AerCap has the power and authority to issue and deliver the Stock Consideration as provided in this Agreement, and such delivery will convey to the Existing U.S. Shareholder (and, if necessary, to the Existing Ireland Shareholder 2, the sellers of the Transferred Assets and Ireland Company 1) good and valid title to the Stock Consideration, free and clear of all Encumbrances and any other limitation or restriction, other than restrictions on transfer imposed by applicable Law.

4.       No Conflicts

Provided the Governmental Approvals identified in Schedule 5 have been made or obtained and the AerCap Shareholder Approval has been obtained, the execution and delivery by each of AerCap and the AerCap Entities (as applicable) of the Transaction Documents to which it is a party, the performance by each of AerCap and the AerCap Entities (as applicable) of its obligations under the Transaction Documents to which it is a party and the consummation by each of AerCap and the AerCap Entities (as applicable) of the transactions contemplated by the Transaction Documents to which it is a party do not and will not: (i) violate or result in the breach of any provision of the organizational documents of AerCap, the AerCap Entities or any AerCap Group Member; (ii) conflict with or violate in any material respect any Law or Order of any Governmental Authority applicable to, or require any Governmental Approvals to be made or obtained by, AerCap, the AerCap Entities or any AerCap Group Member (except, in the case of Governmental Approvals, for the Governmental Approvals identified in Schedule 5 and notices, filings, exemptions or reviews, or Consents the failure of which to make or obtain that would not, individually or in the aggregate, reasonably be expected to give rise to a material liability or to criminal liability); or (iii) conflict with or violate, result in any breach of, constitute a default (or event which, with the giving or notice or lapse of time, or both, would constitute a default) under, require any Consent under or give to any Person any rights of termination, acceleration or cancellation of, or result in a loss of rights under, or result in the creation of any Encumbrance (other than AerCap Permitted Liens) on any of the assets or properties of any AerCap Group Member pursuant to, any AerCap Material Contract to which AerCap, the AerCap Entities or any AerCap Group Member is a party or by which any of them or any of their respective properties, assets or businesses is bound or subject, except, in the case of clause (ii) and clause (iii), for any such conflicts, violations, breaches, defaults, consents, terminations, accelerations, cancellations, losses, rights or creations that, individually or in the aggregate, would not reasonably be expected to have a AerCap Material Adverse Effect..

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5.       Financial Statements

The audited consolidated financial statements of AerCap as of and for the years ended December 31, 2018 and December 31, 2019 and December 31, 2020, and the notes thereto (the “AerCap Financial Statements”) (i) have been prepared in accordance with (a) all applicable Laws and financial regulations of the relevant jurisdiction(s) in force at the time of their preparation and (b) GAAP, which has been consistently applied throughout the periods indicated therein, except as otherwise disclosed in the AerCap Financial Statements; and (ii) present fairly, in all material respects, the consolidated financial position of AerCap as of the end of such financial periods and the consolidated results of operations and cash flows of AerCap for each of the periods then ended.

6.       Absence of Certain Changes

6.1       Since the Reference Balance Sheet Date through the Signing Date, other than as disclosed in the AerCap Reports of any AerCap Group Member filed or furnished to the SEC since the Reference Balance Sheet Date through the Signing Date (excluding, in each case, any risk factor disclosures and other forward-looking statements), there has been no event, change, occurrence or development or state of facts which, individually or in the aggregate, has had, or would reasonably be expected to have, a AerCap Material Adverse Effect.

6.2       Since the Reference Balance Sheet Date through the Signing Date, other than as disclosed in the AerCap Reports of any AerCap Group Member filed or furnished to the SEC since the Reference Balance Sheet Date through the Signing Date (excluding, in each case, any risk factor disclosures and other forward-looking statements), each AerCap Group Member has conducted its business in such a manner that AerCap’s and the AerCap Entities’ obligations under clause 8.4 would have been complied with as if this Agreement were in effect from the Reference Balance Sheet Date.

7.       No Undisclosed Liabilities

No AerCap Group Member has any liabilities or obligations of any nature (whether due or to become due, and whether known or unknown) which are not properly disclosed or reserved against in the AerCap Financial Statements to the extent required to be so disclosed or so reserved against therein in accordance with GAAP, except for (A) liabilities that have arisen since the Reference Balance Sheet Date in the ordinary and usual course of business and consistent with past practice and (B) liabilities that, individually or in the aggregate, have not had and would not reasonably be expected to have a AerCap Material Adverse Effect.

8.       Internal Control of Financial Reporting

The AerCap Group has devised and maintains systems of internal accounting and disclosure control procedures with respect to its businesses sufficient to provide reasonable assurances that: (a) material information relating to AerCap, including its consolidated Subsidiaries, is made known to senior management of AerCap by others within those entities and (b) the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. There are no significant deficiencies or material weaknesses in the design or the operation of the internal controls over

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financial reporting (as such term is defined in Rule 13a-15(f) under the Securities Exchange Act) of any of the AerCap Group Members which would reasonably be expected to adversely affect in any material respect the ability of the AerCap Group, taken as a whole, to record, process, summarize and report financial data and there is no, and there has not been any instances of, fraud that involves or involved management or other employees who have or had a significant role in such internal controls.

9.       Stock Lending

No AerCap Group Member is a party to any stock lending or similar agreements or similar arrangements or has any obligations or liabilities (whether or not contingent) under or in connection with any such agreements or arrangements. No AerCap Group Member has any obligations or liabilities (whether or not contingent) under or in connection with any stock lending agreements or arrangements which are no longer outstanding but under which obligations or liabilities (whether or not contingent) exist or may arise.

10.       Indebtedness

The AerCap Reports together with paragraph 10 of Schedule 1B of the AerCap Disclosure Letter describe all Indebtedness for borrowed money of each AerCap Group Member as of the Signing Date that has in excess of US$50 million outstanding.

11.       Brokers and Finders

No broker, finder or investment banker is entitled to any financial advisory, brokerage, finder’s or other fee or commission in connection with this Agreement or the transactions contemplated by this Agreement based upon arrangements made by or on behalf of AerCap, the AerCap Entities, any AerCap Group Member or any of their respective Affiliates.

12.       Material Contracts

The AerCap Disclosure Letter contains a true and complete list of all AerCap Material Contracts as of the Signing Date, true and complete copies of which have been made available to the Parent. Each AerCap Material Contract is a valid and binding obligation of each of the AerCap Group Member(s) (as applicable) that is party thereto and, to the knowledge of AerCap, each other party to such AerCap Material Contract, except for such failures to be valid and binding as, individually or in the aggregate, would not reasonably be expected to have a AerCap Material Adverse Effect. Each such AerCap Material Contract is enforceable against the AerCap Group Member(s) that is party thereto and, to the knowledge of AerCap, and, to the knowledge of AerCap without inquiry of each such other party, each other party to such AerCap Material Contract in accordance with its terms (subject in each case to the Bankruptcy Exceptions), except for such failures to be enforceable as, individually or in the aggregate, would not reasonably be expected to have a AerCap Material Adverse Effect. No AerCap Group Member or, to the knowledge of AerCap, any other party to an AerCap Material Contract, is in material default or material breach of an AerCap Material Contract and, to the knowledge of AerCap, there does not exist any event, condition or omission that would constitute such a default or breach (whether by lapse of time or notice or both), in each case, except as, individually or in the aggregate, would not reasonably be expected to have a AerCap Material Adverse Effect.

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13.       Affiliates

No transactions or Contracts or a series of related transactions, Contracts or understandings exist between, among or involving any AerCap Group Member, on the one hand, and any current or former director, officer or employee of such AerCap Group Member in respect of any loans to such director, officer or employee or similar obligations.

14.       Compliance with Laws

Each AerCap Group Member has all material Permits, and has made all material filings, applications and registrations with, Governmental Authorities, that are required in order to permit it to own or lease its properties and assets and to carry on its business as presently conducted (the “AerCap Permits”), including all material Permits that are required to be obtained from any Governmental Authority in connection with the operation, ownership or transaction of an aircraft leasing business. To the knowledge of AerCap, all AerCap Permits are valid and in full force and effect. To the knowledge of AerCap, no AerCap Group Member is in default under or the subject of a proceeding for suspension or revocation of, and, to the knowledge of AerCap, no condition exists that with notice or lapse of time or both would constitute a default under, or basis for suspension or revocation of, any AerCap Permit. Each AerCap Group Member has complied in all respects and is not in default or violation of, and no AerCap Group Member is, to the knowledge of AerCap, under investigation with respect to or has been threatened to be charged with or given notice of any violation of, any applicable Law, other than such noncompliance, defaults or violations that would not, individually or in the aggregate, reasonably be expected to have a AerCap Material Adverse Effect. Except for statutory or regulatory restrictions of general application or applicable to aircraft leasing companies generally, no Governmental Authority has placed any material restriction (other than AerCap Permitted Liens) on the business or properties of any AerCap Group Member that would, individually or in the aggregate, reasonably be expected to have a AerCap Material Adverse Effect. This paragraph 14 shall not apply with respect to Taxes.

15.       Reports

Since March 2, 2021, each AerCap Group Member has timely filed (subject to any permitted extension) all material reports, forms, certifications, registrations, documents, filings, statements and submissions, together with any exhibits, amendments and supplements thereto, that it was required to file with any Governmental Authority (the foregoing, collectively, the “AerCap Reports”) and has paid all material fees and assessments due and payable in connection therewith. As of their respective dates of filing, (i) each of the AerCap Reports filed with the SEC and, to the knowledge of AerCap, each other AerCap Report complied in all material respects with all statutes and applicable rules and regulations of the applicable Governmental Authorities, (ii) each of the AerCap Reports filed with the SEC did not contain any untrue statement of material fact or omit to state any material fact required to be stated or incorporated by reference therein or necessary to make the statements therein in light of the circumstances under which they were made, not misleading, and (iii) to the knowledge of AerCap each of the other AerCap Reports was complete and accurate in all material respects. This paragraph 15 shall not apply with respect to Tax Returns.

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16.       Litigation and Other Proceedings

As of the Signing Date, there are no Actions (including any proceeding or, to the knowledge of AerCap, any investigation by or before any Governmental Authority) pending or, to the knowledge of AerCap, threatened in writing against any AerCap Group Member or to which any of their respective assets are subject which would reasonably be expected to result in Losses in excess of US$50 million or any permanent injunction or other form of equitable relief which would or would reasonably be expected to have a AerCap Material Adverse Effect. No AerCap Group Member is subject to, and none of its assets, properties or businesses is bound by, any Order in a AerCap Material Jurisdiction and, to the knowledge of AerCap, in any jurisdiction (other than a AerCap Material Jurisdiction), in each case which would reasonably be expected to result in Losses in excess of US$50 million or any permanent injunction or other form of equitable relief which would or would reasonably be expected to have a AerCap Material Adverse Effect. As of the Signing Date, there are no Actions (including any investigation or proceeding by or before any Governmental Authority) pending or, to the knowledge of AerCap, threatened in writing against any AerCap Group Member or to which any of their respective assets are subject questioning the legality of the transactions contemplated by any of the Transaction Documents.

17.       Properties and Leases

17.1       No AerCap Group Member owns any real property.

17.2       Except as would not, individually or in the aggregate, reasonably be expected to have a AerCap Material Adverse Effect, the AerCap Group Members (as applicable) hold all leased real property (i) under valid and enforceable leases with no exceptions (other than AerCap Permitted Liens) that would interfere with the use made or to be made thereof by them and (ii) no AerCap Group Member or, to the knowledge of AerCap, any other party thereto, is in default or breach (whether by lapse of time or notice or both) under any such lease.

18.       Insurance

All current property and liability insurance policies maintained by and covering any AerCap Group Member and all current insurance policies covering Aircraft for which a AerCap Group Member is the named insured are, in each case, in full force and effect (and all premiums due and payable thereon have been paid in full on a timely basis), and no written notice of cancellation, termination or revocation or other written notice that any such insurance policy is no longer in full force or effect or that the issuer of any such insurance policy is not willing or able to perform its obligations thereunder has been received by any AerCap Group Member, and no AerCap Group Member is in default of any provision thereof, except, in each case, that, individually or in the aggregate, would not reasonably be expected to have a AerCap Material Adverse Effect. All certificates of insurance for the insurance policies referred to in the preceding sentence have been made available to the Parent.

