Equinor ASA F-3ASR, filed Jul 10, 2020
Equinor ASA (EQNR)
Table of Contents
As filed with the Securities and Exchange Commission on July 10, 2020.
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM F-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
| Equinor ASA | Equinor Energy AS | Equinor US Capital LLC | ||
| (Exact name of registrant as specified in its charter) | (Exact name of registrant as specified in its charter) | (Exact name of registrant as specified in its charter) |
| Kingdom of Norway | Kingdom of Norway | Delaware | ||
| (State or other jurisdiction of incorporation or organization) |
(State or other jurisdiction of incorporation or organization) |
(State or other jurisdiction of incorporation or organization) | ||
| Not Applicable | Not Applicable | 84-4853081 | ||
| (I.R.S. Employer Identification No.) | (I.R.S. Employer Identification No.) | (I.R.S. Employer Identification No.) | ||
| Forusbeen 50, N-4035 | Forusbeen 50, N-4035 | 120 Long Ridge Road Suite 3E01 | ||
| Stavanger, Norway | Stavanger, Norway | Stamford, CT 06902, U.S.A. | ||
| Tel. No.: 011-47-5199-0000 | Tel. No.: 011-47-5199-0000 | Tel. No.: (203) 978-6900 | ||
| (Address and telephone number of registrant’s principal executive offices) |
(Address and telephone number of registrant’s principal executive offices) |
(Address and telephone number of registrant’s principal executive offices) |
Equinor US Holdings Inc.
120 Long Ridge Rd
Suite 3E01
Stamford, CT 06902, U.S.A.
(203) 978-6900
(Name, address. and telephone number of agent for service)
Please send copies of all communications to:
Kathryn A. Campbell
John Horsfield-Bradbury
Sullivan & Cromwell LLP
1 New Fetter Lane
London EC4A 1AN
England
Tel. No.: 44-20-7959-8900
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement as determined by market conditions.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, please check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.C. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☒
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.C. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933.
Emerging growth company ☐
If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, 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† provided pursuant to Section 7(a)(2)(B) of the Securities Act
† The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012.
CALCULATION OF REGISTRATION FEE
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| ||||||||
| Title of Each Class of Securities to be Registered |
Amount to be Registered |
Proposed Maximum Aggregate Price per Unit |
Proposed Maximum Aggregate Offering Price |
Amount of Registration Fee | ||||
| Ordinary Shares of Equinor ASA, nominal value NOK 2.50 each(1) |
(2) | (2) | (2) | (3) | ||||
| Debt Securities |
(2) | (2) | (2) | (3) | ||||
| Guarantees of the Debt Securities |
— | — | — | (4) | ||||
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| (1) | The ordinary shares may be represented by American Depositary Shares, each of which represents one ordinary share. American Depositary Receipts evidencing American Depositary Shares issuable on deposit of ordinary shares have been registered pursuant to a separate registration statement on Form F-6 (File No. 333-229229), as amended, or, if registration of additional American Depositary Receipts is necessary, will be registered pursuant to a separate registration statement on Form F-6. |
| (2) | An indeterminate aggregate initial offering price or number of securities of each identified class is being registered as may from time to time be offered at indeterminate prices. Separate consideration may or may not be received for securities that are issuable on exercise, conversion or exchange of other securities or that are represented by depositary shares. |
| (3) | In accordance with Rules 456(b) and 457(r) under the Securities Act, the registrants are deferring payment of all of the registration fee. |
| (4) | Pursuant to Rule 457(n) under the Securities Act, no separate fee for the guarantees is payable. |
Table of Contents
EQUINOR ASA
Debt Securities
fully and unconditionally guaranteed by Equinor Energy AS
(a wholly owned subsidiary of Equinor ASA)
Ordinary Shares
In the form of ordinary shares or American Depositary Shares
EQUINOR US CAPITAL LLC
Debt Securities
fully and unconditionally guaranteed by Equinor ASA and Equinor Energy AS
Equinor ASA and Equinor US Capital LLC may use this prospectus to offer from time to time guaranteed debt securities. Equinor ASA may use this prospectus to offer from time to time ordinary shares, directly or in the form of American Depositary Shares.
Equinor’s ordinary shares are admitted to trading on the Oslo Stock Exchange under the symbol “EQNR”. Equinor’s American Depositary Shares, each representing one ordinary share, are listed on the New York Stock Exchange under the symbol “EQNR”.
Each time we sell the securities described in this prospectus, we will provide one or more supplements to this prospectus that will contain specific information about those securities and their offering. The prospectus supplement may also add, update or change information contained in this prospectus. You should read both this prospectus and any accompanying prospectus supplement, together with the additional information described under the heading “Where You Can Find More Information About Us”, carefully before you invest.
We may sell these securities to or through underwriters, and also to other purchasers or through agents. The names of any underwriters will be stated in any accompanying prospectus supplement.
Investing in these securities involves certain risks. See “Risk Factors” beginning on page 1.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities, or passed upon the accuracy or adequacy of this prospectus. Any representation to the contrary is a criminal offense.
Prospectus dated July 10, 2020.
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| DESCRIPTION OF ORDINARY SHARES AND AMERICAN DEPOSITARY SHARES |
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| II-1 | ||||
Unless the context otherwise requires, in this prospectus, the term “Equinor” refers to Equinor ASA, the terms “Equinor group”, “we”, “our”, “ours” and “us” refer to Equinor and its consolidated subsidiaries, including Equinor Energy AS and Equinor US Capital LLC, “Equinor Energy” refers to Equinor Energy AS, “Equinor Capital” refers to Equinor US Capital LLC, “Equinor Debt Issuers” refers to Equinor and Equinor Capital (each an “Equinor debt issuer”) and the “guarantors” refers to Equinor ASA and Equinor Energy (each a “guarantor”).
Each of the Equinor debt issuers may be the issuer in an offering of debt securities. Debt securities offered by Equinor will be guaranteed by Equinor Energy and will be issued under the indenture among Equinor, as issuer, Equinor Energy, as guarantor and Deutsche Bank Trust Company Americas, as trustee (the “Equinor indenture”). Debt securities offered by Equinor Capital will be guaranteed by Equinor and Equinor Energy and will be issued under an indenture to be entered among Equinor Capital, as issuer, Equinor and Equinor Energy, as guarantors and a trustee (the “Equinor Capital indenture” and together with the Equinor indenture, the “indentures”). See “Description of Debt Securities and Guarantees”.
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Investing in the securities offered using this prospectus involves risk. You should consider carefully the risks described below, together with the risks described in the documents incorporated by reference into this prospectus and any risk factors included in the prospectus supplement, before you decide to buy our securities. If any of these risks actually occurs, our business, financial condition and results of operations could suffer, and the trading price and liquidity of the securities offered using this prospectus could decline, in which case you may lose all or part of your investment.
Risks Relating to Our Business
You should read “Risk Factors” in Equinor’s Annual Report on Form 20-F for the fiscal year ended December 31, 2019 (the “2019 Annual Report”), which is incorporated by reference in this prospectus, or similar sections in subsequent filings incorporated by reference in this prospectus, for information on risks relating to our business.
Risks Relating to the Debt Securities
Because the debt securities are unsecured, your right to receive payments may be adversely affected.
The debt securities that we are offering will be unsecured. Unless otherwise specified in the applicable prospectus supplement, the debt securities are not subordinated to any of our other debt obligations and therefore they will rank equally with all our other unsecured and unsubordinated indebtedness. As of March 31, 2020, we had no secured indebtedness outstanding. If an Equinor debt issuer defaults on its debt securities or the guarantors default on the guarantees, or in the event of bankruptcy, liquidation or reorganization, then, to the extent that the Equinor debt issuer or the guarantors have granted security over their assets, the assets that secure these debts will be used to satisfy the obligations under that secured debt before the Equinor debt issuer or the guarantors, as the case may be, could make payment on the debt securities. If there is not enough collateral to satisfy the obligations of the secured debt, then the remaining amounts on the secured debt would share equally with all unsubordinated unsecured indebtedness.
Your rights as a holder of debt securities may be inferior to the rights of holders of debt securities issued under a different series pursuant to the indentures.
The debt securities issued by Equinor are governed by the Equinor indenture and the debt securities issued by Equinor Capital are governed by the Equinor Capital indenture, which are described herein under “Description of Debt Securities and Guarantees”. Each Equinor debt issuer may issue as many distinct series of debt securities under the applicable indenture as we wish. Each Equinor debt issuer may also issue a series of debt securities under the applicable indenture that provides holders with rights superior to the rights already granted or that may be granted in the future to holders of another series under that indenture. You should read carefully the specific terms of any particular series of debt securities we may offer contained in the prospectus supplement relating to such debt securities.
A ratings decline could adversely affect the value of the debt securities.
One or more independent credit rating agencies may assign credit ratings to the debt securities. The ratings may not reflect the potential impact of all risks related to structure, market, additional factors discussed in this prospectus, and other factors that may affect the value of the debt securities. A credit rating is not a recommendation to buy, sell or hold securities and may be revised or withdrawn by the rating agency at any time. Purchasers of securities rely on the creditworthiness of Equinor and, if applicable, Equinor Energy and no other person. Any of the rating agencies that rate the debt of an Equinor debt issuer has the ability to lower the ratings currently assigned to that debt as a result of its views about the current or future business, financial condition or
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results of operations of the Equinor group or other matters. Any ratings decline could adversely affect the value of the debt securities. Investment in the securities involves the risk that subsequent changes in actual or perceived creditworthiness of the Equinor group may adversely affect the market value of the securities.
Should Equinor default on the debt securities, or should a guarantor default on a guarantee, your right to receive payments on such debt securities or guarantee may be adversely affected by Norwegian insolvency laws.
Both Equinor and Equinor Energy are incorporated in and have their registered office in the Kingdom of Norway, and consequently it is likely that any insolvency proceedings applicable to Equinor or Equinor Energy would be governed by Norwegian law. If a Norwegian company is unable, or likely to be unable, to pay its debts, an examiner may be appointed to facilitate the survival of the company and the whole or any part of its business by formulating proposals for a compromise or scheme of arrangement. If an examiner is appointed, a protection period will be imposed so that the examiner can formulate and implement proposals for a compromise or scheme of arrangement. During the protection period, any enforcement action by a creditor of the Norwegian company is prohibited. In addition, the Norwegian company may be prohibited from paying any debts existing at the time of the presentation of the petition to appoint an examiner.
In the event of insolvency of Equinor and Equinor Energy, the claims of certain preferential creditors (including the Norwegian tax authority for certain unpaid taxes) will rank in priority to claims of unsecured creditors.
If Equinor and Equinor Energy become subject to an insolvency proceeding and have obligations to creditors that are treated under Norwegian law as creditors that are senior relative to the holders of the debt securities (including secured creditors), the holders of the debt securities may suffer losses as a result of their subordinated status during such insolvency proceeding.
Because Equinor and Equinor Energy are Norwegian companies and a substantial portion of our assets and key personnel are located outside the United States, you may not be able to enforce any U.S. judgment for claims you may bring against us or our key personnel both in and outside the United States.
Both Equinor and Equinor Energy are organized under the laws of the Kingdom of Norway. A substantial portion of our assets are located outside the United States. In addition, many members of our board of directors and senior management are residents of countries other than the United States. As a result, it may be impossible for you to effect service of process within the United States upon Equinor, Equinor Energy or these persons or to enforce against us or these persons any judgments in civil and commercial matters, including judgments under United States federal securities laws. We understand that judgments of U.S. courts are generally not enforceable in Norway. Consequently, it could prove difficult to enforce civil liabilities solely based on U.S. federal securities laws or otherwise. Therefore, you may have difficulty enforcing any U.S. judgment against us or our non-U.S. resident directors and officers both in and outside the United States.
Equinor Capital is a finance subsidiary that has no revenue-generating operations of its own and depends on cash received from other members of the Equinor group to be able to make payments on the debt securities.
Equinor Capital is an indirect finance subsidiary of Equinor with limited assets and limited ability to generate revenues. The ability of Equinor Capital to make any payments on the debt securities will depend on the earnings, business and tax considerations, and legal and contractual restrictions on payments of dividends or other distributions by other members of the Equinor group. If Equinor Capital is not able to make payments on the debt securities, holders of the debt securities would have to rely on claims for payment under the guarantees, which are subject to the risks and limitations described herein. We cannot assure you that Equinor Capital will receive sufficient dividends, distributions or loans from other members of the Equinor group to service scheduled payments of interest, principal or other amounts due under the debt securities. Any of the situations described
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above could adversely affect the ability of Equinor Capital to service its obligations in respect of the debt securities.
The debt securities lack a developed trading market, and such a market may never develop.
The Equinor debt issuers may issue debt securities in different series with different terms in amounts that are to be determined. There can be no assurance that an active trading market will develop for any series of these debt securities even if we list the debt securities on a securities exchange.
There can also be no assurance regarding the future development of a market for the debt securities or the ability of holders of the debt securities to sell their debt securities or the price at which such holders may be able to sell their debt securities. If such a market were to develop, the debt securities could trade at prices that may be higher or lower than the initial offering price and this may result in a return that is greater or less than the interest rate on, the debt security, in each case depending on many factors, including, among other things, prevailing interest rates, our operating results and the market for similar securities.
Any underwriters, broker-dealers or agents that participate in the distribution of the debt securities may make a market in the debt securities as permitted by applicable laws and regulations but will have no obligation to do so, and any such market-making activities may be discontinued at any time. Therefore, there can be no assurance as to the liquidity of any trading market for the debt securities or that an active public market for the debt securities will develop. See “Plan of Distribution”.
The substitution of an Equinor debt issuer as the issuer of the debt securities could cause you to realize taxable gain or loss for U.S. tax purposes and/or taxable gain or loss (including currency gains or losses) for Norwegian tax purposes, if any, on any such debt securities that you hold.
The terms of the debt securities issued under the Equinor indenture permit Equinor to transfer its obligations, as issuer of the debt securities of any series, to any subsidiary of Equinor, so long as the obligations of that Subsidiary are fully and unconditionally guaranteed by Equinor on the same terms as Equinor Energy’s guarantee of such debt securities. In addition, under the Equinor Capital indenture, Equinor Capital may transfer its obligations, as issuer of the debt securities of any series, to Equinor or to any subsidiary of Equinor.
Under U.S. tax law, the change in the obligor on the debt securities could be treated as a disposition of such debt securities that you hold, resulting in your realization of gain or loss on such debt securities even though you continue to hold the debt securities and receive no distribution in connection with the deemed disposition. Under Norwegian tax law, the change in the obligor on the debt securities could be treated as a realization of such debt securities that you hold for Norwegian tax purposes. If you are resident in Norway or subject to tax in Norway as a result of being involved in business activities in Norway and the holding of debt securities is effectively connected with such business activities, a realization of debt securities could result in Norwegian income taxation of gains or losses (including currency gains or losses), if any, related to the debt securities that you hold. See “Taxation” for discussion of possible tax consequences.
The Guarantees provided by Equinor Energy will automatically and unconditionally be released in certain circumstances.
The guarantees of Equinor Energy will automatically and unconditionally be terminated, without the consent of the trustee or the holders, at substantially the same time that the aggregate amount of indebtedness for borrowed money for which Equinor Energy is an obligor (as a guarantor, co-issuer or borrower, and subject to certain exceptions described under “Description of Debt Securities and Guarantees—Guarantees” below) does not exceed 10% of the aggregate principal amount of indebtedness for borrowed money of Equinor and its subsidiaries on a consolidated basis. If the guarantees are released, we are not required to replace them, and the debt securities will not have the benefit of an Equinor Energy or any other guarantee (other than the Equinor guarantee relating to debt securities of Equinor Capital) for their remaining maturity.
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We may be subject to a change in the Norwegian tax regime that could introduce a withholding tax on interest payments.
In February 2020, the Norwegian Ministry of Finance issued a consultation paper relating to withholding tax on interest payments from Norwegian sources. According to the consultation paper it is proposed to introduce a standard 15% withholding tax on interest payments to related parties resident in low tax jurisdictions and a standard 15% withholding tax on royalty payments from entities resident for tax purposes in Norway to foreign related parties. The new rules are proposed to be introduced with effect from January 1, 2021. The Ministry of Finance does not propose to introduce withholding tax on interest payments to creditors other than related parties (that is, where there is direct or indirect ownership or control of at least 50%) resident for tax purposes in a low tax jurisdiction. This means that the Ministry of Finance does not propose to introduce withholding tax on interest payments to independent banks or other finance institutions or on bonds held by unrelated parties, and therefore interest payments under the debt securities should not be subject to Norwegian withholding tax. However, if future legislation were to require withholding of Norwegian taxes on interest payments on the debt securities, Equinor would be required, subject to certain exceptions, to pay additional amounts so that the net amounts received by the noteholder will equal the amount that would have been received without such withholding or deduction, as described under “Description of Debt Securities and Guarantees—Payment of Additional Amounts”. The requirement to pay such additional amounts on the debt securities (and potentially other outstanding indebtedness) could materially impact our cash flows. In addition, if Equinor were to become liable to pay additional amounts as a result of any such new legislation, it may be able to redeem the debt securities for their principal amounts plus accrued and unpaid interest and any related additional amounts, and there can be no assurance that you will be able to reinvest the amounts received upon such redemption at a rate that will provide the same rate of return as your investment in the debt securities.
We will not be required to pay additional amounts if payments on the debt securities are subject to withholding under FATCA.
Certain non-U.S. financial institutions must comply with information reporting requirements or certification requirements in respect of their direct and indirect United States shareholders and/or United States accountholders to avoid becoming subject to withholding on certain payments. Although we are continuing to evaluate our status under FATCA, we are currently registered as a foreign financial institution for these purposes. We and other non-U.S. financial institutions may accordingly be required to report information to the IRS regarding the holders of debt securities and to withhold on a portion of payments under the debt securities issued by Equinor to certain holders that fail to comply with the relevant information reporting requirements (or hold debt securities directly or indirectly through certain non-compliant intermediaries). However, such withholding will not apply to payments made before the date is two years after the date on which final regulations defining the term “foreign passthru payment” are enacted. Moreover, such withholding would only apply to debt securities issued at least six months after the date on which final regulations defining the term “foreign passthru payment” are enacted. Holders are urged to consult their own tax advisors and any banks or brokers through which they will hold debt securities as to the consequences (if any) of these rules to them.
In the case of debt securities issued by Equinor Capital, a 30% withholding tax may be imposed under FATCA on certain payments to you or to certain foreign financial institutions, investment funds and other non-U.S. persons receiving payments on your behalf if you or such persons fail to comply with certain information reporting requirements. Payments of interest that you receive in respect of the debt securities could be affected by this withholding if you are subject to the FATCA information reporting requirements and fail to comply with them or if you hold debt securities through a non-U.S. person (e.g., a foreign bank or broker) that fails to comply with these requirements (even if payments to you would not otherwise have been subject to FATCA withholding). You should consult your own tax advisors regarding the relevant U.S. law and other official guidance on FATCA withholding.
We will not pay any additional amounts in respect of FATCA withholding, so if this withholding applies, you will receive significantly less than the amount that you would have otherwise received with respect to your
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debt securities. Depending on your circumstances, you may be entitled to a refund or credit in respect of some or all of this withholding. However, even if you are entitled to have any such withholding refunded, the required procedures could be cumbersome and significantly delay the holder’s receipt of any amounts withheld.
Risks Relating to the Ordinary Shares and American Depositary Shares
Equinor’s shares and American Depositary Shares may experience volatility which will negatively affect your investment.
In recent years, most major stock markets have experienced significant price and trading volume fluctuations. These fluctuations have often been unrelated or disproportionate to the operating performance of the underlying companies. Accordingly, there could be significant fluctuations in the price of Equinor’s shares and American Depositary Shares (“ADSs”), each representing one ordinary share, even if our operating results meet the expectations of the investment community. In addition,
| • | announcements by us or our competitors relating to operating results, earnings, volume, acquisitions or joint ventures, capital commitments or spending; |
| • | continued volatility in prices of oil and natural gas; |
| • | changes in financial estimates or investment recommendations by securities analysts; |
| • | changes in market valuations of other oil companies; |
| • | adverse economic performance or recession in the countries where Equinor operates; or |
| • | disruptions in trading on major stock markets, |
could cause the market price of Equinor’s shares and ADSs to fluctuate significantly.
While not expected, payments on the shares and ADSs may become subject to withholding under FATCA.
A 30% withholding tax will be imposed on certain payments to certain non-U.S. financial institutions that fail to comply with information reporting requirements or certification requirements in respect of their direct and indirect United States shareholders and/or United States accountholders. Although we are continuing to evaluate our status under FATCA, we are currently registered as a foreign financial institution for these purposes. To avoid becoming subject to the 30% withholding tax on payments to them, we and other non-U.S. financial institutions may be required to report information to the IRS regarding the holders of shares or ADSs and to withhold on a portion of payments under the shares or ADSs to certain holders that fail to comply with the relevant information reporting requirements (or hold shares or ADSs directly or indirectly through certain non-compliant intermediaries). However, under proposed Treasury regulations, such withholding will not apply to payments made before the date that is two years after the date on which final regulations defining the terms “foreign passthru payment” are enacted. The rules for the implementation of this legislation have not yet been fully finalized, so it is impossible to determine at this time what impact, if any, this legislation will have on holders of the shares and ADSs.
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CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS
This prospectus, including documents that are filed with the Securities and Exchange Commission (“SEC”) and incorporated by reference herein, and the related prospectus supplements may contain forward-looking statements that involve risks and uncertainties. These forward-looking statements are made pursuant to the “Safe Harbor” provisions of the United States Private Securities Litigation Reform Act of 1995. In some cases, we use words such as “ambition”, “continue”, “could”, “estimate”, “expect”, “believe”, “focus”, “likely”, “may”, “outlook”, “plan”, “strategy”, “will”, “guidance”, “targets”, “in line with”, consistent and similar expressions to identify forward-looking statements.
Forward-looking statements include all statements other than statements of historical fact, including, among others, statements regarding our plans, intentions, aims, ambitions and expectations with respect to the COVID-19 pandemic including its impacts, consequences and risks; our USD 3 billion action plan for 2020 to strengthen financial resilience; our response to the COVID-19 pandemic, including anticipated measures to protect people, operations and value creation, operating costs and assumptions; the commitment to develop as a broad energy company; future financial performance, including cash flow and liquidity; Equinor’s share buy-back programme, including its suspension and the redemption of the Norwegian State’s shares; accounting policies; production cuts, including their impact on the level and timing of our production; Norway’s petroleum tax system; market outlook and future economic projections and assumptions, including commodity price assumptions; organic capital expenditures through 2023; our intention to mature our portfolio; estimates regarding exploration activity levels; our ambition to keep unit of production cost in the top quartile of our peer group; scheduled maintenance activity and the effects on equity production thereof; expected amounts and timing of dividend payments; and provisions and contingent liabilities. You should not place undue reliance on forward-looking statements. Our actual results could differ materially from those anticipated in the forward-looking statements for many reasons, including the risks described above in “Risk Factors”, elsewhere in this prospectus, or in the risks described in Section 2.10 “Risk Review” and elsewhere in the 2019 Annual Report, which is incorporated by reference herein, or in the other documents we incorporate by reference herein.
These forward-looking statements reflect current views about future events and are, by their nature, subject to significant risks and uncertainties because they relate to events and depend on circumstances that will occur in the future. There are a number of factors that could cause actual results and developments to differ materially from those expressed or implied by these forward-looking statements, including levels of industry product supply, demand and pricing, in particular in light of oil price volatility triggered, among other things, by the changing dynamic among OPEC+ members and the uncertainty regarding demand created by the COVID-19 pandemic; the impact of COVID-19; levels and calculations of reserves and material differences from reserves estimates; unsuccessful drilling; operational problems; health, safety and environmental risks; natural disasters, adverse weather conditions, climate change, and other changes to business conditions; the effects of climate change; regulations on hydraulic fracturing; security breaches, including breaches of our digital infrastructure (cybersecurity); ineffectiveness of crisis management systems; the actions of competitors; the development and use of new technology, particularly in the renewable energy sector; inability to meet strategic objectives; the difficulties involving transportation infrastructure; political and social stability and economic growth in relevant areas of the world; an inability to attract and retain personnel; inadequate insurance coverage; changes or uncertainty in or non-compliance with laws and governmental regulations; the actions of the Norwegian state as majority shareholder; failure to meet our ethical and social standards; the political and economic policies of Norway and other oil-producing countries; non-compliance with international trade sanctions; the actions of field partners; adverse changes in tax regimes; exchange rate and interest rate fluctuations; factors relating to trading, supply and financial risk; general economic conditions and other factors discussed elsewhere in this prospectus, in the 2019 Annual Report or in the other documents we incorporate by reference herein.
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Although we believe that the expectations reflected in the forward-looking statements are reasonable, we cannot assure you that our future results, level of activity, performance or achievements will meet these expectations. Moreover, neither we nor any other person assumes responsibility for the accuracy and completeness of the forward-looking statements. Any forward-looking statement speaks only as of the date on which such statement is made, and, except as required by applicable law, we undertake no obligation to update such statements, whether to make them conform to actual results or changes in our expectations or otherwise. Additional information, including information regarding factors that may affect our business, is contained in the 2019 Annual Report filed with the SEC, which can be found on Equinor’s website at www.equinor.com and in the other documents we file with the SEC. See “Where You Can Find More Information About Us” below.
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This prospectus is part of a registration statement that we filed with the SEC utilizing a shelf registration process. Under this shelf process, we may sell any combination of the securities described in this prospectus in one or more offerings. This prospectus provides you with a general description of the securities we may offer. Each time we sell securities, we will provide one or more prospectus supplement that will contain specific information about the terms of those securities and their offering. The prospectus supplement may also add, update or change information contained in this prospectus. You should read both this prospectus and any accompanying prospectus supplement, together with the additional information described under the heading “Where You Can Find More Information About Us”, carefully before you invest.
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WHERE YOU CAN FIND MORE INFORMATION ABOUT US
We have filed with the SEC a registration statement on Form F-3 relating to the securities covered by this prospectus. This prospectus is a part of the registration statement and does not contain all the information in the registration statement. Whenever a reference is made in this prospectus to a contract or other document of ours, the reference is only a summary and you should refer to the exhibits that are a part of the registration statement for a copy of the contract or other document.
Equinor files annual and other reports with the SEC. The SEC allows us to incorporate by reference the information we file with them. This means that we can disclose important information to you by referring to documents. The information that we incorporate by reference is an important part of this prospectus. We incorporate by reference:
| • | the 2019 Annual Report, filed with the SEC on March 20, 2020; |
| • | the registration statement on Form 8-A containing a description of Equinor’s ordinary shares and American Depositary Shares, filed on June 12, 2001, and any amendment or report filed for the purpose of updating such description; |
| • | our report on Form 6-K dated April 1, 2020 (regarding rating actions, our $3 billion action plan to strengthen financial resilience in 2020 and the suspension of buy-backs under our share buy-back programme); and |
| • | our report on Form 6-K dated May 7, 2020 regarding our interim results for the three month period ended March 31, 2020. |
Finally, we incorporate by reference any future filings we make with the SEC under Sections 13(a), 13(c) or 15(d) of the Securities Exchange Act of 1934, as amended, until we complete the offerings using this prospectus, and our reports on Form 6-K furnished to the SEC after the date of this prospectus only to the extent that the forms expressly state that such we deem such reports to be filed and incorporate them by reference in this prospectus.
Information that we file with the SEC will automatically update and supersede information in documents filed with the SEC at earlier dates. All information appearing in this prospectus is qualified in its entirety by the information and financial statements, including the notes, contained in the documents that we incorporate by reference in this prospectus.
The SEC maintains an Internet site at http://www.sec.gov, from which interested persons can electronically access Equinor’s SEC filings, including the registration statement, of which this prospectus forms a part, and the exhibits and schedules thereto. In addition, you may request a copy of these filings, at no cost, by writing or telephoning Equinor at the following address:
EQUINOR ASA
Forusbeen 50, N-4035
Stavanger, Norway
Tel. No.: 011-47-5199-0000
or by going to Equinor’s Internet website at www.Equinor.com.
Equinor’s ordinary shares are listed on the Oslo Stock Exchange and its American depositary shares, representing ordinary shares of Equinor, are quoted on the New York Stock Exchange. You can consult reports and other information about Equinor that it has filed pursuant to the rules of the New York Stock Exchange and the Oslo Stock Exchange at those exchanges.
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Except for the documents specifically incorporated by reference into this prospectus, the information contained on, or that can be accessed through, these websites is not part of, and is not incorporated into, this prospectus supplement or the accompanying prospectus.
No person has been authorized to give any information or to make any representations other than those contained in this prospectus. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. This prospectus and any accompanying supplement to this prospectus do not constitute an offer to sell or the solicitation of an offer to buy any securities other than the registered securities to which they relate, nor do this prospectus and any prospectus supplement constitute an offer to sell or the solicitation of an offer to buy securities in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction. Neither the delivery of this prospectus or any prospectus supplement nor any sale made hereunder or thereunder shall, under any circumstances, create any implication that there has been no change in our affairs since the date hereof or thereof or that the information contained herein or therein is correct as of any time subsequent to the date of such information.
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ENFORCEABILITY OF CIVIL LIABILITIES
Equinor is a public limited company incorporated under the laws of the Kingdom of Norway. Equinor Energy is a limited company incorporated under the laws of the Kingdom of Norway. Many members of the board of directors and senior management of Equinor and Equinor Energy, and certain experts named in this prospectus, are residents of countries other than the United States. All or a substantial portion of the assets of each of Equinor and Equinor Energy and the assets of such individuals are located outside the United States. As a result, it may not be possible for you to effect service of process within the United States upon these persons or upon Equinor and Equinor Energy, or it may be difficult to enforce judgments obtained in U.S. courts based on the civil liability provisions of the U.S. securities laws against us. Furthermore, judgments of U.S. courts are generally not enforceable in Norway. We may comply with a U.S. judgment voluntarily, but, if we were not to do so, you would have to apply to a Norwegian court for an original judgment. Consequently, it could prove difficult to enforce civil liabilities solely based on U.S. securities law in Norway. In addition, awards of punitive damages in actions brought in the United States or elsewhere may not be enforceable in Norway.
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Equinor is a public limited company incorporated under the laws of the Kingdom of Norway with its registered office at Forusbeen 50, N-4035 Stavanger, Norway. Equinor’s telephone number is +47 51 99 00 00. Equinor’s registration number in the Norwegian Register of Business Enterprises is 923 609 016. Equinor was incorporated on September 18, 1972 under the name Den norske stats oljeselskap AS. In 2001, Equinor was listed on the Oslo and New York stock exchanges and became a public limited company under the name Statoil ASA. As of May 16, 2018, Equinor changed its name from Statoil ASA to Equinor ASA.
As of March 31, 2020, the Norwegian State owned a 67 percent direct interest in Equinor. The purpose of Equinor, as set out in its articles of association, is to engage in exploration, production, transportation, refining and marketing of petroleum and petroleum-derived products and other forms of energy as well as other business. Such activities may be carried out through participation in, or cooperation with, other companies.
Equinor is an international energy company primarily engaged in oil and gas exploration and production activities. In addition to being the leading operator on the Norwegian continental shelf (NCS), we have substantial international activities and is present in several of the most important oil and gas provinces in the world. We are the second-largest supplier of natural gas to the European market. Processing and refining are also part of our operations.
We have a strong renewable portfolio in production and are leveraging our core competencies in managing complex oil and gas projects when growing in offshore wind. By 2026, we expect to increase installed capacity from renewable projects to between 4 and 6 GW, Equinor share, mainly based on the current project portfolio. Towards 2035, we expect to increase installed renewables capacity further to between 12 and 16 GW, depending on availability of attractive project opportunities.
Our activities span operations in more than 30 countries and we employ approximately 21,412 employees worldwide.
You can find a more detailed description of our business in the 2019 Annual Report, which is incorporated by reference in this prospectus.
Equinor Energy is a wholly owned subsidiary of Equinor and was incorporated and registered as a limited company in the Kingdom of Norway on February 1, 2007. Equinor Energy’s registered office is at Forusbeen 50, N-4035 Stavanger, Norway, and its telephone number is +47 51 99 00 00. Equinor Energy’s registration number in the Norwegian Register of Business Enterprises is 990 888 213. As of May 16, 2018, Equinor Energy changed its name from Statoil Petroleum AS to Equinor Energy AS.
The object of Equinor Energy, as set out in its articles of association, is to engage in exploration, production, transportation, refining and marketing of petroleum and petroleum-derived products, to extend financial assistance to other group companies, act as co-debtor for debt or under loan facilities entered into by Equinor as well as other business. Such activities may be carried out through participation in, or cooperation with, other companies. Equinor Energy is the owner of a considerable portion of the assets of the Equinor group (including licences, production plants and transportation systems and shareholdings in several international subsidiaries). Its main revenues are derived from the sale of crude oil and natural gas. Equinor Energy has no employees and is controlled and operated through the business lines of Equinor.
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Equinor US Capital LLC is a wholly owned indirect subsidiary of Equinor and a wholly owned direct subsidiary of Equinor US Holdings Inc. and was organized as a limited liability company under the laws of Delaware on February 21, 2020. The principal executive offices of Equinor Capital are located at 120 Long Ridge Road, Suite 3E01, Stamford, CT 06902, United States and its telephone number is (203) 978-6900.
Equinor Capital is a financing vehicle for Equinor and has no operating history. Equinor Capital has no independent operations, other than raising debt for use by the Equinor group, hedging such debt when appropriate and on-lending funds raised to companies in the Equinor group. Equinor Capital will lend substantially all proceeds of its borrowings to Equinor US Holdings Inc. The debt securities Equinor Capital may issue under this prospectus will be fully and unconditionally guaranteed by Equinor and Equinor Energy as to payment of principal, premium (if any), interest and any other amounts due.
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Unless otherwise indicated in an accompanying prospectus supplement, the net proceeds from the sale of securities will be used for general corporate purposes, which may include working capital, the repayment of existing debt (including debt incurred in connection with acquisitions) or the financing of acquisitions.
