[Letterhead of NautaDutilh N.V., Amsterdam Office]
Amsterdam, December 2, 2019.
To the Company
Re: AerCap Holdings N.V. Form F-3 Registration Statement
Ladies and Gentlemen,
We have acted as legal counsel as to Netherlands law to the Company in connection with the Registration Statement and the filing thereof with the SEC. This opinion letter is rendered to you in order to be filed with the SEC as an exhibit to the Registration Statement.
Capitalised terms used in this opinion letter have the meanings set forth in Exhibit A to this opinion letter. The section headings used in this opinion letter are for convenience of reference only and are not to affect its construction or to be taken into consideration in its interpretation.
This opinion letter is strictly limited to the matters stated in it and may not be read as extending by implication to any matters not specifically referred to in it. Nothing in this opinion letter should be taken as expressing an opinion in respect of any representations or warranties, or other information, contained in the Corporate Documents or the Registration Statement.
In rendering the opinions expressed in this opinion letter, we have reviewed and relied upon a draft of the Registration Statement and pdf copies of the Deed of Issue and the Corporate Documents and we have assumed that the Deed of Issue has been entered into for bona fide commercial reasons. We have not investigated or verified any factual matter disclosed to us in the course of our review.
This opinion letter sets out our opinion on certain matters of the laws with general applicability of the Netherlands, and, insofar as they are directly applicable in the Netherlands, of the European Union, as at todays date and as presently interpreted under published authoritative case law of the Netherlands courts, the General Court and the Court of Justice of the European Union. We do not express any opinion on Netherlands or European competition law, data protection law, tax law or regulatory law. No undertaking is assumed on our part to revise, update or amend this opinion letter in connection with or to notify or inform you of, any
This communication is confidential and may be subject to professional privilege. All legal relationships are subject to NautaDutilh N.V.s general terms and conditions (see https://www.nautadutilh.com/terms), which apply mutatis mutandis to our relationship with third parties relying on statements of NautaDutilh N.V., include a limitation of liability clause, have been filed with the Rotterdam District Court and will be provided free of charge upon request. NautaDutilh N.V.; corporate seat Rotterdam; trade register no. 24338323.
developments and/or changes of Netherlands law subsequent to todays date. We do not purport to opine on the consequences of amendments to the Deed of Issue or the Corporate Documents subsequent to the date of this opinion letter.
The opinions expressed in this opinion letter are to be construed and interpreted in accordance with Netherlands law. The competent courts at Amsterdam, the Netherlands, have exclusive jurisdiction to settle any issues of interpretation or liability arising out of or in connection with this opinion letter. Any legal relationship arising out of or in connection with this opinion letter (whether contractual or non-contractual), including the above submission to jurisdiction, is governed by Netherlands law and shall be subject to the general terms and conditions of NautaDutilh. No person other than NautaDutilh may be held liable in connection with this opinion letter.
In this opinion letter, legal concepts are expressed in English terms. The Netherlands legal concepts concerned may not be identical in meaning to the concepts described by the English terms as they exist under the law of other jurisdictions. In the event of a conflict or inconsistency, the relevant expression shall be deemed to refer only to the Netherlands legal concepts described by the English terms.
For the purposes of this opinion letter, we have assumed that:
drafts of documents reviewed by us will be signed in the form of those drafts, each copy of a document conforms to the original, each original is authentic, and each signature is the genuine signature of the individual purported to have placed that signature;
the Deed of Incorporation has been executed on the basis of a valid declaration of no objection (verklaring van geen bezwaar);
(i) no internal regulations (reglementen) were adopted by any corporate body of the Company at the time of passing the resolutions recorded in the Resolutions which would affect the validity of such resolutions and (ii) the 2010 Articles were the Articles of Association in force on the date of the Deed of Issue;
the resolutions recorded in the Resolutions were in full force and effect at the date of the Deed of Issue, the factual statements made and the confirmations given in the Resolutions and the Deed of Issue were complete and correct at the date of the Deed of Issue, and the Resolutions correctly reflect the resolutions recorded therein;
the shares being registered pursuant to the Registration Statement are the Registered Shares;
the Waha Receivable was capable of being set-off (verrekenen) pursuant to the Deed of Issue as described therein; and
none of the members of the Board of Directors had a direct or indirect personal interest which conflicts with the interest of the Company and the business connected with it in respect of any of the resolutions recorded in the Board Resolutions or the matters contemplated thereby.
Based upon and subject to the foregoing and subject to the qualifications set forth in this opinion letter and to any matters, documents or events not disclosed to us, we express the following opinions:
The Company has been duly incorporated and is validly existing as a naamloze vennootschap.
The Registered Shares have been validly issued and are fully paid and non-assessable.
The opinions expressed above are subject to the following qualifications:
Opinion 1 must not be read to imply that the Company cannot be dissolved (ontbonden). A company such as the Company may be dissolved, inter alia by the competent court at the request of the companys board of directors, any interested party (belanghebbende) or the public prosecution office in certain circumstances, such as when there are certain defects in the incorporation of the company. Any such dissolution will not have retro-active effect.