19.       Intellectual Property

Except as would not, individually or in the aggregate, reasonably be expected to have a AerCap Material Adverse Effect, (1) each AerCap Group Member owns or otherwise has a license or other valid right to use, all Proprietary Rights that are used in the conduct of their

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existing businesses and all rights relating to the plans, design and specifications of any of its facilities free and clear of any and all Encumbrances and any claims of ownership by current or former employees, contractors, designers or others except for any AerCap Permitted Liens and (2) to the knowledge of AerCap, no AerCap Group Member is infringing, diluting, misappropriating or violating, nor has any AerCap Group Member received within the last two years any written (or, to the knowledge of AerCap, oral) communications alleging that any of them has infringed, diluted, misappropriated or violated, any of the Proprietary Rights owned by any other Person. Except as would not, individually or in the aggregate, reasonably be expected to have a AerCap Material Adverse Effect, to the knowledge of AerCap, no other Person is infringing, diluting, misappropriating or violating, nor has any AerCap Group Member sent any written communications since December 31, 2018 alleging that any Person has infringed, diluted, misappropriated or violated, any of the Proprietary Rights owned by any AerCap Group Member.

20.       Aircraft, Lease Documents, Manufacturer Agreements and Aircraft Trading Agreements

20.1       Exhibit 20.1 of the AerCap Disclosure Letter lists each aircraft and aircraft engine owned by any AerCap Group Member as of the Aircraft Disclosure Date, including the manufacturer, model and the manufacturer’s serial number of such aircraft or aircraft engine (but excluding the manufacturer’s serial number of any aircraft engines associated with any rotary-wing aircraft) and, if applicable, the name of the AerCap Lessee thereof and identifies each such AerCap Aircraft or AerCap Engine which was on ground and/or not under the operational control of an AerCap Lessee as of the Aircraft Disclosure Date. As of the Aircraft Disclosure Date, a AerCap Group Member is either (x) the sole legal and beneficial owner of each AerCap Aircraft and AerCap Engine or (y) the beneficial owner of each AerCap Aircraft and legal title to such AerCap Aircraft is held by a trustee. As of the Aircraft Disclosure Date, a AerCap Group Member is the holder of a lessor’s interest in any AerCap Aircraft or AerCap Engine which are, as of such date, on lease to an AerCap Lessee, under the applicable AerCap Lease Documents; which AerCap Aircraft or AerCap Engine and which interest under those AerCap Lease Documents are, in each case, free and clear of all Encumbrances, other than AerCap Permitted Liens. Each purchase or sale of an aircraft or aircraft engine by any AerCap Group Member after the Aircraft Disclosure Date until the Signing Date was (a) pursuant to a Letter of Intent or Contract, a true and complete copy of which has been made available to the Parent, or (b) in compliance with clause 8.4 as if such clause was in effect as of the Aircraft Disclosure Date (provided that for purposes of subclause (b) of this paragraph 20.1 of Schedule 1B all references to “Signing Date” in clause 8.4 shall be deemed to be references to the “Aircraft Disclosure Date”). In the case of any Engine, any warranty as to a AerCap Group Member having title to such Engine is subject to any transfer of title that may have occurred under or pursuant to any Lease of which the AerCap Entities do not have knowledge.

20.2       Lease Documents

(a)        The AerCap Entities have made available to Existing Shareholders and the Parent, as of the Lease Disclosure Date true and complete copies of each Lease Document (insofar as material). As of the Lease Disclosure Date, there were no other material agreements between any AerCap Lessee and any AerCap Group Member concerning any AerCap Aircraft that is the subject of the AerCap Lease Documents that has not been made available to the Parent. Each

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aircraft or aircraft engine lease or other agreements related thereto entered into by any AerCap Group Member after the Lease Disclosure Date through the Signing Date was entered into in compliance with clause 8.4 as if such clause was in effect as of the Lease Disclosure Date (provided that for purposes of this sentence of this paragraph 20.2 of Schedule 1B all references to “Signing Date” in clause 8.4 shall be deemed to be references to the “Lease Disclosure Date”). Each AerCap Lease Document is a valid and binding obligation of each AerCap Group Member that is party thereto and, to the knowledge of AerCap as of the Lease Disclosure Date each other party to such AerCap Lease Document, except for such failures to be valid and binding as, individually or in the aggregate, would not reasonably be expected to have a AerCap Material Adverse Effect. Each AerCap Lease Document is enforceable against each AerCap Group Member that is party thereto and, to the knowledge of AerCap, as of the Lease Disclosure Date, each other party to such AerCap Lease Document in accordance with its terms (subject in each case to the Bankruptcy Exceptions), except for such failures to be enforceable as, individually or in the aggregate, would not reasonably be expected to have a AerCap Material Adverse Effect. No AerCap Group Member or, to the knowledge of AerCap as of the Lease Disclosure Date, any other party to an AerCap Lease Document, (i) (a) is in material breach of any payment obligation of any AerCap Lease Document (including the relevant AerCap Lessee’s obligations therein with respect to payment of rentals) and, (b) to the knowledge of AerCap, as of the Lease Disclosure Date, there does not exist any event, condition or omission that would constitute such a default or breach (whether by lapse of time or notice or both), in each case of (a) and (b), except as, individually or in the aggregate, would not reasonably be expected to have a AerCap Material Adverse Effect, or (ii) has the right (which is exercisable) to, or, to the knowledge of the AerCap, has provided notice of any intent to, cancel or terminate except for such cancelations or terminations as, individually or in the aggregate, would not reasonably be expected to have a AerCap Material Adverse Effect. As of the Lease Disclosure Date, no AerCap Group Member has received any notice from an AerCap Lessee of its exercise of an existing option to purchase any AerCap Aircraft or AerCap Engine under the applicable AerCap Lease Documents. To the knowledge of AerCap, as of the Lease Disclosure Date, no AerCap Group Member has received notice under any AerCap Lease of any Event of Loss (as such term or any comparable term thereto is defined in the AerCap Lease) with respect to a total loss of any airframe of any AerCap Aircraft.

(b)        The information set forth in paragraph 20.2(b) of Schedule 1B of the AerCap Disclosure Letter is true and correct in all material respects.

(c)        Paragraph 20.2(c) of Schedule 1B of the AerCap Disclosure Letter lists, as of the date set forth therein, which date will be no earlier than the Lease Disclosure Date (i) all failures by AerCap Lessees to make any basic rental cash payment or, to the knowledge of the Parent based on the most recent utilization report received from each Lessee, any cash maintenance rent payment, in each case required under an AerCap Lease Document that remains unpaid after its respective due date, (ii) all notices of termination, in each case delivered by any AerCap Group Member to any AerCap Lessees in the last sixty (60) days (and not withdrawn), and (iii) all AerCap Aircraft which is subject to an AerCap Lease due to expire within twelve (12) months of the date hereof that is not subject to a lease that is scheduled to commence within the same month as, or the month immediately following, the expiration of the current AerCap Lease.

20.3       Paragraph 20.3 of Schedule 1B of the AerCap Disclosure Letter contains a true and complete list, as of the Manufacturer Agreement Disclosure Date, of (x) each AerCap

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Manufacturer Agreement and (y) each Letter of Intent which contemplates the entry into an AerCap Manufacturer Agreement and true and complete copies of each such AerCap Manufacturer Agreement and Letter of Intent have been made available to the Parent and the Existing Shareholders. Each AerCap Manufacturer Agreement is a valid and binding obligation of each AerCap Group Member that is party thereto and, to the knowledge of AerCap, as of Manufacturer Agreement Disclosure Date, each other party to such AerCap Manufacturer Agreement, except for such failures to be valid and binding as, individually or in the aggregate, would not reasonably be expected to have a AerCap Material Adverse Effect. Each such AerCap Manufacturer Agreement is enforceable against each AerCap Group Member that is party thereto and, to the knowledge of AerCap, as of the Manufacturer Agreement Disclosure Date, each other party to such AerCap Manufacturer Agreement in accordance with its terms (subject in each case to the Bankruptcy Exceptions), except for such failures to be enforceable as, individually or in the aggregate, would not reasonably be expected to have a AerCap Material Adverse Effect. No AerCap Group Member or, to the knowledge of AerCap, as of the day prior to the Manufacturer Agreement Disclosure Date, any other party to an AerCap Manufacturer Agreement, (i) is in material default or material breach of an AerCap Manufacturer Agreement and, to the knowledge of AerCap, as of the Manufacturer Agreement Disclosure Date, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both), in each case, except as, individually or in the aggregate, would not reasonably be expected to have a AerCap Material Adverse Effect or (ii) has the right (which is exercisable) to, or, to the knowledge of AerCap, has provided notice of any intent to, cancel or terminate except for such cancelations or terminations as, individually or in the aggregate, would not reasonably be expected to have a AerCap Material Adverse Effect. The AerCap Reports and the AerCap Disclosure Letter set forth all purchase orders and other commitments made by each AerCap Group Member to purchase aircraft from original equipment manufacturers that are outstanding as of the Manufacturer Agreement Disclosure Date. The AerCap Reports and the AerCap Disclosure Letter identify whether any material AerCap Manufacturer Agreement contains (i) change of control, cross default or event of default provisions that would reasonably be expected to be triggered by the transactions contemplated by the Transaction Documents, (ii) covenants purporting to restrict materially the ability of any AerCap Group Member or its Affiliates to engage in any line of business in any geographical area or otherwise purporting to restrict their ability to sell or lease AerCap Aircraft or aircraft assets other than as required by applicable Law or pursuant to legal compliance policies of the relevant counterparty or (iii) terms or conditions that permit the termination of such AerCap Manufacturer Agreement or the rescheduling of deliveries of aircraft thereunder based on the financial condition of the AerCap Group, other than terms or conditions relating to bankruptcy, insolvency and failure to pay as required thereunder.

20.4       The AerCap Form 20-F and the AerCap Disclosure Letter contain a true and complete list of (x) each AerCap Aircraft Trading Agreement and (y) each Letter of Intent which contemplates the entry into an AerCap Aircraft Trading Agreement, in each case, where the delivery of any aircraft thereunder has not yet occurred (and which has not been terminated or cancelled prior to the Aircraft Trading Agreement Disclosure Date). True and complete copies of each such AerCap Aircraft Trading Agreement and Letter of Intent have been made available to the Parent. Each AerCap Aircraft Trading Agreement entered into after the Aircraft Trading Agreement Disclosure Date through the Signing Date was entered into (a) pursuant to a Letter of Intent listed in the AerCap Disclosure Letter, a true and complete copy of which has been made available to the Parent, or (b) in compliance with clause 8.4 as if such clause was in effect as of

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the Aircraft Trading Agreement Disclosure Date (provided that for purposes of subclause (b) of this paragraph 20.4 of Schedule 1B all references to “Signing Date” in clause 8.4 shall be deemed to be references to the “Aircraft Trading Agreement Disclosure Date”). Each AerCap Aircraft Trading Agreement is a valid and binding obligation of each AerCap Group Member that is party thereto and, to the knowledge of AerCap, each other party to such AerCap Aircraft Trading Agreement, except for such failures to be valid and binding as, individually or in the aggregate, would not reasonably be expected to have a AerCap Material Adverse Effect. Each such AerCap Aircraft Trading Agreement is enforceable against each AerCap Group Member that is party thereto and, to the knowledge of AerCap, as of the Aircraft Trading Agreement Disclosure Date, each other party to such AerCap Aircraft Trading Agreement in accordance with its terms (subject in each case to the Bankruptcy Exceptions), except for such failures to be enforceable as, individually or in the aggregate, would not reasonably be expected to have a AerCap Material Adverse Effect. No AerCap Group Member or, to the knowledge of AerCap, as of the Aircraft Trading Agreement Disclosure Date, any other party to an AerCap Aircraft Trading Agreement, (i) is in material default or material breach of an AerCap Aircraft Trading Agreement and, to the knowledge of AerCap, as of the Aircraft Trading Agreement Disclosure Date, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both), in each case, except as, individually or in the aggregate, would not reasonably be expected to have a AerCap Material Adverse Effect or (ii) has the right (which is exercisable) to, or, to the knowledge of AerCap, has provided notice of any intent to, cancel or terminate except for such cancelations or terminations as, individually or in the aggregate, would not reasonably be expected to have a AerCap Material Adverse Effect.