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CAPITALIZATION AND INDEBTEDNESS
The following table sets forth our current and long-term finance debt and total capitalization as at March 31, 2020.
| As at USD |
||||
| Current finance debt |
5,608 | |||
| Non-current finance debt(1)(2) |
22,912 | |||
| Unsecured |
22,912 | |||
| Secured |
— | |||
| Non-controlling interests: |
19 | |||
| Shareholders’ equity: |
36,327 | |||
| Share capital |
1,185 | |||
| Additional paid-in capital |
7,729 | |||
| Retained earnings |
36,853 | |||
| Currency translation adjustments |
(9,439 | ) | ||
| OCI from equity accounted investments |
— | |||
| Total equity |
36,346 | |||
| Total finance debt and shareholders’ equity |
64,866 | |||
| (1) | Does not reflect the following: (i) $5,000 million aggregate principal amount of notes of Equinor guaranteed by Equinor Energy issued on April 6, 2020, (ii) €1,750 million aggregate principal amount of notes of Equinor guaranteed by Equinor Energy issued on May 22, 2020 under Equinor’s Medium Term Notes programme and (iii) $1,500 million aggregate principal amount of notes of Equinor guaranteed by Equinor Energy issued on May 22, 2020. |
| (2) | $20,086 million of the $22,912 million Non-current finance debt is guaranteed by Equinor Energy and $2,826 million is unguaranteed. |
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DESCRIPTION OF DEBT SECURITIES AND GUARANTEES
This prospectus relates to, among other securities, debt securities issued by Equinor or Equinor Capital. As required by U.S. federal law for all bonds and notes of companies that are publicly offered, the debt securities are governed by documents called indentures.
The indenture relating to debt securities issued by Equinor is a contract among Equinor, as issuer and Equinor Energy, as guarantor, and Deutsche Bank Trust Company Americas, as trustee. The indenture, entered into on April 15, 2009, as amended and supplemented is referred to as the “Equinor indenture”. In particular, on September 10, 2018, we and the trustee entered into a supplemental indenture to the indenture to provide that debt securities issued under the Equinor indenture on and after such date shall not benefit from a negative pledge or limitation on sale and leaseback transactions. On November 18, 2019, we and the trustee entered into a supplemental indenture to, among other things, modify Article Eight of the Equinor indenture to reflect the terms described under “—Special Situations—Mergers and Similar Events; Issuer Substitution” below and to reflect the guarantor release provisions described under “—Guarantees” below. Such changes do not apply to series of debt securities created under the Equinor indenture prior to the date of the applicable supplemental indenture.
The form of indenture relating to debt securities issued by Equinor Capital is a form contract among Equinor Capital, as issuer, Equinor and Equinor Energy, as guarantors, and a trustee. This indenture, as it may be amended and supplemented, is referred to as the “Equinor Capital indenture”.
As you read this section, please remember that the specific terms of a series of debt securities as described in the accompanying prospectus supplement will supplement and, if applicable, may modify or replace the general terms described in this section. If there are any differences between the applicable prospectus supplement and this prospectus, the applicable prospectus supplement will control. Accordingly, the statements we make in this section may not apply to your debt security.
This section summarizes the material provisions of the indentures, the debt securities and the guarantees. However, because it is a summary, it does not describe every aspect of the indentures, the debt securities and the guarantees. This summary is subject to and qualified in its entirety by reference to the applicable indenture, each of which is incorporated herein by reference. The indentures and associated documents contain the full legal text of the matters described in this section. The indentures, the debt securities and the guarantees are governed by New York law. A copy of the Equinor indenture and a form of the Equinor Capital indenture are filed with the SEC as exhibits to the registration statement on Form F-3 of which this prospectus is a part. See “Where You Can Find More Information About Us” for information on how to obtain copies of these documents.
This summary also is subject to and qualified by reference to the description of the particular terms of your series described in the prospectus supplement. This section summarizes all material terms of the debt securities that are common to all series, unless otherwise indicated in the prospectus supplement relating to a particular series.
Each Equinor debt issuer may issue as many distinct series of debt securities under the applicable indenture as it wishes. Each Equinor debt issuer may also from time to time without the consent of the holders of the debt securities issued under the applicable indenture create and issue further debt securities having the same terms and conditions as debt securities of an already issued series under such indenture so that the further issue is consolidated and forms a single series with that series.
Amounts That We May Issue
The indentures do not limit the aggregate amount of debt securities that we may issue or the number of series or the aggregate amount of any particular series. Each Equinor debt issuer may issue debt securities and other securities at any time without your consent and without notifying you.
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Principal Amount, Stated Maturity and Maturity
The principal amount of a series of debt securities means the principal amount payable at its stated maturity, unless that amount is not determinable, in which case the principal amount of a debt security is its face amount. Any debt securities owned by us or any of our affiliates are not deemed to be outstanding.
The term “stated maturity” with respect to any debt security means the day on which the principal amount of your debt securities is scheduled to become due. The principal may become due sooner, by reason of redemption or acceleration after a default or otherwise in accordance with the terms of your debt securities. The day on which the principal actually becomes due, whether at the stated maturity or earlier, is called the “maturity” of the principal.
We also use the terms “stated maturity” and “maturity” to refer to the days when other payments become due. For example, we may refer to a regular interest payment date when an installment of interest is scheduled to become due as the “stated maturity” of that installment. When we refer to the “stated maturity” or the “maturity” of a debt security without specifying a particular payment, we mean the stated maturity or maturity, as the case may be, of the principal.
Form of Debt Securities
We will issue debt securities in global (book-entry) form only, unless specified otherwise in the applicable prospectus supplement. Debt securities in book-entry form will be represented by a global security registered in the name of a depositary, which will be the holder of all the debt securities represented by the global security. Those who own beneficial interests in a global debt security will do so through participants in the depositary’s securities clearance system, and the rights of these indirect owners will be governed solely by the applicable procedures of the depositary and its participants. We generally will not recognize investors who hold securities in accounts at banks or brokers (i.e., in street name) as legal holders of securities. When we refer to the holders of securities, we mean only the actual legal and (if applicable) record holders of those securities. In the remainder of this description, “you” means direct holders and not street name or other indirect holders of securities.
In a few special situations described below, the global security will terminate and interests in it will be exchanged for physical certificates representing securities. These special situations are:
| • | When the depositary (i) notifies the applicable Equinor debt issuer, that it is unwilling, unable or no longer qualified to continue as depositary or (ii) has ceased to be a clearing agency registered under the U.S. Securities Exchange Act of 1934 (the “Exchange Act”), or |
| • | When an event of default on the securities has occurred and has not been cured. Defaults on debt securities are discussed below under “—Default and Related Matters—Events of Default”. |
The prospectus supplement may also list additional situations for terminating a global security that would apply only to the particular series of securities covered by the prospectus supplement. When a global security terminates, the depositary, and not we or the trustee, is responsible for deciding the names of the institutions that will be the initial direct holders.
In addition, we will generally issue each debt security in registered form, without coupons, unless specified otherwise in the applicable prospectus supplement.
Types of Debt Securities
We may issue fixed rate debt securities, variable rate debt securities or indexed debt securities. A debt security may have elements of each of these three types of debt securities. For example, a debt security may bear interest at a fixed rate for some periods and at a variable rate in others. Similarly, a debt security may provide for a payment of principal at maturity linked to an index and also bear interest at a fixed or variable rate.
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Interest
Each series of fixed rate debt securities will bear interest from their original issue date or from the most recent date to which interest on the debt securities have been paid or made available for payment. Interest will accrue on the principal of a series of fixed rate debt securities at the fixed yearly rate stated in the applicable prospectus supplement, until the principal is paid or made available for payment or the debt securities are converted or exchanged. Each payment of interest due on an interest payment date or the date of maturity will include interest accrued from and including the last date to which interest has been paid, or made available for payment, or from the issue date if none has been paid or made available for payment, to but excluding the interest payment date or the date of maturity. Interest on a series of fixed rate debt securities will be computed on the basis of a 360-day year of twelve 30-day months, unless the applicable prospectus supplement provides that the interest will be computed on a different basis. The applicable Equinor debt issuer will pay interest on each interest payment date and at maturity as described below under “—Additional Mechanics—Payment and Paying Agents”.
Original Issue Discount Debt Securities
A debt security may be an original issue discount debt security. A series of debt securities of this type is issued at a price lower than its principal amount and provides that, upon redemption or acceleration of its maturity, an amount less than its principal amount will be payable. A debt security issued at a discount to its principal may, for U.S. federal income tax purposes, be considered an original issue discount debt security, regardless of the amount payable upon redemption or acceleration of maturity. See “Taxation—United States Taxation of Debt Securities—United States Holders—Original Issue Discount” for a brief description of the U.S. federal income tax consequences of owning an original issue discount debt security.
Information in the Prospectus Supplement
The specific financial, legal and other terms particular to a series of debt securities are described in the prospectus supplement and the pricing agreement relating to the series. Those terms may vary from the terms described here. Accordingly, this summary also is subject to and qualified by reference to the description of the terms of the series of debt securities described in the prospectus supplement.
The prospectus supplement relating to a series of debt securities will, to the extent applicable, describe the following terms of the series:
| • | which of the Equinor debt issuers is the issuer of the debt securities; |
| • | the title of the series of debt securities; |
| • | the issue price; |
| • | the person to whom any interest on a security of the series will be payable if other than the person in whose name the security is registered; |
| • | any limit on the aggregate principal amount of the series of debt securities; |
| • | any stock exchange on which we will list the series of debt securities; |
| • | the date or dates on which we will pay the principal of the series of debt securities; |
| • | the ranking of the debt securities; |
| • | whether the series of debt securities are fixed rate debt securities, variable rate debt securities or indexed debt securities; |
| • | the interest rate at which the debt securities will bear interest, if any, and the interest payment dates; |
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| • | the place where any amounts due will be payable and where this series of debt securities can be registered, transferred, exchanged or converted as well as the place where any notices or demands for this series of debt securities may be served; |
| • | any mandatory or optional sinking funds or analogous provisions or provisions for redemption at the option of the holder; |
| • | the period within which the price or prices at which the series of debt securities may, in accordance with any optional or mandatory redemption provisions that are not described in this prospectus, be redeemed by us and the other detailed terms and provisions of those optional or mandatory redemption provisions, if any; |
| • | the denominations in which the series of debt securities will be issuable if in other than denominations of $1,000 and any integral multiple of $1,000; |
| • | the currency of payment of principal, premium, if any, and interest on the series of debt securities if other than the currency of the United States of America and the manner of determining the equivalent amount in the currency of the United States of America; |
| • | if any payment on the debt securities of that series will be made, at our option or your option, in any currency other than in the currency in which the debt securities state that they will be payable, the terms and conditions regarding how that election shall be made; |
| • | if less than the entire principal amount is payable upon a declaration of acceleration of the maturity, that portion of the principal which is payable; |
| • | the applicability of the provisions described later under “—Defeasance and Discharge”; |
| • | if we may issue without your consent debt securities having the same terms and conditions as debt securities of an already issued series; |
| • | if the series of debt securities will be issuable in whole or part in the form of a global security, the form of any legends to be borne by such global security, the depositary or its nominee with respect to the series of debt securities, and any special circumstances under which the global security may be registered for transfer or exchange in the name of a person other than the depositary or its nominee; |
| • | whether additional amounts will be payable as described later under “—Payment of Additional Amounts” and, if applicable, a related right to an optional tax redemption for such a series; |
| • | the forms of the debt securities of the series and the guarantees endorsed on them; |
| • | any changes in the covenants and the events of default described later under “Default and Related Matters—Events of Default”; |
| • | any special U.S. federal income tax considerations relating to the series of debt securities; |
| • | the names and duties of any co-trustees, depositaries, authenticating agents, paying agents, transfer agents or registrars for the series of debt securities, as applicable; |
| • | any additional covenants to which we will be subject with respect to the debt securities of any series; and |
| • | any other special features of the series of debt securities. |
Guarantees
Equinor fully and unconditionally guarantees the payment of the principal of, premium, if any, and interest on the debt securities issued by Equinor Capital, including additional amounts, as described under “—Payment of Additional Amounts”, if any, and sinking fund payments, if any, which may be payable in respect of the debt securities issued by Equinor Capital. Equinor guarantees the payment of such amounts when such amounts become due and payable, whether at the stated maturity of the debt securities, by declaration of acceleration, call for redemption or otherwise.
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Equinor Energy fully and unconditionally guarantees the payment of the principal of, premium, if any, and interest on the debt securities issued by the applicable Equinor debt issuer, including additional amounts, as described under “—Payment of Additional Amounts”, if any, and sinking fund payments, if any, which may be payable in respect of the debt securities issued by such Equinor debt issuer. Equinor Energy guarantees the payment of such amounts when such amounts become due and payable, whether at the stated maturity of the debt securities, by declaration of acceleration, call for redemption or otherwise.
Equinor Energy will automatically and unconditionally be released from all obligations under its guarantees and the guarantees shall thereupon terminate and be discharged of no further force or effect, in the event that at substantially the same time as its guarantee of the debt securities is terminated, the aggregate amount of indebtedness for borrowed money for which Equinor Energy is an obligor (as a guarantor, co-issuer or borrower) does not exceed 10% of the aggregate principal amount of indebtedness for borrowed money of Equinor and its subsidiaries, on a consolidated basis, as of such time. For purposes of this paragraph, the amount of Equinor Energy’s indebtedness for borrowed money shall not include (x) any other debt the terms of which permit the termination of Equinor Energy’s guarantee of such debt under similar circumstances (including all debt issued under the Equinor indenture on or after November 18, 2019 and all debt issued under the Equinor Capital indenture), as long as Equinor Energy’s obligations in respect of such other debt are terminated at substantially the same time as its guarantee of the debt securities, and (y) any debt that is being refinanced at substantially the same time that the guarantee of the debt securities is being released, provided that any obligations of Equinor Energy in respect of the debt that is incurred in the refinancing shall be included in the calculation of Equinor Energy’s indebtedness for borrowed money.
Modification and Waiver
There are three types of changes we can make to the indentures and the debt securities.
Changes Requiring Your Approval. First, there are changes that cannot be made to your debt securities without your specific approval. Following is a list of those types of changes:
| • | change the stated maturity of the principal, or any installment of principal or interest on a debt security; |
| • | reduce any principal amounts or the rate of interest on a debt security or any premium due on a debt security; |
| • | change any of our obligations to pay additional amounts described later under “—Payment of Additional Amounts”; |
| • | reduce the amount of principal payable upon acceleration of the maturity of an original issue discount security or any other debt security following a default; |
| • | change the place or currency of payment on a debt security; |
| • | impair your right to sue for payment; |
| • | reduce the percentage of holders of debt securities whose consent is needed to modify or amend the applicable indenture; |
| • | reduce the percentage of holders of debt securities whose consent is needed to waive compliance with various provisions of the applicable indenture or to waive various defaults; |
| • | modify any other aspect of the provisions dealing with modification and waiver of the applicable indenture, unless to provide that additional provisions of the indenture cannot be modified or waived without your consent; and |
| • | modify or affect in any manner adverse to you the obligations of a guarantor that relate to the payment of principal, premium and interest and sinking fund payments. |
Changes Requiring a Majority Vote. The second type of change to the indentures and the debt securities is the kind that requires a vote in favor by holders of debt securities owning not less than a majority of the principal
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amount of the outstanding securities of the particular series affected. Most changes fall into this category, except for clarifying changes and other changes that would not adversely affect holders of the debt securities in any material respect. The same vote would be required for us to obtain a waiver of a past default. However, we cannot obtain a waiver of a payment default or any other aspect of the applicable indenture or the debt securities listed in the first category described previously under “—Changes Requiring Your Approval” unless we obtain your individual consent to the waiver.
Changes Not Requiring Approval. The third type of change does not require any vote by holders of debt securities. This type is limited to clarifications and other changes that would not adversely affect holders of the debt securities in any material respect.
Further Details Concerning Voting. When taking a vote, we will use the following rules to decide how much principal amount to attribute to a security:
| • | for original issue discount securities, we will use the principal amount that would be due and payable on the voting date if the maturity of the debt securities were accelerated to that date because of a default; |
| • | for debt securities whose principal amount is not known (for example, because it is based on an index), we will use a special rule for that security described in the prospectus supplement; |
| • | for debt securities denominated in one or more foreign currencies or currency units, we will use the U.S. dollar equivalent; |
| • | debt securities will not be considered outstanding, and therefore not eligible to vote, if we have deposited or set aside in trust for you money for their payment or redemption. Debt securities will also not be eligible to vote if they have been fully defeased as described later under “—Defeasance and Discharge”; and |
| • | we will generally be entitled to set any day as a record date for the purpose of determining the holders of outstanding debt securities that are entitled to vote or take other action under the applicable indenture. In limited circumstances, the trustee will be entitled to set a record date for action by holders. If we or the trustee set a record date for a vote or other action to be taken by holders of a particular series, that vote or action may be taken only by persons who are holders of outstanding debt securities of that series on the record date and must be taken within 180 days following the record date or another period that we may specify (or as the trustee may specify, if it set the record date). We may shorten or lengthen (but not beyond 180 days) this period from time to time. |
Street name and other indirect holders should consult their banks or brokers for information on how approval may be granted or denied if we seek to change an indenture or the debt securities or request a waiver.
Redemption and Repayment
Unless otherwise indicated in the applicable prospectus supplement, a series of debt securities will not be entitled to the benefit of any sinking fund. This means we will not deposit money on a regular basis into any separate custodial account to repay a series of debt securities. In addition, we will not be entitled to redeem a series of debt securities before their stated maturity, other than as described below under “—Special Situations—Optional Tax Redemption”, unless the applicable prospectus supplement specifies a redemption commencement date. You will not be entitled to require us to buy your debt securities from you before their stated maturity unless the prospectus supplement specifies one or more repayment dates.
If we exercise an option to redeem any debt securities, we will give to the holder written notice of the principal amount of the debt securities to be redeemed, not less than 30 days nor more than 60 days before the applicable redemption date.
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Optional Tax Redemption
We may have the option to redeem the debt securities in the two situations described below.
The first situation is where, as a result of changes in or amendment to, or changes in the official application or interpretation of, any laws or regulations or rulings, or changes in the official application or interpretation of, or any execution of or amendment to, any treaties, the applicable Equinor debt issuer or a guarantor would be required to pay additional amounts as described later under “—Payment of Additional Amounts”.
This applies only in the case of changes, executions or amendments that become effective on or after the date specified in the prospectus supplement for the applicable series of debt securities and in the jurisdiction where such Equinor debt issuer or guarantor is incorporated, organized or tax resident. If the applicable Equinor debt issuer or guarantor is succeeded by another entity, the applicable jurisdiction will be the jurisdiction in which such successor entity is incorporated, organized or tax resident, and the applicable date will be the date the entity became a successor.
The applicable Equinor debt issuer or guarantor would not have the option to redeem in this case if we could have avoided the payment of additional amounts or the deduction or withholding by using reasonable measures available to it.
The second situation is where, following a merger, consolidation, sale or lease of Equinor’s assets to a person that assumes its obligations on the debt securities, that person is required to pay additional amounts as described later under “—Payment of Additional Amounts”. The applicable Equinor debt issuer, or the other person, would have the option to redeem the debt securities in this situation even if the additional amounts became payable immediately upon completion of the merger or sale transaction, including in connection with an internal corporate reorganization. Neither we nor that person have any obligation under the indentures to seek to avoid the obligation to pay additional amounts in this situation.
Payment of Additional Amounts
The government or any political subdivision or taxing authority of such government of any jurisdiction where the applicable Equinor debt issuer or a guarantor is incorporated, organized or tax resident may require such Equinor debt issuer or guarantor to withhold amounts from payments on the principal or interest on a debt security or payment under the guarantees for taxes, assessments or any other governmental charges. If any such jurisdiction requires a withholding of this type, we may be required to pay you additional amounts so that the net amount you receive will be the amount specified in the debt security to which you are entitled. However, in order for you to be entitled to receive the additional amount, you must not be resident in the jurisdiction that requires the withholding.
We will not have to pay additional amounts under any or any combination of the following circumstances:
| • | The tax, assessment or governmental charge would not have been imposed but for the fact that holder, or a fiduciary, settlor, beneficiary or member or shareholder of, or possessor of a power over, the holder, if the holder is an estate, trust, partnership or corporation, was or is connected to the taxing jurisdiction, other than by merely holding the debt security or receiving principal or interest in respect thereof. These connections include where the holder or related party is or has been a citizen or resident of the jurisdiction; is or has been present or engaged in trade or business in the jurisdiction; or has or had a permanent establishment in the jurisdiction. |
| • | The tax, assessment or governmental charge is on account of an estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge. |
| • | The tax, assessment or governmental charge is for a tax or governmental charge that is payable in a manner that does not involve withholding. |
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| • | The tax, assessment or governmental charge is imposed or withheld because the holder or beneficial owner failed to comply with any of our following requests: |
| • | to provide information about the nationality, residence or identity of the holder or beneficial owner, or |
| • | to make a declaration or other similar claim or satisfy any information or reporting requirements, in either case, that the statutes, treaties, regulations or administrative practices of the taxing jurisdiction require as a precondition to exemption from all or part of such tax, assessment or governmental charge. |
| • | The tax, assessment or governmental charge is imposed on a holder or beneficial owner who could have avoided such withholding or deduction by presenting its debt securities for payment, if presentation is required, to different paying agent. |
| • | The holder is a fiduciary, partnership or other entity that is not the sole beneficial owner of the payment of the principal of, or any interest on, any debt security, and the laws of the jurisdiction (or any political subdivision or taxing authority thereof or therein) require the payment to be included in the income of a beneficiary or settlor for tax purposes with respect to such fiduciary, a member of such partnership or a beneficial owner who would not have been entitled to such additional amounts had such beneficiary, settlor, member or beneficial owner been the holder of such security. |
Notwithstanding anything to the contrary under this Section “—Payment of Additional Amounts”, no Equinor debt issuer or guarantor (nor any paying agent or any other person) shall be required to pay any additional amounts with respect to any withholding or deduction imposed on or in respect of any debt security pursuant to Section 1471-1474 of the United States Internal Revenue Code (the “Code”) (and any current and future regulations or official interpretations thereof) (“FATCA”), the laws of Norway implementing FATCA or any agreement between such Equinor debt issuer or guarantor and any taxing or governmental authority entered into for FATCA purposes.
These provisions will also apply to any present or future taxes, assessments or governmental charges imposed by any jurisdiction in which a successor of the applicable Equinor debt issuer or guarantor is organized or incorporated. The prospectus supplement relating to the debt securities may describe additional circumstances in which we would not be required to pay additional amounts.
Under the Equinor Capital indenture, the foregoing provisions regarding additional amounts will not apply to any guarantor at any time when such guarantor is incorporated or organized in a jurisdiction in the United States, and will apply to the issuer under that indenture only any time it is incorporated or organized in a jurisdiction outside of the United States.
Covenants
The indentures do not contain any covenants restricting our ability to make payments, dispose of assets, issue and sell capital stock, enter into transactions with affiliates, create or incur liens on our property or engage in business other than our present business, except as described under “—Special Situations—Mergers and Similar Events”. A particular series of debt securities, however, may contain restrictive covenants of this type, which we will describe in the applicable prospectus supplement.
Defeasance and Discharge
Full Defeasance
The following discussion of full defeasance and discharge and covenant defeasance and discharge will be applicable to your series of debt securities only if we choose to have them apply to that series. If we do so choose, we will state that in the prospectus supplement.
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An Equinor debt issuer can legally release itself from any payment or other obligations on the debt securities, except for various obligations described below, if it, in addition to other actions, puts in place the following arrangements for you to be repaid:
| • | It must deposit in trust for your benefit and the benefit of all other direct holders of the applicable series of debt securities a combination of money and U.S. government or U.S. government agency notes or bonds that will generate enough cash to make interest, principal and any other payments on such series of debt securities on their various due dates. |
| • | It must deliver to the trustee a legal opinion of counsel confirming that as a result of a change in U.S. federal income tax law it may make the above deposit without causing you to be taxed on the debt securities any differently than if it did not make the deposit and just repaid the debt securities ourselves or stating that it has received from, or there has been published by, the U.S. Internal Revenue Service a ruling that states the same conclusion. |
| • | If the debt securities or applicable series of debt securities are listed on a securities exchange, it must deliver to the trustee a legal opinion of counsel confirming that the deposit, defeasance and discharge will not cause the debt securities or applicable series of debt securities to be delisted. |
However, even if an Equinor debt issuer takes these actions, a number of its obligations relating to the debt securities will remain. These include the following obligations:
| • | to register the transfer and exchange of debt securities; |
| • | to replace mutilated, destroyed, lost or stolen debt securities; |
| • | to maintain paying agencies; and |
| • | to hold money for payment in trust. |
Covenant Defeasance
An Equinor debt issuer can be legally released from compliance with certain covenants if, in addition to other actions, we take all the steps described above under “—Defeasance and Discharge” except that the opinion of counsel does not have to refer to a change in United States federal income tax laws or a ruling from the United States Internal Revenue Service. If an Equinor debt issuer accomplishes covenant defeasance, you can still look to it for repayment of the debt securities if there is a shortfall in the trust deposit.
Default and Related Matters
Ranking
The debt securities are not secured by any of our property or assets. Accordingly, your ownership of debt securities means you are one of the unsecured creditors of the applicable Equinor debt issuer. The debt securities may or may not be subordinated to any of our other debt obligations as indicated in the applicable prospectus supplement. If they not subordinated, the debt securities will rank with all other unsecured and unsubordinated indebtedness of the applicable Equinor debt issuer.
Events of Default
You will have special rights if an event of default occurs and is not cured, as described later in this subsection.
What Is an Event of Default? The term event of default means any of the following:
| • | The applicable Equinor debt issuer does not pay interest on a debt security within 30 days of its due date. |
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| • | The applicable Equinor debt issuer does not pay the principal or any premium on a debt security on its due date. |
| • | The applicable Equinor debt issuer does not deposit any sinking fund payment on its due date or within any applicable grace period. |
| • | The applicable Equinor debt issuer remains in breach of any covenant or any other term of the indenture for 90 days after it receives a notice of default stating it is in breach. The notice must be sent by either the trustee or holders of at least 25 percent of the principal amount of debt securities of the affected series. |
| • | The applicable Equinor debt issuer or a guarantor files for bankruptcy or certain other events in bankruptcy, insolvency or reorganization occur. |
| • | Any other event of default provided with respect to securities of that series. |
Remedies If an Event of Default Occurs. If an event of default has occurred and has not been cured, the trustee or the holders of not less than 25 percent in principal amount of the outstanding debt securities of the affected series may declare the entire principal amount of all the debt securities of that series (or, if any debt securities of that series are original issue discount securities, such portion of the principal amount of such securities as may be specified by the terms thereof) to be due and immediately payable, by a notice in writing to the applicable Equinor debt issuer (and to the trustee if given by the holders). This is called a declaration of acceleration of maturity. A declaration of acceleration of maturity may be canceled by the holders of at least a majority in principal amount of the outstanding debt securities of the affected series if certain conditions are met.
Except in cases of default, where the trustee has some special duties, the trustee is not required to take any action under the applicable indenture at the request of any holders unless the holders offer the trustee reasonable protection from costs, expenses and liability. This protection is called an indemnity. If reasonable indemnity is provided, the holders of a majority in principal amount of the outstanding debt securities of any series may direct the time, method and place of conducting any proceeding seeking any remedy available to the trustee. These majority holders may also direct the trustee in performing any other action under the applicable indenture. The trustee may decline to follow any such direction if the trustee in good faith determines that the proceeding so directed would involve the trustee in personal liability.
Before you bypass the trustee and bring your own lawsuit or other formal legal action or take other steps to enforce your rights or protect your interests relating to the debt securities, the following must occur:
| • | The trustee must be given written notice that an event of default has occurred and remains uncured. |
| • | The holders of not less than 25 percent in principal amount of all outstanding debt securities of the relevant series must make a written request that the trustee institute proceedings because of the default, and must offer reasonable indemnity to the trustee against the costs, expenses and liabilities of taking such request. |
| • | The trustee must have not taken action for 60 days after receipt of the above notice, request and offer of indemnity. |
| • | No direction inconsistent with such written request has been given to the trustee during such 60-day period by the holders of the majority in principal amount of the outstanding securities of that series. |
| • | However, you are entitled at any time to bring a lawsuit for the payment of money due on your security on or after its due date. |
Street name and other indirect holders should consult their banks or brokers for information on how to give notice or direction to or make a request of the trustee and to make or cancel a declaration of acceleration.
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The applicable Equinor debt issuer will furnish to the trustee every year a written statement of certain of its officers and directors certifying that, to their knowledge, the applicable Equinor debt issuer is in compliance with the indenture and the debt securities, or else specifying any default.
Special Situations
Mergers and Similar Events; Issuer Substitution
The Equinor debt issuers and guarantors are generally permitted to consolidate or merge with another company or firm. The Equinor debt issuers and guarantors are also permitted to sell or lease substantially all of their assets to another firm or to buy or lease substantially all of the assets of another firm. However, none of the Equinor debt issuers or guarantors may (i) consolidate or merge with another person (except that under the Equinor Capital indenture, Equinor Capital may consolidate with Equinor or Equinor Energy) or (ii) sell or lease substantially all of its and its subsidiaries’ assets, in each case taken as a whole, to another person (other than one or more of Equinor’s direct or indirect wholly owned subsidiaries), whether such sale or lease is made directly or indirectly through one or more wholly owned subsidiaries holding such assets or a portion thereof, or (iii) buy or lease substantially all of the assets of another person (other than a direct or indirect wholly owned subsidiary of Equinor), unless all the following conditions, among others, are met
| • | Where such Equinor debt issuer merges out of existence or sells or leases substantially all of its assets, the other person must assume such Equinor debt issuer’s or guarantor’s obligations on the debt securities or the guarantee of the debt securities, as applicable, and under the applicable indenture. The other person’s assumption of these obligations must include the obligation to pay additional amounts described under “—Payment of Additional Amounts” with respect to taxes, assessments and other governmental charges imposed by its jurisdiction of incorporation, organization or tax residency; and |
| • | The merger, sale or lease of assets or other transaction must not cause a default on the debt securities, and neither the applicable Equinor debt issuer nor a guarantor already is in default, unless the merger or other transaction would cure the default. For purposes of this no-default test, a default would include an event of default that has occurred and not been cured, as described under “—Default and Related Matters—Events of Default—What is an Event of Default?” above. A default for this purpose would also include any event that would be an event of default if the requirements for giving us default notice or the default having to exist for a specific period of time were disregarded. |
In addition, under the Equinor indenture, Equinor is permitted to transfer its obligations, as issuer of the debt securities of any series, to any subsidiary, so long as (i) that subsidiary executes a supplemental indenture in which it agrees to be bound by the terms of such debt securities and the Equinor indenture, including the obligation to pay additional amounts described under “—Payment of Additional Amounts” with respect to taxes, assessments and other governmental charges imposed by its jurisdiction of incorporation, organization or tax residency and (ii) the obligations of that subsidiary are fully and unconditionally guaranteed by Equinor on the same terms as Equinor Energy’s guarantee of such debt securities. If that subsidiary is not incorporated in the Kingdom of Norway, United States or United Kingdom, the country in which it is incorporated must be a member of the Organization for Economic Cooperation and Development (or any successor). The provisions of the Equinor indenture with respect to consolidation, merger or sale or lease of assets will continue to apply to Equinor in its capacity as guarantor of the debt securities of the applicable series.
Under the Equinor Capital indenture, Equinor Capital is permitted to transfer its obligations, as issuer of the debt securities of any series, to Equinor or to any subsidiary of Equinor, so long as Equinor or that subsidiary executes a supplemental indenture in which it agrees to be bound by the terms of such debt securities and the Equinor indenture, including the obligation to pay additional amounts described under “—Payment of Additional Amounts” with respect to taxes, assessments and other governmental charges imposed by its jurisdiction of incorporation, organization or tax residency. If that subsidiary is not incorporated in the Kingdom of Norway, United States or United Kingdom, the country in which it is incorporated must be a member of the
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Organization for Economic Cooperation and Development (or any successor). If Equinor assumes the obligations of Equinor Capital in respect of any debt securities and under the Equinor Capital indenture, the guarantee of Equinor with respect to such debt securities shall terminate without any requirement that any action be taken by Equinor Capital, Equinor or the trustee.
Under U.S. tax law, the change in the obligor on the debt securities of any series could be treated as a disposition of such debt securities that you hold, resulting in your realization of gain or loss on such debt securities even though you continue to hold the debt securities and receive no distribution in connection with the deemed disposition. A change in the obligor might also result in possible other adverse tax consequences. See “Taxation” for discussion of possible tax consequences.
No vote by holders of the debt securities approving any of these actions is required, unless as part of the transaction we make changes to the applicable indenture requiring your approval, as described under “—Modification and Waiver”. We may take these actions as part of a transaction involving outside third parties or as part of an internal corporate reorganization. We may take these actions even if they result in a lower credit rating being assigned to the debt securities of the applicable series or additional amounts becoming payable in respect of withholding tax and the debt securities of the applicable series thus being subject to the optional redemption described under “—Optional tax redemption”.
Additional Mechanics
Form, Exchange and Transfer
You may have your debt securities broken into more debt securities of smaller denominations or combined into fewer debt securities of larger denominations, as long as the total principal amount is not changed. This is called an exchange.
You may exchange or transfer registered debt securities at the office of the trustee. The trustee acts as our agent for registering debt securities in the names of holders and transferring registered debt securities. We may change this appointment to another entity or perform the service ourselves. The entity performing the role of maintaining the list of registered holders is called the security registrar. It will also register transfers of the registered debt securities.
You will not be required to pay a service charge for registering a transfer or exchange debt securities, but you may be required to pay for any tax or other governmental charge associated with the registration of the exchange or transfer. The transfer or exchange of a registered debt security will only be made if the security registrar is satisfied with your proof of ownership.