Pursuant to Section 2:7 NCC, any transaction entered into by a legal entity may be nullified by the legal entity itself or its liquidator in bankruptcy proceedings (curator) if the objects of that entity were transgressed by the transaction and the other party to the transaction knew or should have known this without independent investigation (wist of zonder eigen onderzoek moest weten). The Netherlands Supreme Court (Hoge Raad der Nederlanden) has ruled that in determining whether the objects of a legal entity are transgressed, not only the description of the objects in that legal entitys articles of association (statuten) is decisive, but all (relevant) circumstances must be taken into account, in particular whether the interests of the legal entity were served by the transaction. Based on the objects clause contained in the 2010 Articles, we have no reason to believe
|that, by entering into the Deed of Issue, the Company transgressed the description of the objects contained in the 2010 Articles. However, we cannot assess whether there are other relevant circumstances that must be taken into account, in particular whether the interests of the Company were served by entering into the Deed of Issue since this is a matter of fact.|
Pursuant to Section 2:98c NCC a naamloze vennootschap may grant loans (leningen verstrekken) only in accordance with the restrictions set out in Section 2:98c NCC, and may not provide security (zekerheid stellen), give a price guarantee (koersgarantie geven) or otherwise bind itself, whether jointly and severally or otherwise with or for third parties (zich op andere wijze sterk maken of zich hoofdelijk of anderszins naast of voor anderen verbinden) with a view to (met het oog op) the subscription or acquisition by third parties of shares in its share capital or depository receipts. This prohibition also applies to its subsidiaries (dochtervennootschappen). It is generally assumed that a transaction entered into in violation of Section 2:98c NCC is null and void (nietig). Based on the content of the Deed of Issue, we have no reason to believe that the Company or its subsidiaries violated Section 2:98c NCC in connection with the issue of the Registered Shares. However, we cannot confirm this definitively, since the determination of whether a company (or a subsidiary) has provided security, has given a price guarantee or has otherwise bound itself, with a view to the subscription or acquisition by third parties of shares in its share capital or depository receipts, as described above, is a matter of fact.
The opinions expressed in this opinion letter may be limited or affected by:
any applicable bankruptcy, insolvency, reorganisation, moratorium or other similar laws or procedures now or hereafter in effect, relating to or affecting the enforcement or protection of creditors rights generally;
the provisions of fraudulent preference and fraudulent conveyance (Actio Pauliana) and similar rights available in other jurisdictions to liquidators in bankruptcy proceedings or creditors;
claims based on tort (onrechtmatige daad);
sanctions and measures, including but not limited to those concerning export control, pursuant to European Union regulations, under the Sanctions Act 1977 (Sanctiewet 1977) or other legislation;
the Anti-Boycott Regulation and related legislation; and
the rules of force majeure (niet toerekenbare tekortkoming), reasonableness and fairness (redelijkheid en billijkheid), suspension (opschorting), dissolution (ontbinding), unforeseen circumstances (onvoorziene omstandigheden) and vitiated consent (i.e., duress (bedreiging), fraud (bedrog), abuse of circumstances (misbruik van omstandigheden) and error (dwaling)) or a difference of intention (wil) and declaration (verklaring).
The term non-assessable has no equivalent in the Dutch language and for purposes of this opinion letter such term should be interpreted to mean that a holder of a share will not by reason of merely being such a holder be subject to assessment or calls by the Company or its creditors for further payment on such share.
This opinion letter does not purport to express any opinion or view on the operational rules and procedures of any clearing or settlement system or agency.
We consent to the filing of this opinion letter as an exhibit to the Registration Statement and also consent to the reference to NautaDutilh in the Registration Statement under the caption Legal Matters. In giving this consent we do not admit or imply that we are a person whose consent is required under Section 7 of the United States Securities Act of 1933, as amended, or any rules and regulations promulgated thereunder.
/s/ NautaDutilh N.V.
LIST OF DEFINITIONS
|The Articles of Association as they read immediately after the execution of the 2010 Deed of Amendment.|
2010 Deed of Amendment
|The deed of amendment to the Articles of Association, dated August 3, 2010.|
|The Council Regulation (EC) No 2271/96 of 22 November 1996 on protecting against the effects of the extra-territorial application of legislation adopted by a third country, and actions based thereon or resulting therefrom.|
Articles of Association
|The Companys articles of association (statuten) as they read from time to time.|
Board of Directors
|The Companys board of directors (bestuur).|
|The (resolutions described in the) minutes of a meeting of the Board of Directors held on October 19, 2010, relating to the issuance of the Registered Shares.|
|The Netherlands Commercial Register (handelsregister).|
|AerCap Holdings N.V., a public company with limited liability (naamloze vennootschap) registered with the Commercial Register under file number 34251954.|
|The Deed of Incorporation, the 2010 Deed of Amendment, the 2010 Articles and the Resolutions.|
Deed of Incorporation
|The Companys deed of incorporation (akte van oprichting), dated July 10, 2006.|
Deed of Issue
|The deed of issue of Shares among Waha AC Coöperatief U.A. and the Company, dated November 10, 2010.|
|The Netherlands Civil Code (Burgerlijk Wetboek).|
|The 4,000,000 Shares issued pursuant the Deed of Issue and being registered under the Registration Statement.|
|The Companys registration statement on Form F-3 filed or to be filed with the SEC on December 2, 2019, supplemented by the prospectus supplement filed or to be filed with the SEC on or about the date of this opinion letter, in the form reviewed by us.|
|The (resolutions described in the) minutes of a meeting of the Companys general meeting held on May 9, 2008, relating to the authorization of the Board of Directors to issue Shares and exclude pre-emptive rights, and the Board Resolutions.|
|The United States Securities and Exchange Commission.|
|Shares in the Companys capital, with a nominal value of EUR 0.01 each.|
|The European territory of the Kingdom of the Netherlands.|
|The Waha Receivable, as defined in the Deed of Issue.|