21.       Employee Benefit Matters

21.1       The AerCap Disclosure Letter contains a true and complete list as of the date hereof of each material AerCap Benefit Plan. The AerCap Entities have made available to the Existing Shareholders prior to the Signing Date true, correct and complete copies, to the extent applicable, of each material AerCap Benefit Plan. With respect to each material AerCap Benefit Plan, prior to the Completion Date, the AerCap Entities will make available true, correct and complete copies, to the extent applicable, of (A) the most recent plan document and any related trust documents and the most recent summary plan description; and (B) the most recent financial statements. To the Knowledge of the individuals set forth in Schedule 4B, prior to the Signing Date, the AerCap Entities have made available substantially similar form agreements for each form of employment, deferred compensation or other similar agreement with any current or former director of any AerCap Group Member or member of the AerCap Group Executive Committee, as well as any such agreement the terms of which are materially different from such form; provided that, if providing any such form or agreement prior to the Signing Date would violate any provision of applicable Law, including after reasonable redactions have been made, or is not reasonably accessible to any individual set forth on Schedule 4B, then the AerCap Entities shall instead provide such form or agreement as soon as practicable following the Signing Date, but no later than sixty (60) days following the Signing Date. For purposes of clarity, AerCap Benefit Plans and employment agreements will not be deemed to be reasonably accessible to the individuals set forth in Schedule 4B, if such persons have not been able to locate them following a good faith careful review of their files.

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21.2       Except as would not reasonably be expected to have, either individually or in the aggregate, a AerCap Material Adverse Effect:

(a)        each AerCap Benefit Plan has been operated and administered (including with respect to any applicable funding and registration requirements in the case of any pension fund) in compliance with its terms and with applicable Law, including ERISA and the U.S. Tax Code;

(b)        no AerCap Group Member, has engaged in a transaction with respect to any AerCap Benefit Plan that, assuming the taxable period of such transaction expired on December 31, 2017 would reasonably be expected to subject any AerCap Group Member or any AerCap Benefit Plan to any Tax or penalty under applicable Law;

(c)        all contributions required to be made by any AerCap Group Member (as applicable) under the terms of any AerCap Benefit Plan have been timely made when due and are appropriately reflected in all respects in the AerCap Financial Statements; and

(d)        each AerCap Benefit Plan that is intended to be qualified under Section 401(a) of the U.S. Tax Code has received a favorable determination letter from the IRS and, to the knowledge of AerCap, there are no facts or circumstances that would be reasonably likely to adversely affect the qualified status of any such AerCap Benefit Plan.

21.3       No AerCap Group Member has any obligations for retiree welfare benefits other than (A) benefits mandated by applicable Law or (B) coverage that continues during an applicable severance period.

21.4       No AerCap Benefit Plan is subject to Title I or Title IV of ERISA. Except as would not reasonably be expected to have, individually or in the aggregate, a AerCap Material Adverse Effect, neither AerCap nor any of its AerCap ERISA Affiliates has incurred any liability under Title IV of ERISA or otherwise arising in connection with the termination of or complete or partial withdrawal from any plan covered or previously covered by Title IV of ERISA or that is or was a defined benefit pension plan that is or could become, after the Completion Date, an obligation of any AerCap Group Member.

21.5       Except as required by applicable Law, no director, AerCap Employee or individual or former director, employee or individual consultant of any AerCap Group Member will become entitled to any bonus, retirements, severance or similar benefit or enhanced benefit (including acceleration of vesting or exercise of an incentive award) as a result of the transactions contemplated hereby (whether alone or in combination with any other event).

21.6       Except as required by applicable Law, no AerCap Group Member is a party to or bound by any collective bargaining agreement. There is no labor strike, labor dispute, or work stoppage or lockout pending or, to the knowledge of AerCap, threatened in writing against or affecting any AerCap Group Member. To the knowledge of AerCap, (A) no union organization campaign is in progress with respect to any AerCap Employees, (B) there is no material unfair labor practice charge, arbitration or complaint pending against any AerCap Group Member, and (C) except as would not reasonably be expected to have, individually or in the aggregate, a AerCap Material Adverse Effect, each AerCap Group Member is in compliance with all applicable Laws

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relating to the proper classification of employees as exempt or nonexempt from overtime pay requirements, the provision of required meal and rest breaks, the proper classification of individuals as contractors or employees, and the Worker Adjustment Retraining and Notification Act of 1988, as amended, or any similar state or local plant closing or mass layoff statute, rule or regulation.

22.       Environmental Matters

22.1       Except as would not reasonably be expected to have, individually or in the aggregate, a AerCap Material Adverse Effect:

(a)        no AerCap Group Member has owned, leased or otherwise operated, or has formerly owned, leased or otherwise operated, any property at which any substance listed, defined, designated, classified or regulated under any Environmental Laws as Hazardous Materials is present in a condition or under circumstances that would reasonably be expected to result in any liability or obligation of any AerCap Group Member or interfere in any respect with any of their operations;

(b)        no AerCap Group Member has released, or arranged for the storage, transportation, treatment or disposal of, any Hazardous Materials at any location in a manner or under circumstances that would reasonably be expected to result in any liability or obligation of any AerCap Group Member or to interfere in any respect with any of their operations; and

(c)        except as otherwise disclosed on paragraph 22.1(c) of Schedule 1B of the Disclosure Letter, no AerCap Group Member has assumed or retained, by contract or operation of Law, any liability or obligation under any Environmental Law that would reasonably be expected to affect any AerCap Group Member.

22.2       AerCap has made available to the Parent copies of all material environmental reviews, site assessments, compliance audits, investigations and documents containing information concerning compliance with or liability under or potential business impacts of any Environmental Laws, which compliance, liability or impacts relate to any AerCap Group Member or its business, to the extent such report or other document is in AerCap’s or the AerCap Entities’ possession or control as of the Signing Date and prepared after December 31, 2018.

23.       The Accounts and Tax

To AerCap’s knowledge:

23.1       Each AerCap Group Member has timely filed all material Tax Returns required to be filed by it, subject to permitted extensions, and has timely paid all material Taxes due and payable by it (whether or not shown as due on such returns) or, where payment is not yet due, has made adequate provision for all Taxes on the Financial Statements in accordance with GAAP. All such Tax Returns are true, accurate and complete in all material respects.

23.2       (A) The charges, accruals and reserves for Taxes with respect to each AerCap Group Member reflected on the books of such AerCap Group Member (including any provision for deferred Income Taxes reflecting either differences between the treatment of items

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for accounting and Income Tax purposes or carryforwards) are adequate to cover any material Tax liabilities accruing through the end of the last period for which each AerCap Group Member ordinarily record items on their respective books; and (B) all information set forth in the AerCap Financial Statements (including the notes thereto) relating to material Tax matters is true, accurate and complete in all material respects.

23.3       (A) All material Income Tax Returns filed with respect to Tax years of each AerCap Group Member through the Tax year ended December 31, 2007 have been examined and closed or are Tax Returns with respect to which the applicable period for assessment under applicable Law, after giving effect to extensions or waivers, has expired; (B) no AerCap Group Member is delinquent in the payment of any material Income Tax due and payable by them (whether or not shown due on a Tax Return) or has requested any extension of time within which to file any material Income Tax Return and has not yet filed such Tax Return; (C) no AerCap Group Member has been granted any extension or waiver of the statute of limitations period applicable to any material Income Tax Return, which period (after giving effect to such extension or waiver) has not yet expired; (D) there is no claim, audit, action, suit, proceeding, or investigation now pending or threatened against or with respect to any AerCap Group Member in respect of any material Tax; (E) there are no requests for rulings or determinations in respect of any material Tax pending between any AerCap Group Member and any Tax Authority; (F) no AerCap Group Member will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Completion Date as a result of any: (i) change in method of accounting for a taxable period ending on or prior to the Completion Date, (ii) “closing agreement” as described in Section 7121 of the U.S. Tax Code (or any corresponding or similar provision of state, local, or foreign Income Tax Law) executed on or prior to the Completion Date, (iii) installment sale made on or prior to the Completion Date or (iv) an election under Section 965(h) of the U.S. Tax Code; (G) there are no Tax Liens upon any of the assets or properties of any AerCap Group Member, other than AerCap Permitted Liens; (H) no written claim has been made by any Tax Authority in a jurisdiction where any AerCap Group Member does not file Tax Returns that any such AerCap Group Member is or may be subject to taxation by that jurisdiction; (I) no AerCap Group Member is or has been a party to any “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(c) within the past seven years; (J) each AerCap Group Member has withheld and paid all material Taxes required to have been withheld and paid in connection with any amounts paid or owing to any employee, independent contractor, creditor, stockholder, or other third party for all periods under all applicable Laws; (K) no AerCap Group Member since 2015 has been a member of an affiliated group of corporations that filed Tax Returns on a combined, consolidated, controlled or unitary basis for which the common parent is a Person other than a AerCap Group Member; (L) no AerCap Group Member is a party to or bound by any Tax allocation or sharing agreement, other than any Tax allocation or sharing agreement with a AerCap Group Member, or commercial agreements entered into in the ordinary course of business (including, without limitation, leases, employment contracts, other agreements relating to the acquisition of goods or services or loan agreements for borrowed money or of any agreement relating to the purchase or sale of assets); (M) no AerCap Group Member is resident for Tax purposes or has a permanent establishment in any jurisdiction other than the one in which it is incorporated or otherwise organized or in which it has filed a Tax Return; (N) no AerCap Group Member has knowledge of any existing liability (either on a primary or secondary basis) in respect of any material withholding Taxes imposed on any payment under any AerCap Lease or AerCap Lease Document and no AerCap Group Member has deferred or

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delayed any payment of Tax under measures relating to COVID-19; and (O) to AerCap’s knowledge, each AerCap Group Member that is a foreign subsidiary of AerCap is treated as a disregarded entity for U.S. federal income tax purposes.

23.4       (A) AerCap currently does not expect that any AerCap Group Member will be a “passive foreign investment company” within the meaning of Section 1297 of the U.S. Tax Code for 2021; (B) to the knowledge of AerCap, AerCap has no “United States shareholder” within the meaning of Section 951(b) of the U.S. Tax Code other than the Existing Shareholders after giving effect to the Completion; (C) for purposes of Section 7874 of the U.S. Tax Code, AerCap has not issued and does not have a plan or intention to issue any stock to any Person in a transaction related to the Transaction (other than any restricted stock issued or to be issued and other than equity or equity equivalents to be issued pursuant to a restricted share unit award program or similar program, to directors and employees, it being understood that the total amount of restricted stock issued by AerCap to directors and employees pursuant to such programs on the date hereof is 2,594,543 shares), and (D)(i) paragraph 23.4 of Schedule 1B of the AerCap Disclosure Letter sets forth all securities issued by AerCap that AerCap treats as equity for U.S. federal income tax purposes and, (ii) to AerCap’s knowledge, there is no Person that owns 10% or more of the aggregate voting power or value of the securities set forth on paragraph 23.4 of Schedule 1B of the AerCap Disclosure Letter.