If we have designated additional transfer agents, they are named in the prospectus supplement. We may cancel the designation of any particular transfer agent. We may also approve a change in the office through which any transfer agent acts.
If the debt securities are redeemable and we redeem less than all of the debt securities of a particular series, we may block the transfer or exchange of debt securities during a specified period of time in order to freeze the list of holders to prepare the mailing. The period begins 15 days before the day we mail the notice of redemption and ends on the day of that mailing. We may also refuse to register transfers or exchanges of debt securities selected for redemption. However, we will continue to permit transfers and exchanges of the unredeemed portion of any security being partially redeemed.
Payment and Paying Agents
We will pay interest to you if you are a direct holder listed in the trustee’s records at the close of business on a particular day in advance of each due date for interest, even if you no longer own the security on the interest due date. That particular day, usually about two weeks in advance of the interest due date, is called the regular record date and is stated in the applicable prospectus supplement.
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Holders buying and selling debt securities must work out between them how to compensate for the fact that we will pay all the interest for an interest period to the one who is the registered holder on the regular record date. The most common manner is to adjust the sales price of the debt securities to prorate interest fairly between buyer and seller.
We will pay interest, principal and any other money due on the registered debt securities at the corporate trust office of the trustee in New York City. You must make arrangements to have your payments picked up at or wired from that office. We may also choose to pay interest by mailing checks. Interest on global securities will be paid to the holder thereof by wire transfer of same day funds.
Street name and other indirect holders should consult their banks or brokers for information on how they will receive payments.
We may also arrange for additional payment offices, and may cancel or change these offices, including our use of the trustee’s corporate trust office. These offices are called paying agents. We may also choose to act as our own paying agent. We must notify the trustee of changes in the paying agent for any particular series of debt securities.
Notices
We and the trustee will send notices only to direct holders, using their addresses as listed in the trustee’s records.
Regardless of who acts as paying agent, all money that we pay to a paying agent that remains unclaimed at the end of two years after the amount is due to direct holders will be repaid to the applicable Equinor debt issuer or guarantor, as the case may be. After that two-year period, you may look only to the applicable Equinor debt issuer or guarantor for payment and not to the trustee, any other paying agent or anyone else.
Regarding the Trustee
Deutsche Bank Trust Company Americas will act as the trustee under the Equinor indenture. Equinor and some of its subsidiaries maintain ordinary banking relations with the trustee under an indenture and affiliates of the trustee in the ordinary course of business.
If an event of default occurs, or an event occurs that would be an event of default if the requirements for giving default notice or the default having to exist for a specific period of time were disregarded, the trustee may, in the circumstances set out in Section 310 of the Trust Indenture Act of 1939 (the “Trust Indenture Act”), thereafter be considered to have a conflicting interest with respect to the debt securities or the applicable indenture for purposes of the Trust Indenture Act. In that case, the trustee may be required to resign as trustee under the applicable indenture and we would be required to appoint a successor trustee.
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DESCRIPTION OF ORDINARY SHARES AND AMERICAN DEPOSITARY SHARES
For a description of Equinor’s ordinary shares and American Depositary Shares, see Equinor’s Form 8-A, filed on June 12, 2001, which is incorporated by reference in this prospectus, the Form of Further Amended and Restated Deposit Agreement (the “Deposit Agreement”) among inter alia Equinor and JPMorgan Chase Bank, N.A. as Depositary incorporated by reference to Exhibit 1 of the Registration Statement on Form F-6, filed on January 14, 2019, or descriptions in subsequent filings incorporated by reference in this prospectus.
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Securities we issue may be held through one or more international and domestic clearing systems. The principal clearing systems we will use are the book-entry systems operated by The Depository Trust Company (“DTC”) in the United States, Clearstream Banking, société anonyme, in Luxembourg (“Clearstream”) and Euroclear Bank S.A./N.V. in Brussels, Belgium (“Euroclear”). These systems have established electronic securities and payment transfer, processing, depositary and custodial links among themselves and others, either directly or through custodians and depositaries. These links allow securities to be issued, held and transferred among the clearing systems without the physical transfer of certificates.
The policies of DTC, Clearstream and Euroclear will govern payments, transfers, exchange and other matters relating to the investor’s interest in securities held by them. This is also true for any other clearance system that may be named in a prospectus supplement.
We have no responsibility for any aspect of the actions of DTC, Clearstream or Euroclear or any of their direct or indirect participants. We have no responsibility for any aspect of the records kept by DTC, Clearstream or Euroclear or any of their direct or indirect participants. We also do not supervise these systems in any way. This is also true for any other clearing system indicated in a prospectus supplement.
DTC, Clearstream and Euroclear and their participants perform these clearance and settlement functions under agreements they have made with one another or with their customers. You should be aware that they are not obligated to perform these procedures and may modify them or discontinue them at any time.
The description of the clearing systems in this section reflects our understanding of the rules and procedures of DTC, Clearstream and Euroclear as they are currently in effect. Those systems could change their rules and procedures at any time.
Considerations Relating to DTC
DTC has informed us as follows:
DTC is a limited-purpose trust company organized under the New York Banking Law, a “banking organization” within the meaning of the New York Banking Law, a member of the Federal Reserve System, a “clearing corporation” within the meaning of the New York Uniform Commercial Code and a “clearing agency” registered pursuant to the provisions of Section 17A of the Exchange Act. DTC holds securities that DTC’s participants (“direct participants”) deposit with DTC. DTC also facilitates the post-trade settlement among direct participants of sales and other securities transactions in deposited securities through electronic computerized book-entry transfers and pledges between direct participants’ accounts. This eliminates the need for physical movement of securities certificates. Direct participants include both U.S. and non-U.S. securities brokers and dealers, banks, trust companies, clearing corporations, and certain other organizations. DTC is a wholly owned subsidiary of The Depository Trust & Clearing Corporation (“DTCC”). DTCC is the holding company for DTC, National Securities Clearing Corporation and Fixed Income Clearing Corporation, all of which are registered clearing agencies. DTCC is owned by the users of its regulated subsidiaries. Access to the DTC system is also available to others such as both U.S. and non-U.S. securities brokers and dealers, banks, trust companies and clearing corporations that clear through or maintain a custodial relationship with a DTC participant, either directly or indirectly. The DTC rules applicable to its participants are on file with the SEC.
Purchases of securities within the DTC system must be made by or through direct participants, which will receive a credit for the securities on DTC’s records. The ownership interest of each actual purchaser of each security is in turn to be recorded on the direct and indirect participants’ records, including Euroclear and Clearstream. Beneficial owners will not receive written confirmation from DTC of their purchases. Beneficial owners are expected to receive written confirmations providing details of the transaction, as well as
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periodic statements of their holdings, from the direct or indirect participant through which the beneficial owner entered into the transaction. Transfers of ownership interests in the securities are to be accomplished by entries made on the books of direct or indirect participants acting on behalf of beneficial owners. Beneficial owners will not receive certificates representing their ownership interests in the securities, except in the limited circumstances described above under “Description of Debt Securities and Guarantees—Form of Debt Securities”.
To facilitate subsequent transfers, all securities deposited by direct participants with DTC will be registered in the name of DTC’s partnership nominee, Cede & Co., or such other name as may be requested by an authorized representative of DTC. The deposit of securities with DTC and their registration in the name of Cede & Co. or such other nominee will not effect any change in beneficial ownership of the securities. DTC has no knowledge of the actual beneficial owners of the securities; DTC’s records reflect only the identity of the direct participants to whose accounts such securities are credited, which may or may not be the beneficial owners. The direct and indirect participants are responsible for keeping account of their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to its direct participants, by its direct participants to indirect participants, and by its direct and indirect participants to beneficial owners of the securities will be governed by arrangements among them respectively, subject to any statutory or regulatory requirements as may be in effect from time to time.
Redemption notices will be sent to DTC. If less than all of the securities within an issue are being redeemed, DTC will determine by lot the amount of the interest of each direct participant in such issue to be redeemed.
Neither DTC nor Cede & Co. (nor any other DTC nominee) will itself consent or vote with respect to the securities unless authorized by a direct participant in accordance with DTC’s MMI procedures. Under its usual procedures, DTC mails an omnibus proxy to us as soon as possible after the record date. The omnibus proxy assigns Cede & Co.’s consenting rights to those direct participants to whose accounts such securities are credited on the record date (identified in a listing attached to the omnibus proxy).
Redemption proceeds and distribution payments on the securities will be made to Cede & Co., or such other nominee as may be requested by an authorized representative of DTC. DTC’s practice is to credit direct participants’ accounts upon DTC’s receipt of funds and corresponding detail information from us or our agent, on the relevant payment date in accordance with their respective holdings shown on DTC’s records. Payments by participants to beneficial owners will be governed by standing instructions and customary practices, as is the case with securities held for the accounts of customers in bearer form or registered in “street name”, and will be the responsibility of such participants and not of DTC, the relevant agent or us, subject to any statutory or regulatory requirements as may be in effect from time to time. Payment of redemption proceeds and distributions to Cede & Co. (or such other nominee as may be requested by an authorized representative of DTC) is the responsibility of us or our agent, disbursements of such payments to direct participants are the responsibility of DTC, and disbursements of such payments to the beneficial owners are the responsibility of direct and indirect participants.
The information in this section concerning DTC and DTC’s book-entry system has been obtained from sources that we believe to be accurate, but we assume no responsibility for the accuracy thereof.
Considerations Relating to Euroclear and Clearstream
Euroclear and Clearstream are securities clearance systems in Europe. Both systems clear and settle securities transactions between their participants through electronic, book-entry delivery of securities against payment.
Euroclear and Clearstream may be depositaries for a global security. In addition, if DTC is the depositary for a global security, Euroclear and Clearstream may hold interests in the global security as participants in DTC.
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As long as any global security is held by Euroclear or Clearstream, as depositary, you may hold an interest in the global security only through an organization that participates, directly or indirectly, in Euroclear or Clearstream. If Euroclear or Clearstream is the depositary for a global security and there is no depositary in the United States, you will not be able to hold interests in that global security through any securities clearance system in the United States.
Transactions between participants in Euroclear or Clearstream, on the one hand, and participants in DTC, on the other hand, when DTC is the depositary, would also be subject to DTC’s rules and procedures.
Special Timing Considerations
You should be aware that investors will only be able to make and receive deliveries, payments and other communications involving the securities through Clearstream and Euroclear on days when those systems are open for business. Those systems may not be open for business on days when banks, brokers and other institutions are open for business in the United States.
In addition, because of time-zone differences, there may be problems with completing transactions involving Clearstream and Euroclear on the same business day as in the United States. U.S. investors who wish to transfer their interests in the securities, or to receive or make a payment or delivery of the securities, on a particular day, may find that the transactions will not be performed until the next business day in Luxembourg or Brussels, depending on whether Clearstream or Euroclear is used.
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United States Taxation
This section describes the material United States federal income tax consequences of owning securities we may offer pursuant to this prospectus. It applies to you only if you acquire the offered securities in an offering or offerings contemplated by this prospectus and you hold the offered securities as capital assets for tax purposes. This section is the opinion of Sullivan & Cromwell, LLP, U.S. counsel to Equinor. This section addresses only United States federal income taxation and does not discuss all of the tax consequences that may be relevant to you in light of your individual circumstances, including foreign, state or local tax consequences, and tax consequences arising under the Medicare contribution tax on net investment income or the alternative minimum tax. This section does not apply to you if you are a member of a special class of holders subject to special rules, including:
| • | a dealer in securities or currencies, |
| • | a trader in securities that elects to use a mark-to-market method of accounting for its securities holdings, |
| • | a bank, |
| • | a tax-exempt organization, |
| • | a life insurance company, |
| • | In the case of shares or ADSs, a person that actually or constructively owns 10 percent of more of the voting stock of Equinor or of the total value of stock of Equinor, |
| • | a person that holds offered securities as part of a straddle or a hedging or conversion transaction (including, in the case of debt securities, debt securities owned as a hedge, or that are hedged, against interest rate or currency risks), |
| • | a person that purchases or sells securities as part of a wash sale for tax purposes, or |
| • | a United States holder (as defined below) whose functional currency is not the U.S. dollar. |
This section is based on the Internal Revenue Code of 1986, as amended (the “Code”), its legislative history, existing and proposed regulations under the Code, published rulings and court decisions, all as currently in effect, as well as on the Convention between the United States of America and the Kingdom of Norway for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and Property (the “Treaty”).
You are a United States holder if you are a beneficial owner of an offered security and you are for United States federal income tax purposes:
| • | a citizen or resident of the United States, |
| • | a domestic corporation, |
| • | an estate whose income is subject to United States federal income tax regardless of its source, or |
| • | a trust if a United States court can exercise primary supervision over the trust’s administration and one or more United States persons are authorized to control all substantial decisions of the trust. |
You are a non-United States holder if you are the beneficial owner of an offered security and are, for United States federal income tax purposes:
| • | a nonresident alien individual; |
| • | a foreign corporation; or |
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| • | an estate or trust that in either case is not subject to United States federal income tax on a net income basis on income or gain from the security. |
If a partnership holds the offered securities, the United States federal income tax treatment of a partner will generally depend on the status of the partner and the tax treatment of the partnership. A partner in a partnership holding the offered securities should consult its tax advisor with regard to the United States federal income tax treatment of an investment in the offered securities.
Information with Respect to Foreign Financial Assets
Owners of “specified foreign financial assets” with an aggregate value in excess of $50,000 (and in some circumstances, a higher threshold) may be required to file an information report with respect to such assets with their tax returns. “Specified foreign financial assets” may include financial accounts maintained by non-U.S. financial institutions, as well as the following, but only if they are held for investment and not held in accounts maintained by financial institutions: (i) stocks and securities issued by non-United States persons, (ii) financial instruments and contracts held for investment that have non-United States issuers or counterparties and (iii) interests in foreign entities. Holders of securities issued by Equinor are urged to consult their tax advisors regarding the application of this reporting requirement to their ownership of the shares, ADSs, or debt securities.
This discussion is a general summary and does not cover all the tax matters that may be applicable to each individual investor in shares, ADSs and debt securities. You should consult your own tax advisor regarding the United States federal, state and local and other tax consequences of owning and disposing of offered securities in your particular circumstances.
United States Taxation of Debt Securities
This discussion describes the principal United States federal income tax consequences of owning the debt securities described in this prospectus.
This discussion deals only with debt securities that are due to mature 30 years or less from the date on which they are issued. The United States federal income tax consequences of owning debt securities that are due to mature more than 30 years from their date of issue will be discussed in the applicable prospectus supplement.
United States Holders
If you are not a United States holder, this section does not apply to you, and you should see the sections entitled “Non-United States Holders” below for information that may apply to you.
Payments of Interest. Except as described below in the case of interest on a “discount debt security” that is not “qualified stated interest”, each as defined later under “Original Issue Discount—General”, you will be taxed on any interest and any additional amounts payable on your debt security, whether payable in U.S. dollars or a foreign currency, including a composite currency or basket of currencies other than U.S. dollars, as ordinary income at the time you receive the interest or when it accrues, depending on your method of accounting for tax purposes.
Interest paid on, and original issue discount (as described below under “—Original Issue Discount”), if any, accrued with respect to the debt securities that are issued by Equinor Capital constitutes income from sources within the United States.
Interest paid by us on the debt securities issued by Equinor and original issue discount, if any, accrued with respect to such debt securities (as described below under “Original Issue Discount”) and any additional amounts paid with respect to withholding tax on such debt securities, including withholding tax on payments of such
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additional amounts, is income from sources outside the United States and will, depending on your circumstances, be either “passive” or “general” income for purposes of the rules regarding the foreign tax credit allowable to a United States holder.
Cash Basis Taxpayers. If you are a taxpayer that uses the cash receipts and disbursements method of accounting for tax purposes and you receive an interest payment that is denominated in, or determined by reference to, a foreign currency, you would recognize income equal to the U.S. dollar value of the interest payment, based on the exchange rate in effect on the date of receipt, regardless of whether you actually convert the payment into U.S. dollars.
Accrual Basis Taxpayers. If you are a taxpayer that uses an accrual method of accounting for tax purposes, you may determine the amount of income that you recognize with respect to an interest payment denominated in, or determined by reference to, a foreign currency by using one of two methods. Under the first method, you would determine the amount of income accrued based on the average exchange rate in effect during the interest accrual period or, with respect to an accrual period that spans two taxable years, that part of the period within the taxable year.
If you elect the second method, you would determine the amount of income accrued on the basis of the exchange rate in effect on the last day of the accrual period, or, in the case of an accrual period that spans two taxable years, the exchange rate in effect on the last day of the part of the period within the taxable year. Additionally, under this second method, if you receive a payment of interest within five business days of the last day of your accrual period or taxable year, you may instead translate the interest accrued into U.S. dollars at the exchange rate in effect on the day that you actually receive the interest payment. If you elect the second method, it would apply to all debt instruments that you hold at the beginning of the first taxable year to which the election applies and to all debt instruments that you subsequently acquire. You may not revoke this election without the consent of the Internal Revenue Service (“IRS”).
When you actually receive an interest payment, including a payment attributable to accrued but unpaid interest upon the sale or retirement of your debt security, denominated in, or determined by reference to, a foreign currency for which you accrued an amount of income, you will recognize ordinary income or loss measured by the difference, if any, between the exchange rate that you used to accrue interest income and the exchange rate in effect on the date of receipt, regardless of whether you actually convert the payment into U.S. dollars.
Original Issue Discount. General. If you own a debt security, other than a short-term debt security with a term of one year or less, it would be treated as a discount debt security issued at an original issue discount if the amount by which the debt security’s stated redemption price at maturity exceeds its issue price is more than a de minimis amount. Generally, a debt security’s issue price will be the first price at which a substantial amount of debt securities included in the issue of which the debt security is a part is sold to persons other than bond houses, brokers, or similar persons or organizations acting in the capacity of underwriters, placement agents, or wholesalers. A debt security’s stated redemption price at maturity is the total of all payments provided by the debt security that are not payments of qualified stated interest. Generally, an interest payment on a debt security is qualified stated interest if it is one of a series of stated interest payments on a debt security that are unconditionally payable at least annually at a single fixed rate, with certain exceptions for lower rates paid during some periods applied to the outstanding principal amount of the debt security. There are special rules for variable rate debt securities that are discussed under “—Variable Rate Debt Securities”.
In general, your debt security is not a discount debt security if the amount by which its stated redemption price at maturity exceeds its issue price is less than 1⁄4 of 1 percent of its stated redemption price at maturity multiplied by the number of complete years to its maturity. Your debt security would have de minimis original issue discount if the amount of the excess is less than the de minimis amount. If your debt security has de minimis original issue discount, you would include the de minimis amount in income as stated principal
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payments are made on the debt security, unless you make the election described below under “—Election to Treat All Interest as Original Issue Discount”. You can determine the includible amount with respect to each such payment by multiplying the total amount of your debt security’s de minimis original issue discount by a fraction equal to:
| • | the amount of the principal payment made |
divided by:
| • | the stated principal amount of the debt security. |
Generally, if your discount debt security matures more than one year from its date of issue, you must include original issue discount, or OID, in income before you receive cash attributable to that income. The amount of OID that you would include in income is calculated using a constant-yield method, and generally you would include increasingly greater amounts of OID in income over the life of your debt security. More specifically, you can calculate the amount of OID that you would include in income by adding the daily portions of OID with respect to your discount debt security for each day during the taxable year or portion of the taxable year that you hold your discount debt security. You can determine the daily portion by allocating to each day in any “accrual period” a pro rata portion of the OID allocable to that accrual period. You may select an accrual period of any length with respect to your discount debt security and you may vary the length of each accrual period over the term of your discount debt security. However, no accrual period may be longer than one year and each scheduled payment of interest or principal on the discount debt security must occur on either the first or final day of an accrual period.
You can determine the amount of OID allocable to an accrual period by:
| • | multiplying your discount debt security’s adjusted issue price at the beginning of the accrual period by your debt security’s yield to maturity, and then |
| • | subtracting from this figure the sum of the payments of qualified stated interest on your debt security allocable to the accrual period. |
You must determine the discount debt security’s yield to maturity on the basis of compounding at the close of each accrual period and adjusting for the length of each accrual period. Further, you determine your discount debt security’s adjusted issue price at the beginning of any accrual period by:
| • | adding your discount debt security’s issue price and any accrued OID for each prior accrual period, and then |
| • | subtracting any payments previously made on your discount debt security that were not qualified stated interest payments. |
If an interval between payments of qualified stated interest on your discount debt security contains more than one accrual period, then, when you determine the amount of OID allocable to an accrual period, you would allocate the amount of qualified stated interest payable at the end of the interval, including any qualified stated interest that is payable on the first day of the accrual period immediately following the interval, pro rata to each accrual period in the interval based on their relative lengths. In addition, you would increase the adjusted issue price at the beginning of each accrual period in the interval by the amount of any qualified stated interest that has accrued prior to the first day of the accrual period but that is not payable until the end of the interval. You may compute the amount of OID allocable to an initial short accrual period by using any reasonable method if all other accrual periods, other than a final short accrual period, are of equal length.
The amount of OID allocable to the final accrual period is equal to the difference between:
| • | the amount payable at the maturity of your debt security other than any payment of qualified stated interest, and |
| • | your debt security’s adjusted issue price as of the beginning of the final accrual period. |
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Acquisition Premium. If you purchase your debt security for an amount that is less than or equal to the sum of all amounts other than qualified stated interest payable on your debt security after the purchase date but is greater than the amount of your debt security’s adjusted issue price, as determined above under “—General”, the excess is acquisition premium. If you do not make the election described below under “—Election to Treat All Interest as Original Issue Discount”, then you must reduce the daily portions of OID by a fraction equal to:
| • | the excess of your adjusted basis in the debt security immediately after purchase over the adjusted issue price of the debt security |
divided by:
| • | the excess of the sum of all amounts payable, other than qualified stated interest, on the debt security after the purchase date over the debt security’s adjusted issue price. |
Pre-Issuance Accrued Interest. An election may be made to decrease the issue price of your debt security by the amount of pre-issuance accrued interest if:
| • | a portion of the initial purchase price of your debt security is attributable to pre-issuance accrued interest; |
| • | the first stated interest payment on your debt security is to be made within one year of your debt security’s issue date; and |
| • | the payment will equal or exceed the amount of pre-issuance accrued interest. |
If this election is made, a portion of the first stated interest payment would be treated as a return of the excluded pre-issuance accrued interest and not as an amount payable on your debt security.
Debt Securities Subject to Contingencies Including Optional Redemption. Your debt security is subject to a contingency if it provides for an alternative payment schedule or schedules applicable upon the occurrence of a contingency or contingencies, other than a remote or incidental contingency, whether such contingency relates to payments of interest or of principal. In such a case, you would determine the yield and maturity of your debt security by assuming that the payments would be made according to the payment schedule most likely to occur if:
| • | the timing and amounts of the payments that comprise each payment schedule are known as of the issue date; and |
| • | one of such schedules is significantly more likely than not to occur. |
If there is no single payment schedule that is significantly more likely than not to occur, other than because of a mandatory sinking fund, you would include income on your debt security in accordance with the general rules that govern contingent payment obligations. These rules will be discussed in the applicable prospectus supplement.
Notwithstanding the general rules for determining yield and maturity, if your debt security is subject to contingencies, and either you or we have an unconditional option or options that, if exercised, would require payments to be made on the debt security under an alternative payment schedule or schedules, then:
| • | in the case of an option or options that we may exercise, we would be deemed to exercise or not exercise an option or combination of options in the manner that minimizes the yield on your debt security; and |
| • | in the case of an option or options that you may exercise, you would be deemed to exercise or not exercise an option or combination of options in the manner that maximizes the yield on your debt security. |
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If both you and we hold options described in the preceding sentence, those rules would apply to each option in the order in which they may be exercised. You would determine the yield on your debt security for the purposes of those calculations by using any date on which your debt security may be redeemed or repurchased as the maturity date and the amount payable on the date that you chose in accordance with the terms of your debt security as the principal amount payable at maturity.
If a contingency, including the exercise of an option, actually occurs or does not occur contrary to an assumption made according to the above rules then, except to the extent that a portion of your debt security is repaid as a result of this change in circumstances and solely to determine the amount and accrual of OID, you would redetermine the yield and maturity of your debt security by treating your debt security as having been retired and reissued on the date of the change in circumstances for an amount equal to your debt security’s adjusted issue price on that date.
Election to Treat All Interest as Original Issue Discount. You may elect to include in gross income all interest that accrues on your debt security using the constant-yield method described above under “—General”, with the modifications described below. For purposes of this election, interest will include stated interest, OID, de minimis original issue discount, market discount, de minimis market discount and unstated interest, as adjusted by any amortizable bond premium, described below under “—Debt Securities Purchased at a Premium” or acquisition premium.
If you make this election for your debt security, then, when you apply the constant-yield method:
| • | the issue price of your debt security would equal your cost, |
| • | the issue date of your debt security would be the date you acquired it, and |
| • | no payments on your debt security would be treated as payments of qualified stated interest. |
Generally, this election will apply only to the debt security for which you make it; however, if the debt security has amortizable bond premium, you would be deemed to have made an election to apply amortizable bond premium against interest for all debt instruments with amortizable bond premium, other than debt instruments the interest on which is excludible from gross income, that you hold as of the beginning of the taxable year to which the election applies or thereafter. Additionally, if you make this election for a market discount debt security, you would be treated as having made the election discussed below under “—Market Discount” to include market discount in income currently over the life of all debt instruments having market discount that you acquire on or after the first day of the first taxable year to which the election applies. You may not revoke any election to apply the constant-yield method to all interest on a debt security or the deemed elections with respect to amortizable bond premium or market discount debt securities without the consent of the IRS.
Short-Term Debt Securities. In general, if you are an individual or other cash basis United States holder of a short-term debt security, you are not required to accrue OID, as specially defined below for the purposes of this paragraph, for United States federal income tax purposes unless you elect to do so (although it is possible that you may be required to include any stated interest in income as you receive it). If you are an accrual basis taxpayer, a taxpayer in a special class, including, but not limited to, a regulated investment company, common trust fund, or a certain type of pass-through entity, or a cash basis taxpayer who so elects, you would be required to accrue OID on short-term debt securities either on a straight-line basis or under the constant-yield method, based on daily compounding. If you are not required and do not elect to include OID in income currently, any gain you realize on the sale or retirement of your short-term debt security would be ordinary income to the extent of the accrued OID, which would be determined on a straight-line basis unless you make an election to accrue the OID under the constant-yield method, through the date of sale or retirement. However, if you are not required and do not elect to accrue OID on your short-term debt securities, you would be required to defer deductions for interest on borrowings allocable to your short-term debt securities in an amount not exceeding the deferred income until the deferred income is realized.
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When you determine the amount of OID subject to these rules, you must include all interest payments on your short-term debt security, including stated interest, in your short-term debt security’s stated redemption price at maturity.
Foreign Currency Discount Debt Securities. If your discount debt security is denominated in, or determined by reference to, a foreign currency, you would determine OID for any accrual period on your discount debt security in the foreign currency and then translate the amount of OID into U.S. dollars in the same manner as stated interest accrued by an accrual basis United States holder, as described under “—Payments of Interest”. You may recognize ordinary income or loss when you receive an amount attributable to OID in connection with a payment of interest or the sale or retirement of your debt security.
Market Discount. You would be treated as if you purchased your debt security, other than a short-term debt security, at a market discount, and your debt security will be a market discount debt security if:
| • | you purchase your debt security for less than its issue price as determined above under “—Original Issue Discount—General”; and |
| • | the difference between the debt security’s stated redemption price at maturity or, in the case of a discount debt security, the debt security’s revised issue price, and the price you paid for your debt security is equal to or greater than 1⁄4 of 1 percent of your debt security’s stated redemption price at maturity multiplied by the number of complete years to the debt security’s maturity. To determine the revised issue price of your debt security for these purposes, you generally add any OID that has accrued on your debt security to its issue price. |
If your debt security’s stated redemption price at maturity or, in the case of a discount debt security, its “revised issue price”, does not exceed the price you paid for the debt security by 1⁄4 of 1 percent of the debt security’s stated redemption price at maturity multiplied by the number of complete years to the debt security’s maturity, the excess constitutes de minimis market discount, and the rules discussed below are not applicable to you.
You must treat any gain you recognize on the maturity or disposition of your market discount debt security as ordinary income to the extent of the accrued market discount on your debt security. Alternatively, you may elect to include market discount in income currently over the life of your debt security. If you make this election, it would apply to all debt instruments with market discount that you acquire on or after the first day of the first taxable year to which the election applies. You may not revoke this election without the consent of the IRS. If you own a market discount debt security and do not make this election, you would generally be required to defer deductions for interest on borrowings allocable to your debt security in an amount not exceeding the accrued market discount on your debt security until the maturity or disposition of your debt security.
If you own a market discount debt security, the market discount would accrue on a straight-line basis unless an election is made to accrue market discount using a constant-yield method. If you make this election, it would apply only to the debt security with respect to which it is made and you may not revoke it. You would, however, not include accrued market discount in income unless you elect to do so as described above.
Debt Securities Purchased at a Premium. If you purchase your debt security for an amount in excess of its principal amount (or, in the case of a discount debt security, in excess of the sum of all amounts payable on the debt security after the acquisition date (other than payments of qualified stated interest)), you may elect to treat the excess as amortizable bond premium. If you make this election, you would reduce the amount required to be included in your income each accrual period with respect to interest on your debt security by the amount of amortizable bond premium allocable to that accrual period, based on your debt security’s yield to maturity.
If the amortizable bond premium allocable to an accrual period exceeds your interest income from your debt security for such accrual period, such excess is first allowed as a deduction to the extent of interest included in
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your income in respect of the debt security in previous accrual periods and is then carried forward to your next accrual period. If the amortizable bond premium allocable and carried forward to the accrual period in which your debt security is sold, retired or otherwise disposed of exceeds your interest income for such accrual period, you would be allowed an ordinary deduction equal to such excess.
If your debt security is denominated in, or determined by reference to, a foreign currency, you would compute your amortizable bond premium in units of the foreign currency and your amortizable bond premium would reduce your interest income in units of the foreign currency. Gain or loss recognized that is attributable to changes in exchange rates between the time your amortized bond premium offsets interest income and the time of the acquisition of your debt security is generally taxable as ordinary income or loss.
If you make an election to amortize bond premium, it would apply to all debt instruments, other than debt instruments the interest on which is excludible from gross income, that you hold at the beginning of the first taxable year to which the election applies or that you thereafter acquire, and you may not revoke it without the consent of the IRS. See also “—Original Issue Discount—Election to Treat All Interest as Original Issue Discount”.
Purchase, Sale and Retirement of the Debt Securities. Your tax basis in your debt security will generally be the U.S. dollar cost, as defined below, of your debt security, adjusted by:
| • | adding any OID or market discount previously included in income with respect to your debt security, and then |
| • | subtracting any payments on your debt security that are not qualified stated interest payments and any amortizable bond premium to the extent that such premium either reduced interest on your debt security or gave rise to a deduction on your debt security. |
If you purchase your debt security with foreign currency, the U.S. dollar cost of your debt security would generally be the U.S. dollar value of the purchase price on the date of purchase. However, if you are a cash basis taxpayer, or an accrual basis taxpayer, if you so elect, and your debt security is traded on an established securities market, as defined in the applicable Treasury regulations, the U.S. dollar cost of your debt security would be the U.S. dollar value of the purchase price on the settlement date of your purchase.
You will generally recognize gain or loss on the sale or retirement of your debt security equal to the difference between the amount you realize on the sale or retirement, excluding any amounts attributable to accrued but unpaid interest (which will be treated as interest payments) and your tax basis in your debt security. If your debt security is sold or retired for an amount in foreign currency, the amount you realize would be the U.S. dollar value of such amount on the date the debt security is disposed of or retired, except that in the case of a debt security that is traded on an established securities market, as defined in the applicable Treasury regulations, a cash basis taxpayer, or an accrual basis taxpayer that so elects, would determine the amount realized based on the U.S. dollar value of the foreign currency on the settlement date of the sale.
You will recognize capital gain or loss when you sell or retire your debt security, except to the extent:
| • | described above under “—Original Issue Discount—Short-Term Debt Securities” or “—Market Discount”, or |
| • | attributable to changes in exchange rates as described below. |
Capital gain of a noncorporate United States holder is generally taxed at preferential rates where the property is held for more than one year.
You must treat any portion of the gain or loss that you recognize on the sale or retirement of a debt security as ordinary income or loss to the extent attributable to changes in exchange rates. However, you take exchange gain or loss into account only to the extent of the total gain or loss you realize on the transaction.
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Exchange of Amounts in Other Than U.S. Dollars. If you receive foreign currency as interest on your note or on the sale or retirement of your debt security, your tax basis in the foreign currency would equal its U.S. dollar value when the interest is received or at the time of the sale or retirement. If you purchase foreign currency, you generally would have a tax basis equal to the U.S. dollar value of the foreign currency on the date of your purchase. If you sell or dispose of a foreign currency, including if you use it to purchase debt security or exchange it for U.S. dollars, any gain or loss recognized generally would be ordinary income or loss.
Non-United States Holders
This section describes the tax consequences to non-United States holders of our debt securities. The discussion below does not address the tax consequences to a non-United States holder of an investment in debt security that references directly or indirectly the performance of United States equities. The tax treatment of any such debt securities will be discussed in the applicable prospectus supplement.
You are a non-United States holder if you are the beneficial owner of a debt security and are, for United States federal income tax purposes:
| • | a nonresident alien individual, |
| • | a foreign corporation, or |
| • | an estate or trust that in either case is not subject to United States federal income tax on a net income basis on income or gain from a debt security. |
If you are a United States holder, this section does not apply to you.
Interest on the Debt Securities. Under United States federal income and estate tax law, and subject to the discussion of backup withholding below, if you are a non-United States holder of a debt security, interest paid to you on a debt security issued by Equinor is exempt from United States federal income tax, including withholding tax, whether or not you are engaged in a trade or business in the United States, unless:
| • | you are an insurance company carrying on a United States insurance business to which the interest is attributable, within the meaning of the Code, or |
| • | you both |
| • | have an office or other fixed place of business in the United States to which the interest is attributable and |
| • | derive the interest in the active conduct of a banking, financing or similar business within the United States, or are a corporation with a principal business of trading in stocks and securities for its own account. |
In the case of a debt security issued by Equinor Capital, this discussion assumes that the debt security is not subject to the rules of Section 871(h)(4)(A) of the Internal Revenue Code, relating to interest payments that are determined by reference to the income, profits, changes in the value of property or other attributes of the debtor or a related party. Under United States federal income and estate tax law, and subject to the discussions of FATCA withholding and backup withholding below, if you are a Non-United States holder of a debt security issued by Equinor Capital:
| • | No United States federal income or withholding tax will be imposed on payments of principal, premium, if any, and interest, including OID, to you if, in the case of interest that is not “effectively connected” with a U.S. trade or business (or, in the case of certain tax treaties, is not attributable to a permanent establishment or fixed base within the United States),: |
| 1. | you do not actually or constructively (including indirectly through Equinor ASA) own 10% or more of the total combined voting power of all classes of stock of Equinor US Holdings Inc. (Equinor Capital’s direct owner) entitled to vote, |
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| 2. | you are not a controlled foreign corporation that is related to Equinor US Holdings Inc. through stock ownership, and |
| 3. | either: |
| a. | you have furnished to the U.S. payor an IRS Form W-8BEN or W-8BEN-E or an acceptable substitute form upon which you certify, under penalties of perjury, that you are a non-United States person, |
| b. | in the case of payments made outside the United States to you at an offshore account (generally, an account maintained by you at a bank or other financial institution at any location outside the United States), you have furnished to the U.S. payor documentation that establishes your identity and your status as the beneficial owner of the payment for United States federal income tax purposes and as a non-United States person, |
| c. | the U.S. payor has received a withholding certificate (furnished on an appropriate IRS Form W-8 or an acceptable substitute form) from a person claiming to be: |
| i. | a withholding foreign partnership (generally a foreign partnership that has entered into an agreement with the IRS to assume primary withholding responsibility with respect to distributions and guaranteed payments it makes to its partners), |
| ii. | a qualified intermediary (generally a non-United States financial institution or clearing organization or a non-United States branch or office of a United States financial institution or clearing organization that is a party to a withholding agreement with the IRS), or |
| iii. | a U.S. branch of a non-United States bank or of a non-United States insurance company, |
and the withholding foreign partnership, qualified intermediary or U.S. branch has received documentation upon which it may rely to treat the payment as made to a non-United States person that is, for United States federal income tax purposes, the beneficial owner of the payment on the debt securities in accordance with U.S. Treasury regulations (or, in the case of a qualified intermediary, in accordance with its agreement with the IRS),
| d. | the U.S. payor receives a statement from a securities clearing organization, bank or other financial institution that holds customers’ securities in the ordinary course of its trade or business, |
| i. | certifying to the U.S. payor under penalties of perjury that an IRS Form W-8BEN or W-8BEN-E or an acceptable substitute form has been received from you by it or by a similar financial institution between it and you, and |
| ii. | to which is attached a copy of the IRS Form W-8BEN or W-8BEN-E or acceptable substitute form, or |
| e. | the U.S. payor otherwise possesses documentation upon which it may rely to treat the payment as made to a non-United States person that is, for United States federal income tax purposes, the beneficial owner of the payments on the debt securities in accordance with U.S. Treasury regulations. |
Purchase, Sale, Retirement and Other Disposition of the Debt Securities. If you are a non-United States holder of a debt security, you generally would not be subject to United States federal income tax on gain realized on the sale, exchange or retirement of a debt security unless:
| • | the gain is effectively connected with your conduct of a trade or business in the United States or |
| • | you are an individual, you are present in the United States for 183 or more days during the taxable year in which the gain is realized and certain other conditions exist. |
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Estate Tax. For purposes of the United States federal estate tax, debt securities issued by Equinor will be treated as situated outside the United States and will not be includible in the gross estate of a holder who is neither a citizen nor a resident of the United States at the time of death.
A debt security issued by Equinor Capital held by an individual who at death is not a citizen or resident of the United States would not be includible in the individual’s gross estate for United States federal estate tax purposes if:
| • | the decedent did not actually or constructively own 10% or more of the total combined voting power of all classes of stock of Equinor US Holdings Inc. entitled to vote at the time of death and |
| • | the income on the debt security would not have been effectively connected with a United States trade or business of the decedent at the same time. |
Treasury Regulations Requiring Disclosure of Reportable Transactions
Treasury regulations require United States taxpayers to report certain transactions that give rise to a loss in excess of certain thresholds (a “Reportable Transaction”). Under these regulations, if the debt securities are denominated in a foreign currency, a United States holder (or a non-United States holder that holds the debt securities in connection with a U.S. trade or business) that recognizes a loss with respect to the debt securities that is characterized as an ordinary loss due to changes in currency exchange rates (under any of the rules discussed above) would be required to report the loss on IRS Form 8886 (Reportable Transaction Statement) if the loss exceeds the thresholds set forth in the regulations. For individuals and trusts, this loss threshold is $50,000 in any single taxable year. For other types of taxpayers and other types of losses, the thresholds are higher. You should consult with your tax advisor regarding any tax filing and reporting obligations that may apply in connection with acquiring, owning and disposing of debt securities.
Foreign Account Tax Compliance Withholding
Certain non-U.S. financial institutions must comply with information reporting requirements or certification requirements in respect of their direct and indirect United States shareholders and/or United States accountholders to avoid becoming subject to withholding on certain payments. Although we are continuing to evaluate our status under FATCA, we are currently registered as a foreign financial institution for these purposes. We and other non-U.S. financial institutions may accordingly be required to report information to the IRS regarding the holders of debt securities and to withhold on a portion of payments under the debt securities issued by Equinor to certain holders that fail to comply with the relevant information reporting requirements (or hold debt securities directly or indirectly through certain non-compliant intermediaries). However, under proposed Treasury regulations, such withholding will not apply to payments made before the date that is two years after the date on which final regulations defining the term “foreign passthru payment” are enacted. Moreover, such withholding would only apply to debt securities issued by Equinor at least six months after the date on which final defining the term “foreign passthru payment” are enacted. Holders are urged to consult their own tax advisors and any banks or brokers through which they will hold debt securities as to the consequences (if any) of these rules to them.
In the case of debt securities issued by Equinor Capital, a 30% withholding tax may be imposed under FATCA on certain payments to you or to certain foreign financial institutions, investment funds and other non-U.S. persons receiving payments on your behalf if you or such persons fail to comply with certain information reporting requirements. Payments of interest that you receive in respect of the debt securities could be affected by this withholding if you are subject to the FATCA information reporting requirements and fail to comply with them or if you hold debt securities through a non-U.S. person (e.g., a foreign bank or broker) that fails to comply with these requirements (even if payments to you would not otherwise have been subject to
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FATCA withholding). You should consult your own tax advisors regarding the relevant U.S. law and other official guidance on FATCA withholding.
We will not pay any additional amounts in respect of FATCA withholding, so if this withholding applies, you will receive significantly less than the amount that you would have otherwise received with respect to your debt securities. Depending on your circumstances, you may be entitled to a refund or credit in respect of some or all of this withholding. However, even if you are entitled to have any such withholding refunded, the required procedures could be cumbersome and significantly delay the holder’s receipt of any amounts withheld.
Backup Withholding and Information Reporting
If you are a noncorporate United States holder of a debt security, information reporting requirements, on Internal Revenue Service Form 1099, generally will apply to payments of principal and interest on a debt security within the United States, and the payment of proceeds to you from the sale of a debt security effected at a United States office of a broker. Information reporting may also apply in respect of any OID that accrues on a debt security.
In general, payment of the proceeds from the sale of debt securities effected at a foreign office of a broker will not be subject to information reporting or backup withholding. However, a sale effected at a foreign office of a broker could be subject to information reporting in the same manner as a sale within the United States (and in certain cases may be subject to backup withholding as well) if (i) the broker has certain connections to the United States, (ii) the proceeds or confirmation are sent to the United States or (iii) the sale has certain other specified connections with the United States.
You generally may obtain a refund of any amounts withheld under the backup withholding rules that exceed your income tax liability by filing a refund claim with the IRS.
United States Taxation of Ordinary Shares and ADSs
This section is based in part upon the representations of the Depositary and the assumption that each obligation in the Deposit Agreement and any related agreement will be performed in accordance with its terms. In general, and taking into account this assumption, for United States federal income tax purposes, if you hold American Depositary Receipts, or ADRs, evidencing ADSs, you will be treated as the owner of the ordinary shares represented by those ADRs. Exchanges of ordinary shares for ADRs, and ADRs for ordinary shares, generally will not be subject to United States federal income tax.
The tax treatment of your shares or ADSs will depend in part on whether or not we are classified as a passive foreign investment company, or PFIC, for United States federal income tax purposes. Except as discussed below under “-—PFIC Rules”, this discussion assumes that we are not classified as a PFIC for United States federal income tax purposes.
Dividends
United States Holders. Under the United States federal income tax laws, the gross amount of any distribution paid by Equinor out of its current or accumulated earnings and profits (as determined for United States federal income tax purposes) is subject to United States federal income taxation. If you are a noncorporate U.S. holder, dividends that constitute qualified dividend income will be treated as a dividend that is taxable to you at the preferential rates applicable to long-term capital gains provided that you hold the ordinary shares or ADSs for more than 60 days during the 121-day period beginning 60 days before the ex-dividend date and meet other holding period requirements. Dividends we pay with respect to the ordinary shares or ADSs generally will be qualified dividend income, provided that, in the year that you receive the dividend, Equinor is eligible for the benefits under the Treaty. We believe that Equinor is currently eligible for the benefits of the Treaty and we therefore expect that dividends on the ordinary shares or ADS will be qualified dividend income but there can be no assurance that we will continue to be eligible for the benefits of the Treaty.
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You must include any Norwegian tax withheld from the dividend payment in this gross amount even though you do not in fact receive it. The dividend is taxable to you when you, in the case of ordinary shares, or the Depositary, in the case of ADSs, receive the dividend, actually or constructively. The dividend will not be eligible for the dividends-received deduction generally allowed to United States corporations in respect of dividends received from other United States corporations. The amount of the dividend distribution that you must include in your income as a United States holder will be the U.S. dollar value of the Norwegian kroner payments made, determined at the spot Norwegian kroner/U.S. dollar rate on the date the dividend distribution is includible in your income, regardless of whether the payment is in fact converted into U.S. dollars. Generally, any gain or loss resulting from currency exchange fluctuations during the period from the date you include the dividend payment in income to the date you convert the payment into U.S. dollars will be treated as ordinary income or loss and will not be eligible for the special tax rate applicable to qualified dividend income. The gain or loss generally will be income or loss from sources within the United States for foreign tax credit limitation purposes. Distributions in excess of current and accumulated earnings and profits, as determined for United States federal income tax purposes, will be treated as a non-taxable return of capital to the extent of your basis in the ordinary shares or ADSs and thereafter as capital gain. However, we do not expect to calculate earnings and profits in accordance with United States federal income tax principles. Accordingly, you should expect to generally treat distributions we make as dividends.
Subject to certain limitations, Norwegian tax withheld in accordance with the Treaty and paid over to Norway will be creditable or deductible against your United States federal income tax liability. Special rules apply in determining the foreign tax credit limitation with respect to dividends that are subject to the preferential tax rates. To the extent a refund of the tax withheld is available to you under Norwegian law, the amount of tax withheld that is refundable will not be eligible for credit against your United States federal income tax liability.
Non-United States Holders. If you are a non-United States holder, dividends paid to you in respect of ordinary shares or ADSs will not be subject to United States federal income tax unless the dividends are “effectively connected” with your conduct of a trade or business within the United States, and the dividends are attributable to a permanent establishment that you maintain in the United States if that is required by an applicable income tax treaty as a condition for subjecting you to United States taxation on a net income basis. In such cases you generally will be taxed in the same manner as a United States holder. If you are a corporate non-United States holder, “effectively connected” dividends may, under certain circumstances, be subject to an additional “branch profits tax” at a 30% rate or at a lower rate if you are eligible for the benefits of an income tax treaty that provides for a lower rate.
Capital Gains
United States Holders. If you are a United States holder and you sell or otherwise dispose of your ordinary shares or ADSs, you will recognize capital gain or loss for United States federal income tax purposes equal to the difference between the U.S. dollar value of the amount that you realize and your tax basis, determined in U.S. dollars, in your ordinary shares or ADSs. Capital gain of a non-corporate United States holder is generally taxed at preferential rates where the property is held for more than one year. The gain or loss will generally be income or loss from sources within the United States for foreign tax credit limitation purposes.
Non-United States Holders. If you are a non-United States holder, you will not be subject to United States federal income tax on gain recognized on the sale or other disposition of your ordinary shares or ADSs unless:
| • | the gain is “effectively connected” with your conduct of a trade or business in the United States, and the gain is attributable to a permanent establishment that you maintain in the United States if that is required by an applicable income tax treaty as a condition for subjecting you to United States taxation on a net income basis, or |
| • | you are an individual, you are present in the United States for 183 or more days in the taxable year of the sale and certain other conditions exist. |
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If you are a corporate non-United States holder, “effectively connected” gains that you recognize may also, under certain circumstances, be subject to an additional “branch profits tax” at a 30% rate or at a lower rate if you are eligible for the benefits of an income tax treaty that provides for a lower rate.
PFIC Rules
We believe that ordinary shares and ADSs should not be treated as stock of a PFIC for United States federal income tax purposes, but this conclusion is a factual determination that is made annually and thus may be subject to change. If we were to be treated as a PFIC, gain realized on the sale or other disposition of your ordinary shares or ADSs would in general not be treated as capital gain. Instead, unless you elect to be taxed annually on a mark-to-market basis with respect to your ordinary shares or ADSs, you would be treated as if you had realized such gain and certain “excess distributions” ratably over your holding period for the ordinary shares or ADSs and would generally be taxed at the highest tax rate in effect for each such year to which the gain was allocated, together with an interest charge in respect of the tax attributable to each such year. With certain exceptions, your ordinary shares or ADSs will be treated as stock in a PFIC if we were a PFIC at any time during your holding period in your ordinary shares or ADSs. Dividends that you receive from us will not be eligible for the special tax rates applicable to qualified dividend income if we are a PFIC (or are treated as a PFIC with respect to you) either in the taxable year of the distribution or the preceding taxable year, but instead will be taxable at rates applicable to ordinary income.
Foreign Account Tax Compliance Withholding
A 30% withholding tax will be imposed on certain payments to certain non-U.S. financial institutions that fail to comply with information reporting requirements or certification requirements in respect of their direct and indirect United States shareholders and/or United States accountholders. Although we are continuing to evaluate our status under FATCA, we are currently registered as a foreign financial institution for these purposes. To avoid becoming subject to the 30% withholding tax on payments to them, we and other non-U.S. financial institutions may be required to report information to the IRS regarding the holders of ordinary shares or ADSs and to withhold on a portion of payments under the ordinary shares or ADSs to certain holders that fail to comply with the relevant information reporting requirements (or hold ordinary shares or ADSs directly or indirectly through certain non-compliant intermediaries). However, under proposed Treasury regulations, such withholding will not apply to payments made before the date that is two years after the date on which final regulations defining the term “foreign passthru payment” are enacted. The rules for the implementation of this legislation have not yet been fully finalized, so it is impossible to determine at this time what impact, if any, this legislation will have on holders of the ordinary shares and ADSs.
Backup Withholding and Information Reporting
If you are a noncorporate United States holder, information reporting requirements, on IRS Form 1099, generally will apply to dividend payments or other taxable distributions made to you within the United States, and the payment of proceeds to you from the sale of ordinary shares or ADSs effected at a United States office of a broker.
Additionally, backup withholding may apply to such payments if you fail to comply with applicable certification requirements or (in the case of dividend payments) are notified by the IRS that you have failed to report all interest and dividends required to be shown on your federal income tax returns.
If you are a non-United States holder, you are generally exempt from backup withholding and information reporting requirements with respect to dividend payments made to you outside the United States by us or another non-United States payor. You are also generally exempt from backup withholding and information reporting requirements in respect of dividend payments made within the United States and the payment of the proceeds from the sale of ordinary shares or ADSs effected at a United States office of a broker, as long as either (i) the
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payor or broker does not have actual knowledge or reason to know that you are a United States person and you have furnished a valid IRS Form W-8 or other documentation upon which the payor or broker may rely to treat the payments as made to a non-United States person, or (ii) you otherwise establish an exemption.
Payment of the proceeds from the sale of ordinary shares or ADSs effected at a foreign office of a broker generally will not be subject to information reporting or backup withholding. However, a sale effected at a foreign office of a broker could be subject to information reporting in the same manner as a sale within the United States (and in certain cases may be subject to backup withholding as well) if (i) the broker has certain connections to the United States, (ii) the proceeds or confirmation are sent to the United States or (iii) the sale has certain other specified connections with the United States.
You generally may obtain a refund of any amounts withheld under the backup withholding rules that exceed your income tax liability by filing a refund claim with the IRS.
Norwegian Taxation of Debt Securities and Payments under the Guarantees
The following summary is based on current Norwegian law and practice, which is subject to changes that could prospectively or retrospectively modify or adversely affect the stated tax consequence. Accordingly this summary does not and is not intended to, provide a complete description of all tax regulations that might be relevant. Prospective purchasers of securities should consult their own professional advisors as to their respective tax positions.
Under Norwegian law, payments of interest by Equinor ASA to a Norwegian resident for tax purposes under the debt securities may be subject to Norwegian ordinary taxation. As of the date hereof, the ordinary tax is 22 per cent. Gains realized on the debt securities (including currency gains) are taxable as ordinary income, and losses (including currency losses) are deductible at the same rate. Costs incurred in connection with the acquisition and realization of the debt securities may be deducted in the year of realization.
Payments made by Equinor ASA under the debt securities to persons who are not Norwegian residents for tax purposes, referred to herein as non-residents, whether in respect of principal or interest on the debt securities, are not subject to any tax imposed by Norway or any political subdivision thereof or therein except for payments attributable to such person’s branch, permanent establishment, or operation that may be subject to tax imposed by Norway or any political subdivision thereof or therein. In addition, no income, capital gains, transfer or similar tax is currently imposed by Norway or any political subdivision thereof or therein on a sale, redemption or other disposition of debt securities, except for payments attributable to a non-resident’s branch, permanent establishment, or operation that may be subject to tax imposed by Norway or any political subdivision thereof or therein.
Under Norwegian law, payments of interest by Equinor Energy to a Norwegian resident for tax purposes under the guarantee may be subject to Norwegian tax, at a rate of 22 percent. Payments by Equinor Energy under the guarantee to persons who are not Norwegian residents for tax purposes are not subject to any tax imposed by Norway or any political subdivision thereof or therein except for payments attributable to such person’s branch, permanent establishment or operations in Norway that may be subject to tax imposed by Norway or any political subdivision thereof or therein.
In February 2020, the Norwegian Ministry of Finance issued a consultation paper relating to withholding tax on interest payments from entities that are resident for tax purposes in Norway. According to the consultation paper it is proposed to introduce a standard 15 percent withholding tax on interest payments to related parties resident in low tax jurisdictions and a standard 15 percent withholding tax on royalty payments to foreign related parties. The new rules are proposed to be introduced with effect from January 1, 2021. The Ministry of Finance does not propose to introduce withholding tax on interest payments to creditors other than related parties (that is, where there is direct or indirect ownership or control of at least 50 percent) resident for tax purposes in a low tax
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jurisdiction. This means that the Ministry of Finance does not propose to introduce withholding tax on interest payments to independent banks or other finance institutions or on bonds held by unrelated parties.
Norwegian Taxation of Ordinary Shares and ADSs
The following summary is based on current Norwegian law and practice, which is subject to changes that could prospectively or retrospectively modify or adversely affect the stated tax consequence. The outline does not and is not intended to provide a complete description of all tax regulations that might be relevant. Prospective purchasers of shares and American Depositary Shares (ADS) should consult their own professional advisors as to their respective tax positions. The term “shareholder” refers to both holders of shares and holders of ADSs, unless otherwise explicitly stated.
Taxation of Dividends—Shareholders Resident in Norway
Corporate shareholders (i.e. limited liability companies and similar entities) resident in Norway for tax purposes generally benefit from the Norwegian tax exemption method on dividends received from Norwegian companies. The basis for taxation under the tax exemption method is 3 percent of the dividends received, which is subject to the standard income tax rate. The standard income tax rate is 22 percent for the income year 2020 (though 25 percent for certain financial institutions), which results in an effective tax rate of 0.66 percent (22 percent x 0.03). Repayment of paid-in capital for tax purposes on a share will be tax-exempt.
Individual shareholders resident in Norway for tax purposes are subject to the standard income tax rate for dividend income exceeding a basic tax free allowance (the so-called Norwegian shareholder’s model). However, in the income year 2020 dividend income exceeding the basic tax free allowance is grossed up with a factor of 1.4 before taken to taxation, resulting in an effective tax rate of 31.68 percent (22 percent x 1.4). The tax free allowance is computed for each individual share or ADS on the basis of the cost price of that share or ADS multiplied by a risk-free interest rate. The risk-free interest rate will be determined every income year. Any part of the calculated allowance for one year that exceeds the dividend distributed for the share or ADS (“unused allowance”) may be carried forward and set off against future dividends received for (or gains upon the realization of, see below) the same share or ADS. Any unused allowance will also be added to the basis for computation of the allowance for the same share or ADS the following year. The allowance is calculated for each calendar year, and is allocated solely to the individual shareholder holding the share or ADS at the expiration of the relevant calendar year. Repayment of paid-in capital for tax purposes on a share will be tax-exempt. Individual shareholders may hold the shares through a Norwegian share saving account (Nw.: aksjesparekonto). Dividends received on shares held through a share saving account will not be taxed with immediate effect. Instead, withdrawal of funds from the share saving account exceeding the paid in deposit will be regarded as taxable income. For further information on a share saving account, the individual shareholder should consult their own professional advisor.
Taxation of Dividends—Non-Resident Shareholders
Non-resident shareholders are as a rule subject to withholding tax at a rate of 25 percent on dividends distributed by Norwegian companies, with certain significant exceptions and modifications as described below. Repayment of paid-in capital for tax purposes on a share will be tax-exempt.
Corporate shareholders carrying on business activities in Norway, and whose shares or ADSs are effectively connected with such activities are not subject to withholding tax. For such shareholders, 3 percent of the received dividends are subject to the standard income tax rate.
Corporate shareholders resident in the EEA area for tax purposes are under the Norwegian tax exemption method exempt from withholding tax, provided that they can document that they are the beneficial owner of the shares, and that they are genuinely established and carry on genuine economic business activity within the EEA
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area. It is also a condition that Norway is entitled to receive information from the state of residence pursuant to a tax treaty or other international treaty. If no such treaty exists with the state of residence, the shareholder may instead present confirmation issued by the tax authorities of the state of residence verifying the documentation.
Tax treaties between Norway and other countries often reduce the Norwegian withholding tax rate on dividends paid to residents of such other countries, who are the beneficial owners of the shares on which the dividends are paid. Typically, tax treaties reduce the withholding tax rate to 15 percent (and often lower if the shareholder owns a qualifying percentage of the shares of the distributing company). The withholding tax rate in the tax treaty between the United States and Norway, as of the date hereof, is 15 percent in most cases.
Individual shareholders resident in the EEA for tax purposes may also claim a reduced withholding tax rate if the withholding tax exceeds the tax that would have been levied on individual shareholders resident in Norway under the Norwegian shareholder’s model. However, a refund under an applicable tax treaty will normally be more favorable than a refund based on the shareholder’s model. Note that individual shareholders resident in the EEA may also hold shares through a share saving account, cf. above for individual shareholders resident in Norway.
Procedures for non-resident shareholders to obtain reduced withholding tax. A non-resident shareholder that is entitled to a reduced Norwegian withholding tax rate may either (Procedure 1) request that the dividends are distributed with a reduced withholding tax rate applied by the distributing company, or (Procedure 2) request a refund from the Norwegian tax authorities of any excess withholding tax levied by the distributing company. Please note, however, that only Procedure 2 is available for EEA resident individual shareholders that claim reduced withholding tax based on the Norwegian shareholder’s model.
Under Procedure 1 (i.e. request for reduced withholding tax rate to be applied by the distributing company), the shareholder must provide satisfactory documentation to its account operator or custodian (as applicable), which may then place the relevant shares on an account that is registered with a reduced withholding tax rate in the Norwegian central securities depository (provided that the account operator/custodian is authorized to operate such accounts). With effect from January 1, 2019, specific documentation requirements must be satisfied by the shareholder in order to benefit from such treatment. More information can be found on the website of the Norwegian tax authorities: https://www.skatteetaten.no/en/business-and-organisation/start-and-run/rutiner-regnskap-og-kassasystem/lonn-lan-og-utbytte/dividends-from-norwegian-companies-to-foreign-shareholders---documentation-requirements-for-reduced-withholding-tax-rate/.
For holders of shares and ADSs deposited with JPMorgan Chase Bank N.A. (JPMorgan), documentation establishing that the holder is eligible for the benefits under a tax treaty with Norway, may be provided to JPMorgan. JPMorgan has been granted permission by the Norwegian tax authorities to receive dividends from us for redistribution to a beneficial owner of shares and ADSs at the applicable treaty withholding rate.
Under Procedure 2 (i.e. request for refund of excess withholding tax from the tax authorities), satisfactory documentation must be attached to the withholding tax refund request to be submitted to the tax authorities. More information can be found on the website of the Norwegian tax authorities: https://www.skatteetaten.no/en/person/taxes/get-the-taxes-right/shares-and-securities/about-shares-and-securities/refund-of-withholding-tax-on-dividends/. The deadline for submitting a refund request is five years calculated from end of the income year when dividends were paid.
Wealth, Inheritance and Gift Tax
Wealth Tax. The shares or ADSs are included in the basis for the computation of net wealth tax imposed on individuals resident in Norway for tax purposes. Norwegian limited companies and certain similar entities are not subject to wealth tax. The current marginal wealth tax rate is 0.85 percent of the value assessed. The assessment value of listed shares (including ADSs) is 75 percent of the listed value of such shares or ADSs on January 1 in
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the assessment year, i.e. on January 1 in the year after the relevant income year. The value of corresponding debt must be reduced at the same rate for the purposes of calculating net taxable wealth.
Non-resident shareholders are not subject to wealth tax in Norway for shares and ADSs in Norwegian limited companies unless the shareholder is an individual and the shareholding is effectively connected with the individual’s business activities in Norway.
Inheritance Tax and Gift Tax. No inheritance or gift tax is imposed in Norway.
Taxation on the realization of shares and ADSs
Corporate shareholders resident in Norway for tax purposes are not subject to tax in Norway on gains derived from the sale, redemption or other disposal of shares or ADSs in Norwegian companies. Capital losses are not deductible.
Individual shareholders residing in Norway for tax purposes are subject to tax in Norway on the sale, redemption or other disposal of shares or ADSs. Gains or losses in connection with such realization are included in the individual’s ordinary taxable income in the year of disposal, which is subject to the standard income tax rate of 24 percent for the income year 2020. However, in the income year 2020 the taxable gain or deductible loss is grossed up with a factor of 1.4 before being included in the ordinary taxable income, resulting in an effective tax rate of 31.68 percent (22 percent x 1.4). Specific rules may apply if the shares are held through a share saving account (deferral of taxation until withdrawal of funds from the share saving account).
The taxable gain or deductible loss (before gross up) is calculated as the sales price adjusted for transaction expenses minus the taxable basis. A shareholder’s tax basis is normally equal to the acquisition cost of the shares or ADSs. Any unused allowance pertaining to a share or ADS may be deducted from a taxable gain on the same share or ADS, but may not lead to or increase a deductible loss. Furthermore, any unused allowance pertaining to a share or ADS may not be set off against gains from the realization of other shares or ADSs.
If the shareholder disposes of shares or ADSs acquired at different times, the shares or ADSs that were first acquired will be deemed to be first sold when calculating the taxable gain or loss.
Non-resident shareholders are generally not subject to tax in Norway on capital gains, and losses are not deductible on the sale, redemption or other disposal of shares or ADSs in Norwegian companies, unless the shareholder carries on business activities in Norway and such shares or ADSs are or have been effectively connected with such activities.
A corporate shareholder or an individual shareholder who ceases to be tax resident in Norway due to domestic law or tax treaty provisions may, in certain circumstances, become subject to Norwegian exit taxation on capital gains related to shares or ADSs.
Transfer Tax. No transfer tax is imposed in Norway in connection with the sale or purchase of shares or ADSs.
European Union Taxation Matters
If you reside in a Member State of the European Union, please consult your own legal or tax advisors regarding the consequences of the directive in your particular circumstances.
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We may sell the securities offered by this prospectus:
| • | through underwriters; |
| • | through dealers; |
| • | through agents; or |
| • | directly to one or more purchasers. |
The prospectus supplement relating to any offering will identify or describe:
| • | any underwriter, dealers or agents; |
| • | their compensation; |
| • | the net proceeds to us; |
| • | the purchase price of the securities; |
| • | the initial public offering price of the securities; and |
| • | any exchange on which the securities will be listed. |
Underwriters
If we use underwriters in the sale, we will enter into an underwriting agreement, and a prospectus supplement will set forth the names of the underwriters and the terms of the transaction. The underwriters will acquire securities for their own account and may resell the securities from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. Unless we otherwise state in the applicable prospectus supplement, various conditions to the underwriters’ obligation to purchase securities apply, and the underwriters will be obligated to purchase all of the securities contemplated in an offering if they purchase any of such securities. Any initial public offering price and any discounts or concessions allowed or re-allowed or paid to dealers may be changed from time to time.
We may enter into derivative or other hedging transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions. If the applicable prospectus supplement indicates, in connection with those derivatives, the third parties may sell securities covered by this prospectus and the applicable prospectus supplement, including in short sale transactions. If so, the third party may use securities covered by this prospectus including securities pledged by us or borrowed from us or others to settle those sales or to close out any related open borrowing of stock, and may use securities received from us in settlement of those derivatives to close out any related open borrowings of stock. The third party in such sale transactions will be an underwriter and, if not identified in this prospectus, will be identified in the applicable prospectus supplement (or in a post-effective amendment). We may also sell ordinary shares short using this prospectus and deliver ordinary shares covered by this prospectus to close out such short positions, or loan or pledge ordinary shares to financial institutions that in turn may sell the ordinary shares using this prospectus. We may pledge or grant a security interest in some or all of the ordinary shares covered by this prospectus to support a derivative or hedging position or other obligation and, if we default in the performance of our obligations, the pledgees or secured parties may offer and sell the ordinary shares from time to time pursuant to this prospectus.
One or more firms, referred to as “remarketing firms” may also offer or sell the securities, if the prospectus supplement so indicates, in connection with a remarketing arrangement upon their purchase. Remarketing firms will act as principals for their own accounts or as agents for us. These remarketing firms will offer or sell the securities in accordance with a redemption or repayment pursuant to the terms of the securities. The prospectus
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supplement will identify any remarketing firm and the terms of its agreement, if any, with us and will describe the remarketing firm’s compensation.
If the prospectus supplement so indicates, we may authorize agents and underwriters or dealers to solicit offers by certain purchasers to purchase the securities from us at the public offering price set forth in the prospectus supplement. These contracts will be subject to only those conditions set forth in the prospectus supplement, and the prospectus supplement will set forth the commission payable for solicitation of such offers.
Each series of debt securities offered will be a new issue of securities and will have no established trading market. The debt securities offered may or may not be listed on a national securities exchange. We cannot be sure as to the liquidity of or the existence of trading markets for any debt securities offered.
In connection with any offering, certain persons participating in the offering, such as the underwriters, if any, may purchase and sell securities in the open market. These transactions may include short sales, stabilizing transactions and purchases to cover positions created by short sales. Short sales involve the sale by such persons of a greater number of securities than they are required to purchase in the offering. Stabilizing transactions consist of certain bids or purchases made for the purpose of preventing or retarding a decline in the market price of the securities while the offering is in progress.
The underwriters, if any, in any offering also may impose a penalty bid. This occurs when a particular underwriter repays to the underwriters a portion of the underwriting discount received by it because the representatives have repurchased securities sold by or for the account of such underwriter in stabilizing or short covering transactions.
These activities by such persons participating in the offering, as well as other purchases by such persons for their own accounts, may stabilize, maintain or otherwise affect the market prices of the securities. As a result, the prices of the securities may be higher than the prices that otherwise might exist in the open market. If these activities are commenced, they may be discontinued by such persons participating in the offering at any time. These transactions may be effected in the over-the-counter market or otherwise.
Dealers
If we use dealers in the sale, unless we otherwise indicate in the prospectus supplement, we will sell securities to the dealers as principals. The dealers may then resell the securities to the public at varying prices that the dealers may determine at the time of resale.
Agents and Direct Sales
We may sell securities directly or through agents that we designate. The prospectus supplement names any agent involved in the offering and sale and states any commissions we will pay to that agent. Unless we indicate otherwise in the prospectus supplement, any agent is acting on a best efforts basis for the period of its appointment.
Institutional Investors
If we indicate in the prospectus supplement, we will authorize underwriters, dealers or agents to solicit offers from various institutional investors to purchase securities. In this case, payment and delivery will be made on a future date that the prospectus supplement specifies. The underwriters, dealers or agents may impose limitations on the minimum amount that the institutional investor can purchase. They may also impose limitations on the portion of the aggregate amount of the securities that they may sell. These institutional investors include:
| • | commercial and savings banks; |
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| • | insurance companies; |
| • | pension funds; |
| • | investment companies; |
| • | educational and charitable institutions; and |
| • | other similar institutions as we may approve. |
The obligations of any of these purchasers pursuant to delayed delivery and payment arrangements will not be subject to any conditions. However, one exception applies. An institution’s purchase of the particular securities cannot at the time of delivery be prohibited under the laws of any jurisdiction that governs:
| • | the validity of the arrangements; or |
| • | the performance by us or the institutional investor. |
Indemnification
Agreements that we have entered into or may enter into with underwriters, dealers, agents or remarketing firms may entitle them to indemnification by us against various civil liabilities. These include liabilities under the Securities Act. The agreements may also entitle them to contribution for payments which they may be required to make as a result of these liabilities. Underwriters, dealers, agents or remarketing firms may be customers of, engage in transactions with, or perform services for us in the ordinary course of business.