24.       Debt Financing

AerCap has delivered to the Parent and the Existing Shareholders a true, complete and correct copy of the executed commitment letter, dated as of the date hereof (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (except that the amounts of fees, pricing caps, and other economic terms, including those contained in the “market flex” provisions, (none of which would adversely affect the availability of the Debt Financing or would reduce the amount of the Debt Financing below the amount necessary to satisfy the AerCap Entities’ obligation to pay (i) the aggregate Cash Consideration and (ii) any fees and expenses of or payable by the AerCap Entities or AerCap in connection with the Completion and the Debt Financing) set forth therein may be redacted), as may be amended or modified in accordance with the terms hereof, collectively, the “Debt Financing Commitments”), among AerCap and the Lenders party thereto, pursuant to which the Lenders party thereto have committed, subject to the terms and conditions set forth therein, to provide debt financing in the amounts set forth therein (the “Debt Financing”). As of the Signing Date, the Debt Financing Commitments are in full force and effect with respect to, and constitute the valid, binding and enforceable (subject to the Bankruptcy Exceptions) obligation of, AerCap and, to the knowledge of AerCap, the other parties thereto. As of the Signing Date, the Debt Financing Commitments have not been amended or modified prior to the Signing Date, as of the Signing Date no such amendment or modification is contemplated (other than any amendment or modification pursuant to clause 10.1 to add lenders, lead arrangers, bookrunners, syndication agents or other Lenders who had not executed the Debt Financing Commitments as of the Signing Date and, in connection therewith, to amend the economic and other arrangements with respect to the appointment of such additional lenders, lead arrangers, bookrunners, syndication agents or other Lenders), and the respective commitments contained in the Debt Financing Commitments have not been withdrawn, decreased or rescinded in any respect. There are no side letters or other agreements, arrangements, contracts or understandings that could adversely affect the availability

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of the Debt Financing. AerCap has fully paid any and all fees in connection with the Debt Financing Commitments due and payable on or prior to the Signing Date and, on the Completion Date, will have paid in full any such amounts required to be paid on or before the Completion Date. Except as expressly set forth in the Debt Financing Commitments, there are no conditions to the obligations of the parties thereunder to make the Debt Financing available to AerCap on the terms therein or any contingencies that would permit the Lenders to reduce the total amount of the Debt Financing. As of the Signing Date (i) no event has occurred that, with or without notice, lapse of time or both, would constitute a default or breach or a failure to satisfy a condition precedent on the part of AerCap or, to the knowledge of AerCap, any of the other parties to the Debt Financing Commitments under the Debt Financing Commitments and (ii) AerCap has no reason to believe that any of the conditions to the Debt Financing contemplated by the Debt Financing Commitments will not be satisfied or that any portion of the Debt Financing will not be made available to AerCap at the Completion. Assuming the satisfaction of the conditions set forth in clause 3, the Debt Financing, when funded in accordance with the Debt Financing Commitments, will provide AerCap with cash proceeds (after netting out original issue discount and similar premiums and charges after giving effect to the maximum amount of flex (including original issue discount flex) provided under the relevant fee letters) on the Completion Date sufficient for the satisfaction of the AerCap Entities’ obligation to (i) pay the aggregate Cash Consideration and (ii) pay any fees and expenses of or payable by the AerCap Entities or AerCap in connection with the Completion and the Debt Financing.

25.       Indemnification Payments

There are no Contracts relating to Indebtedness to which any AerCap Group Member is a party that include any provision which would prohibit AerCap or the AerCap Entities from making any payments required under clause 7.2.

26.       Data Privacy and Security

Except as would not, individually or in the aggregate, reasonably be expected to have a AerCap Material Adverse Effect, since January 1, 2018, (1) the AerCap Group has had in place a privacy policy (the “AerCap Privacy Policy”) and has acted in compliance with the AerCap Privacy Policy and with all applicable Laws regarding the collection, use, access, processing, disclosure and protection of Personal Information; (2) to the knowledge of AerCap, no person has gained unauthorized access to or made any unauthorized use of any Personal Information maintained by the AerCap Group; (3) the AerCap Group has had adequate security measures in place to protect Personal Information stored in their computer systems from unlawful use, access, processing or disclosure by any third party or any other use by a third party and to comply with all applicable Laws concerning the collection, use, access, processing, disclosure and protection of Personal Information; and (4) no Actions have been brought, are pending or, to the knowledge of AerCap, are threatened against the AerCap Group relating to the collection, use, access, processing or disclosure of Personal Information.

27.       Corruption; Sanctions; Export Controls; Money Laundering.

27.1       Within the past five (5) years, none of (i) the AerCap Group Members, (ii) any director, officer or employee of the AerCap Group Members (iii) to AerCap’s knowledge, any

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Associated Person or (iv) AerCap or any of its Subsidiaries has committed a material violation of any Anticorruption Law.

27.2       None of (i) the AerCap Group Members, or (ii) any director, officer or employee of any AerCap Group Member is a Person with whom dealings are prohibited under any Sanctions, to the extent applicable, whether as a result of the specific designation of that Person, its ownership or control, the jurisdiction in which it is located, organized or resident, or otherwise.

27.3       Each AerCap Group Member is operating and, within the past five (5) years, has been operated in all material respects in compliance with applicable Anti-Money Laundering Laws.

27.4       To AerCap’s knowledge, no Action by or before any Governmental Authority and no internal investigation involving any AerCap Group Member with respect to the Anti-Corruption Laws, Sanctions, the Anti-Money Laundering Laws or Export Control Laws is pending or threatened.

27.5       AerCap has established, maintained and implemented, with regard to the AerCap Group Companies, policies, procedures and controls designed to promote compliance with the Anticorruption Laws, Sanctions, Anti-Money Laundering Laws and Export Control Laws. Within the past five (5) years, no AerCap Group Member and has (i) violated any applicable Sanctions in any material respect or (ii) exported, re-exported or retransferred any article, item, component, software, technology, service or technical data or taken any other act in material violation of any applicable Export Control Laws.

28.       No Other Warranties

AerCap and the AerCap Entities further acknowledge and agree that (i) the only representations, warranties, covenants and agreements made by the Parent, the Existing Shareholders, any of their Affiliates or Representatives or any other Person are the representations, warranties, covenants and agreements made in this Agreement and (ii) except for the Warranties, none of the Parent, the Existing Shareholders and their Affiliates or Representatives makes any representation or warranty of any kind oral or written, express or implied, or nature whatsoever, oral or written, express or implied, with respect to the Parent Group, the Existing Shareholders, the Companies the Company Subsidiaries, the Business, the Transaction Documents or the transactions contemplated by this Agreement, including any representation or warranty relating to the financial condition, operations, assets or liabilities, the probable success or profitability of any of the foregoing entities. Except for the Warranties, AerCap and the AerCap Entities have not relied upon any other representations or warranties or any other information made or supplied by or on behalf of the Parent, the Existing Shareholders or any of their Affiliates or Representatives, and AerCap and the AerCap Entities acknowledge and agree that none of the Parent, the Existing Shareholders, their Affiliates or their Representatives has any liability or responsibility for any other representation, warranty, opinion, projection, forecast, advice, statement or information made, communicated or furnished (orally or in writing) to AerCap, the AerCap Entities or their respective Affiliates or Representatives (including any opinion, projection, forecast, advice, statement or information that may have been or may be provided to AerCap, the AerCap Entities by any Representative of the Parent, the Existing Shareholders or any of their Affiliates), and

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AerCap and the AerCap Entities acknowledge, agree with and affirm the statements made in this paragraph 28.

 

 

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Schedule 2A

 


Conduct of the Business Prior to Completion Date

 

1.       declare, set aside, make or pay any dividend or other distribution (whether in cash, stock, property or any combination thereof) in respect of the Equity Interests, the SES Tracking Stock or any equity interests included in the Transferred Assets, except where such dividend or other distribution is ultimately transferred to a Company Group Member prior to Completion;

2.       [reserved]

3.       repurchase, redeem, repay or otherwise acquire any outstanding shares or ownership interest of the Companies, the Minority Interest Entities, SES, any equity interests of EIH (including the SES Tracking Stock) or any equity interests included in the Transferred Assets;

4.       repurchase, redeem, repay or otherwise acquire any outstanding shares or ownership interest of any Company Subsidiary, other than in the ordinary course of business of the Company Group with respect to wholly owned Company Subsidiaries;

5.       transfer, issue, sell or dispose of any shares or ownership interest of any of the Companies, any equity interests of EIH (including the SES Tracking Stock) or any equity interests included in the Transferred Assets, or grant, transfer, issue, sell or dispose of any options, warrants, calls or other rights to purchase or otherwise acquire or any other securities convertible into or exchangeable or exercisable for, any shares or ownership interest of any of the Companies, any equity interests of EIH (including the SES Tracking Stock) or any equity interests included in the Transferred Assets, or merge or consolidate any of the Companies, any equity interests of EIH (including the SES Tracking Stock) or any equity interests included in the Transferred Assets with any other Person, or authorize the same;

6.       transfer, issue, sell or dispose of any shares or ownership interest of any Company Subsidiary or, to the extent within the control of the Parent or the Existing Shareholders, authorize any such action by any Minority Interest Entity or SES, or grant, transfer, issue, sell or dispose of any options, warrants, calls or other rights to purchase or otherwise acquire or any other securities convertible into or exchangeable or exercisable for, any shares or ownership interest of a Company Subsidiary or any Minority Interest Entity, or merge or consolidate a Company Subsidiary or, to the extent within the control of the Parent or the Existing Shareholders, authorize or permit any such action by any Minority Interest Entity or SES with any other Person, or authorize the same; in each case, other than (i) aircraft assets or aircraft engines (by way of a transfer of entities holding such assets) in the ordinary course of business of the Company Group Members (where the transfer of such aircraft assets or aircraft engines otherwise would be permitted under this Schedule 2A) and (ii) pursuant to the terms of a Permitted Lien;

7.       effect any recapitalization, reclassification, share split or like change in the capital of the Companies, EIH (including the SES Tracking Stock) or, to the extent within the control of the Parent or the Existing Shareholders, authorize or permit any such action by the Minority Interest Entities, SES, ESH, CFMI or any Transferred Asset Company;

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8.       amend the articles of incorporation, articles of association or by-laws (or other comparable constitutional or organizational documents) any Company or authorize any action to wind up such Company’s affairs or dissolve such Company;

9.       (i) amend the articles of incorporation, articles of association or by-laws (or other comparable constitutional or organizational documents) of (a) any Company Subsidiary or EIH or (b) to the extent within the control of the Parent or the Existing Shareholders, authorize or permit any such action by any Minority Interest Entity, SES, ESH, CFMI or any Transferred Asset Company, or (ii) authorize or permit any action to wind up the affairs of or dissolve any Company Subsidiary, EIH or to the extent within the control of the Parent or the Existing Shareholders, authorize or permit any action to wind up the affairs of or dissolve any Minority Interest Entity, SES, ESH, CFMI or any Transferred Asset Company other than in the ordinary course of business of the Company Group;

10.       acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any assets, securities, properties, interests or businesses, other than:

(i) any transaction among Company Group Members;
(ii) [reserved];
(iii) any acquisitions of aircraft or aircraft engines if such acquisitions would require aggregate net cash flows contributed to the Business by the Parent in excess of (x) US$500 million from January 1, 2021 to December 31, 2021, calculated on a basis consistent with the cash flow budget for the Business for the 2021 calendar year set forth in Schedule 2A of the Disclosure Letter, or (y) $0 from January 1, 2022 to the Completion Date, calculated on a basis consistent with the cash flow budget for the Business for the 2022 calendar year set forth in Schedule 2A of the Disclosure Letter;
(iv) any acquisition of assets, securities, properties, interests or businesses required pursuant to the terms of a transaction entered into by a Minority Interest Entity;
(v) any capital market transactions, tender, buy-back or other purchase of debt securities or other debt of any Company Group Member by such or any other Company Group Member, not exceeding US$100 million in the aggregate;
(vi) acquisitions of (A) assets in connection with the maintenance, repair and overhaul of aircraft or aircraft engines in the ordinary course of business or (B) aircraft engines or parts pursuant to the terms of any Lease or by operation of law;
(vii) acquisitions pursuant to Contracts existing prior to the Signing Date (other than pursuant to clause (ii) above), but (A) excluding any actions with respect to exercising any options or purchase rights to acquire additional
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assets pursuant to such Contracts, and, for the avoidance of doubt, (B) excluding any acquisitions pursuant to Letters of Intent, in each case of (A) and (B) except as permitted by the foregoing clause (ii) and (iii);