Remarketing firms may be deemed to be underwriters in connection with the securities they remarket. Remarketing firms may be entitled under agreements that may be entered into with Equinor to indemnification by Equinor against certain civil liabilities, including liabilities under the Securities Act, and may be customers of, engage in transactions with or perform services for Equinor in the ordinary course of business.
Market Making
In the event that we do not list securities of any series on a U.S. national securities exchange, various broker-dealers may make a market in the securities, but will have no obligation to do so, and may discontinue any market making at any time without notice. Consequently, it may be the case that no broker-dealer will make a market in securities of any series or that the liquidity of the trading market for the securities will be limited.
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The validity of the debt securities and the guarantees will be passed upon for us by Sullivan & Cromwell LLP, our U.S. counsel, as to certain matters of New York law, and for any underwriters named in the applicable prospectus supplement by U.S. counsel to any such underwriters, as to certain matters of New York law. The validity of the debt securities, the ordinary share and the guarantees will be passed upon for us by our Chief Counsel Legal, Legal Corporate as to certain matters of Norwegian law, and for any underwriters by Norwegian counsel to any such underwriters. Sullivan & Cromwell LLP may rely upon the opinion of our Chief Counsel Legal, Legal Corporate with respect to all matters of Norwegian law.
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The consolidated financial statements of Equinor as of, and for the year ended, December 31, 2019 and management’s assessment of the effectiveness of internal control over financial reporting as of December 31, 2019 (which is included in Management’s Report on Internal Control Over Financial reporting) incorporated in this prospectus by reference to the 2019 Annual Report have been so incorporated in reliance upon the reports of Ernst & Young AS, independent registered public accounting firm, as set forth in its reports thereon, which conclude, among other things, that Equinor did not maintain effective internal control over financial reporting as of December 31, 2019, based on Internal Control — Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 framework), because of the effects of the material weakness described therein, and incorporated herein by reference. Such financial statements have been incorporated herein by reference in reliance upon such reports given on the authority of such firm as experts in accounting and auditing.
The consolidated balance sheet of Equinor as of December 31, 2018, and the related consolidated statements of income, comprehensive income, changes in equity and cash flows for each of the years in the two-year period ended December 31, 2018, and the related notes (collectively the “2018 consolidated financial statements”), incorporated by reference in this prospectus, include the effects of the adjustment to retrospectively apply the change in accounting as described in Note 3 to the 2018 consolidated financial statements. KPMG AS, an independent registered public accounting firm, audited the 2018 consolidated financial statements as of December 31, 2018, and for each of the years in the two-year period ended December 31, 2018, before the effects of the retrospective adjustment, which 2018 consolidated financial statements are not incorporated by reference in this prospectus. EY AS, an independent registered public accounting firm, audited the retrospective adjustment. The 2018 consolidated financial statements of Equinor as of December 31, 2018, and for the each of the years in the two-year period ended December 31, 2018, have been incorporated by reference in this prospectus in reliance upon the reports of (1) KPMG AS, solely with respect to the 2018 consolidated financial statements before the effects of the retrospective adjustment, and (2) Ernst & Young AS, solely with respect to the retrospective adjustment, incorporated by reference herein, given the authority of said firms as experts in accounting and auditing.
The audit report covering the December 31, 2018 financial statements refers to a change in policy for lifting imbalances.
DeGolyer and MacNaughton, independent petroleum engineering consultants, performed an independent evaluation of proved reserves as of December 31, 2019 for our properties. DeGolyer and MacNaughton has delivered to us its summary letter report describing its procedures and conclusions, a copy of which appears as Exhibit 15(a)(iv) to our 2019 Annual Report, which is incorporated herein by reference.
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The following is a statement of the expenses (all of which are estimated) to be incurred by us in connection with a distribution of securities registered under this registration statement:
| Securities and Exchange Commission registration fee |
(1) | |||
| Printing and engraving expenses |
$ | 15,000 | ||
| Legal fees and expenses |
$ | 100,000 | ||
| Accounting fees and expenses |
$ | 100,000 | ||
| Indenture Trustee’s fees and expenses |
$ | 27,500 | ||
| Rating Agencies’ fees |
$ | 4,000,000 | (2) | |
| Miscellaneous |
$ | 50,000 | ||
| Total |
$ | 4,292,500 | ||
|
|
|
| (1) | The registrants are registering an indeterminate amount of securities under the registration statement and in accordance with Rules 456(b) and 457(r), the registrants are deferring payment of any registration fee until the time the securities are sold under the registration statement pursuant to a prospectus supplement. |
| (2) | Rating Agency fees will vary depending on the size of the offering. |
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INFORMATION NOT REQUIRED IN PROSPECTUS
| Item 8. | Indemnification of Directors and Officers. |
Equinor Group
We maintain insurance for the indemnification of our directors and officers against certain liabilities which they may incur in their capacities as such, including insurance against liabilities under the Securities Act.
Equinor and Equinor Energy
Neither Norwegian law nor our articles of association contain any provision concerning indemnification by us of our board of directors.
The directors, the Chief Executive Officer and the members of our corporate assembly can each be held liable for any damage they negligently or willfully cause to us. Norwegian law permits our general meeting to exempt any such person from liability, but the exemption is not binding if substantially correct and complete information was not provided at the general meeting when the decision was taken. If a resolution to grant such exemption from liability or to not pursue claims against such a person has been passed by a general meeting with a smaller majority than that required to amend our articles of association, shareholders representing more than 10 percent of the share capital or (if there are more than 100 shareholders) more than 10 percent of the number of shareholders may pursue the claim on our behalf and in our name. The cost of any such action is not our responsibility, but can be recovered by any proceeds we receive as a result of the action. If the decision to grant exemption from liability or to not pursue claims is made by such a majority as is necessary to amend the articles of association, the minority shareholders cannot pursue a claim in our name. These provisions are not relevant for investors who are pursuing their own claim arising from their investment in the securities.
Equinor US Capital LLC
Section 18-108 of the Delaware Limited Liability Company Act provides that, subject to such standards and restrictions, if any, as are set forth in its limited liability company agreement, a limited liability company may, and shall have the power to, indemnify and hold harmless any member or manager or other person from and against any and all claims and demands whatsoever.
The Limited Liability Company Agreement of Equinor US Capital LLC provides that the company shall indemnify any person or entity who was or is a party defendant or is threatened to be made a party defendant, in a pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the company) by reason of the fact that he or she is or was a member of the company; a member of the board of directors of Equinor US Capital LLC, an officer of the company, an employee or agent of the company or is or was serving at the request of the company, for instant expenses (including attorney’s fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding to the fullest extent allowed by all applicable law. In addition, no member of the board of directors or officer of Equinor US Capital LLC shall be liable to the company or its members for any act or omission of the board of directors or such officer, the effect of which may cause or result in loss or damage to the company or its members, if done or omitted in good faith to promote the best interests of the company.
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| Item 9. | Exhibits |
| Exhibit |
Description of Document | |
| 1.1 | Form of Underwriting Agreement for Debt Securities issued by Equinor. | |
| 1.2 | Form of Underwriting Agreement for Debt Securities issued by Equinor Capital.* | |
| 1.3 | Form of Underwriting Agreement for Ordinary Shares.* | |
| 4.1 | Form of Indenture among Equinor (name changed from Statoil ASA), Equinor Energy (name changed from Statoil Petroleum AS) and Deutsche Bank Trust Company Americas, as trustee (incorporated by reference to Exhibit 4.1 of Equinor’s and Equinor Energy’s Post-Effective Amendment No. 1 to their Registration Statement on Form F-3 (File No. 333-143339) filed with the Securities and Exchange Commission on April 2, 2009). | |
| 4.2 | Supplemental Indenture No. 1 (incorporated by reference to Exhibit 4.2 of Equinor and Equinor Energy’s Registration Statement on Form F-3 (File No. 333-167092) filed with the Securities and Exchange Commission on May 26, 2010). | |
| 4.3 | Supplemental Indenture No. 2 (incorporated by reference to Exhibit 4.1 of Equinor’s Report on Form 6-K (File No. 001-15200) filed with the Securities and Exchange Commission on September 5, 2018). | |
| 4.4 | Supplemental Indenture No. 3 (incorporated by reference to Exhibit 4.1 of Equinor’s Report on Form 6-K (File No. 001-15200) filed with the Securities and Exchange Commission on September 10, 2018). | |
| 4.5 | Form of Supplemental Indenture No. 4 (incorporated by reference to Exhibit 4.1 of Equinor’s Report on Form 6-K (File No. 001-15200) filed with the Securities and Exchange Commission on November 13, 2019). | |
| 4.6 | Form of Debt Securities of Equinor and Guarantees relating thereto (included in Exhibit 4.3). | |
| 4.7 | Form of Indenture among Equinor Capital, Equinor ASA and Equinor Energy and trustee. | |
| 4.8 | Form of Debt Securities of Equinor Capital and Guarantees relating thereto (included in Exhibit 4.7). | |
| 4.9 | Articles of Association of Equinor, as amended, effective from 15 May 2018 (English translation) (incorporated by reference to Exhibit 1 to Equinor’s Annual Report on Form 20-F (File No. 001-15200) for the fiscal year ended December 31, 2019 filed with the Commission on March 20, 2020). | |
| 4.10 | Form of Further Amended and Restated Deposit Agreement, dated as of February 4, 2019, by and among Equinor, JPMorgan Chase Bank, N.A. as Depositary, and all holders from time to time of American Depositary Receipts issued thereunder (incorporated herein by reference to Exhibit 1 of Equinor’s Registration Statement on Form F-6 (File No. 333-229229) filed with the Commission on January 14, 2019). | |
| 5.1 | Opinion of Norwegian Counsel, as to the validity of the Debt Securities of Equinor and the Guarantees of Equinor Energy and Equinor, as to certain matters of Norwegian law. | |
| 5.2 | Opinion of Sullivan & Cromwell LLP, as to the validity of the Debt Securities of Equinor and Equinor Capital, and the Guarantees of Equinor Energy and Equinor, as to certain matters of New York law. | |
| 8.1 | Opinion of Norwegian Counsel, as to certain matters of Norwegian taxation (included in Exhibit 5.1 above). | |
| 8.2 | Opinion of Sullivan & Cromwell LLP, as to certain matters of U.S. taxation. | |
| 23.1 | Consent of Ernst & Young AS. | |
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| Exhibit |
Description of Document | |
| 23.2 | Consent of KPMG AS. | |
| 23.3 | Consent of Norwegian Counsel (included in Exhibit 5.1). | |
| 23.4 | Consent of Sullivan & Cromwell LLP (included in Exhibits 5.2 and 8.2 above). | |
| 23.5 | Consent of DeGolyer and MacNaughton. | |
| 24.1 | Powers of attorney for signatories of Equinor, Equinor Energy and Equinor Capital (included as part of the signature pages of the Registration Statement). | |
| 25.1 | Statement of eligibility of Trustee on Form T-1 with respect to Exhibit 4.1 above. | |
| 25.2 | Statement of eligibility of Trustee on Form T-1 with respect to Exhibit 4.7 above.** | |
| * | To be filed by amendment or incorporated by reference to a subsequently filed Report on Form 6-K. |
| ** | To be filed in accordance with Section 305(b)(2) of the Trust Indenture Act, as amended. |
| Item 10. | Undertakings |
Each of the undersigned registrants hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933 (the “Act”);
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that paragraphs (1)(i), (1)(ii) and (1)(iii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrants pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) To file a post-effective amendment to the registration statement to include any financial statements required by Item 8.A. of Form 20-F at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise required by Section 10(a)(3) of the Act need not be
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furnished, provided that the registrant includes in the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph (4) and other information necessary to ensure that all other information in the prospectus is at least as current as the date of those financial statements. Notwithstanding the foregoing, a post-effective amendment need not be filed to include financial statements and information required by Section 10(a)(3) of the Act or Item 8.A of Form 20-F if such financial statements and information are contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement.
(5) That, for the purpose of determining liability under the Act to any purchaser:
(i) Each prospectus filed by a registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which the prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(6) That, for the purpose of determining liability of a registrant under the Act to any purchaser in the initial distribution of the securities, each undersigned registrant undertakes that in a primary offering of securities of an undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of an undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of an undersigned registrant or used or referred to by an undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about an undersigned registrant or its securities provided by or on behalf of an undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by an undersigned registrant to the purchaser.
(7) That, for purposes of determining any liability under the Act, each filing of Equinor’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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(8) To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act.
Insofar as indemnification for liabilities arising under the Act may be permitted to directors, officers and controlling persons of the registrants pursuant to the foregoing provisions, or otherwise, the registrants have been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrants, of expenses incurred or paid by a director, officer or controlling person of the registrants in the successful defense of any action, suit or proceeding) is asserted against the registrants by such director, officer or controlling person in connection with the securities being registered, the registrants will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
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INDEX TO EXHIBITS
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| Exhibit |
Description of Document | |
| 23.1 | Consent of Ernst & Young AS. | |
| 23.2 | Consent of KPMG AS. | |
| 23.3 | Consent of Norwegian Counsel (included in Exhibit 5.1). | |
| 23.4 | Consent of Sullivan & Cromwell LLP (included in Exhibits 5.2 and 8.2 above). | |
| 23.5 | Consent of DeGolyer and MacNaughton. | |
| 24.1 | Powers of attorney for signatories of Equinor , Equinor Energy and Equinor Capital (included as part of the signature pages of the Registration Statement). | |
| 25.1 | Statement of eligibility of Trustee on Form T-1 with respect to Exhibit 4.1 above. | |
| 25.2 | Statement of eligibility of Trustee on Form T-1 with respect to Exhibit 4.7 above.** | |
| * | To be filed by amendment or incorporated by reference to a subsequently filed Report on Form 6-K. |
| ** | To be filed in accordance with Section 305(b)(2) of the Trust Indenture Act, as amended. |
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Pursuant to the requirements of the Securities Act of 1933, Equinor ASA certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Stavanger, Norway, on July 10, 2020.
| EQUINOR ASA | ||
| By: | /s/ Lars Christian Bacher | |
| Name: Lars Christian Bacher | ||
| Title: Chief Financial Officer | ||
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below severally constitutes and appoints each of Eldar Sætre and Lars Christian Bacher (with full power to each of them to act alone), his or her true and lawful attorney-in-fact and agents, with full power of substitution and re-substitution, for him or her and in his or her name, place and stead, in any and all capacities to do any and all things and execute any and all instruments that such attorney may deem necessary or advisable under the Securities Act of 1933 (the “Securities Act”), and any rules, regulations and requirements of the Securities and Exchange Commission (the “Commission”) in connection with the registration under the Securities Act of the Securities and any securities or Blue Sky laws of any of the states of the United States of America in order to effect the registration or qualification (or exemption therefrom) of the said securities for issue, offer, sale or trade under the Blue Sky or other securities laws of any of such states and in connection therewith to execute, acknowledge, verify, deliver, file and cause to be published applications, reports, consents to service of process, appointments of attorneys to receive service of process and other papers and instruments which may be required under such laws, including specifically, but without limiting the generality of the foregoing, the power and authority to sign his or her name in his or her capacity as an attorney-in-fact or in any other capacity with respect to this Registration Statement and/or such other form or forms as may be appropriate to be filed with the Commission or under or in connection with any Blue Sky laws or other securities laws of any state of the United States of America or with such other regulatory bodies and agencies as any of them may deem appropriate in respect of the Securities, and with respect to any and all amendments, including post-effective amendments, to this Registration Statement and to any and all instruments and documents filed as part of or in connection with this Registration Statement.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated on July 10, 2020.
| Signature |
Title | |
| /s/ Jon Erik Reinhardsen Jon Erik Reinhardsen |
Chairman | |
| /s/ Eldar Sætre Eldar Sætre |
President and Chief Executive Officer (principal executive officer) | |
| /s/ Lars Christian Bacher Lars Christian Bacher |
Executive Vice President and Chief Financial Officer (principal financial officer and principal accounting officer) | |
| /s/ Jeroen van der Veer Jeroen van der Veer |
Non-Executive Director | |
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|
Bjørn Tore Godal |
Non-Executive Director | |
| /s/ Hilde Møllerstad Hilde Møllerstad |
Non-Executive Director | |
|
Per Martin Labråthen |
Non-Executive Director | |
| /s/ Rebekka Glasser Herlofsen Rebekka Glasser Herlofsen |
Non-Executive Director | |
|
Finn Bjørn Ruyter |
Non-Executive Director | |
|
Stig Lægreid |
Non-Executive Director | |
| /s/ Anne Drinkwater Anne Drinkwater |
Non-Executive Director | |
| /s/ Jonathan Lewis Jonathan Lewis |
Non-Executive Director | |
| /s/ Tove Andersen Tove Andersen |
Non-Executive Director | |
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Authorized Representative
Pursuant to the requirement of the Securities Act of 1933, the undersigned, the duly authorized representative of Equinor ASA in the United States, has signed this registration statement in the City of Newark, State of Delaware, on July 10, 2020.
| PUGLISI & ASSOCIATES | ||
| By: | /s/ Donald J. Puglisi | |
| Name: Donald J. Puglisi | ||
| Title: Authorized Representative in the United States | ||
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Equinor Energy AS certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Stavanger, Norway, on July 10, 2020.
| EQUINOR ENERGY AS | ||
| By: | /s/ Lars Christian Bacher | |
| Name: Lars Christian Bacher | ||
| Title: Chairman and Chief Financial Officer | ||
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below severally constitutes and appoints each of Eldar Sætre and Lars Christian Bacher (with full power to each of them to act alone), his or her true and lawful attorney-in-fact and agents, with full power of substitution and re-substitution, for him or her and in his or her name, place and stead, in any and all capacities to do any and all things and execute any and all instruments that such attorney may deem necessary or advisable under the Securities Act of 1933 (the “Securities Act”), and any rules, regulations and requirements of the Securities and Exchange Commission (the “Commission”) in connection with the registration under the Securities Act of the Securities and any securities or Blue Sky laws of any of the states of the United States of America in order to effect the registration or qualification (or exemption therefrom) of the said securities for issue, offer, sale or trade under the Blue Sky or other securities laws of any of such states and in connection therewith to execute, acknowledge, verify, deliver, file and cause to be published applications, reports, consents to service of process, appointments of attorneys to receive service of process and other papers and instruments which may be required under such laws, including specifically, but without limiting the generality of the foregoing, the power and authority to sign his or her name in his or her capacity as an attorney-in-fact or in any other capacity with respect to this Registration Statement and/or such other form or forms as may be appropriate to be filed with the Commission or under or in connection with any Blue Sky laws or other securities laws of any state of the United States of America or with such other regulatory bodies and agencies as any of them may deem appropriate in respect of the Securities, and with respect to any and all amendments, including post-effective amendments, to this Registration Statement and to any and all instruments and documents filed as part of or in connection with this Registration Statement.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated on July 10, 2020.
| Signature |
Title | |
| /s/ Kjell Byberg Kjell Byberg |
Director and General Manager (principal executive officer) | |
| /s/ Lars Christian Bacher Lars Christian Bacher |
Chairman and Chief Financial Officer (principal financial officer and principal accounting officer) | |
| /s/ Geir Aalhus Geir Aalhus |
Director | |
| /s/ Mette Ferkingstad Mette Ferkingstad |
Director | |
| /s/ Siv Helen Rygh Torstensen Siv Helen Rygh Torstensen |
Director | |
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Authorized Representative
Pursuant to the requirement of the Securities Act of 1933, the undersigned, the duly authorized representative of Equinor Energy AS in the United States, has signed this registration statement in the City of Newark, State of Delaware, on July 10, 2020.
| PUGLISI & ASSOCIATES | ||
| By: | /s/ Donald J. Puglisi | |
| Name: Donald J. Puglisi | ||
| Title: Authorized Representative in the United States | ||
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Equinor US Capital LLC certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Stamford, Connecticut, on July 10, 2020.
| EQUINOR US CAPITAL LLC | ||
| By: | /s/ Charles O’Brien II | |
| Name: Charles O’Brien II | ||
| Title: Authorized Signatory | ||
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below severally constitutes and appoints each of Eldar Sætre and Lars Christian Bacher (with full power to each of them to act alone), his or her true and lawful attorney-in-fact and agents, with full power of substitution and re-substitution, for him or her and in his or her name, place and stead, in any and all capacities to do any and all things and execute any and all instruments that such attorney may deem necessary or advisable under the Securities Act of 1933 (the “Securities Act”), and any rules, regulations and requirements of the Securities and Exchange Commission (the “Commission”) in connection with the registration under the Securities Act of the Securities and any securities or Blue Sky laws of any of the states of the United States of America in order to effect the registration or qualification (or exemption therefrom) of the said securities for issue, offer, sale or trade under the Blue Sky or other securities laws of any of such states and in connection therewith to execute, acknowledge, verify, deliver, file and cause to be published applications, reports, consents to service of process, appointments of attorneys to receive service of process and other papers and instruments which may be required under such laws, including specifically, but without limiting the generality of the foregoing, the power and authority to sign his or her name in his or her capacity as an attorney-in-fact or in any other capacity with respect to this Registration Statement and/or such other form or forms as may be appropriate to be filed with the Commission or under or in connection with any Blue Sky laws or other securities laws of any state of the United States of America or with such other regulatory bodies and agencies as any of them may deem appropriate in respect of the Securities, and with respect to any and all amendments, including post-effective amendments, to this Registration Statement and to any and all instruments and documents filed as part of or in connection with this Registration Statement.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated on July 10, 2020.
| Signature |
Title | |
| /s/ Bent Rune Solheim Bent Rune Solheim |
President and Chairman (principal executive officer) | |
| /s/ Todd Walls Todd Walls |
Finance Manager (principal financial officer and principal accounting officer) | |
| /s/ Annant Shah Annant Shah |
Director | |
| /s/ Tom Geczik Tom Geczik |
Director | |
| /s/ Charles O’Brien II Charles O’Brien II |
Director | |
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Exhibit 1.1
EQUINOR ASA
Debt Securities
fully and unconditionally guaranteed by Equinor Energy AS
(a wholly-owned subsidiary of Equinor ASA)
Underwriting Agreement Standard Provisions
To the Representatives named from time to time in the applicable Pricing Agreement hereinafter described
Ladies and Gentlemen:
From time to time Equinor ASA, a public limited company incorporated under the laws of the Kingdom of Norway (“Equinor” or the “Company”) and Equinor Energy AS, a limited company incorporated under the laws of the Kingdom of Norway (the “Guarantor”), propose to enter into one or more Pricing Agreements (each a “Pricing Agreement”) in the form of Annex I hereto, with such additions and deletions as the parties thereto may determine, and the Company, subject to the terms and conditions stated herein and therein, proposes to issue and sell to the several firms named in Schedule I to the applicable Pricing Agreement (such firms constituting the “Underwriters” with respect to such Pricing Agreement and the securities specified therein) certain of its debt securities (the “Securities”) specified in Schedule II to such Pricing Agreement (with respect to such Pricing Agreement, the “Designated Securities”) which are to have endorsed thereon the Guarantees (as defined below), such Securities to be issued under the Indenture (as defined below). The Securities shall be fully and unconditionally guaranteed by the Guarantor as to the due and prompt payment of the principal of (and premium, if any) and interest (including additional amounts, if any, and sinking fund payments, if any) on the Securities when and as the same shall become due and payable (the “Guarantees” and each a “Guarantee”).
The terms and rights of any particular issuance of Designated Securities shall be as specified in the Pricing Agreement relating thereto and in or pursuant to the indenture (the “Indenture”) identified in such Pricing Agreement. The Securities may have varying designations, maturities, rates and times of payment of interest, selling prices and redemption and other terms.
1. Particular sales of Designated Securities may be made from time to time to the Underwriters of such Securities, for whom the firms designated as representatives of the Underwriters of such Securities in the applicable Pricing Agreement relating thereto will act as representatives (the “Representatives”). The term “Representatives” also refers to a single firm acting as sole representative of the Underwriters and to an Underwriter or Underwriters who act without any firm being designated as its or their representatives. This Agreement shall not be construed as an obligation of the Company to sell any of the Securities or as an obligation of any of the Underwriters to purchase any of the Securities except as set forth in a Pricing Agreement, it being understood that the obligation of the Company to issue and sell any of the Securities and the obligation of any of the Underwriters to purchase any of the Securities shall be evidenced by the applicable Pricing Agreement with respect to the Designated Securities specified therein.
Each Pricing Agreement shall specify the aggregate principal amount of such Designated Securities, the initial public offering price of such Designated Securities, the purchase price to the Underwriters of such Designated Securities, the names of the Underwriters of such Designated Securities, the names of the Representatives of such Underwriters, the principal amount of such Designated Securities to be purchased by each Underwriter and the underwriting discount and/or commission, if any, payable to the Underwriters with respect thereto and shall set forth the date, time and manner of delivery of such Designated Securities and payment therefor. The applicable Pricing Agreement shall also specify (to the extent not set forth in the Indenture and the Registration Statement and Prospectus (as defined below) with respect thereto) the terms of such Designated Securities. A Pricing Agreement shall be in the form of an executed writing (which may be in counterparts) and may be evidenced by an exchange of telegraphic communications or any other rapid transmission device designed to produce a written record of communications transmitted. The obligations of the Underwriters under this Agreement and each Pricing Agreement shall be several and not joint.
2. Each of the Company and the Guarantor hereby jointly and severally represents and warrants to, and agrees with each of the Underwriters that:
(a) An “automatic shelf registration statement” as defined under Rule 405 under the Securities Act of 1933, as amended (the “Securities Act”), on Form F-3 (Registration Nos. 333- and 333- ) relating to the Securities and the related Guarantees to be issued from time to time by the Company has been filed by the Company and the Guarantor with the Securities and Exchange Commission (the “Commission”) not earlier than three years prior to the date of the applicable Pricing Prospectus (as defined below); such registration statement and any post-effective amendment thereto became effective on filing; no stop order suspending the effectiveness of such registration statement or any part thereof has been issued and no proceeding for such purpose has been initiated or, to the knowledge of either the Company or the Guarantor, threatened by the Commission; and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company or the Guarantor. For purposes of this Agreement:
(i) the base prospectus filed as part of such registration statement, in the form in which it has most recently been filed with the Commission on or prior to the date of the applicable Pricing Agreement, is hereinafter called the “Base Prospectus”;
(ii) any preliminary form of prospectus (including any preliminary prospectus supplement) relating to the Designated Securities filed with the Commission pursuant to Rule 424(b) under the Securities Act is hereinafter called a “Preliminary Prospectus”;
(iii) the various parts of such registration statement, including all exhibits thereto but excluding Form T-1 and including any prospectus supplement relating to the Securities and the related Guarantees that is filed with the Commission and deemed by virtue of Rule 430B to be part of such registration statement, each as amended at the time such part of the registration statement became effective, are hereinafter collectively called the “Registration Statement”;
(iv) the Base Prospectus, as amended and supplemented immediately prior to the Applicable Time (as defined in the applicable Pricing Agreement with respect to the Designated Securities), is hereinafter called the “Pricing Prospectus”;
(v) the Base Prospectus, as amended and supplemented by any final prospectus supplement relating to the Designated Securities and the related Guarantees filed with the Commission pursuant to Rule 424(b) under the Securities Act in accordance with Section 5(a) hereof is hereinafter called the “Prospectus”;
(vi) any reference in this Agreement to the Registration Statement, the Base Prospectus, the Pricing Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 6 of Form F-3 under the Securities Act which were filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and incorporated therein, in each case on or before the effective date of the Registration Statement or the date of such Base Prospectus, Pricing Prospectus, Preliminary Prospectus or Prospectus, as the case may be;
(vii) any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement; and
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(viii) the “Applicable Time” is the time specified as such in the applicable Pricing Agreement with respect to the Designated Securities.
(b) No order preventing or suspending the use of any Preliminary Prospectus or any “issuer free writing prospectus” as defined in Rule 433 under the Securities Act relating to the Designated Securities and the related Guarantees (an “Issuer Free Writing Prospectus”) has been issued by the Commission, and each Preliminary Prospectus, at the time of filing thereof, conformed in all material respects to the requirements of the Securities Act and the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and the rules and regulations of the Commission thereunder, and did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in such Preliminary Prospectus in reliance upon and in conformity with information furnished in writing to the Company or the Guarantor by an Underwriter of Designated Securities through the Representatives expressly for use therein.
(c) The Pricing Prospectus, as supplemented by any final term sheet prepared and filed pursuant to Section 5(a) hereof and any Issuer Free Writing Prospectus listed in Schedule III to the applicable Pricing Agreement (collectively, the “Pricing Disclosure Package”) as of the Applicable Time, did not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and each Issuer Free Writing Prospectus listed on Schedule III to the applicable Pricing Agreement (if any) does not conflict with the information contained or incorporated by reference in the Registration Statement, the Pricing Prospectus or the Prospectus and each such Issuer Free Writing Prospectus, as supplemented by and, taken together with the Pricing Disclosure Package as of the Applicable Time, did not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to statements or omissions in the Pricing Disclosure Package or made in an Issuer Free Writing Prospectus in reliance upon and in conformity with information furnished to the Company or the Guarantor in writing by an Underwriter of Designated Securities through the Representatives expressly for use therein.
(d) The documents incorporated by reference in the Pricing Prospectus and the Prospectus, when they became effective or were filed with the Commission, as the case may be, conformed in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder, and none of such documents contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference in the Prospectus or any further amendment or supplement thereto, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions in the documents incorporated by reference in the Pricing Prospectus and Prospectus made in reliance upon and in conformity with information furnished to the Company or the Guarantor in writing by an Underwriter of Designated Securities through the Representatives expressly for use therein; and no such documents were filed with the Commission since the Commission’s close of business on the business day immediately prior to the date of the applicable Pricing Agreement, except as set forth on Schedule III to the applicable Pricing Agreement.
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(e) The Registration Statement conforms, and the Prospectus and any further amendments or supplements to the Registration Statement and the Prospectus will conform, in all material respects to the requirements of the Securities Act and the Trust Indenture Act and the rules and regulations of the Commission thereunder and do not and will not, as of the applicable effective date as to each part of the Registration Statement and as of the applicable filing date as to the Prospectus and any amendment or supplement thereto, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company or the Guarantor by an Underwriter of Designated Securities through the Representatives expressly for use therein.
(f) (i) At the time of the filing of the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), and (iii) at the time the Company or any person acting on its behalf (within the meaning, for this sub-section (f) only, of Rule 163(c) under the Securities Act) made any offer relating to the Securities in reliance on the exemption provided for in Rule 163 under the Securities Act, the Company was a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act.
(g) At the earliest time after the filing of the Registration Statement that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act) of the Securities, the Company was not an “ineligible issuer” as defined in Rule 405 under the Securities Act.
(h) Since the respective dates as for which information is given in the Registration Statement and the Pricing Prospectus, there has not occurred any material adverse change, or any development involving a prospective material adverse change, in the business, financial condition or results of operations of the Company and its subsidiaries, taken as a whole other than as set forth in the Registration Statement and the Pricing Prospectus.
(i) Each of the Company and the Guarantor has been duly incorporated, and the Company is validly existing as a public limited company (allmennaksjeselskap) under the laws of the Kingdom of Norway, and the Guarantor is validly existing as a limited company (aksjeselskap) under the laws of the Kingdom of Norway, and each of the Company and the Guarantor has the corporate power and authority to own its property and to conduct its business as described in the Registration Statement and the Pricing Prospectus.
(j) The Company has an authorized capitalization as set forth in the Pricing Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid.
(k) Prior to the issuance of Designated Securities, the applicable Pricing Agreement will be duly authorized, executed and delivered by the Company and the Guarantor.
(l) Prior to the date of the applicable Pricing Agreement, the Securities will be duly authorized by the Company, and, when issued and delivered pursuant to the applicable Pricing Agreement, the applicable Designated Securities will have been duly executed, authenticated, issued and delivered and will constitute valid and legally binding obligations of the Company entitled to the benefits of the Indenture under which they are to be issued; the Indenture has been duly authorized and duly qualified under the Trust Indenture Act and, assuming due authorization, execution and delivery by the Trustee, constitutes a valid and legally binding instrument of, and is enforceable against each of the Company and the Guarantor in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles; and the Designated Securities and the Indenture conform to the descriptions thereof contained in the Pricing Disclosure Package with respect to the issuance of Designated Securities.
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(m) Prior to the date of the applicable Pricing Agreement, the Guarantees will be duly authorized by the Guarantor and, when the Designated Securities are executed, issued and delivered by the Company and the Guarantee endorsed thereon as contemplated hereby and by the Pricing Agreement with respect to the Designated Securities and the Indenture, the Guarantees will have been duly endorsed thereon and will constitute valid and binding obligations of the Guarantor enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
(n) The issue and sale of the Designated Securities and the related Guarantees, the execution and delivery by the Company and the Guarantor, as the case may be, of, and the performance by the Company and the Guarantor of their respective obligations under, all of the provisions of the Designated Securities, the Guarantees, the Indenture, this Agreement and any Pricing Agreement and the consummation of the transactions herein and therein contemplated will not contravene or result in a breach or violation of (i) the Articles of Association of the Company or the Guarantor; (ii) any agreement or other instrument binding upon the Company, the Guarantor or any of their respective significant subsidiaries (as defined in Rule 405 under the Securities Act) (each a “Significant Subsidiary”), or to which any assets of the Company, the Guarantor or any Significant Subsidiary is subject, that is material to the Company and its subsidiaries, taken as a whole; or (iii) any statute, rule, regulation, judgment, order or decree of any government or governmental agency or body, or any court of the Kingdom of Norway, the European Economic Area or the United States (each, a “Governmental Agency”) having jurisdiction over the Company, the Guarantor or any Significant Subsidiary, except statutes, rules, regulations, judgments, orders or decrees the contravention, breach or violation of which would not reasonably be expected to have a material adverse effect on the business, financial condition or results of operations of the Company and its subsidiaries, taken as a whole (a “Material Adverse Effect”), and which would not affect the due authorization, execution, validity, binding effect or enforceability of this Agreement, any Pricing Agreement, the Indenture, the Designated Securities or the Guarantees relating to the Designated Securities; and no consent, approval, authorization or order of, or qualification with, any Governmental Agency is required for the performance by the Company or the Guarantor of its obligations under this Agreement and the applicable Pricing Agreement, the Indenture, the Designated Securities or the Guarantees relating to the Designated Securities, except such as have been obtained under the Securities Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Designated Securities by the Underwriters.
(o) The statements set forth in the Pricing Prospectus and the Prospectus under the captions “Description of the Debt Securities and Guarantees”, “Description of Notes and Guarantees”, “Taxation”, “Plan of Distribution” and “Underwriting”, and in each case when read together with the final term sheet prepared and filed pursuant to Section 5(a) hereof and insofar as they purport to describe the provisions of the laws and documents referred to therein, are accurate and complete in all material respects.
(p) Other than as set forth in the Pricing Prospectus, there are no legal or governmental proceedings pending or, to the best knowledge of the Company, contemplated or threatened to which the Company, or any of its subsidiaries is a party or to which any of the assets of the Company, or any of its subsidiaries is subject, which would individually or in the aggregate be reasonably expected to have a Material Adverse Effect.
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(q) Neither the Company nor the Guarantor is, and after giving effect to each offering and sale of the Designated Securities and the application of the proceeds thereof, will be, required to register as an “investment company” as such term is defined in the U.S. Investment Company Act of 1940, as amended.
(r) Except as described in the Pricing Prospectus, no stamp or other issuance or transfer taxes or duties or similar fees or charges are payable by or on behalf of the Underwriters to the Kingdom of Norway or any political subdivision or taxing authority thereof or therein in connection with (i) the issuance, sale and delivery by the Company of the Designated Securities to or for the respective accounts of the Underwriters or (ii) the sale and delivery by the Underwriters of the Designated Securities in accordance with the terms of this Agreement and in the manner contemplated by the Pricing Prospectus and the Prospectus.
(s) The Company and its subsidiaries possess all certificates, authorizations, orders, licenses and permits of and from, and have made all filings with, any Governmental Agency having jurisdiction over the Company and any of its subsidiaries necessary to conduct its business as presently conducted, except as set forth in the Pricing Prospectus and the Prospectus and except to the extent that the failure to possess all such certifications, authorizations, orders, licenses and permits, or to have made such filings, would not reasonably be expected to have a Material Adverse Effect; and neither the Company nor any of its subsidiaries has received any notice of proceedings relating to the revocation or modification of any such certificate, authorization, order, license or permit, in which there is more than an insubstantial risk of an unfavorable decision, ruling or finding and which, individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to have a Material Adverse Effect.
(t) Except as disclosed in the Pricing Prospectus, to the best of the Company’s knowledge after due inquiry, there are no costs or liabilities associated with any and all applicable laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”) (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties) which would reasonably be expected to have a Material Adverse Effect.
(u) Neither the Company nor the Guarantor has taken, directly or indirectly, any action which was designed to or which has constituted or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Designated Securities other than in compliance with applicable laws.
(v) The consolidated financial statements of the Company, and the related notes thereto, included or incorporated by reference in the Pricing Prospectus and the Prospectus present fairly the consolidated financial position of the Company and its subsidiaries as at the respective dates or for the respective periods to which they apply and such financial statements have been prepared in accordance with generally accepted accounting principles applied on a consistent basis, except as stated in the Pricing Prospectus.
(w) KPMG AS, who have certified certain financial statements of the Company and its subsidiaries, were, as of May 2, 2019 and during the period covered by the financial statements on which they reported, independent registered public accountants as required by the Securities Act and the rules and regulations of the Commission thereunder and the standards of the Public Company Accounting Oversight Board.
(x) Ernst & Young AS, who have certified certain financial statements of the Company and its subsidiaries, are independent registered public accountants as required by the Securities Act and the rules and regulations of the Commission thereunder and the standards of the Public Company Accounting Oversight Board.
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(y) The Company maintains a system of internal control over financial reporting (as such term is defined in Rule 13a-15(f) under the Exchange Act) that complies with the requirements of the Exchange Act and has been designed by the Company’s principal executive officer and principal financial officer, or under their supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. Other than in connection with the material weakness in internal controls over financial reporting described on pages 159-161 of the Company’s Annual Report on Form 20-F for the year ended December 31, 2019, the Company’s internal control over financial reporting is effective and the Company, after reasonable investigation, is not aware of any material weaknesses in its internal control over financial reporting.
(z) The Company has instituted and maintains controls and procedures designed to ensure, at a reasonable assurance level, compliance in all material respects with applicable anti-money laundering statutes of all United States and Norwegian jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency in the United States or Norway.
(aa) The Company maintains disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange Act; such disclosure controls and procedures have been designed to ensure that material information relating to the Company, and its subsidiaries is made known to the Company’s principal executive officer and principal financial officer by others within those entities; the Company’s Annual Report on Form 20-F for the year ended December 31, 2019 contains the conclusion of the Company’s management that such disclosure controls and procedures were not effective as of December 31, 2019.
3. Upon the execution of the Pricing Agreement applicable to any Designated Securities, the several Underwriters propose to offer such Designated Securities for sale upon the terms and conditions set forth in the Prospectus.
4. Designated Securities to be purchased by each Underwriter pursuant to the applicable Pricing Agreement, in the form specified in such Pricing Agreement, and in such authorized denominations and registered in such names as the Representatives may request upon at least forty-eight hours’ prior notice to the Company, shall be delivered by or on behalf of the Company, to the Representatives for the account of such Underwriter, against payment by such Underwriter or on its behalf of the purchase price therefor by wire transfer of Federal (same-day) funds to the account specified by the Company at least forty-eight hours in advance, all in the manner and at the place and time and date specified in such Pricing Agreement or at such other place and time and date as the Representatives and the Company may agree upon in writing, such time and date being herein called the “Time of Delivery” for such Designated Securities.
5. Each of the Company and the Guarantor jointly and severally agrees with each of the several Underwriters of any Designated Securities:
(a) (i) To prepare the Prospectus in relation to the applicable Designated Securities and the related Guarantees in a form approved by the Representatives, such approval not to be unreasonably withheld, and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of the applicable Pricing Agreement or, if applicable, such earlier time as may be required by Rule 424(b); (ii) subject to the filing requirement referred to in sub-clause (i) to make no further amendment or any supplement to the Registration Statement, the Base Prospectus, the Pricing Prospectus or the Prospectus after the date of the applicable Pricing Agreement and prior to the Time of Delivery for the Designated Securities which shall have been reasonably disapproved by the Representatives for such Designated Securities promptly after reasonable notice thereof; (iii) to advise the Representatives promptly of any such amendment or
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supplement after such Time of Delivery and furnish the Representatives with copies thereof; (iv) to prepare the final term sheet, substantially in the form approved by the Representatives, to file such final term sheet pursuant to Rule 433(d) under the Securities Act within the time required by such rule and to file any other material required to be filed by the Company with the Commission pursuant to Rule 433(d) under the Securities Act; (v) to file promptly all reports required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act for so long as the delivery of a prospectus is required in connection with the offering or sale of such Designated Securities, and during such same period to advise the Representatives, promptly after the Company or the Guarantor receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Prospectus has been filed with the Commission, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any prospectus or free writing prospectus relating to the Designated Securities and the related Guarantees, of the suspension of the qualification of such Securities and related Guarantees for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and (vi) in the event of the issuance of any such stop order or of any such order preventing or suspending the use of any prospectus or free writing prospectus relating to the Designated Securities and the related Guarantees or suspending any such qualification, to promptly use its best efforts to obtain the withdrawal of such order.
(b) If required by Rule 430B(h) under the Securities Act, to prepare a form of prospectus in a form to which the Representatives do not reasonably object and to file such form of prospectus pursuant to Rule 424(b) under the Securities Act not later than may be required by such rule and to make no further amendment or supplement to such form of prospectus which shall be disapproved by the Representatives after reasonable notice thereof.
(c) If by the third anniversary (the “Renewal Deadline”) of the initial effective date of the Registration Statement any of the Securities remain unsold by the Underwriters, to file, if it has not already done so and is eligible to do so, a new automatic shelf registration statement relating to the Securities in a form satisfactory to the Representatives. If at the Renewal Deadline either the Company or the Guarantor is no longer eligible to file an automatic shelf registration statement, it will, if it has not already done so, file a new shelf registration statement relating to the Securities and the Guarantees in a form satisfactory to the Representatives and will use reasonable efforts to cause such registration statement to be declared effective within 180 days after the Renewal Deadline, and it will take all other action necessary to permit the public offering and sale of the Securities and the Guarantees to continue as contemplated in the expired registration statement relating to the Securities and the Guarantees. References in this Agreement to the Registration Statement shall include any such new automatic shelf registration statement or any such new shelf registration statement, as the case may be.
(d) To endeavor to qualify the Designated Securities for offer and sale under the securities laws of such U.S. jurisdictions as the Representatives may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution or sale of the Designated Securities; provided, however, that in connection therewith neither the Company nor the Guarantor shall be required to (i) qualify as a foreign corporation or other entity or as an underwriter of securities in any such jurisdiction where it would not otherwise be required to so qualify, (ii) to file a general consent to service of process in any U.S. jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so subject.
(e) To furnish the Underwriters with copies of the Prospectus, as amended or supplemented, in New York City in such quantities as the Representatives may reasonably request, and, if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required at any time in connection with the offering or sale of such Designated Securities prior to the expiration of nine
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months after the time of issue of the Prospectus and if at such time any event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is delivered, not misleading, or, if for any other reason it shall be necessary during such same period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act, the Exchange Act, the Trust Indenture Act, to notify the Representatives and upon their request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance; provided, however, that in case any Underwriter is required to deliver a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) in connection with the offering or sale of Designated Securities at any time more than 90 days after the date of the applicable Pricing Agreement, the cost of such preparation and furnishing of such amended or supplemented Prospectus shall be borne by the Underwriters of the Designated Securities.
(f) To make generally available to the Company’s security holders as soon as practicable an earnings statement of the Company (which need not be audited) complying with Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(g) To pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) under the Securities Act and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act.
(h) None of the proceeds from the sale of Securities will be lent to, invested in, or otherwise paid to or made available to any person or entity (whether or not related to the Company or the Guarantor) for the purpose of financing the activities of any person or entity for the benefit of any country currently subject to U.S. Economic Sanctions, to the extent such use of proceeds would, at the time of such financing, be in breach of laws and regulations applicable to the Company, the Guarantor or the Company and its consolidated subsidiaries taken as a whole (the “Group”), as the case may be, or to the extent U.S. Economic Sanctions would, at such time, prohibit such use of proceeds by the Company, the Guarantor or the Group, as the case may be, if the Company, the Guarantor or the Group, as the case may be, were U.S. persons. For the purpose of this paragraph, “U.S. Economic Sanctions” means any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury.
(i) Not to solicit any offer to buy or offer to sell the Securities and the related Guarantees in the Kingdom of Norway in any way that would constitute an offer to the public as described in the Norwegian Securities Trading Act 2007, Section 7-2.
6. (a) Each of the Company and the Guarantor represents and agrees that, without the prior written consent of the Underwriters, other than the final term sheet prepared and filed pursuant to Section 5(a) hereof, it has not made and will not make any offer relating to the Designated Securities that (i) would constitute an “issuer free writing prospectus,” as defined in Rule 433 under the Securities Act or (ii) would otherwise constitute a “free writing prospectus” as defined in Rule 405 under the Securities Act, required to be filed with the Commission.
(b) Each Underwriter represents and agrees that, without the prior written consent of the Company and the Representatives, it has not made and will not make any offer relating to the Designated Securities that (i) would constitute an “issuer free writing prospectus,” as defined in Rule 433 under the Securities Act or (ii) would otherwise constitute a “free writing prospectus” as defined in Rule 405 under the Securities Act, required to be filed with the Commission; provided, however, that the Company and the Guarantor consent to the use by each Underwriter of a free writing prospectus that contains only (i) information
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describing the preliminary terms of the Designated Securities or their offering which, in their final form, will not be inconsistent with the final term sheet of the Company and the Guarantor prepared and filed pursuant to Section 5(a) hereof and (ii) information that describes the final terms of the Designated Securities or their offering and that is included in the final term sheet of the Company and the Guarantor prepared and filed pursuant to Section 5(a) hereof.
(c) Any such free writing prospectus the use of which has been consented to by the Company, the Guarantor or the Underwriters (including the final term sheet prepared and filed pursuant to Section 5(a) hereof) will be listed in Schedule III applicable to the Pricing Agreement.
(d) The Company represents and agrees that it has complied and will comply with the requirements of Rule 433 under the Securities Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or retention where required and legending.
(e) The Company agrees that if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information contained or incorporated by reference in the Registration Statement, the Pricing Prospectus or the Prospectus or, when taken together with the Pricing Prospectus, would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, the Company will give prompt notice thereof to the Representatives and, if requested by the Representatives, the Company will prepare and furnish without charge to each Underwriter an Issuer Free Writing Prospectus or other document which will correct such conflict, statement or omission; except that the obligations set forth in this paragraph 6(e) do not apply to statements or omissions in an Issuer Free Writing Prospectus based upon information concerning any Underwriter furnished to the Company or the Guarantor in writing by such Underwriter through the Representatives expressly for use therein.
7. The Company covenants and agrees with the several Underwriters that the Company will pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Securities and the related Guarantees under the Securities Act and all other expenses in connection with the preparation, printing and filing of the Registration Statement, any Preliminary Prospectus, the Prospectus and any Issuer Free Writing Prospectus and amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers; (ii) the cost of printing or otherwise producing any Agreement among Underwriters, this Agreement, any Pricing Agreement, any Indenture, any Blue Sky and Legal Investment Memoranda, closing documents (including any compilations thereof) and any other documents in connection with the offering, purchase, sale and delivery of the Designated Securities and the related Guarantees; (iii) any fees charged by securities rating services for rating the Designated Securities; (iv) filing fees incident to, and the reasonable fees and disbursements of counsel for the Underwriters in connection with, any required review by the US Financial Industry Regulatory Authority of the terms of the sale of the Designated Securities and the related Guarantees; (v) the cost of preparing the Designated Securities and the related Guarantees; (vi) the reasonable fees and expenses of any Trustee and any agent of any Trustee and the reasonable fees and disbursements of counsel for any Trustee in connection with any Indenture and the Designated Securities; (vii) any fees charged by rating agencies in connection with the rating of the Designated Securities; and (viii) all other costs and expenses incident to the performance of its obligations hereunder which are not otherwise specifically provided for in this Section 7. It is understood, however, that, except as provided in this Section, and Sections 9 and 13 hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel, transfer taxes on resale of any of the Designated Securities by them, and any advertising expenses connected with any offers they may make.
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8. The several obligations of the Underwriters under this Agreement are subject to the following conditions:
(a) The representations and warranties of each of the Company and the Guarantor contained in this Agreement are true and correct on and as of the Time of Delivery as if made on and as of the Time of Delivery and each of the Company and the Guarantor shall have complied, in all material respects, with all of its obligations to be performed hereunder and shall have satisfied all of the conditions on its part to be performed hereunder or satisfied on or prior to the Time of Delivery.
(b) The Prospectus in relation to the applicable Designated Securities and the related Guarantees shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act; any final term sheet contemplated by Section 5(a) hereof, and any other material required to be filed by the Company and the Guarantor pursuant to Rule 433(d) under the Securities Act shall have been filed with the Commission within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act; no stop order suspending the effectiveness or preventing the use of the Registration Statement or any part thereof, the Prospectus or any Issuer Free Writing Prospectus shall be in effect and no proceedings for such purpose shall be pending before or, to the knowledge of the Company or the Guarantor, threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Representatives.
(c) On or after the Applicable Time and prior to the Time of Delivery,
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization” as such term is defined in Section 3(a)(62) of the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the business, financial condition or results of operations of the Company and its subsidiaries, taken as a whole, other than as set forth in the Pricing Prospectus, that is so material and adverse as to make it, in the reasonable judgment of the Representatives (after consultation with the Company), impracticable or inadvisable to market the Designated Securities on the terms and in the manner contemplated in the Prospectus.
(d) The Underwriters shall have received on the Time of Delivery certificates, dated the Time of Delivery and signed by an executive officer of the Company and the Guarantor, to the effect set forth in sub-sections (a) and, (b) above and as to the absence of a material adverse change, or any development reasonably expected to result in a prospective material adverse change in the business, financial condition or results of operations of the Company and its subsidiaries taken as a whole. The officer signing and delivering such certificate may rely upon the best of his or her knowledge.
(e) The Underwriters shall have received on the Time of Delivery an opinion of the Company’s Chief Counsel Legal, Legal Corporate, dated the Time of Delivery, to the effect that:
(i) each of the Company and the Guarantor has been duly incorporated, the Company is validly existing as a public limited company (allmennaksjeselskap) under the laws of the Kingdom of Norway, the Guarantor is validly existing as a limited company (aksjeselskap) under the laws of the Kingdom of Norway, and each of the Company and the Guarantor has the corporate power and authority to own its property and to conduct its business as described in the Registration Statement, Pricing Prospectus and the Prospectus as amended or supplemented;
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(ii) the Pricing Agreement with respect to the Designated Securities has been duly authorized, executed and delivered by each of the Company and the Guarantor and, assuming the due authorization, execution and delivery of such Pricing Agreement by or on behalf of the Underwriters, insofar as the laws of the Kingdom of Norway are concerned, such Pricing Agreement constitutes a valid and legally binding agreement of each of the Company and the Guarantor;
(iii) the Indenture has been duly authorized, executed and delivered by the Company and the Guarantor and, assuming the due authorization, execution and delivery of the Indenture by the Trustee, insofar as the laws of the Kingdom of Norway are concerned, the Indenture constitutes a valid, legally binding and enforceable agreement against each of the Company and the Guarantor in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability affecting the enforcement of creditors’ rights and general equity principles;
(iv) the Securities to be issued by the Company have been duly authorized by the Company and the Designated Securities issued and delivered pursuant to the Pricing Agreement with respect to such Designated Securities have been duly executed, authenticated and issued and delivered by the Company and, insofar as the laws of the Kingdom of Norway are concerned, constitute valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture, enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability affecting the enforcement of creditors’ rights and general equity principles;
(v) the Guarantees have been duly authorized, executed and delivered by the Guarantor and constitute valid and legally binding obligations of the Guarantor enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general application relating to or affecting creditors’ rights and to general equity principles;
(vi) the execution and delivery by the Company and the Guarantor of, and the performance by the Company and the Guarantor of their respective obligations under, this Agreement and the applicable Pricing Agreement, the Designated Securities, the Guarantees and the Indenture will not contravene or result in a breach or violation of (i) the articles of association of the Company or the Guarantor, (ii) to such counsel’s knowledge, any agreement or other instrument binding upon the Company, the Guarantor or any Significant Subsidiary or to which any property or assets of the Company or any Significant Subsidiary is subject, that is material to the Company and its subsidiaries, taken as a whole, or (iii) to such counsel’s knowledge, any statute, rule, regulation, judgment, order or decree of any Governmental Agency having jurisdiction over the Company, the Guarantor or Significant Subsidiary, except statutes, rules, regulations, judgments, orders or decrees the contravention of which would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect, and which would not affect the due authorization, execution, validity, binding effect or enforceability of this Agreement and the applicable Pricing Agreement, the Indenture, the Designated Securities or the Guarantees relating to the Designated Securities;
(vii) no consent, approval, authorization or order of, or qualification with, any Norwegian Governmental Agency is required for the performance by the Company or the Guarantor of its obligations under this Agreement and the applicable Pricing Agreement, the Indenture, the Designated Securities or the Guarantees relating to the Designated Securities, except such as have been obtained or made and which are in full force and effect and copies of which have been furnished to the Underwriters;
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(viii) except as disclosed in the Pricing Prospectus and the Prospectus, no stamp or other issuance or transfer taxes or duties or similar fees or charges are payable by or on behalf of the Underwriters to the Kingdom of Norway or any political subdivision or taxing authority thereof or therein in connection with (i) the issuance, sale and delivery by the Company of the Designated Securities and the related Guarantees to or for the respective accounts of the Underwriters or (ii) the sale and delivery by the Underwriters of the Designated Securities and the related Guarantees in accordance with the terms of this Agreement and in the manner contemplated by the Pricing Prospectus and the Prospectus;
(ix) the choice of New York law to govern this Agreement and the related Pricing Agreement, the Indenture and the Designated Securities and the related Guarantees is, under the laws of the Kingdom of Norway, a valid choice of law, subject to the limitation that New York law will not be applied to the extent that it would be contrary to Norwegian public policy and that Norwegian courts will apply Norwegian procedural rules in any such action or proceeding, and, subject further to the limitation that if and to the extent that proceedings have already been instituted or are pending in the courts of any country other than the Kingdom of Norway at the time the matter is brought before a court in the Kingdom of Norway, the courts of the Kingdom of Norway may think it proper in accordance with their rules not to entertain or stay an action in respect of a matter on which a court of another country has already given judgment or is entertaining proceedings; the submission to the jurisdiction of such New York courts contained in this Agreement and the related Pricing Agreement, the Indenture and the Designated Securities and the related Guarantees is valid under Norwegian law; the waiver by the Company of any objection to the venue of a proceeding in such New York courts is legal, valid and binding under Norwegian law; service of process effected in the manner set forth in Section 14(b) of this Agreement and in Section 114 of the Indenture, assuming its validity under New York law, will be effective, insofar as Norwegian law is concerned, to confer valid personal jurisdiction over the Company and the Guarantor;
(x) the Company and the Guarantor are not entitled to any immunity to jurisdiction on the basis of sovereign immunity in any legal suit, action or proceeding against them arising out of or based on this Agreement and the related Pricing Agreement and the Indenture or the transactions contemplated thereby which is instituted in any competent court in Norway. The Company and the Guarantor’s irrevocable waiver in this Agreement and the related Pricing Agreement and the Indenture of any such immunity to which it may otherwise be entitled or become entitled is valid and binding under Norwegian law; and
(xi) the statements in the Pricing Prospectus and the Prospectus under the captions “Enforceability of Civil Liabilities”, “Taxation — Norwegian Taxation of Debt Securities and Payments under the Guarantees” and “Taxation— Norwegian Taxation of Ordinary Shares and ADSs”, to the extent such statements relate to matters of Norwegian law or regulation or to the provision of documents governed by the laws of Norway, therein described, fairly present in all material respects the information called for with respect to such legal matters and documents and fairly summarize in all material respects the matters referred to therein as of the Time of Delivery.
In giving the foregoing opinions, such counsel may state that she has not investigated the laws of any jurisdiction other than the Kingdom of Norway as they stand and have been interpreted in published case law of the courts in the Kingdom of Norway as of the date of such opinion, and that such counsel do not express or imply an opinion on the laws of any jurisdiction other than the Kingdom of Norway.
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(f) The Underwriters shall have received on the Time of Delivery an opinion of Sullivan & Cromwell LLP, U.S. counsel for the Company and the Guarantor, dated the Time of Delivery, to the effect that:
(i) assuming the Indenture has been duly authorized, executed and delivered by each of the Company and the Guarantor insofar as the laws of the Kingdom of Norway are concerned, it has been duly executed and delivered by each of the Company and the Guarantor; the Indenture has been duly qualified under the Trust Indenture Act of 1939 and constitutes a valid and legally binding obligation of each of the Company and the Guarantor, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(ii) assuming the Designated Securities have been duly authorized, executed, authenticated, issued and delivered by the Company insofar as the laws of the Kingdom of Norway are concerned, they have been duly executed, authenticated, issued and delivered by the Company and (assuming due authentication of the Designated Securities by the Trustee) constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(iii) assuming the Guarantees relating to the Designated Securities have been duly authorized, executed and delivered by the Guarantor insofar as the laws of the Kingdom of Norway are concerned, the Guarantees relating to the Designated Securities have been duly executed and delivered by the Guarantor and constitute valid and legally binding obligations of the Guarantor, enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(iv) assuming the Pricing Agreement relating to the Designated Securities has been duly authorized, executed and delivered by each of the Company and the Guarantor insofar as the laws of the Kingdom of Norway are concerned, such Pricing Agreement has been duly executed and delivered by each of the Company and the Guarantor;
(v) the issuance of the Designated Securities in accordance with the Indenture and the sale of the Designated Securities by the Company pursuant to the Underwriting Agreement do not, and the performance by the Company and the Guarantor of their respective obligations under the Indenture, the Pricing Agreement, the Designated Securities and the Guarantees (the “Opinion Documents”) will not violate any Covered Laws (as defined below) applicable to the Company or the Guarantor;
(vi) all regulatory consents, authorizations, approvals and filings required to be obtained or made by the Company or the Guarantor, as the case may be, under the Covered Laws for the issuance by the Guarantor of the Guarantees and the issuance, sale and delivery of the Designated Securities by the Company to the Underwriters have been obtained or made;
(vii) neither the Company nor the Guarantor is, and after giving effect to the offering and sale of the Designated Securities and the application of the proceeds thereof as described in the Pricing Prospectus and the Prospectus, would not be on the date of such letter, an “investment company” as such term is defined in the Investment Company Act of 1940, as amended; and
(viii) assuming the validity of such action under Norwegian law, under the laws of the State of New York relating to submission to personal jurisdiction, each of the Company and the Guarantor has, pursuant to Section 14(b) of this Agreement and Section 114 of the Indenture validly and irrevocably submitted to the non-exclusive jurisdiction of any Federal or state court in the Borough of Manhattan, the City of New York, New York, in any suit or proceeding arising out of or related to and the transactions anticipated thereby in this Agreement and the related Pricing Agreement and the Indenture and has appointed CT Corporation System as its authorized agent for the purposes described in Section 14(b) of this Agreement and Section 114 of the Indenture.
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Such counsel may state that they are expressing no opinion in paragraphs (v) and (vi) above, insofar as performance by the Company or the Guarantor of their respective obligations under any Opinion Document is concerned, as to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights. Also, for purposes of the opinions in paragraphs (v) and (vi) above, “Covered Laws” means the Federal laws of the United States and the statutory laws of the State of New York (including the published rules and regulations thereunder) that in its experience normally are applicable to general business corporations and transactions such as those contemplated by the Opinion Documents; provided, however, that such term does not include Federal or state securities laws, antifraud laws or fraudulent transfer laws, tax laws, the Employee Retirement Income Security Act of 1974, antitrust laws, laws that restrict transactions between United States persons and citizens or residents of certain foreign countries or specially designated nationals and organizations or any law that is applicable to the Company, the Guarantor, the Opinion Documents or the transactions contemplated thereby solely as part of a regulatory regime applicable to the Company, the Guarantor or their affiliates due to its or their status, business or assets.
Such counsel may also state that their opinion is limited to the Federal laws of the United States and the laws of the State of New York, and that they are expressing no opinion as to the effect of the laws of any other jurisdiction. In addition, in rendering the foregoing opinion, such counsel may assume that each of the Company and the Guarantor has been duly incorporated and is an existing company under the laws of the Kingdom of Norway. With respect to all matters of Norwegian law, such counsel may note that the Underwriters have received an opinion of the Company’s and the Guarantor’s Chief Counsel Legal, Legal Corporate, rendered pursuant to Section 8(e), and an opinion of Norwegian counsel to the Underwriters pursuant to Section 8(h).
Such counsel may also state that they have relied as to certain upon information obtained from officers of the Company and the Guarantor and other sources believed by them to be responsible, and that they have assumed that (1) the execution and delivery of the Indenture and the Pricing Agreement, the execution, issuance, sale and delivery of the Designated Securities and the Guarantees and the performance by the Company and the Guarantor of their respective obligations under the Opinion Documents have not resulted and will not result in any breach or violation of, or conflict with, any Norwegian statute, rule or regulation, (2) the provisions of the Indenture designating the law of the State of New York as the governing law of the Indenture are valid and binding on the Company and the Guarantor under Norwegian law, (3) the Indenture has been duly authorized, executed and delivered by the Trustee, (4) that the Designated Securities, including the Guarantees thereon, conform to the specimens thereof examined by them (5), that the Trustee’s certificates of authentication of the Designated Securities have been manually signed by one of the Trustee’s duly authorized officers, and (6) that the signatures on all documents examined by such counsel are genuine, assumptions which they have not independently verified.
Such counsel shall also state that they have reviewed the Registration Statement, the Base Prospectus, the Prospectus and the Pricing Disclosure Package and participated in discussions with representatives of the Underwriters and those of the Underwriters’ Norwegian counsel, the Company, the Guarantor and their accountants; and between the date of the final prospectus supplement relating to the Designated Securities (the “Prospectus Supplement”) and the time of delivery of the letter, they participated in further discussions with representatives of the Underwriters and those of the Company and the Guarantor and their accountants, concerning certain matters relating to the Company and the Guarantor and reviewed certificates of certain officers of the Company and the Guarantor, letters addressed to the Underwriters from the Company’s and the Guarantor’s accountants and opinions addressed to the Underwriters from the Company’s and the Guarantor’s Chief Counsel Legal; and on the basis of the information that they gained in the course of the performance of the services referred to above, considered in the light of their understanding of the applicable law (including the requirements of Form F-3 and the character of prospectus contemplated thereby) and the experience they have gained through their practice under the Securities Act, such counsel shall confirm to the Underwriters that each part of the Registration Statement, as of the date of the
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Prospectus Supplement, and the Base Prospectus, as supplemented by the Prospectus Supplement, as of the date of the Prospectus Supplement, appeared on their face to be appropriately responsive, in all material respects relevant to the offering of the Securities, to the requirements of the Securities Act, the Trust Indenture Act and the applicable rules and regulations of the Commission thereunder and that the statements contained under the captions “Description of Debt Securities and Guarantees”, “Taxation — United States Taxation of Debt Securities” and “Plan of Distribution” in the Base Prospectus and under the captions “Description of Notes and Guarantees” and “Underwriting” in the Prospectus Supplement insofar as they relate to provisions of the documents or United States Federal tax law therein described and insofar as they relate to the offering of the Designated Securities, constitute a fair and accurate summary of such provisions in all material respects. and, further, nothing that came to such counsel’s attention in the course of such review has caused them to believe, insofar as relevant to the offering of the Designated Securities, (a) that the Registration Statement, as of the date of the Prospectus Supplement, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or (b) that the Pricing Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (c) that the Base Prospectus, as supplemented by the Prospectus Supplement, as of the date of the Prospectus Supplement, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Such counsel may note that the Base Prospectus, as supplemented by the Prospectus Supplement, does not necessarily contain a current description of the Company’s and the Guarantor’s business and affairs since, pursuant to Form F-3, it incorporates by reference certain documents filed with the Commission that contain information as of various dates.
Such counsel shall also advise the Underwriters that nothing that came to their attention in the course of the procedures described above has caused them to believe that the Base Prospectus, as supplemented by the Prospectus Supplement, as of the time of delivery of such letter, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Such opinion may state (1) that such counsel do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Base Prospectus, the Prospectus Supplement or the Pricing Disclosure Package, except for those made under the captions “Description of Debt Securities and Guarantees,” “Taxation — United States Taxation of Debt Securities” and “Plan of Distribution” in the Base Prospectus and “Description of Notes and Guarantees” and “Underwriting” in the Prospectus Supplement insofar as they relate to provisions of the documents or United States Federal tax law therein described and insofar as they relate to the offering of the Designated Securities and (2) that they do not express any opinion or belief as to the financial statements or other financial data derived from accounting records, or the information regarding reserves and production, or the letter report of DeGolyer and MacNaughton included as an appendix to the Company’s Annual Report on Form 20-F incorporated by reference therein, contained in the Registration Statement, the Base Prospectus, the Prospectus Supplement or the Pricing Disclosure Package, or as to management’s report of its assessment of the effectiveness of the Company’s internal control over financial reporting or auditors’ report as to the Company’s internal control over financial reporting, each as included in the Registration Statement, the Base Prospectus, the Prospectus Supplement or the Pricing Disclosure Package, or as to the statement of the eligibility and qualifications of the Trustee under the Indenture under which the Designated Securities are being issued, or as to any statement made with respect to Norwegian law in the Registration Statement, the Base Prospectus, the Prospectus or the Pricing Disclosure Package; that their opinion described in this sub-section is furnished as United States counsel for the Company and the Guarantor to the Representatives of the Underwriters and is solely for the benefit of the several Underwriters in their capacity as such, and may not be relied upon by any other person; and that their opinion may not be quoted, referred to or furnished to any purchaser or prospective purchaser of the Designated Securities and may not be used in the furtherance of any offer or sale of the Securities.
(g) The Underwriters shall have received on the Time of Delivery an opinion of U.S. counsel for the Underwriters, dated the Time of Delivery, covering certain of the matters referred to in sub-sections (i), (ii), (iii) and (iv) and the last two last paragraphs of Section 8(f).
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(h) The Underwriters shall have received on the Time of Delivery an opinion of Norwegian counsel to the Underwriters, with respect to such matters of Norwegian law and/or non-factual matters as the Representatives may reasonably request.
(i) The Company shall have complied with the provisions of Section 5(e) hereof with respect to the furnishing of prospectuses.
(j) The Underwriters shall have received on the date of the applicable Pricing Agreement a letter dated on the date of the applicable Pricing Agreement, in a form and substance reasonably satisfactory to the Representatives, from the independent certified accountants who have certified the financial statements of the Company and its subsidiaries included in or incorporated by reference in the Registration Statement, the Pricing Prospectus and the Prospectus containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Pricing Prospectus and the Prospectus.