(viii) non-aircraft expenditures or asset acquisitions, not exceeding US$50 million in the aggregate (provided that any acquisitions undertaken pursuant to this clause (viii) shall not be subject to, nor count toward, the spending limits set forth in the foregoing clause (iii)); or
(ix) acquisitions of aircraft equipment (other than entire engines or aircraft), including acquisitions of equipment for installation on aircraft assets, in the ordinary course of business, not exceeding US$100 million in the aggregate (provided that any acquisitions undertaken pursuant to this clause (ix) shall not be subject to, nor count toward, the spending limits set forth in the foregoing clause (iii));

 

11.       reschedule the delivery or acquisition of any aircraft or aircraft engine to be acquired pursuant to any Manufacturer Agreement or Aircraft Trading Agreement for a date in a calendar year earlier than the calendar year in which such delivery or acquisition is scheduled to occur pursuant to such Manufacturer Agreement or Aircraft Trading Agreement as of the Signing Date, other than deliveries or acquisitions of aircraft (excluding any Airbus A330neo) not exceeding US$250 million in the aggregate in any calendar year (provided that such amounts so rescheduled shall be subject to and count towards the spending limits set forth in paragraph 10 of this Schedule 2A);

12.       sell, lease, dispose or otherwise transfer, abandon or create or incur any lien (other than Permitted Liens) (“Dispositions”) on, any assets, properties, rights, interests or businesses, other than (i) (A) Dispositions of aircraft equipment (other than entire aircraft engines or aircraft) in the ordinary course of business, (B) Dispositions of aircraft engines or aircraft (excluding any New Technology Aircraft and Leases of New Technology Aircraft), in the ordinary course of business not exceeding US$600 million in the 2021 calendar year (to the extent that such amount has not been disposed of prior to the Signing Date) or (x) US$400 million in the 2022 calendar year if the Completion Date occurs on or prior to the Initial Long-Stop Date or (y) US$800 million in the 2022 calendar year if the Completion Date occurs after the Initial Long-Stop Date (it being understood and agreed that if the Completion Date has not occurred prior to the Long-Stop Date and the parties have not terminated this Agreement, the dollar amount of Dispositions that the Company Group Members shall be permitted to effect in 2022 in the ordinary course of business pursuant to this Paragraph 12 shall be ratably adjusted to take into account such additional time after the Long-Stop Date and prior to the Completion), and Dispositions of any leases and shares of intermediate head lessee companies in respect of the assets in this clause (B) and (C) pursuant to Contracts existing prior to the Signing Date and disclosed under the heading “As Schedule 8.1 applies to Paragraph 12 of Schedule 2A” in Schedule 8.1 of the Disclosure Letter, or pursuant to purchase options under any Lease, (ii) any transaction among Company Group Members, (iii) ordinary-course leases of any new aircraft or aircraft engines that will be, at the time of delivery from the Manufacturer to the lessee thereof, owned by a Company Group Member and (iv) ordinary-course leases (or extensions of leases) of any other aircraft or aircraft engines not

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described in clause (iii) that will be, at the time of delivery to the lessee (or extension) thereof, owned by a Company Group Member;

13.       create, incur or assume any Indebtedness for borrowed money or guarantees thereof having an aggregate principal amount outstanding at any time greater than an amount equal to US$100 million; other than (i) loans or borrowing by Company Group Members under currently available lines of credit, (ii) intercompany loans, guarantees or advances made, in each case, among Company Group Members, or (iii) other Indebtedness incurred or assumed in connection with the transactions permitted pursuant to paragraphs 10 or 12 of this Schedule 2A, in each case set forth in (i) through (iii) herein that does not require the approval of the Board of Directors of the Companies; provided that any Indebtedness created, incurred or assumed pursuant to this paragraph 12 shall be on terms that would not adversely affect the ability of any party to consummate (x) the transactions contemplated by the Transaction Agreements or (y) to the knowledge of the Company Group, the Reorganization, or cause a default or event of default under, or a breach or acceleration of, the Debt Financing Commitments, any Alternative Financing or any other Indebtedness of any Company Group Member or AerCap Group Member;

14.       enter into any Contracts providing for the maintenance, repair or overhaul of any fixed wing aircraft Engine (other than LEAP or GEnx B Engines), or induct for maintenance, repair or overhaul any fixed wing aircraft Engine (other than LEAP or GEnx B Engines) in excess of US$80 million in the aggregate, except to the extent that such fixed wing aircraft Engines are subject to a Letter of Intent for sale or lease or a Lease for such Engine;

15.       (i) grant or increase any severance or termination pay to (or amend any existing arrangement with) any current or former director, officer or management employee other than as required by plans, policies or arrangements in effect on the date of this Agreement, except to the extent changes are being made to a Parent Benefit Plan applicable to all similarly situated employees of Parent or to be consistent with such plans, subject to Section 11.7 of the Agreement; (ii) make any increase in benefits payable under any existing severance or termination pay policies, except to the extent changes are being made to a Parent Benefit Plan applicable to all similarly situated employees of Parent, subject to Section 11.7 of the Agreement; (iii) enter into any employment, deferred compensation or other similar agreement (or amend any such existing agreement) with any Company Employee or Continuing Employee, other than (x) agreements with employees who are hired after the date of the Agreement consistent with past practice that do not provide for severance entitlements greater than those provided to similarly situated Company Employees or (y) agreements providing for the grant of Retention Bonuses in accordance with Schedule 8.1 of the Disclosure Letter; (iv) establish, adopt or amend any collective bargaining, bonus, profit-sharing, thrift, pension, retirement, deferred compensation, compensation, stock option, restricted stock or other benefit plan or arrangement covering any current or former director, officer or employee, other than changes to health and welfare plans that are operational in nature (e.g., as a result of customary plan design decisions, changes to providers in the ordinary course or negotiations of new premium amounts) and that do not materially increase the cost of the Companies thereunder; (v) make any increase in compensation or bonus payable to any current or former director or employee other than (x) increases in base salary for employees in the ordinary course of business, including in respect of both the timing and amount of such increases, or (y) as required under an existing employment agreement; or (vi) take any action to accelerate the vesting or payment, or fund or in any way secure the payment, of compensation or benefits under any

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Benefit Plan, to the extent not already required by such Benefit Plan or adjustments to bonus programs that are applicable generally to employees of Parent to take into account the impact of COVID-19;

16.       make any material change in its methods of accounting, except as required by concurrent changes in GAAP or applicable Law as agreed to by the Parent’s independent public accountants;

17.       settle or propose to settle (i) any material litigation, investigation, arbitration, proceeding or other claim against or adversely affecting the Business, any Company Group Member, EIH or, to the extent within the control of Parent or the Existing Shareholders, authorize or permit any such action by SES other than with respect to claims for a cash payment by such Company Group Member, EIH or, to the extent within the control of the Parent or the Existing Shareholders, authorize or permit any such action by SES not in excess of US$50 million per claim, or (ii) any litigation, arbitration, proceeding or dispute involving, against or adversely affecting any Company Group Member, EIH or, to the extent within the control of the Parent or the Existing Shareholders, authorize or permit any such action by SES that relates to any of the transactions contemplated by any of the Transaction Agreements;

18.       to the extent any of the following would reasonably be expected to affect adversely any Company Group Member, EIH or, to the extent within the control of Parent or the Existing Shareholders, authorize or permit any such action by SES after the Completion, make or change any material Tax election, change any material annual Tax accounting period, or adopt or change any material method of Tax accounting, file any material amended Tax return, enter into any material closing agreement, settle any material Tax claim or assessment, surrender any right to claim a material refund, offset or other reduction of a material amount of Tax, agree to an extension or waiver of the statute of limitations with respect to the assessment or determination of material Taxes (other than any such extension or waiver requested by a Governmental Authority) or take any other similar action relating to the filing of any material Tax Return or the payment of any material Tax liability except in the ordinary course, consistent with past practice, excluding, in each case, any such action taken with respect to any consolidated, combined, affiliated, controlled or unitary group which includes any Retained Group Member and as to which the Companies and their Subsidiaries are not treated separately;

19.       (i) repay or prepay any Indebtedness for borrowed money, in any amount or at any time not required by the terms of such Indebtedness as in effect on the date of this Agreement other than prepayments that are required to prevent a default or event of default under, or any breach or acceleration of, such Indebtedness, or (ii) amend the material terms of any Indebtedness for borrowed money of any Company Group Member;

20.       enter into, renew, extend or amend (to the extent any such amendment increases the amount of exposure of any Company Group Member) any Residual Value Guarantee Agreement;

21.       (i) (x) terminate, cancel, amend or waive any Material Contract, Manufacturer Agreement or Aircraft Trading Agreement or (y) enter into any Contract that would constitute a Material Contract, Manufacturer Agreement or Aircraft Trading Agreement if in effect as of the Signing Date, in the case of each of clauses (x) and (y) other than in the ordinary course, or (ii)

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enter into any Contract that would constitute (A) a Material Contract under clause (iii) of the definition thereof if in effect as of the Signing Date or (B) a Manufacturer Agreement or Aircraft Trading Agreement if in effect as of the Signing Date (except, in the case of this clause (B), in connection with the transactions permitted pursuant to paragraphs 10 or 12 of this Schedule 2A);

22.       (i) terminate, cancel, amend or waive any Related Party Contract or (ii) enter into any new Related Party Contract, in each case other than in the ordinary course and on an arm's-length basis;

23.       enter into, renew, extend or amend any Contract that is a real property lease of office space, except for Permitted New/Replacement Leases. “New/Replacement Leases” means a renewal, extension or amendment of an Expiring Lease or the entry into a new real property lease of office space that is functionally replacing an Expiring Lease, in each case that (A) does not contain an increase of annual rent in excess of 10% relative to the Expiring Lease and (B) contains customary and commercially reasonable material terms. “Expiring Lease” means a Contract that is a real property lease of office space that is scheduled to expire on or prior to the Long-Stop Date.

Solely for purposes of determining compliance of new transactions following the Signing Date with paragraphs 10 and 12 of Schedule 2A each (a) purchase and sale of an aircraft or aircraft engine by any Company Group Member, (b) aircraft or aircraft engine lease or other agreement related thereto entered into by any Company Group Member and (c) Aircraft Trading Agreement entered into by any Company Group Member, in each case after February 28, 2021 through the Signing Date, shall be deemed to have occurred after the Signing Date.

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Schedule 2B

Conduct of the AerCap Business Prior to Completion Date

1.       declare, set aside, make or pay any dividend or other distribution (whether in cash, stock, property or any combination thereof) in respect of the AerCap Ordinary Shares;

2.       repurchase, redeem, repay or otherwise acquire any outstanding shares or ownership interest of AerCap;

3.       effect any recapitalization, reclassification, share split or like change in the capital of AerCap;

4.       amend the articles of association or similar constitutional documents of AerCap or the AerCap Entities in a manner that would reasonably be expected to adversely impact (i) the consummation of the transactions contemplated by the Transaction Documents or (ii) the Existing Shareholders, other than in the same respect as all other holders of AerCap Ordinary Shares, in each case other than (x) in the ordinary course of business of AerCap or the AerCap Entities, as applicable or (y) to the extent necessary to consummate any of the transactions contemplated by the Transaction Documents;

5.       authorize any action to wind up AerCap’s or the AerCap Entities’ affairs or dissolve AerCap or the AerCap Entities;

6.       grant to any Person the right to require AerCap to register any equity securities of AerCap, or any securities convertible or exchangeable into or exercisable for such securities;

7.       make any material change in AerCap’s methods of accounting, except as required by concurrent changes in GAAP or applicable Law as agreed to by AerCap’s independent public accountants;

8.       enter into any Contract relating to Indebtedness which includes, or amend any existing Contract relating to Indebtedness such that it would include, any provision which would prohibit AerCap or the AerCap Entities from making any payments required under clause 7.2; or

9.       take any action out of the ordinary course of business that would reasonably be expected to cause AerCap to be a “controlled foreign corporation” within the meaning of Section 957(a) of the U.S. Tax Code immediately after Completion.

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Schedule 3

Completion Arrangements

Immediately prior to the Completion:

1.       Parent shall cause Ireland Company 1 and/or one or more of its Subsidiaries to convene and hold board meetings, and to adhere to and complete any required summary approval procedures in accordance with the Companies Act 2014 of Ireland, to authorize and approve the issuance to the Ireland Subscriber of the New Ireland Company 1 Note and the use by Ireland Company 1 and/or such Subsidiaries (as the case may be) of the proceeds of the New Ireland Company 1 Note to pay and settle the Specified Ireland Company 1 Intercompany Accounts;

2.       Parent shall cause Ireland Company 2 to convene and hold board meetings, and to adhere to and complete any required summary approval procedures in accordance with the Companies Act 2014 of Ireland, to authorize and approve the issuance to the Ireland Subscriber of the New Ireland Company 2 Note and the use by the Ireland Company 2 of the proceeds of the New Ireland Company 2 Note to pay and settle the Specified Ireland Company 2 Intercompany Account; and

3.       Parent shall cause Ireland Company 3 to convene and hold board meetings, and to adhere to and complete any required summary approval procedures in accordance with the Companies Act 2014 of Ireland, to authorize and approve the issuance to the Ireland Subscriber of the New Ireland Company 3 Note and the use by the Ireland Company of the proceeds of the New Ireland Company 3 Note to pay and settle the Specified Ireland Company 3 Intercompany Accounts;

At Completion:

1.       The Ireland Subscriber shall subscribe and pay for the New Ireland Company Notes;

2.       Parent shall procure that each Retained Group Member to which Specified Ireland Company Intercompany Accounts are owed will provide an acknowledgment of discharge of all amounts owing in respect of such Specified Ireland Company Intercompany Accounts to it at Completion.

3.       With respect to the Ireland Company 1:

(a)       the Existing Ireland Shareholder 1 shall pass a written shareholders’ resolution of Ireland Company 1 increasing its authorized share capital by an amount sufficient to permit the issuance of the New Ireland Company 1 Shares;

(b)       the Ireland Subscriber shall subscribe in cash for the New Ireland Company 1 Shares on the terms set out in the Ireland Company 1 Subscription Letter for an aggregate amount equal to the Ireland Company 1 Subscription Amount;

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(c)       Parent shall, and shall cause its Affiliates to, cause Ireland Company 1 to (i) allot and issue the New Ireland Company 1 Shares to the Ireland Subscriber, (ii) enter the name of the Ireland Subscriber in the Register of Members of Ireland Company 1 as the registered holder of the New Ireland Company 1 Shares and (iii) issue and deliver to the Ireland Subscriber a new share certificate duly executed by Ireland Company 1 for the New Ireland Company 1 Shares;

(d)       the Existing Ireland Shareholder 1 and the Ireland Subscriber shall (i) pass the Ireland Company 1 Completion Resolutions and (ii) procure that duly signed Ireland Company 1 Completion Resolutions shall be delivered to Ireland Company 1;

(e)       the Existing Ireland Shareholder 1 shall deliver to the Ireland Company 1 the share certificates in respect of the Existing Ireland Company 1 Shares (or, in lieu thereof, an indemnity in respect of lost share certificates, in a form reasonably acceptable to the Ireland Subscriber);

(f)        the Parent and the Ireland Subscriber shall cause Ireland Company 1 to use the proceeds of the Ireland Company 1 Subscription Amount to return capital to the Existing Ireland Shareholder 1 in an amount equal to the Ireland Company 1 Cancellation Amount (the “Return of Capital”); and

(g)       the Parent and the Ireland Subscriber shall cause the Ireland Company 1 to cancel its Existing Ireland Company 1 Shares in accordance with Section 1252 of the Companies Act 2014 of Ireland in exchange for the Return of Capital.

4.       With respect to the Ireland Company 2 and Ireland Company 3, the Parent shall, or shall cause its Affiliates to, deliver to the Ireland Subscriber the following:

(a)       Duly executed share transfer forms with respect to the Ireland Company 2 Shares and the Ireland Company 3 Shares together with share certificates evidencing title to such shares or, in lieu thereof, an indemnity in respect of lost shares certificates in a form reasonably acceptable to the Ireland Subscriber; and

(b)       A valid Irish tax reference number (within the meaning of the Stamp Duty (e-stamping of Instruments and Self-Assessment Regulations 2012) for Ireland Company 2 Shareholder.

5.       With respect to each of the Ireland Companies, Parent shall, or shall cause its Affiliates to, deliver to the Ireland Subscriber, if requested by the Ireland Subscriber, the resignation in writing in a form reasonably acceptable to the Ireland Subscriber of the directors and secretary (other than any director or secretary whom the Ireland Subscriber may wish should continue in office), such resignations to take effect upon the Completion Date.

6.       With respect to the Ireland Companies, the Parent shall, or shall cause its Affiliates to, procure that board meetings be held at which the following take effect from the Completion Date:

(a)       such persons as the Ireland Subscriber may nominate shall be appointed as directors;

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(b)       such firm of auditors or accountants, eligible to act in that capacity, as the Ireland Subscriber may nominate shall be appointed as auditors;

(c)       the resignations referred to in paragraph 5 above shall be submitted and accepted;

(d)       the registered offices shall be changed to such address in Ireland as the Ireland Subscriber may nominate; and

(e)       existing bank mandates shall be cancelled and replaced by new bank mandates in such form as the Ireland Subscriber shall reasonably require.

 

7.       The Parent shall deliver or cause to be delivered to the AerCap Entities the following:

(a)       one or more share certificates evidencing the U.S. Company Membership Interests in the name of the Existing U.S. Shareholder;

(b)       an instrument of transfer of the U.S. Company Membership Interests;

(c)       a customary instrument of transfer of the Transferred Assets;

(d)       without liability (other than as otherwise provided in this Agreement), other than in respect of fraud, an officer’s certificate certifying the satisfaction of the Conditions in clauses 3.1(c), (f) and (h);

(e)       a statement, meeting the requirements of Section 1.1445-2(b)(2) of the Treasury Regulations, to the effect that the Existing U.S. Shareholder is not a “foreign person” within the meaning of Section 1445 of the U.S. Tax Code and the Treasury Regulations thereunder;

(f)        copies of any executed Payoff Letters required to be delivered in accordance with clause 8.3(c) and any customary evidence of the release of Encumbrances and guarantees required to be delivered in accordance with clause 8.3(c); and

(g)       a properly completed Composite Revenue Form V3 (or other similar form) from Existing Ireland Shareholder 1.

8.       without limiting paragraph 5 above, if requested by the AerCap Entities, the Parent shall procure the directors and secretary (if any) of each Company Group Member (other than any director or secretary whom the AerCap Entities may wish should continue in office) to resign their offices as such, such resignations to take effect upon the Completion, and to execute and deliver a written directors’ resignation in a form reasonably acceptable to the AerCap Entities.

9.       the parties shall, and shall cause its applicable Affiliates to, execute and deliver each of the Transaction Documents if such Transaction Document has not been executed and delivered prior to the applicable Completion.

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10.       the AerCap Entities shall deliver to the Parent without liability, other than in respect of fraud, an officer’s certificate certifying the satisfaction of the Conditions in clauses 3.1(e), (g) and (i).

11.       the AerCap Entities shall pay to the Existing Shareholders the Estimated Completion Date Cash Consideration.

12.       AerCap shall issue the Stock Consideration to the Existing U.S. Shareholder (and, if necessary, the Existing Ireland Shareholder 2, the sellers of the Transferred Assets and Ireland Company 1) pursuant to a deed of issue in a form reasonably acceptable to AerCap, the Parent and the Existing U.S. Shareholder (and, if necessary, the Existing Ireland Shareholder 2, the sellers of the Transferred Assets and the Ireland Companies), and the Existing U.S. Shareholder (and, if necessary, the Existing Ireland Shareholder 2, the sellers of the Transferred Assets and the Ireland Companies) shall pay to AerCap the U.S. dollar equivalent of the aggregate par value of the Stock Consideration (based on the US$/EUR exchange rate on the Completion Date published by the European Central Bank or another reputable source mutually agreed between AerCap and the Parent and such amount shall be added to Base Cash Consideration).

13.       AerCap shall issue (or cause to be issued) to the Parent (or its designated Affiliate) the AerCap Notes or, if AerCap elects to pay cash in lieu of all or any portion thereof, shall pay (or cause to be paid) cash equal to the difference between one billion U.S. dollars and the aggregate principal amount of AerCap Notes issued.

14.       AerCap shall deliver to the Parent a copy of the resolution, or an extract thereof, duly adopted by the Board of Directors of AerCap issuing, and excluding any preemptive rights of the shareholders of with respect to, all of the Stock Consideration.

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EXHIBIT A

AERCAP SHAREHOLDERS’ AGREEMENT



Dated as of [•], 2021

   

 

TABLE OF CONTENTS

Page

 

ARTICLE I DEFINITIONS 1
Section 1.1   Defined Terms 1
Section 1.2   Interpretation 9
   
ARTICLE II GOVERNANCE 10
Section 2.1   Composition of the Board of Directors 10
Section 2.2   Objection to Shareholder Designee 14
Section 2.3   Voting Agreement 15
Section 2.4   Termination of Board Designation Rights 16
   
ARTICLE III COVENANTS 17
Section 3.1   Transfer Restrictions 17
Section 3.2   Standstill Provisions 19
Section 3.3   Preemptive Rights 23
Section 3.4   Majority Ownership 23
Section 3.5   Pro Rata Redemptions 24
Section 3.6   Listing 24
   
ARTICLE IV REPRESENTATIONS AND WARRANTIES 25
Section 4.1   Representations and Warranties of the Investors 25
Section 4.2   Representations and Warranties of the Company 26
Section 4.3   Representations and Warranties of the Parent 26
   
ARTICLE V TAX MATTERS 27
Section 5.1   Tax Return Information 27
Section 5.2   PFIC and CFC Information 27
Section 5.3   QEF Election 28
Section 5.4   Retention of Tax Information 28
Section 5.5   Cooperation 28
   
ARTICLE VI MISCELLANEOUS 29
Section 6.1   Term 29
Section 6.2   Notices 29
Section 6.3   Investor Actions 31
Section 6.4   No Rescission 31
Section 6.5   No Partnership 31
Section 6.6   Articles of Association 31
Section 6.7   Amendments and Waivers 31

 

 

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Section 6.8   Assignment 31
Section 6.9   Severability 32
Section 6.10   Counterparts 32
Section 6.11   Entire Agreement 32
Section 6.12   English Language 32
Section 6.13   Governing Law; Jurisdiction 32
Section 6.14   Specific Performance 33
Section 6.15   No Third Party Beneficiaries 33
Section 6.16   Obligation To Update Schedule A 33
Section 6.17   Agent for Service of Process 33

 

EXHIBIT A   Foundation Structure
EXHIBIT B   Director Eligibility Requirements
SCHEDULE A   Ownership Schedule

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SHAREHOLDERS’ AGREEMENT, dated as of [Ÿ], 202[Ÿ] (this “Agreement”), among (i) AerCap Holdings N.V., a public company with limited liability organized and existing under the laws of The Netherlands, whose principal place of business is at AerCap House, 65 St. Stephen’s Green, Dublin D02 YX20, Ireland  (together with its successors and permitted assigns, the “Company”), (ii) GE Ireland USD Holdings ULC, a private unlimited company incorporated under the laws of Ireland with registration number 568854 (“Ireland Shareholder 1”), (iii) GE Financial Holdings ULC, a private unlimited company incorporated under the laws of Ireland with registration number 383420 (“Ireland Shareholder 2”), (iv) GE Capital US Holdings, Inc., a Delaware corporation (“U.S. Shareholder” and, together with Ireland Shareholder 1 and Ireland Shareholder 2, the “Shareholders”)1 and (iv) General Electric Company, a New York corporation (together with its successors and permitted assigns, the “Parent”).