(k) The Underwriters shall have received on the date of the applicable Time of Delivery a letter dated on the date of the applicable Time of Delivery, in form and substance reasonably satisfactory to the Representatives, from the independent certified accountants who have certified the financial statements of the Company and its subsidiaries included in or incorporated by reference in the Registration Statement, the Pricing Prospectus and the Prospectus to the effect that they reaffirm the statements made in the comfort letters furnished pursuant to sub-section (j) above, except that the specified date referred to shall be a date not more than three Stavanger business days prior to the Time of Delivery.
9. (a) The Company and the Guarantor jointly and severally agree to indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus, the Prospectus (as amended or supplemented), any Issuer Free Writing Prospectus or any “issuer information” (as defined in Rule 433(h)(2) under the Securities Act) filed or required to be filed pursuant to Rule 433(d) under the Securities Act, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that neither the Company nor the Guarantor shall be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, as amended or supplemented, or any Issuer Free Writing Prospectus, in each case, relating to the Designated Securities, or any such amendment or supplement in reliance upon and in conformity with written information furnished to the Company or the Guarantor by any Underwriter of Designated Securities through the Representatives expressly for use, as the case may be, in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, as amended or supplemented, relating to such Designated Securities or in any Issuer Free Writing Prospectus.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless each of the Company and the Guarantor against any losses, claims, damages or liabilities to which each of the Company, the Guarantor, each of its directors and officers and each person who controls the Company within the meaning of either the Securities Act or the Exchange Act may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact
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contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus, the Prospectus, as amended or supplemented, or any Issuer Free Writing Prospectus (in each case, which relates to the Designated Securities), or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus, the Prospectus, as amended or supplemented, or any Issuer Free Writing Prospectus, and, in each case, relating to the Designated Securities, or any such amendment or supplement in reliance upon and in conformity with written information furnished to the Company or the Guarantor by such Underwriter through the Representatives expressly for use therein; and will reimburse the Company and the Guarantor for any legal or other expenses reasonably incurred by the Company or the Guarantor, each of its directors and officers and each person who controls the Company within the meaning of either the Securities Act or the Exchange Act in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under sub-section (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such sub- section, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under such sub-section. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall, so far as permitted by any insurance policy of the indemnified party and subject to the indemnifying party agreeing to indemnify the indemnified party against all judgments and other liabilities resulting from such action, be entitled to participate therein and, to the extent that it may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof, with counsel satisfactory to such indemnified party; provided that, if the defendants in any such action include both the indemnified party and the indemnifying party, and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel, to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of its election so to assume the defense of such action and approval by the indemnified party of counsel, the indemnifying party shall not be liable to such indemnified party under this Section 9 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof unless (i) the indemnified party shall have employed separate counsel in connection with the assertion of legal defenses in accordance with the proviso to the next preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel (in addition to local counsel), approved by the representatives representing the indemnified parties who are parties to such action), (ii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action or (iii) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party; and except that, if clause (i) or (iii) is applicable, such liability shall be only in respect of the counsel referred to in such clause (i) or (iii). An indemnifying person shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent, the indemnifying party agrees to indemnify each indemnified party from and against any loss or liability by reason of such settlement. An indemnifying party will not, without the prior written consent of each indemnified party, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
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(d) If the indemnification provided for in this Section 9 is unavailable to or insufficient to hold harmless an indemnified party under sub-section (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Guarantor on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities to which such loss, claim, damage or liability (or action in respect thereof) relates. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company and the Guarantor on the one hand and the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations (including, without limitation, any failure by a party, promptly after its receipt of notice of the commencement of any action in respect of which contribution may be sought under this sub-section (d), to notify the other party in writing of the commencement of such action). The relative benefits received by the Company on the one hand and such Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such Underwriters, in each case as set forth on the cover page of the Prospectus, as amended or supplemented. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or the Guarantor on the one hand or such Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company, the Guarantor and the Underwriters agree that it would not be just and equitable if contribution pursuant to this sub-section (d) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this sub-section (d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this sub-section (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this sub-section (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations of the Underwriters of Designated Securities in this sub-section (d) to contribute are several in proportion to their respective underwriting obligations with respect to such Securities and not joint.
(e) The obligations of the Company and the Guarantor under this Section 9 shall be in addition to any liability which the Company or the Guarantor may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls any Underwriter within the meaning of the Securities Act or the Exchange Act; and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of each of the Company and the Guarantor and to each person, if any, who controls the Company within the meaning of the Securities Act or the Exchange Act.
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10. (a) If any Underwriter shall default in its obligation to purchase the Designated Securities which it has agreed to purchase under the applicable Pricing Agreement, the Representatives may in their discretion, after giving notice to and consulting with the Company, arrange for themselves or another party or other parties to purchase such Designated Securities on the terms contained herein. If within thirty-six hours after such default by any Underwriter the Representatives do not arrange for the purchase of such Designated Securities, then the Company shall be entitled to a further period of thirty-six hours within which to procure another party or other parties satisfactory to the Representatives to purchase such Designated Securities on such terms. In the event that, within the respective prescribed period, the Representatives notify the Company that they have so arranged for the purchase of such Designated Securities, or the Company notifies the Representatives that it has so arranged for the purchase of such Designated Securities, the Representatives, the Company shall have the right to postpone the Time of Delivery for such Designated Securities for a period of not more than seven days, in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, as amended or supplemented, or in any other documents or arrangements, and each of the Company and the Guarantor agrees to file promptly any amendments or supplements to the Registration Statement or the Prospectus which in the opinion of the Representatives may thereby be made necessary. The term “Underwriter” as used in this Agreement shall include any person substituted under this Section 10 with like effect as if such person had originally been a party to the applicable Pricing Agreement with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of the Designated Securities of a defaulting Underwriter or Underwriters by the Representatives, the Company as provided in sub-section (a) above, the aggregate principal amount of such Designated Securities which remains unpurchased does not exceed one-eleventh of the aggregate principal amount of the Designated Securities, then the Company shall have the right to require each non-defaulting Underwriter to purchase the principal amount of Designated Securities which such Underwriter agreed to purchase under the applicable Pricing Agreement and, in addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the principal amount of Designated Securities which such Underwriter agreed to purchase under such Pricing Agreement) of the Designated Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the Designated Securities of a defaulting Underwriter or Underwriters by the Representatives and, the Company as provided in sub-section (a) above, the aggregate principal amount of Designated Securities which remains unpurchased exceeds one-eleventh of the aggregate principal amount of the Designated Securities, as referred to in sub-section (b) above, or if the Company shall not exercise the right described in sub-section (b) above to require non-defaulting Underwriters to purchase Designated Securities of a defaulting Underwriter or Underwriters, then the applicable Pricing Agreement shall thereupon terminate, without liability on the part of any non-defaulting Underwriter, the Company or the Guarantor, except for the expenses to be borne by the Company, the Guarantor and the Underwriters as provided in Section 7 hereof and the indemnity and contribution agreements in Section 9 hereof; but nothing herein shall relieve a defaulting Underwriter from liability for its default.
11. The respective indemnities, agreements, representations, warranties and other statements of the Company, the Guarantor and the several Underwriters, as set forth in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall remain in full force and effect, regardless of any investigation (or any statement as to the results thereof) made by or on behalf of any Underwriter or any controlling person of any Underwriter, or the Company, or any officer or director or controlling person of the Company or the Guarantor, and shall survive delivery of and payment for the Designated Securities.
12. This Agreement and any Pricing Agreement shall be subject to termination in the absolute discretion of the Representatives, by notice given to the Company and the Guarantor if (a) at any time after the execution and delivery of such agreement and prior to the Time of Delivery, (i) trading in the Company’s securities or trading
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generally shall have been suspended or materially limited on or by, as the case may be, any of the New York Stock Exchange, the US Financial Industry Regulatory Authority, or the Oslo Stock Exchange, (ii) a general moratorium on commercial banking activities shall have been declared by national or local authorities in the Kingdom of Norway, the United States or a material disruption in clearance or settlement systems shall have occurred in the Kingdom of Norway or the United States or (iii) there shall have occurred any material outbreak or escalation of hostilities involving the Kingdom of Norway or the United States or any calamity or crisis the effect of which on the financial markets of the United States, in the reasonable judgment of the Representatives, is material and adverse and (b) in the case of any of the events specified in clauses (i) through (iii), such event singly or together with any other such event makes it, in the reasonable judgment of the Representatives, impracticable to market the Designated Securities on the terms and in the manner contemplated in the Pricing Prospectus and Prospectus.
13. If any Pricing Agreement shall be terminated pursuant to Section 10 hereof, neither the Company nor the Guarantor shall then be under any liability to any Underwriter with respect to the Designated Securities covered by such Pricing Agreement except as provided in Sections 7 and 9 hereof; but, if for any other reason Designated Securities are not delivered by or on behalf of the Company as provided herein, including due to a failure of the Company or the Guarantor to satisfy the conditions to the several obligations of the Underwriters under Section 8 of this Agreement, the Company will reimburse the Underwriters through the Representatives for all reasonable out-of-pocket expenses approved in writing by the Representatives, including fees and disbursements of counsel, reasonably incurred by the Underwriters in making preparations for the purchase, sale and delivery of such Designated Securities, but neither the Company nor the Guarantor shall then be under further liability to any Underwriter with respect to such Designated Securities except as provided in Sections 7 and 9 hereof.
14. (a) This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.
(b) Each of the Company and the Guarantor submits to the non-exclusive jurisdiction of any Federal or state court in the City, County and State of New York, United States of America, in any legal suit, action or proceeding based on or arising under this Agreement and agrees that all claims in respect of such suit or proceeding may be determined in any such court. Each of the Company and the Guarantor waives, to the fullest extent permitted by law, any objections to venue, the defense of an inconvenient forum or objections to personal jurisdiction with respect to the maintenance of such legal suit, action or proceeding. Each of the Company and the Guarantor hereby designates and appoints CT Corporation System (or any successor corporation), located at 28 Liberty St., New York, New York 10005 (or at such other address in the Borough of Manhattan, The City of New York, as the Company may designate by written notice to the Trustee) (the “Process Agent”), as its authorized agent, upon whom process may be served in any such legal suit, action or proceeding, it being understood that the designation and appointment of CT Corporation System as such authorized agent shall become effective immediately without any further action on the part of the Company or the Guarantor. Such appointment shall be irrevocable to the extent permitted by Norwegian law for a period of three years from and after the Time of Delivery and subject to the appointment of a successor agent in the United States for the remainder of such three-year period on terms substantially similar to those contained in this Section 14(b) and reasonably satisfactory to the Representatives. If the Process Agent shall cease to act as the Company’s and the Guarantor’s agent for service of process, the Company and the Guarantor shall appoint, without unreasonable delay, another such agent, and notify the Representatives of such appointment. Each of the Company and the Guarantor represents to the Underwriters that it has notified the Process Agent of such designation and appointment and that the Process Agent has accepted the same in writing. Each of the Company and the Guarantor hereby authorizes and directs the Process Agent to accept such service. Each of the Company and the Guarantor further agrees that service of process upon the Process Agent and notice by certified mail of said service to the Company or the Guarantor shall be deemed in every respect effective service of process upon the Company or the Guarantor in any such legal suit, action or proceeding. Nothing herein shall affect the right of any Underwriter or any person controlling any Underwriter to serve process in any other manner permitted by law.
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(c) Each of the Company and the Guarantor irrevocably waives any immunity to jurisdiction based on a legal theory of sovereign immunity to which it may otherwise be entitled or become entitled to in any legal suit, action or proceeding against it by any Underwriter arising out of or based on this Agreement which is instituted in any competent court.
(d) The obligation of the parties to make payments hereunder is in U.S. dollars (the “Obligation Currency”) and such obligation shall not be discharged or satisfied by any tender or recovery pursuant to any judgment expressed in any currency other than the Obligation Currency or any other realization in such other currency, whether as proceeds of set-off, security, guarantee, distributions, or otherwise, except to the extent to which such tender, recovery or realization shall result in the receipt by the party which is to receive such payment of the full amount of the Obligation Currency expressed to be payable hereunder. The party liable to make such payment agrees to indemnify the party which is to receive such payment for the amount (if any) by which such receipt shall fall short of the full amount of the Obligation Currency expressed to be payable hereunder and the party which is to receive such payment agrees to pay to the party liable to make such payment the amount (if any) by which such receipt shall exceed the full amount of the Obligation Currency, and, in each case, such obligation shall not be affected by judgment being obtained for any other sums due under this Agreement. The parties agree that the rate of exchange which shall be used to determine if such tender, recovery or realization shall result in the receipt by the party which is to receive such payment of the full amount of the Obligation Currency expressed to be payable hereunder shall be the noon buying rate in New York City for cable transfers in foreign currencies as certified for customs purposes by the Federal Reserve Bank of New York for the business day preceding that on which the judgment becomes a final judgment.
15. In all dealings hereunder, the Representatives shall act on behalf of each of the Underwriters, and the parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of any Underwriter made or given by the Representatives jointly or by such of the Representatives, if any, as may be designated for such purpose in the applicable Pricing Agreement.
16. All statements, requests, notices and agreements hereunder shall be in writing and, if to the Underwriters, shall be delivered or sent by telex, facsimile transmission, or in writing delivered by hand, or by telephone (to be promptly confirmed by telex or fax) to you as the Representatives to the address specified in the applicable Pricing Agreement; and, if to the Company or the Guarantor, shall be delivered or sent by telex, facsimile transmission, or in writing delivered by hand, or by telephone (to be promptly confirmed by telex or fax) to the address of the Company set forth in the Registration Statement. Any such notices shall take effect upon receipt thereof.
17. This Agreement and each Pricing Agreement shall be binding on, and inure solely to the benefit of, the Company, the Guarantor, the Underwriters and, to the extent provided in Sections 9 hereof, the officers and directors of the Company and the Guarantor and any controlling or affiliated persons referred to therein and their respective heirs, executors, administrators, successors and assigns, and no other person shall acquire or have any right under or by virtue of this Agreement or any such Pricing Agreement. No purchaser of any of the Designated Securities from any Underwriter shall be deemed a successor or assign by reason merely of such purchase.
18. Each of the Company and the Guarantor acknowledges and agrees that (i) the purchase and sale of the Designated Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Company and the Guarantor, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company or the Guarantor, (iii) no Underwriter has assumed an advisory or fiduciary responsibility in favor of the Company or the Guarantor with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company or the Guarantor on other matters) or any other obligation to the Company or the Guarantor except the obligations expressly set forth in this Agreement and (iv) each of the Company and the Guarantor has consulted its own legal and financial advisors to the extent it deemed appropriate. Each of the Company and the Guarantor agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company or the Guarantor, in connection with such transaction or the process leading thereto.
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19. Time shall be of the essence in connection with each Pricing Agreement. For purposes of this Agreement, (i) the term “business day” shall mean any day when the Commission’s office in Washington, D.C. is open for business; and (ii) the term “subsidiary” has the meaning set forth in Rule 405 under the Securities Act.
20. Recognition of the U.S. Special Resolution Regimes:
(a) In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Underwriting Agreement and Pricing Agreement, and any interest and obligation in or under this Underwriting Agreement and Pricing Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Underwriting Agreement and Pricing Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
(b) In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Underwriting Agreement and Pricing Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Underwriting Agreement and Pricing Agreement were governed by the laws of the United States or a state of the United States.
“BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered Entity” means any of the following:
(i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
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Annex I
[FORM OF PRICING AGREEMENT]
Representatives of the
Several Underwriters named in Schedule I hereto
[date]
Ladies and Gentlemen:
Equinor ASA, a public limited company incorporated under the laws of the Kingdom of Norway (the “Company”), proposes, subject to the terms and conditions stated herein and in the Underwriting Agreement Standard Provisions, a copy of which is attached hereto as Annex I (the “Underwriting Agreement”), to issue and sell to the Underwriters named in Schedule I hereto (the “Underwriters”): (the “Designated Securities”) with the guarantees of Equinor Energy AS, a limited company incorporated under the laws of the Kingdom of Norway (the “Guarantor”) endorsed thereon. Each of the provisions of the Underwriting Agreement is incorporated herein by reference in its entirety, and shall be deemed to be a part of this Agreement to the same extent as if such provisions had been set forth in full herein; and each of the representations and warranties set forth therein shall be deemed to have been made at and as of the date of this Pricing Agreement. Each reference to the “Representatives” herein and in the provisions of the Underwriting Agreement so incorporated by reference shall be deemed to refer to you. Unless otherwise defined herein, terms defined in the Underwriting Agreement are used herein as therein defined. The Representatives designated to act on behalf of each of the Underwriters of the Designated Securities pursuant to Section 15 of the Underwriting Agreement and the address of the Representatives referred to in Section 16 of the Underwriting Agreement are set forth at the end of Schedule II hereto.
[A supplement to the Base Prospectus relating to the Designated Securities in the form heretofore delivered to you is now proposed to be filed with the Commission (the “Prospectus Supplement”).]
The Applicable Time for purposes of this Pricing Agreement is [•] [a.m./p.m.], New York time, on the date hereof. Each “free writing prospectus” as defined in Rule 405 under the Securities Act for which each party hereto has received consent to use in accordance with Section 6 of the Underwriting Agreement is listed in Schedule III hereto.
Subject to the terms and conditions set forth herein and in the Underwriting Agreement incorporated herein by reference, each of the Company and the Guarantor jointly and severally agrees that the Company will issue and sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at the time and place and at the purchase prices to the Underwriters set forth in Schedule II hereto, the principal amount of Designated Securities set forth opposite the name of such Underwriter in Schedule I hereto.
During the period beginning from the date of this Pricing Agreement and continuing to and including the Time of Delivery for the Designated Securities, the Company and Guarantor agree not to offer, sell, contract to sell or otherwise dispose of any debt securities issued by the Company which mature more than one year after such Time of Delivery, which are substantially similar to such Designated Securities, which are denominated in the same currency as such Designated Securities and are offered primarily in the same market as such Designated Securities are primarily offered, without the prior written consent of the Representatives, such consent not to be unreasonably withheld.
If the foregoing is in accordance with your understanding, please sign and return to us one copy for the Company and the Guarantor and each of the Representatives plus one copy for each counsel counterparts hereof, and upon acceptance hereof by you, on behalf of each of the Underwriters, this letter and such acceptance hereof, including the provisions of the Underwriting Agreement incorporated herein by reference, shall constitute a binding agreement between each of the Underwriters, the Company and the Guarantor. It is understood that your acceptance of this letter on behalf of each of the Underwriters is or will be pursuant to the authority set forth in a form of Agreement among Underwriters, the form of which shall be submitted to the Company and the Guarantor for examination upon request.
This Pricing Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.
Very truly yours.
| EQUINOR ASA | ||
| By: |
| |
| Name: | ||
| Title: | ||
| EQUINOR ENERGY AS | ||
| By: |
| |
| Name: | ||
| Title: | ||
Signature Pages to Pricing Agreement
Accepted as of the date hereof:
| By: |
| |
| Name: | ||
| Title: |
Signature Pages to Pricing Agreement
SCHEDULE II
| Underwriters |
Principal Amount of Designated Securities to be Purchased |
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| $ | ||||
| $ | ||||
| $ | ||||
| $ | ||||
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| Total |
$ | |||
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I-1
SCHEDULE III
Designated Securities:
[$ % Fixed Rate Notes due 20 ]
Issuer:
Equinor ASA (“Equinor” or “Company”)
Guarantor:
Equinor Energy AS (“Equinor Energy” or “Guarantor”)
Title:
[ % Fixed Rate Notes due 20 ]
Aggregate principal amount:
[$ ]
Price to Public:
[% of the principal amount of the Designated Securities]
Purchase Price by Underwriters:
[% of the principal amount of the Designated Securities]
Form of Designated Securities:
[Book-entry only form represented by one or more global registered form securities deposited with The Depository Trust Company (“DTC”) or its designated custodian, to be made available for checking by the Representatives at least twenty-four hours prior to the Time of Delivery at the office of DTC.]
Specified funds for payment of purchase price:
Immediately available funds.
Method of Payment:
Wire transfers to the following account, or to such other account as may be notified by Equinor or Equinor Energy, as the case may be, to the Representatives by 5:00 P.M. (New York City time) on the business day prior to the Time of Delivery.
Account:
IBAN:
Intermediary:
BIC:
Correspondent:
BIC:
II-1
Indenture:
Indenture dated as of April 15, 2009, as supplemented and amended by the Supplemental Indenture No. 1, dated as of May 26, 2010, as further supplemented and amended by the Supplemental Indenture No. 2, dated as of May 16, 2018, as further supplemented and amended by the Supplemental Indenture No. 3, dated as of September 10, 2018 and as further supplemented and amended by the Supplemental Indenture No. 4 dated as of November 18, 2019 in each case among Equinor ASA, Equinor Energy AS and Deutsche Bank Trust Company Americas, as Trustee.
Maturity:
, 20
Interest Rate:
[•]% per annum
Interest Payment Dates:
and of each year, commencing , 20
Additional Amounts:
[Payable as described in the preliminary Prospectus.]
Optional Make-Whole Redemption Provision:
[Equinor has the right to redeem Designated Securities of any series, in whole or in part, at any time and from time to time prior to ( months prior to maturity), at a redemption price equal to the greater of:
| • | 100% of the principal amount of the Designated Securities to be redeemed, and |
| • | the sum of the present values of the remaining scheduled payments of principal and interest on the Designated Securities to be redeemed as if the Notes to be redeemed matured on ( months prior to maturity) (not including any portion of payments of interest accrued to the redemption date) discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the treasury rate (as defined in the Prospectus) plus basis points. |
On or after ( months prior to maturity), Equinor has the right to redeem the Designated Securities of any series, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the principal amount of the Designated Securities to be redeemed, plus accrued and unpaid interest to the date of redemption.]
Tax Redemption Provision:
[As described in the preliminary Prospectus.]
Sinking Fund Provisions:
[No sinking fund provisions.]
Extendable provisions:
[No extendable provisions.]
II-2
Defeasance provisions:
[The Designated Securities are entitled to full defeasance and discharge under certain conditions.]
No Negative Pledge:
[The Designated Securities will not benefit from any negative pledge.]
No Limitation on Sale and Leaseback Transactions:
[The Designated Securities will not benefit from any limitation on sale and leaseback transactions.]
Guarantee release provisions:
[As described in the preliminary Prospectus.]
Issuer substitution provisions:
[As described in the preliminary Prospectus.]
Time of Delivery:
Closing Location:
Sullivan & Cromwell LLP, 1 New Fetter Lane, London EC4A 1AN
Names and addresses of Representatives:
Other Terms:
[Selling Restrictions
European Economic Area and the United Kingdom. The Designated Securities are not intended to be offered, sold or otherwise made available to and should not be offered, sold or otherwise made available to any retail investor in the European Economic Area (“EEA”) or in the United Kingdom (the “UK”). For these purposes, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); or (ii) a customer within the meaning of Directive (EU) 2016/97 (as amended, the “Insurance Distribution Directive”), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II; or (iii) not a qualified investor as defined in Regulation (EU) 2017/1129 (as amended, the “Prospectus Regulation”) . Consequently no key information document required by Regulation (EU) No 1286/2014 (as amended, the “PRIIPs Regulation”) for offering or selling the Designated Securities or otherwise making them available to retail investors in the EEA or in the UK has been prepared and therefore offering or selling the Designated Securities or otherwise making them available to any retail investor in the EEA or in the UK may be unlawful under the PRIIPs Regulation. The prospectus supplement and the attached Base Prospectus have been prepared on the basis that any offer of Designated Securities in any Member State of the EEA or in the UK will be made pursuant to an exemption under the Prospectus Regulation from the requirement to publish a prospectus for offers of Designated Securities. The prospectus supplement is not a prospectus for the purposes of the Prospectus Regulation.
Solely for the purposes of (the “Manufacturer’s”) product approval process, the target market assessment in respect of the Designated Securities has led to the conclusion that: (i) the target market for the Designated Securities is eligible counterparties and professional clients only, each as defined in MiFID II; and (ii)
II-3
all channels for distribution of the Designated Securities to eligible counterparties and professional clients are appropriate. Any person subsequently offering, selling or recommending the Designated Securities (a “Distributor”) should take into consideration the Manufacturer’s target market assessment; however, a Distributor subject to MiFID II is responsible for undertaking its own target market assessment in respect of the Designated Securities (by either adopting or refining the Manufacturer’s target market assessment) and determining appropriate distribution channels.
Each Underwriter has represented and agreed that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Designated Securities to any retail investor in the EEA or in the UK. For the purposes of this provision the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of MiFID II; or (ii) a customer within the meaning of the Insurance Distribution Directive, where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II.
United Kingdom. The prospectus supplement is being distributed only to, and is directed only at, and any offer subsequently made may only be directed at persons who (a) are outside the United Kingdom or (b) are in the United Kingdom and are “qualified investors” (as defined in the Prospectus Regulation) (i) who have professional experience in matters relating to investments falling within Article 19 (5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005, as amended (the “Order”) and/or (ii) who are high net worth companies (or persons to whom it may otherwise be lawfully communicated) falling within Article 49(2)(a) to (d) of the Order (all such persons together being referred to as “relevant persons”). The prospectus supplement must not be acted on or relied on in the United Kingdom by persons who are not relevant persons. In the United Kingdom, any investment or investment activity to which the document relates is only available to, and will be engaged in with, relevant persons.
Each Underwriter has represented and agreed that:
| (a) | it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 (the “FSMA”)) received by it in connection with the issue or sale of the Designated Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company or the Guarantor; and |
| (b) | it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Designated Securities in, from or otherwise involving the United Kingdom. |
Norway. Each Underwriter has represented and agreed that no offering material in relation to any of the Designated Securities has been or will be approved by the Oslo Stock Exchange or the Norwegian Financial Supervisory Authority. Accordingly, each Underwriter has agreed, and each further underwriter appointed will be required to agree, that the Designated Securities will only be directed to qualified investors as defined in the Norwegian Securities Regulation section 7-1 or in accordance with other relevant exceptions from the prospectus requirements. Accordingly, the offer of the Designated Securities and the related materials may not be made available to the public in Norway nor may the offer of the Designated Securities otherwise be marketed and offered to the public in Norway. The Designated Securities may be issued only outside Norway and may not be denominated in NOK.
Hong Kong. The Designated Securities may not be offered or sold in Hong Kong by means of any document other than (i) in circumstances which do not constitute an offer to the public within the meaning of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32 of the Laws of Hong Kong) (“Companies (Winding Up and Miscellaneous Provisions) Ordinance”) or which do not constitute an invitation to the public within the meaning of the Securities and Futures Ordinance (Cap. 571 of the Laws of Hong Kong) (“Securities and Futures Ordinance”), or (ii) to “professional investors” as defined in the Securities and Futures Ordinance and any rules made thereunder, or (iii) in other circumstances which do not result in the document being a “prospectus” as defined in the Companies (Winding Up and Miscellaneous Provisions) Ordinance, and no advertisement, invitation or document relating to the Designated Securities may be issued or may be in the
II-4
possession of any person for the purpose of issue (in each case whether in Hong Kong or elsewhere), which is directed at, or the contents of which are likely to be accessed or read by, the public in Hong Kong (except if permitted to do so under the securities laws of Hong Kong) other than with respect to Designated Securities which are or are intended to be disposed of only to persons outside Hong Kong or only to “professional investors” in Hong Kong as defined in the Securities and Futures Ordinance and any rules made thereunder.
Japan. The Designated Securities have not been and will not be registered under the Financial Instruments and Exchange Act of Japan (Act No. 25 of 1948, as amended) (the “FIEA”). The Designated Securities may not be offered or sold, directly or indirectly, in Japan or to or for the benefit of any resident of Japan (including any person resident in Japan or any corporation or other entity organized under the laws of Japan) or to others for reoffering or resale, directly or indirectly, in Japan or to or for the benefit of any resident of Japan, except pursuant to an exemption from the registration requirements of the FIEA and otherwise in compliance with any relevant laws and regulations of Japan.
Singapore. The prospectus supplement and the attached Base Prospectus have not been registered as a prospectus with the Monetary Authority of Singapore. Accordingly, the prospectus supplement, the attached Base Prospectus and any other document or material in connection with the offer or sale, or invitation for subscription or purchase, of the Designated Securities may not be circulated or distributed, nor may the Designated Securities be offered or sold, or be made the subject of an invitation for subscription or purchase, whether directly or indirectly, to persons in Singapore other than (i) to an institutional investor (as defined in Section 4A of the Securities and Futures Act, Chapter 289 of Singapore (the “SFA”)) under Section 274 of the SFA, (ii) to a relevant person (as defined in Section 275(2) of the SFA ) pursuant to Section 275(1) of the SFA, or any person pursuant to Section 275(1A) of the SFA, and in accordance with the conditions specified in Section 275 of the SFA or (iii) otherwise pursuant to, and in accordance with the conditions of, any other applicable provision of the SFA, in each case subject to conditions set forth in the SFA.
Where the Designated Securities are subscribed or purchased under Section 275 of the SFA by a relevant person which is a corporation (which is not an accredited investor (as defined in Section 4A of the SFA)) the sole business of which is to hold investments and the entire share capital of which is owned by one or more individuals, each of whom is an accredited investor, the securities (as defined in Section 239(1) of the SFA) of that corporation shall not be transferable for 6 months after that corporation has acquired the Designated Securities under Section 275 of the SFA except: (1) to an institutional investor under Section 274 of the SFA or to a relevant person (as defined in Section 275(2) of the SFA), (2) where such transfer arises from an offer in that corporation’s securities pursuant to Section 275(1A) of the SFA, (3) where no consideration is or will be given for the transfer, (4) where the transfer is by operation of law, (5) as specified in Section 276(7) of the SFA, or (6) as specified in Regulation 32 of the Securities and Futures (Offers of Investments) (Shares and Debentures) Regulations 2005 of Singapore (“Regulation 32”).
Where the Designated Securities are subscribed or purchased under Section 275 of the SFA by a relevant person which is a trust (where the trustee is not an accredited investor (as defined in Section 4A of the SFA)) whose sole purpose is to hold investments and each beneficiary of the trust is an accredited investor, the beneficiaries’ rights and interest (howsoever described) in that trust shall not be transferable for 6 months after that trust has acquired the Designated Securities under Section 275 of the SFA except: (1) to an institutional investor under Section 274 of the SFA or to a relevant person (as defined in Section 275(2) of the SFA), (2) where such transfer arises from an offer that is made on terms that such rights or interest are acquired at a consideration of not less than S$200,000 (or its equivalent in a foreign currency) for each transaction (whether such amount is to be paid for in cash or by exchange of securities or other assets), (3) where no consideration is or will be given for the transfer, (4) where the transfer is by operation of law, (5) as specified in Section 276(7) of the SFA, or (6) as specified in Regulation 32.
Canada. The Designated Securities may be sold only in any province of Canada to purchasers purchasing, or deemed to be purchasing, as principal that are accredited investors, as defined in National Instrument 45-106 Prospectus Exemptions or subsection 73.3(1) of the Securities Act (Ontario), and are permitted clients, as defined in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations. Any resale of the Designated Securities must be made in accordance with an exemption from, or in a transaction not subject to, the prospectus requirements of applicable securities laws.
II-5
Securities legislation in certain provinces or territories of Canada may provide a purchaser with remedies for rescission or damages if the prospectus supplement (including any amendment hereto) contains a misrepresentation, provided that the remedies for rescission or damages are exercised by the purchaser within the time limit prescribed by the securities legislation of the purchaser’s province or territory. The purchaser should refer to any applicable provisions of the securities legislation of the purchaser’s province or territory for particulars of these rights or consult with a legal advisor.
Pursuant to section 3A.3 (or, in the case of securities issued or guaranteed by the government of a non-Canadian jurisdiction, section 3A.4) of National Instrument 33-105 Underwriting Conflicts (NI 33-105), the underwriters are not required to comply with the disclosure requirements of NI 33-105 regarding underwriter conflicts of interest in connection with this offering.
Other jurisdictions outside the United States. Each underwriter has represented and agreed that with respect to any other jurisdiction outside the United States, it has not offered or sold and will not offer or sell any of the Designated Securities in any jurisdiction, except under circumstances that resulted or will result in compliance with the applicable rules and regulations of such jurisdiction.]