W I T N E S S E T H:

 

WHEREAS, on the date hereof, Ireland Shareholder 1 acquired [•] Company Ordinary Shares, Ireland Shareholder 2 acquired [•] Company Ordinary Shares and U.S. Shareholder acquired [•] Company Ordinary Shares, in each case pursuant to the Transaction Agreement;

WHEREAS, on the date hereof, the Company and the Parent are also entering into a Registration Rights Agreement (the “Registration Rights Agreement”); and

WHEREAS, the Company, the Shareholders and the Parent desire to establish in this Agreement certain terms and conditions concerning the Shareholders’ and other Investors’ relationships with and investments in the Company.

NOW, THEREFORE, in consideration of the mutual covenants, representations, warranties and agreements contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties agree as follows:

ARTICLE I
DEFINITIONS

Section 1.1 Defined Terms. Capitalized terms when used in this Agreement have the following meanings:

Action” means any claim, action, suit, arbitration or proceeding by or before any Governmental Authority, court, tribunal or arbitration body.

Affiliate” means, with respect to any Person, any other Person that, at the time of determination, directly or indirectly through one or more intermediaries, Controls, is Controlled by or is under common Control with such Person; provided that for the

 


1 Parties to be conformed to reflect allocation of Stock Consideration pursuant to the Transaction Agreement if necessary.
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avoidance of doubt, the Company, on the one hand, and the Parent and the Shareholders, on the other hand, shall not be deemed to be Affiliates of each other.

Agreement” has the meaning set forth in the preamble.

Articles of Association” means the Company’s articles of association as then in effect.

Beneficial Owner,” “Beneficially Own” or “Beneficial Ownership” has the meaning assigned to such term in Rule 13d-3 under the Securities Exchange Act, and a Person’s beneficial ownership of securities shall be calculated in accordance with the provisions of such Rule (in each case, irrespective of whether or not such Rule is actually applicable in such circumstance). In addition, a Person shall be deemed to be the Beneficial Owner of, and shall be deemed to Beneficially Own, and shall be deemed to have Beneficial Ownership of, any securities which are the subject of, or the reference securities for, or that underlie, any Derivative Instrument held by such Person, with the number of securities Beneficially Owned being the notional or other number of securities specified in the documentation evidencing the Derivative Instrument as being subject to be acquired upon the exercise or settlement of the Derivative Instrument or as the basis upon which the value or settlement amount of such Derivative Instrument is to be calculated in whole or in part or, if no such number of securities is specified in such documentation, as determined by the Board in its sole discretion to be the number of securities to which the Derivative Instrument relates. For the avoidance of doubt, if the Foundation Structure is implemented, the Investors, rather than the Stichting, shall be deemed to Beneficially Own the relevant Voting Securities.

Board” means the Board of Directors of the Company.

Board Seat Period” means any period during which the Parent is entitled to appoint Shareholder Designees pursuant to Section 2.1(a).

Business Day” means any day other than a Saturday or a Sunday on which commercial banks in Amsterdam, Dublin and New York are open for normal banking business.

CFC” means a “controlled foreign corporation” within the meaning of Section 957 of the Code.

Code” means the U.S. Internal Revenue Code of 1986.

Company” has the meaning set forth in the preamble.

Company Ordinary Shares” means the ordinary shares of the Company, each having a nominal value of one eurocent (EUR 0.01).

Confidentiality Agreement” means the Confidentiality Agreement, dated as of December 11, 2020, between the Company and the Parent.

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Contract” means any contract, agreement, instrument, undertaking, indenture, commitment, loan, license, settlement, consent, note or other legally binding obligation (whether or not in writing).

Control,” “Controlled” and “Controlling” means, with respect to any Person, the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise, and the terms “Controlled by” and “under common Control with” shall be construed accordingly.

Controlled Affiliate” means any Affiliate of the specified Person that is, directly or indirectly, Controlled by the specified Person.

Derivative Instruments” means any and all derivative securities (as defined under Rule 16a-1 under the Securities Exchange Act) that increase in value as the value of any Equity Securities of the Company increases, including a long convertible security, a long call option and a short put option position, in each case, regardless of whether (i) such derivative security conveys any voting rights in any Equity Securities of the Company, (ii) such derivative security is required to be, or is capable of being, settled through delivery of any Equity Securities of the Company or (iii) other transactions hedge the value of such derivative security.

Designated Company Voting Matters” means each of the following: (i) the appointment, suspension or dismissal of any director (other than any Shareholder Designee) whose appointment, suspension or dismissal (as applicable) was not approved by the Board; and (ii) any Merger Transaction or Sale Transaction that was not approved by the Board.

Designated Shareholder Voting Matter” means each of the following: (i) any Merger Transaction or Sale Transaction (other than a Merger Transaction or Sale Transaction not approved by the Board); (ii) any Qualifying Transaction (other than a Qualifying Transaction that is a Merger Transaction or Sale Transaction not approved by the Board); (iii) any amendment or series of related amendments to the Articles of Association, by-laws, or other organizational or constitutive documents of the Company that would have a materially adverse and disproportionate effect on the rights of the Parent, the Shareholders or any Investor under such organizational or constitutive documents relative to the other shareholders of the Company; (iv) any proposal at any general meeting of the Company in accordance with Article 5.3 of the Articles of Association to limit or exclude the Preemptive Rights; and (v) the appointment or dismissal of a Shareholder Designee.

Dispute” has the meaning set forth in Section 6.13.

Dutch Civil Code” means the civil code of the Netherlands (Burgerlijk Wetboek).

Encumbrance” means any mortgage, commitment, transfer restriction, deed of trust, pledge, option, power of sale, retention of title, right of preemption, right of

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first refusal, executorial attachment, hypothecation, security interest, encumbrance, claim, lien or charge of any kind, or an agreement, arrangement or obligation to create any of the foregoing.

 

Equity Securities” means any and all (i) shares, interests, participations or other equivalents (however designated) of capital stock or other voting securities of a corporation, and any and all equivalent or analogous ownership (or profit) or voting interests in a Person (other than a corporation), (ii) securities convertible into or exchangeable for shares, interests, participations or other equivalents (however designated) of capital stock or voting securities of a corporation, and securities convertible into or exchangeable for any equivalent or analogous ownership (or profit) or voting interests in a Person (other than a corporation), and (iii) any and all warrants, rights or options to purchase any of the foregoing, whether voting or nonvoting, and, in each case, whether or not such shares, interests, participations, equivalents, securities, warrants, options, rights or other interests are authorized or otherwise existing on any date of determination.

Foundation Agreements” means any and all agreements among the Company, the Parent, the Shareholders, the Investors and any other Persons with respect to the Foundation Structure, including the Stichting’s constitutional documents and the terms of administration.

Foundation Structure” means the structure with respect to (and the terms and provisions governing) the ownership, voting and transfer of each Shareholder’s and each Investor’s Company Ordinary Shares set forth on Exhibit A.

GAAP” means generally accepted accounting principles in the United States of America.

Governmental Approval” means any consent, approval, license, permit, order, qualification, authorization of, or registration or other action by, or any filing with or notification to, any Governmental Authority.

Governmental Authority” means any supranational, national, regional, federal, state, provincial, territorial, municipal or local court, administrative body or other governmental or quasi-governmental entity or authority or SRO with competent jurisdiction (including any arbitration panel or body) exercising legislative, judicial, regulatory or administrative functions of or pertaining to supranational, national, regional, federal, state, provincial, territorial, municipal or local government, including any department, commission, board, agency, bureau, subdivision, instrumentality or other regulatory, administrative, arbitral or judicial authority.

Group” has the meaning assigned to such term in Section 13(d)(3) of the Securities Exchange Act.

Investor Action” has the meaning set forth in Section 6.3.

Investors” means (i) the Shareholders, (ii) any Permitted Transferee of the Shareholders to whom Company Ordinary Shares are Transferred by the Shareholders in

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compliance with the terms of this Agreement and (iii) any Permitted Transferee of any of the Persons described in clause (ii) of this definition to whom Company Ordinary Shares are Transferred by such Person in compliance with the terms of this Agreement.

 

Knowledge of the Shareholders” means, with respect to any matter, the actual knowledge of any officer or employee of the Parent or any of its Subsidiaries whose job responsibilities include making decisions with respect to, or executing, Transfers of the Company Ordinary Shares, after reasonable (i) inquiry of the officers and employees of the Parent or any of its Subsidiaries who would reasonably be expected to have knowledge of such matter and (ii) review of public filings under the Securities Exchange Act relating to the Beneficial Ownership of Company Ordinary Shares.

Law” means any supranational, federal, state, local or foreign law (including common law), statute or ordinance or any rule, regulation, or agency requirement of any Governmental Authority.

Merger Transaction” means any transaction or series of related transactions involving: (i) any acquisition (whether direct or indirect, including by way of merger, share exchange, consolidation, business combination or other similar transaction) or purchase from the Company or any of its Subsidiaries that would result in any Person or Group Beneficially Owning more than fifty percent (50%) of the total outstanding Equity Securities of the Company (measured by voting power or economic interest), or (ii) any tender offer, exchange offer or other secondary acquisition that would result in any Person or Group Beneficially Owning more than fifty percent (50%) of the total outstanding Equity Securities of the Company (measured by voting power or economic interest).

New Securities” means any Equity Securities of the Company other than (i) Equity Securities of the Company issued to employees, officers or directors pursuant to any stock options, employee stock purchase or other equity-based plans approved by the Board, or (ii) Equity Securities of the Company issued in connection with a stock split, stock dividend or similar recapitalization.

Nine Month Restricted Period” means the period from the date that is the nine (9) month anniversary of the date of this Agreement until the date that is the twelve (12) month anniversary of the date of this Agreement.

Order” means any order, injunction, judgment, decree, ruling, writ, assessment or arbitration award by a Governmental Authority of competent jurisdiction.

Original Company Ordinary Shares” means the 111,500,000 Company Ordinary Shares issued to the Shareholders by the Company on the date hereof (as adjusted from time to time to reflect appropriately the effect of any stock split, reverse stock split, stock dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change).

Parent” has the meaning set forth in the preamble.

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Permitted Transfer” has the meaning set forth in Section 3.1(b).

Permitted Transferee” means the Parent and any wholly owned Subsidiary of the Parent; provided that such Transferee would continue to qualify as a Permitted Transferee of the applicable Transferor if such Transfer were to take place as of any time of determination (and, in the event that such Transferee would no longer so qualify, (i) such Transferee shall, and the Parent shall procure that such Transferee shall, immediately Transfer back the Transferred securities to such Transferor, or, if such Transferor by that time is no longer a Permitted Transferee, to the Parent as if such Transfer had not taken place ab initio, (ii) the Parent shall procure that such Transfer shall not be notified to the Company and (iii) except as otherwise required under applicable Law, the Company shall no longer, and shall instruct its transfer agent and other third parties to no longer, record or recognize such Transfer on the shareholders’ register of the Company).

Person” means any individual, corporation, partnership, limited liability company, firm, joint venture, association, joint-stock company, trust, unincorporated organization, Governmental Authority or other entity.

PFIC” means a “passive foreign investment company” within the meaning of Section 1297 of the Code.

Preemptive Rights” means the rights granted to the Investors pursuant to Section 3.3 of this Agreement.

Preemptive Rights Threshold” means the issuance or sale by the Company of New Securities for cash since the date hereof that, in the aggregate, (i) have, or will have upon issuance or sale, voting power equal to or in excess of twenty percent (20%) of the voting power outstanding as of the date hereof, or (ii) are, or will be upon issuance or sale, equal to or in excess of twenty percent (20%) of the Equity Securities of the Company outstanding as of the date hereof.

Pro Rata Portion” means, with respect to any Investor, (a) for the purposes of Section 3.3, the number of New Securities equal to the product of (i) the total number of New Securities to be issued or sold by the Company and (ii) the fraction determined by dividing (A) the number of Company Ordinary Shares held by such Investor immediately prior to such issuance or sale by (B) the total number of Company Ordinary Shares outstanding immediately prior to such issuance or sale; and (b) for the purposes of Section 3.5, the number of Equity Securities of the Company equal to the product of (i) the total number of Equity Securities of the Company to be redeemed or repurchased by the Company or any of its Subsidiaries and (ii) the fraction determined by dividing (A) the number of Company Ordinary Shares held by such Investor immediately prior to such redemption or repurchase by (B) the total number of Company Ordinary Shares outstanding immediately prior to such redemption or purchase.

QEF Election” has the meaning set forth in Section 5.3.

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Qualifying Transaction” means any transaction or series of related transactions that requires approval of the general meeting of the Company under Section 2:107a of the Dutch Civil Code.

Registration Rights Agreement” has the meaning set forth in the Recitals.

Representatives” of a Person means such Person’s Affiliates and the directors, officers, employees, advisers, agents, consultants, accountants, attorneys, sources of financing, investment bankers and other representatives of such Person and of such Person’s Affiliates.

Restricted Period Termination Date” has the meaning set forth in Section 3.1(a).

Sale Transaction” means any transaction or series of related transactions involving the direct or indirect sale, lease, assignment, disposition or other transfer (by operation of law or otherwise) of all or substantially all of the assets of the Company and its Subsidiaries, on a consolidated basis.

SEC” means the U.S. Securities and Exchange Commission.

Securities Act” means the U.S. Securities Act of 1933, as amended, and applicable rules and regulations thereunder.

Securities Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended, and applicable rules and regulations thereunder.

Shareholder Designee” means an individual designated in writing by the Parent, pursuant to Section 2.1(a), to be nominated by the Company for appointment to the Board as a non-executive director for a term expiring at the close of the fourth annual general meeting following such appointment, or any such term pursuant to reappointment of such individual at the annual general meeting [(and shall include any such individual designated for appointment on an interim basis in accordance with Section 2.1(e) pending formal appointment at a general meeting of the Company)]2.

Shareholder Director” means a Shareholder Designee who has been appointed to the Board [(including on an interim basis in accordance with Section 2.1(e) pending formal appointment at a general meeting of the Company)]3.

Shareholders” has the meaning set forth in the preamble.

Signing Date” means March 9, 2021.


2 To be included if Shareholder Approval to permit the interim filling of vacancies on the Board is obtained.
3 To be included if Shareholder Approval to permit the interim filling of vacancies on the Board is obtained.
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SRO” means (i) any “self-regulatory organization” as defined in Section 3(a)(26) of the Securities Exchange Act, (ii) any other United States or foreign securities exchange, futures exchange, commodities exchange or contract market or (iii) any other securities exchange.

Standstill Level” means, as of any date of determination, a number of Company Ordinary Shares equal to the greater of (a) (i) 111,500,000 Company Ordinary Shares less (ii) the total number of Company Ordinary Shares Transferred by the Parent, the Shareholders and each Investor (other than Transfers to a Permitted Transferee) from the date of this Agreement through the date of determination (in each case, as adjusted from time to time to reflect appropriately the effect of any stock split, reverse stock split, stock dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Ordinary Shares with a record date occurring on or after the date of this Agreement) and (b) twenty percent (20%) of the outstanding Company Ordinary Shares, based on the most recently (as of the date of determination) publicly outstanding share count of Company Ordinary Shares disclosed by the Company in any filings with the SEC.

Standstill Period” has the meaning set forth in Section 3.2(b).

Subsidiary” in respect of a Person, means any corporation, partnership, joint venture, trust, limited liability company, unincorporated association or other entity in respect of which such Person: (w) is entitled to more than 50% of the interest in the capital or profits; (x) holds or controls a majority of the voting securities or other voting interests; (y) has rights via holdings of debt or other contract rights that are sufficient for control and consolidation for GAAP purposes; or (z) has the right to appoint or elect a majority of the board of directors or Persons performing similar functions.

Total Voting Power” means, as of any date of determination, the total number of votes that may be cast at any general meeting of the Company, including (without duplication) votes that may be cast with respect to the Designated Shareholder Voting Matters and abstentions that may be made with respect to the Designated Company Voting Matters. For purposes of Section 6.3, the percentage of the Total Voting Power Beneficially Owned by any Person as of any date of determination is the percentage of the Total Voting Power that is represented by the total number of votes that may be cast or abstained from voting by such Person pursuant to (a) any Voting Securities then Beneficially Owned by such Person or (b) any Contract or other arrangement or right, including this Agreement.

Transaction Agreement” means the Transaction Agreement, dated as of the Signing Date, among the Shareholders,4 the Parent, the Company, AerCap US Aviation LLC and AerCap Aviation Leasing Limited.

Transaction Dispute” has the meaning set forth in Section 6.13(a).


4 To be updated as necessary based on final parties to this Agreement.
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Transfer” means (i) any direct or indirect offer, sale, lease, assignment, Encumbrance, disposition or other transfer (by operation of law or otherwise), either voluntary or involuntary, of any Equity Securities of the Company or (ii) to enter into any Derivative Instrument, swap or any other Contract, agreement, transaction or series of transactions that hedges or transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of any Equity Securities of the Company, whether any such Derivative Instrument, swap, Contract, agreement, transaction or series of transaction is to be settled by delivery of securities, in cash or otherwise; provided that the following will not be deemed to be a Transfer: (i) a change of control transaction, merger of equals or similar business combination involving the Parent or (ii) a bona fide sale, spinoff or other divestiture of a business unit or division of the Parent or any of its Affiliates that directly or indirectly owns the equity interests of the Investors, so long as in the case of clause (ii) (x) with respect to any spinoff, the Equity Securities of the Company held by the Investors do not constitute a majority of the assets of the applicable business unit or division that is spun off and (y) with respect to any sale or other divestiture, the Equity Securities of the Company held by the Investors are transferred to the Parent or one of its Subsidiaries that will not be sold or divested in such transaction.

Transferor” means a Person that Transfers or proposes to Transfer; and “Transferee” means a Person to whom a Transfer is made or is proposed to be made.

Twelve Month Restricted Period” means the period from the date following the date that is the twelve (12) month anniversary of the date of this Agreement until the date that is the fifteen (15) month anniversary of the date of this Agreement.

U.S. Shareholder” has the meaning set forth in the preamble.

Voting Agreement Period” means the period beginning on the date of this Agreement and ending on the first Business Day on which the collective Beneficial Ownership of Company Ordinary Shares of the Investors, as a group, is less than or equal to twenty-four and nine-tenths percent (24.9%) of the then-issued and outstanding Company Ordinary Shares.

Voting Agreement Period Voting Shares” means, at any time of calculation during the Voting Agreement Period, the number of Company Ordinary Shares equal to the product of (a) the quotient of (i) 24.9 divided by (ii) 75.1 times (b) the difference of (i) the total number of Company Ordinary Shares outstanding at such time minus (ii) the total number of Company Ordinary Shares Beneficially Owned by the Investors (collectively) at such time.

Voting Securities” means Company Ordinary Shares and any other securities of the Company entitled to vote at any general meeting of the Company.

Waived Provisions” has the meaning set forth in Section 3.2(a)(xii).

Section 1.2 Interpretation. The words “hereof” and “herein” and similar words shall be construed as references to this Agreement as a whole and not limited to the particular Article, Section or Schedule in which the reference appears. Unless the context

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otherwise requires, references herein: (x) to Articles, Sections and Schedules mean the Articles and Sections of, and Schedules attached to, this Agreement; and (y) to an agreement, instrument or other document, means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof. Any reference to a wholly owned Subsidiary of a Person shall mean such Subsidiary is directly or indirectly wholly owned by such Person. The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms. No rule of construction against the draftsperson shall be applied in connection with the interpretation or enforcement of this Agreement. The headings in this Agreement do not affect its interpretation. The schedules, exhibits and annexes form part of this Agreement. References to “U.S. dollars” are to U.S. dollars. Any reference to a “company” includes any company, corporation or other body corporate, wherever and however incorporated or established. Any reference to a statute, statutory provision or subordinate legislation (“legislation”) includes references to: (a) that legislation as reenacted or amended by or under any other legislation before or after the Signing Date; (b) any legislation which that legislation re-enacts (with or without modification); and (c) any subordinate legislation made under that legislation before or after the Signing Date, as re-enacted or amended as described in (a), or under any legislation referred to in (b). Any reference to writing shall include any mode of reproducing words in a legible and non-transitory form. References to one gender include all genders and references to the singular include the plural and vice versa. References to “ordinary course” or words of similar meaning when used in this Agreement shall mean with respect to any Person “the ordinary course of business of such Person, consistent with past practice” unless specified otherwise. References to “includes” or “including” or words of similar meaning when used in this Agreement shall mean “including without limitation” unless specified otherwise. References to a number or amount of “issued and outstanding” Company Ordinary Shares shall mean the number or amount of issued and outstanding Company Ordinary Shares based on the most recently (as of the date of determination) publicly outstanding share count of Company Ordinary Shares disclosed by the Company in any filings with the SEC.

 

ARTICLE II
GOVERNANCE

Section 2.1 Composition of the Board of Directors.

(a)       Subject to the other provisions of this Section 2.1, (i) for so long as the Investors Beneficially Own any of the then-issued and outstanding Company Ordinary Shares, the Parent shall have the right to designate one (1) Shareholder Designee, and to propose to remove any Shareholder Director and designate another Shareholder Designee in his or her place; and (ii) for so long as the Investors Beneficially Own (collectively) at least ten percent (10%) of the then-issued and outstanding Company Ordinary Shares, the Parent shall have the right to designate two (2) Shareholder Designees, and to propose to remove any Shareholder Director and designate another Shareholder Designee in his or her place; provided that no other Person shall have the exercisable right to designate more directors to the Board than the Parent as a result of any agreement between the Company and such Person. The Company shall take all necessary

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actions to give effect to this Section 2.1(a), including, if necessary adjusting the size of the Board and/or seeking and accepting the resignations of incumbent directors.

 

(b)       Unless waived by the Parent or restricted by Law, during the Board Seat Period, (i) the Company shall cause one (1) Shareholder Director to be appointed to the Nomination and Compensation Committee of the Board and (ii) the other Shareholder Director (or, if there is only one Shareholder Director, such Shareholder Director) shall (upon request of Parent or such Shareholder Director) be permitted to attend any meeting of each other committee of the Board in an observer (non-voting) capacity and to receive all materials provided to the members of each such committee when provided to such members.

(c)       During the Board Seat Period, the Company shall procure that the appointment of the relevant number of Shareholder Designees to the Board that Parent is entitled to designate pursuant to Section 2.1(a) is proposed and recommended for approval by the Company’s shareholders at the next annual general meeting of the Company following any designation by the Parent of such Shareholder Designee.

(d)       If any Shareholder Designee is not appointed to the Board at any annual general meeting of the Company during the Board Seat Period (including if a Shareholder Designee was designated by the Parent and appointed prior to and effective as of the Completion (as defined in the Transaction Agreement), but is unable to serve or has resigned as a Shareholder Director as of the Completion, or any Shareholder Designee has not been elected prior to the Completion) the Parent may designate a replacement (or initial, as applicable) Shareholder Designee for appointment to the Board. The Company shall [(i) appoint such replacement Shareholder Designee to the Board in accordance with clause (e) and (ii)]5 propose and recommend the appointment of such replacement Shareholder Designee at an extraordinary general meeting of the Company to be held not later than sixty (60) days after any such annual general meeting.

(e)       [Notwithstanding anything in this Section 2.1 to the contrary, in the event that at any time (i) Parent has the right to nominate a Shareholder Designee and (ii) a Shareholder Designee is not yet appointed or a Shareholder Designee shall cease to serve as a director for any reason, upon written notice from Parent to the Company, the vacancy resulting therefrom shall be filled by the Board as promptly as reasonably practicable with a substitute Shareholder Designee until the Shareholder Designee is formally appointed at the relevant next general shareholder meeting.]6 [In the event that at any time (i) the collective Beneficial Ownership of Company Ordinary Shares of the Investors, as a group, is equal to or more than ten percent (10%) of the then-issued and outstanding Company Ordinary Shares and (ii) the Articles of Association do not permit the filling of vacancies on the Board other than at an annual or extraordinary general meeting of the Company, the Company shall propose and recommend for approval by the Company’s shareholders at each annual general meeting of the Company amendments to


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