II-6
SCHEDULE IV
| (a) | Issuer Free Writing Prospectuses: |
[Final term sheet dated containing the final terms of the Designated Securities]
| (b) | Underwriter Free Writing Prospectuses: |
| (c) | Additional Documents Incorporated by Reference: |
III-1
ANNEX I TO THE PRICING AGREEMENT
Underwriting Agreement
III-1
Exhibit 4.7
EQUINOR US CAPITAL LLC
as Company
AND
EQUINOR ASA
as Parent Guarantor
AND
EQUINOR ENERGY AS
as Subsidiary Guarantor
TO
[●]
as Trustee
INDENTURE
Dated as of [●], [●]
Equinor US Capital LLC
and
Equinor ASA
and
Equinor Energy AS
to
[●]
Indenture, dated as of [●], [●]
Reference is made to the following provisions of the Trust Indenture Act of 1939, as amended, which establish certain duties and responsibilities of the Company and the Trustee which may not be set forth fully in this Indenture:
| Section | Subject | |
| 310(b) | Disqualifications of Trustee for conflicting interest | |
| 311 | Preferential collection of claims of Trustee as creditor of Company | |
| 312(a) | Periodic filing of information by Company with Trustee | |
| 312(b) | Access of Securityholders to information | |
| 313(a) | Annual report of Trustee to Securityholders | |
| 313(b) | Additional reports of Trustee to Securityholders | |
| 314(a) | Reports by Company, including annual compliance certificate | |
| 314(c) | Evidence of compliance with conditions precedent | |
| 315(a) | Duties of Trustee prior to default | |
| 315(b) | Notice of default from Trustee to Securityholders | |
| 315(c) | Duties of Trustee in case of default | |
| 315(d) | Provisions relating to responsibility of Trustee | |
| 315(e) | Assessment of costs against litigating Securityholders in certain circumstances | |
| 316(a) | Directions and waivers by Securityholders in certain circumstances | |
| 316(b) | Prohibition of impairment of right of Securityholders to payment | |
| 316(c) | Right of Company to set record date for certain purposes | |
| 317(a) | Special powers of Trustee | |
| 318(a) | Provisions of Act to control in case of conflict |
Certain Sections of this Indenture relating to Sections 310 through 318, inclusive,
of the Trust Indenture Act of 1939:
| Trust Indenture Act Section | Indenture Section | |
| § 310 (a)(1) | 609 | |
| (a)(2) | 609 | |
| (a)(3) | Not Applicable | |
| (a)(4) | Not Applicable | |
| (a)(5) | 609 | |
| (b) | 608 | |
| 610 | ||
| § 311 (a) | 613 | |
| (b) | 613 | |
| § 312 (a) | 701 | |
| 702 | ||
| (b) | 702 | |
| (c) | 702 | |
| § 313 (a) | 703 | |
| (b) | 703 | |
| (c) | 703 | |
| (d) | 703 | |
| § 314 (a) | 704 | |
| (a)(4) | 101 | |
| 1006 | ||
| (b) | Not Applicable | |
| (c)(1) | 102 | |
| (c)(2) | 102 | |
| (c)(3) | Not Applicable | |
| (d) | Not Applicable | |
| (e) | 102 | |
| § 315 (a) | 601 | |
| (b) | 602 | |
| (c) | 601 | |
| (d) | 601 | |
| (e) | 514 | |
| § 316 (a) | 101 | |
| (a)(1)(A) | 502 | |
| 512 | ||
| (a)(1)(B) | 513 | |
| (a)(2) | Not Applicable | |
| (b) | 508 | |
| (c) | 513 | |
| § 317 (a)(1) | 503 | |
| (a)(2) | 504 | |
| (b) | 1005 | |
| § 318 (a) | 107 |
| Note: | This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture. |
TABLE OF CONTENNTS
| Page | ||||||
| RECITALS |
1 | |||||
| Article One | ||||||
| DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION | ||||||
| Section 101 |
Definitions |
1 | ||||
| Act |
2 | |||||
| Affiliate |
2 | |||||
| Authenticating Agent |
2 | |||||
| Board of Directors |
2 | |||||
| Board Resolution |
2 | |||||
| Business Day |
2 | |||||
| Commission |
2 | |||||
| Company |
2 | |||||
| Corporate Trust Office |
2 | |||||
| Corporation |
2 | |||||
| Covenant Defeasance |
2 | |||||
| Defaulted Interest |
2 | |||||
| Defeasance |
2 | |||||
| Depositary |
2 | |||||
| Event of Default |
2 | |||||
| Exchange Act |
3 | |||||
| Global Security |
3 | |||||
| Guarantee |
3 | |||||
| Guarantor |
3 | |||||
| Holder |
3 | |||||
| Indenture |
3 | |||||
| Interest |
3 | |||||
| Interest Payment Date |
3 | |||||
| Maturity |
3 | |||||
| Norway |
3 | |||||
| Notice of Default |
3 | |||||
| Officer’s Certificate |
3 | |||||
| Opinion of Counsel |
3 | |||||
| Order |
3 | |||||
| Original Issue Discount Security |
4 | |||||
| Outstanding |
4 | |||||
| Paying Agent |
4 | |||||
| Person |
4 | |||||
| Place of Payment |
4 | |||||
| Predecessor Security |
4 | |||||
| Redemption Date |
5 | |||||
| Redemption Price |
5 | |||||
| Regular Record Date |
5 | |||||
| Responsible Officer |
5 | |||||
| Securities |
5 | |||||
| Security Register |
5 | |||||
| Security Registrar |
5 | |||||
| Special Record Date |
5 | |||||
| Stated Maturity |
5 | |||||
Note: This Table of Contents shall not, for any purpose, be deemed to be a part of the Indenture.
-i-
| Subsidiary |
5 | |||||
| Trustee |
5 | |||||
| Trust Indenture Act |
5 | |||||
| United States |
5 | |||||
| U.S. Government Obligation |
5 | |||||
| Vice President |
5 | |||||
| Section 102 |
Compliance Certificates and Opinions |
6 | ||||
| Section 103 |
Form of Documents Delivered to Trustee |
6 | ||||
| Section 104 |
Acts of Holders; Record Dates |
7 | ||||
| Section 105 |
Notices, Etc., to Trustee, Company and Guarantor |
8 | ||||
| Section 106 |
Notice to Holders of Securities; Waiver |
8 | ||||
| Section 107 |
Conflict with Trust Indenture Act |
9 | ||||
| Section 108 |
Effect of Headings and Table of Contents |
9 | ||||
| Section 109 |
Successors and Assigns |
9 | ||||
| Section 110 |
Separability Clause |
9 | ||||
| Section 111 |
Benefits of Indenture |
9 | ||||
| Section 112 |
Governing Law |
9 | ||||
| Section 113 |
Legal Holidays |
9 | ||||
| Section 114 |
Submission to Jurisdiction |
10 | ||||
| Article Two |
| |||||
| SECURITY FORMS |
| |||||
| Section 201 |
Forms Generally |
11 | ||||
| Section 202 |
Form of Face of Security |
11 | ||||
| Section 203 |
Form of Reverse of Security |
14 | ||||
| Section 204 |
Form of Legend for Global Securities |
16 | ||||
| Section 205 |
Form of Trustee’s Certificate of Authentication |
16 | ||||
| Section 206 |
Form of Guarantee |
17 | ||||
| Article Three |
| |||||
| THE SECURITIES |
| |||||
| Section 301 |
Amount Unlimited; Issuable in Series |
20 | ||||
| Section 302 |
Denominations |
22 | ||||
| Section 303 |
Execution, Authentication, Delivery and Dating |
22 | ||||
| Section 304 |
Temporary Securities |
23 | ||||
| Section 305 |
Registration, Registration of Transfer and Exchange |
24 | ||||
| Section 306 |
Mutilated, Destroyed, Lost and Stolen Securities |
25 | ||||
| Section 307 |
Payment of Interest; Interest Rights Preserved |
25 | ||||
| Section 308 |
Persons Deemed Owners |
26 | ||||
| Section 309 |
Cancellation |
27 | ||||
| Section 310 |
Computation of Interest |
27 | ||||
| Article Four |
| |||||
| SATISFACTION AND DISCHARGE |
| |||||
| Section 401 |
Satisfaction and Discharge of Indenture |
27 | ||||
| Section 402 |
Application of Trust Money |
28 | ||||
-ii-
| Article Five |
| |||||
| REMEDIES |
| |||||
| Section 501 |
Events of Default |
28 | ||||
| Section 502 |
Acceleration of Maturity; Rescission and Annulment |
29 | ||||
| Section 503 |
Collection of Indebtedness and Suits for Enforcement by Trustee |
30 | ||||
| Section 504 |
Trustee May File Proofs of Claim |
30 | ||||
| Section 505 |
Trustee May Enforce Claims Without Possession of Securities |
31 | ||||
| Section 506 |
Application of Money Collected |
31 | ||||
| Section 507 |
Limitation on Suits |
31 | ||||
| Section 508 |
Unconditional Right of Holders to Receive Principal, Premium and Interest |
32 | ||||
| Section 509 |
Restoration of Rights and Remedies |
32 | ||||
| Section 510 |
Rights and Remedies Cumulative |
32 | ||||
| Section 511 |
Delay or Omission Not Waiver |
32 | ||||
| Section 512 |
Control by Holders |
32 | ||||
| Section 513 |
Waiver of Past Defaults |
32 | ||||
| Section 514 |
Undertaking for Costs |
33 | ||||
| Section 515 |
Waiver of Stay or Extension Laws |
33 | ||||
| Article Six |
| |||||
| THE TRUSTEE |
| |||||
| Section 601 |
Certain Duties and Responsibilities |
33 | ||||
| Section 602 |
Notice of Defaults |
33 | ||||
| Section 603 |
Certain Rights of Trustee |
34 | ||||
| Section 604 |
Not Responsible for Recitals or Issuance of Securities |
34 | ||||
| Section 605 |
May Hold Securities |
34 | ||||
| Section 606 |
Money Held in Trust |
35 | ||||
| Section 607 |
Compensation and Reimbursement |
35 | ||||
| Section 608 |
Disqualification; Conflicting Interests |
35 | ||||
| Section 609 |
Corporate Trustee Required; Eligibility |
35 | ||||
| Section 610 |
Resignation and Removal; Appointment of Successor |
35 | ||||
| Section 611 |
Acceptance of Appointment by Successor |
37 | ||||
| Section 612 |
Merger, Conversion, Consolidation or Succession to Business |
37 | ||||
| Section 613 |
Preferential Collection of Claims Against Company |
38 | ||||
| Section 614 |
Appointment of Authenticating Agent |
38 | ||||
| Section 615 |
Patriot Act |
39 | ||||
| Article Seven |
| |||||
| HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND PARENT GUARANTOR |
| |||||
| Section 701 |
Company to Furnish Trustee Names and Addresses of Holders |
39 | ||||
| Section 702 |
Preservation of Information; Communications to Holders |
39 | ||||
| Section 703 |
Reports by Trustee |
40 | ||||
| Section 704 |
Reports by Parent Guarantor |
40 | ||||
| Article Eight |
| |||||
| CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE |
| |||||
| Section 801 |
Company or Guarantors May Consolidate, Etc., Only on Certain Terms |
40 | ||||
| Section 802 |
Successor Substituted |
41 | ||||
| Section 803 |
Substitution of the Company on Certain Terms |
41 | ||||
-iii-
| Article Nine |
| |||||
| SUPPLEMENTAL INDENTURES |
| |||||
| Section 901 |
Supplemental Indentures Without Consent of Holders |
42 | ||||
| Section 902 |
Supplemental Indentures with Consent of Holders |
43 | ||||
| Section 903 |
Execution of Supplemental Indentures |
44 | ||||
| Section 904 |
Effect of Supplemental Indentures |
44 | ||||
| Section 905 |
Conformity with Trust Indenture Act |
44 | ||||
| Section 906 |
Reference in Securities to Supplemental Indentures |
44 | ||||
| Article Ten |
| |||||
| COVENANTS |
| |||||
| Section 1001 |
Payment of Principal, Premium and Interest |
44 | ||||
| Section 1002 |
Maintenance of Office or Agency by Company |
44 | ||||
| Section 1003 |
Maintenance of Office or Agency by Guarantor |
45 | ||||
| Section 1004 |
Reserved |
45 | ||||
| Section 1005 |
Money for Securities Payments to Be Held in Trust |
45 | ||||
| Section 1006 |
Statement by Officer as to Default |
46 | ||||
| Section 1007 |
Corporate Existence |
46 | ||||
| Section 1008 |
Waiver of Certain Covenants |
46 | ||||
| Section 1009 |
Additional Amounts |
46 | ||||
| Article Eleven |
| |||||
| REDEMPTION OF SECURITIES |
| |||||
| Section 1101 |
Applicability of Article |
49 | ||||
| Section 1102 |
Election to Redeem; Notice to Trustee |
49 | ||||
| Section 1103 |
Selection by Trustee of Securities to Be Redeemed |
49 | ||||
| Section 1104 |
Notice of Redemption |
49 | ||||
| Section 1105 |
Deposit of Redemption Price |
50 | ||||
| Section 1106 |
Securities Payable on Redemption Date |
50 | ||||
| Section 1107 |
Securities Redeemed in Part |
50 | ||||
| Section 1108 |
Optional Redemption Due to Changes in Tax Treatment |
51 | ||||
| Article Twelve |
| |||||
| SINKING FUNDS |
| |||||
| Section 1201 |
Applicability of Article |
51 | ||||
| Section 1202 |
Satisfaction of Sinking Fund Payments with Securities |
52 | ||||
| Section 1203 |
Redemption of Securities for Sinking Fund |
52 | ||||
| Article Thirteen |
| |||||
| DEFEASANCE AND COVENANT DEFEASANCE |
| |||||
| Section 1301 |
Option to Effect Defeasance or Covenant Defeasance |
52 | ||||
| Section 1302 |
Defeasance and Discharge |
52 | ||||
| Section 1303 |
Covenant Defeasance |
53 | ||||
| Section 1304 |
Conditions to Defeasance or Covenant Defeasance |
53 | ||||
| Section 1305 |
Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions |
54 | ||||
| Section 1306 |
Reinstatement |
55 | ||||
-iv-
| Article Fourteen |
| |||||
| GUARANTEE |
| |||||
| Section 1401 |
Guarantee |
55 | ||||
| Section 1402 |
Subrogation |
57 | ||||
| Section 1403 |
Execution and Delivery of the Guarantee |
57 | ||||
| Section 1404 |
Release of Subsidiary Guarantor |
58 | ||||
-v-
INDENTURE, dated as of [●], [●], among EQUINOR US CAPITAL LLC, a Delaware limited liability company (the “Company”), having its principal office at 120 Long Ridge Road, Suite 3E01, Stamford, CT 06902, United States, EQUINOR ASA, a public limited company duly organized and existing under the laws of the Kingdom of Norway (the “Parent Guarantor”), having its principal office at N-4035, Stavanger, Norway, and EQUINOR ENERGY AS, a limited company incorporated under the laws of the Kingdom of Norway (the “Subsidiary Guarantor”), having its principal office at N-4035, Stavanger, Norway, and [●], a [●], as Trustee (herein called the “Trustee”) having its Corporate Trust Office at [●].
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured debentures, notes or other evidences of indebtedness (herein called the “Securities”), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the Company in accordance with its terms, have been done.
RECITALS OF THE GUARANTORS
Each of the Guarantors has duly authorized the execution and delivery of this Indenture, and its Guarantee set forth herein, to provide for the guarantee as to prompt payment of the principal of (and premium, if any) and interest on the Securities as set forth in this Indenture.
All things necessary to make this Indenture a valid agreement of such Guarantor, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities or of any series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101 Definitions.
For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
| (1) | the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular; |
| (2) | all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein; |
| (3) | all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles, and, except as otherwise herein expressly provided, the term “generally accepted accounting principles” with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted under International Financial Reporting Standards (IFRS); and |
| (4) | unless the context otherwise requires, any reference to an “Article” or a “Section” refers to an Article or a Section, as the case may be, of this Indenture; and |
| (5) | the words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision. |
-1-
“Act”, when used with respect to any Holder, has the meaning specified in Section 104.
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person.
“Authenticating Agent” means any Person authorized by the Trustee pursuant to Section 614 to act on behalf of the Trustee to authenticate Securities of one or more series.
“Board of Directors”, when used with reference to the Company, or a Guarantor, means either the board of directors of the Company or of such Guarantor, as the case may be, or any duly authorized committee of that board.
“Board Resolution”, when used with reference to the Company or a Guarantor, means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company or of such Guarantor, as the case may be, to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“Business Day”, when used with respect to any Place of Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in that Place of Payment are authorized or obligated by law or executive order to close.
“Commission” means the United States Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
“Company” means the Person named as the “Company” in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.
“Corporate Trust Office” means the principal office of the Trustee at which at any particular time its corporate trust business shall be administered, which office at the date hereof is located at 60 Wall Street, 24th Floor, New York, New York, 10005, Attention: Trust and Securities Services or such other address as the Trustee may designate from time to time by notice to the Holders, the Company and the Guarantors, or the principal corporate trust office of any successor Trustee (or such other address as a successor Trustee may designate from time to time by notice to the Holders, the Company and the Guarantors).
“Corporation” means a corporation, partnership, association, company, limited liability company, joint-stock company, business trust or other similar entity.
“Covenant Defeasance” has the meaning specified in Section 1303.
“Defaulted Interest” has the meaning specified in Section 307.
“Defeasance” has the meaning specified in Section 1302.
“Depositary” means, with respect to Securities of any series issuable in whole or in part in the form of one or more Global Securities, a clearing agency registered under the Exchange Act that is designated to act as Depositary for such Securities as contemplated by Section 301.
“Event of Default” has the meaning specified in Section 501.
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“Exchange Act” means the United States Securities Exchange Act of 1934 and any statute successor thereto, in each case as amended from time to time.
“Global Security” means a Security that evidences all or part of the Securities of any series and bears the legend set forth in Section 204 (or such legend as may be specified as contemplated in Section 301 for such Securities).
“Guarantee” means any guarantee of a Guarantor endorsed on a Security authenticated and delivered pursuant to this Indenture and shall include the guarantee set forth in Section 1401.
“Guarantor” means any Person named as the “Parent Guarantor” or the “Subsidiary Guarantor” in the first paragraph of this Indenture until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter such successor Person shall be a “Guarantor”.
“Holder” means a Person in whose name a Security is registered in the Security Register.
“Indenture” means this instrument as originally executed and as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively. The term “Indenture” shall also include the terms of particular series of Securities established as contemplated by Section 301.
“Interest”, when used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity.
“Interest Payment Date”, when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.
“Maturity”, when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
“Norway” means the Kingdom of Norway.
“Notice of Default” means a written notice of the kind specified in Section 501(4) or 501(5).
“Officer’s Certificate” means a certificate signed, in the case of either the Company or a Guarantor, by a director or a senior officer thereof, or any other Person duly authorized by Board Resolution (either directly or by authorized delegation) in respect thereto and delivered to the Trustee. An officer signing an Officer’s Certificate to be delivered to the Trustee pursuant to Section 1006 shall be the principal executive officer, principal financial officer or principal accounting officer of the Company or of the applicable Guarantor, as the case may be. Each such Officer’s Certificate shall contain the statements required by Section 314(e) of the Trust Indenture Act, if applicable.
“Opinion of Counsel” means a written opinion of counsel, who may be “in-house” or external counsel to the Company or the applicable Guarantor, and who shall be acceptable to the Trustee. Each such opinion shall include the statements required by Section 314(e) of the Trust Indenture Act, if applicable.
“Order” means (i) in the case of the Company or the Subsidiary Guarantor, a written request or order signed in the name of the Company or the Subsidiary Guarantor by any director or its Secretary or any person duly appointed by the Board of Directors of the Company or the Subsidiary Guarantor, as the case may be, or (ii) in the case of the Parent Guarantor, by the Chairman of the Board, its Vice Chairman of the Board, its President or a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, in each case delivered to the Trustee.
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“Original Issue Discount Security” means any Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502.
“Outstanding”, when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:
| (i) | Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation; |
| (ii) | Securities for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company or a Guarantor) in trust or set aside and segregated in trust by the Company or a Guarantor (if the Company or a Guarantor shall act as its own Paying Agent) for the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made; and |
| (iii) | Securities which have been paid pursuant to Section 306 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company; |
provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given, made or taken any request, demand, authorization, direction, notice, consent, waiver or other action hereunder as of any date, (A) the principal amount of an Original Issue Discount Security which shall be deemed to be Outstanding shall be the amount of the principal thereof which would be due and payable as of such date upon acceleration of the Maturity thereof to such date pursuant to Section 502, (B) if, as of such date, the principal amount payable at the Stated Maturity of a Security is not determinable, the principal amount of such Security which shall be deemed to be Outstanding shall be the amount as specified or determined as contemplated by Section 301, (C) the principal amount of a Security denominated in one or more foreign currencies or currency units which shall be deemed to be Outstanding shall be the U.S. dollar equivalent, determined as of such date in the manner provided as contemplated by Section 301, of the principal amount of such Security (or, in the case of a Security described in Clause (A) or (B) above, of the amount determined as provided in such Clause), and (D) Securities owned by the Company, a Guarantor or any other obligor upon the Securities or any Affiliate of the Company or of a Guarantor or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent, waiver or other action, only Securities which the Trustee actually knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company, a Guarantor, or any other obligor upon the Securities or any Affiliate of the Company, a Guarantor or of such other obligor.
“Paying Agent” means any Person (which may include the Company or a Guarantor) authorized by the Company to pay the principal of or any premium or interest on any Securities on behalf of the Company.
“Person” means any individual, Corporation, joint venture, trust, unincorporated organization or government or any agency or political subdivision thereof.
“Place of Payment”, when used with respect to the Securities of any series, means the place or places where the principal of and any premium and interest on the Securities of that series are payable as specified as contemplated by Section 301.
“Predecessor Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
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“Redemption Date”, when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
“Redemption Price”, when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.
“Regular Record Date” for the interest payable on any Interest Payment Date on the Securities of any series means the date specified for that purpose as contemplated by Section 301.
“Responsible Officer”, when used with respect to the Trustee, means any vice president, associate, the secretary, any assistant secretary, the treasurer, any assistant treasurer, the cashier, any assistant cashier, any trust officer or assistant trust officer, the controller or any assistant controller or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of such person’s knowledge of and familiarity with the particular subject.
“Securities” has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture.
“Security Register” and “Security Registrar” have the respective meanings specified in Section 305.
“Special Record Date” for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 307.
“Stated Maturity”, when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
“Subsidiary” means a Corporation more than 50% of the outstanding voting stock of which is owned, directly or indirectly, by the Parent Guarantor or by one or more other Subsidiaries, or by the Parent Guarantor and one or more other Subsidiaries. For the purposes of this definition, “voting stock” means stock which ordinarily has voting power for the election of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency.
“Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, “Trustee” as used with respect to the Securities of any series shall mean the Trustee with respect to Securities of that series, provided that the Trustee shall not be the Company, a Guarantor, or any other obligor upon the Securities or any Affiliate of the Company, a Guarantor or of such other obligor.
“Trust Indenture Act” means the United States Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.
“United States” means the United States of America (including the States and the District of Columbia) and its possessions (including Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands).
“U.S. Government Obligation” has the meaning specified in Section 1304.
“Vice President”, when used with respect to the Company, a Guarantor, or the Trustee, means any vice president, whether or not designated by a number or a word or words added before or after the title “vice president”.
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Section 102 Compliance Certificates and Opinions.
Upon any application or request by the Company or a Guarantor to the Trustee to take any action under any provision of this Indenture, the Company or such Guarantor, as the case may be, shall furnish to the Trustee such certificates and opinions as may be required under the Trust Indenture Act. Each such certificate or opinion shall be given in the form of an Officer’s Certificate, if to be given by an officer of the Company or such Guarantor, or an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the Trust Indenture Act and any other requirements set forth in this Indenture. Such an Officer’s Certificate shall state that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and such Opinion of Counsel shall state that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any other provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include (other than the certificate provided under Section 1006) hereof:
| (1) | a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto; |
| (2) | a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; |
| (3) | a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and |
| (4) | a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with. |
Section 103 Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company or a Guarantor, may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or opinion of counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company or the applicable Guarantor, as the case may be, stating that the information with respect to such factual matters is in the possession of the Company or such Guarantor, as the case may be, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
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Section 104 Acts of Holders; Record Dates.
| (a) | Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing; and except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company or the Guarantors, as the case may be. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 601) conclusive in favor of the Trustee, the Company and the Guarantors, if made in the manner provided in this Section. |
| (b) | The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient. |
| (c) | The Company may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to give, make or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders of Securities of such series, provided that the Company may not set a record date for, and the provisions of this paragraph shall not apply with respect to, the giving or making of any notice, declaration, request or direction referred to in paragraph (e) below. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of the relevant series on such record date, and no other Holders, shall be entitled to take the relevant action, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Company from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Company, at its own expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 106. |
| (d) | The ownership of Securities shall be proved by the Security Register. |
| (e) | Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee, the Company or a Guarantor in reliance thereon, whether or not notation of such action is made upon such Security. |
The Trustee may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to join in the giving or making of (i) any Notice of Default, (ii) any declaration of acceleration referred to in Section 502, (iii) any request to institute proceedings referred to in Section 507(2) or (iv) any direction referred to in Section 512, in each case with respect to Securities of such series. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of such series on such record date, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable
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Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Trustee from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders, or their duly designated proxies, of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Trustee, at the expense of the Company, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Company and the Guarantors in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the party hereto which sets such record dates may designate any day as the “Expiration Date” and from time to time may change the Expiration Date to any earlier or later day; provided that no such change shall be effective unless notice of the proposed new Expiration Date is given to the other party or parties hereto in writing, and to each Holder of Securities of the relevant series in the manner set forth in Section 106, on or prior to the existing Expiration Date. If an Expiration Date is not designated with respect to any record date set pursuant to this Section, the party or parties hereto which set such record date shall be deemed to have initially designated the 180th day after such record date as the Expiration Date with respect thereto, subject to its right to change the Expiration Date as provided in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with regard to any particular Security may do so with regard to all or any part of the principal amount of such Security or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any part of such principal amount.
Section 105 Notices, Etc., to Trustee, Company and Guarantors.
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided for or permitted by this Indenture to be made upon, given or furnished to, or filed with,
| (1) | the Trustee by any Holder, the Company or a Guarantor shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing (or sent by e-mail, facsimile or other similar electronic method) to or with the Trustee at its Corporate Trust Office, Attention: [●], or |
| (2) | the Company or a Guarantor by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if made, given, furnished or filed in writing, in the case of the Company, to or with it, at the address of its principal office specified in the first paragraph of this instrument, Attention: Managing Counsel, or at any other address previously furnished in writing to the Trustee by the Company, with a copy to the Guarantors, and in the case of a Guarantor, to or with it, at the address of its office specified in the first paragraph of this instrument, Attention: General Counsel, or at any other address previously furnished in writing to the Trustee by such Guarantor, with a copy to the Company. |
Section 106 Notice to Holders of Securities; Waiver.
Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at such Holder’s address as it appears in the Security Register, not later than the latest date (if any), and not earlier than the earliest date (if any), prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any
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particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
Section 107 Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act which is required under such Act to be a part of and govern this Indenture, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act which may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be.
Section 108 Effect of Headings and Table of Contents.
The Article and Section headings herein, the Reconciliation and tie between the Trust Indenture Act and this Indenture and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 109 Successors and Assigns.
All covenants and agreements in this Indenture by the Company and each Guarantor shall bind its respective successors and assigns, whether so expressed or not.
Section 110 Separability Clause.
In case any provision in this Indenture or in the Securities or in the Guarantee shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 111 Benefits of Indenture.
Nothing in this Indenture or in the Securities or in the Guarantees, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 112 Governing Law.
This Indenture, the Securities and the Guarantees shall be governed by and construed in accordance with the laws of the State of New York, except that the authorization and execution by a Guarantor of this Indenture and the Guarantees shall be governed by the laws of the jurisdiction of organization of such Guarantor.
Section 113 Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Securities (other than a provision of any Security which specifically states that such provision shall apply in lieu of this Section)) payment of interest or principal (and premium, if any) need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity, provided that no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be.
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Section 114 Submission to Jurisdiction.
The Company agrees that any legal suit, action or proceeding arising out of or based upon the Indenture or the Securities may be instituted in any state or Federal court in the Borough of Manhattan, The City of New York, New York, United States of America, waives, to the extent it may effectively do so, any objection which it may have now or hereafter to the laying of the venue of any such suit, action or proceeding, and irrevocably submits to the jurisdiction of any such court in any such suit, action or proceeding.
Each Guarantor agrees that any legal suit, action or proceeding arising out of or based upon the Indenture or the Guarantee may be instituted in any state or Federal court in the Borough of Manhattan, The City of New York, New York, United States of America, waives, to the extent it may effectively do so, any objection which it may have now or hereafter to the laying of the venue of any such suit, action or proceeding, and irrevocably submits to the jurisdiction of any such court in any such suit, action or proceeding. Each Guarantor has designated and appointed [●] (or any successor Person) as its authorized agent to accept and acknowledge on its behalf service of any and all process which may be served in any such suit, action or proceeding in any such court and agrees that service of process upon said agent at its office at [●], attention [●] (or at such other address in the Borough of Manhattan, The City of New York, as such Guarantor may designate by written notice to the Company and the Trustee) shall be deemed in every respect effective service of process upon such Guarantor in any such suit, action or proceeding and shall be taken and held to be valid personal service upon such Guarantor, whether or not such Guarantor shall then be doing, or at any time shall have done, business within the State of New York, and any such service of process shall be of the same force and validity as if service were made upon it according to the laws governing the validity and requirements of such service in such State, and waives all claim of error by reason of any such service. Said designation and appointment shall be irrevocable until the Indenture shall have been satisfied and discharged in accordance with Article Four. Each Guarantor agrees to take all action as may be necessary to continue the designation and appointment of or any successor Person in full force and effect so that each Guarantor shall at all times have an agent for service of process for the above purposes in the Borough of Manhattan, The City of New York, New York, United States of America.
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ARTICLE TWO
SECURITY FORMS
Section 201 Forms Generally.
The Securities of each series shall be in substantially the form set forth in this Article, or in such other form as shall be established by or pursuant to a Board Resolution of the Company or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or Depositary therefor or as may, consistently herewith, be determined by the officers executing such Securities, as evidenced by their execution thereof. If the form of Securities of any series is established by action taken pursuant to a Board Resolution of the Company, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company delivered to the Trustee at or prior to the delivery of the Order contemplated by Section 303 for the authentication and delivery of such Securities.
The Guarantees to be endorsed on the Securities of each series shall be in substantially the form set forth in Section 206, or in such other form as shall be established by or pursuant to a Board Resolution of the applicable Guarantor and/or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other corrections as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined by the person duly authorized thereto executing such Guarantees, all as evidenced by such execution. If the form of Guarantee to be endorsed on the Securities of any series, is established by action taken pursuant to a Board Resolution of the applicable Guarantor, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of such Guarantor and delivered to the Trustee at or prior to the delivery of the Order contemplated by Section 303 for the authentication and delivery of such Securities.
The definitive Securities and Guarantees shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officers executing such Securities, as evidenced by their execution of such Securities.
Section 202 Form of Face of Security.
[Form of Face of Security]
[Insert any Norwegian or other selling restriction and/or taxation legend.]
EQUINOR US CAPITAL LLC
[Title of Security]
| No. _____ | CUSIP NO. _____ |
EQUINOR US CAPITAL LLC, a limited liability company duly organized and existing under the laws of the State of Delaware (herein called the “Company”, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to ___, or registered assigns, the principal sum of ____ Dollars on ___ [if the Security is to bear interest prior to Maturity, insert —, and to pay interest thereon from ___, 20__ or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on ____ and ____ in each year, commencing ___ , 20__, at the rate of __% per annum, until the principal hereof is paid or made available for payment [if applicable, insert —, provided that any principal and premium, and any such installment of interest, which is overdue shall bear interest at the rate of __% per annum (to the extent that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or made available for payment, and such interest shall be payable on demand].] The interest so payable, and punctually
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paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be __ calendar days next preceding such Interest Payment Date (whether or not such calendar day is a Business Day). Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.
If any payment is due in respect of the Securities on a day that is not a Business Day (as defined below), it will be made on the next following Business Day; provided that no interest will accrue on the payment so deferred. A “Business Day” means any week day on which banking or trust institutions in neither New York nor Oslo are authorized generally or obligated by law, regulation or executive order to close.
If any deduction or withholding for any present or future taxes, assessments or other governmental charges of the jurisdiction (or any political subdivision or taxing authority thereof or therein) in which the Company is incorporated, organized or tax resident shall at any time be required by such jurisdiction (or any such political subdivision or taxing authority) in respect of any amounts to be paid by the Company (or such Guarantor) of principal of or interest on a Security of any series, then the Company will pay to the Holder of a Security of such series such additional amounts as may be necessary in order that the net amounts paid to such Holder of such Security who, with respect to any such tax, assessment or other governmental charge, is not resident in such jurisdiction, after such deduction or withholding, shall be not less than the amounts specified in such Security to which such Holder is entitled; provided, however, that the Company shall not be required to make any payment of additional amounts for or on account of:
| (a) | any tax, assessment or other governmental charge which would not have been imposed but for (i) the existence of any present or former connection between such Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Holder, if such Holder is an estate, trust, partnership or corporation) and the taxing jurisdiction or any political subdivision or territory or possession thereof or area subject to its jurisdiction, including, without limitation, such Holder (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen or resident thereof or being or having been present or engaged in trade or business therein or having or having had a permanent establishment therein or (ii) the presentation of a Security of such series (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later; |
| (b) | any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge; |
| (c) | any tax, assessment or other governmental charge which is payable otherwise than by withholding from payments of (or in respect of) principal of, or any interest on, the Securities of such series; |
| (d) | any tax, assessment or other governmental charge that is imposed or withheld by reason of the failure to comply by the Holder or the beneficial owner of the Security of such series (i) to provide information concerning the nationality, residence or identity of the Holder or such beneficial owner or (ii) to make any declaration or other similar claim or satisfy any information or reporting requirements, which, in the case of (i) or (ii), is required or imposed by a statute, treaty, regulation or administrative practice of the taxing jurisdiction as a precondition to exemption from all or part of such tax, assessment or other governmental charge; |
| (e) | any tax, assessment or other governmental charge which such Holder would have been able to avoid by presenting such Security to another Paying Agent; or |
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| (f) | any combination of items (a), (b), (c), (d), or (e) above; nor shall additional amounts be paid with respect to any payment of the principal of, or any interest on, any Security of such series to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent such payment would be required by the laws of the jurisdiction (or any political subdivision or taxing authority thereof or therein) to be included in the income for tax purposes of a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to such additional amounts had it been the Holder of such Security. |
The foregoing provisions shall apply mutatis mutandis to any withholding or deduction for or on account of any present or future taxes, assessments or governmental charges of whatever nature of any jurisdiction in which any successor Person to the Company is incorporated, organized or tax resident, or any political subdivision or taxing authority thereof or therein, provided, however, that such payment of additional amounts may be subject to such further exceptions as may be established in the terms of such Securities established as contemplated in the Indenture referred to in such Securities.
The foregoing provisions regarding additional amounts will apply to the Company only any time it is incorporated in a jurisdiction outside of the United States.
Notwithstanding the foregoing provisions, the Company (or any paying agent or any other Person) shall not be required to pay any additional amounts with respect to any withholding or deduction imposed pursuant to Section 1471-1474 of the United States Internal Revenue Code (the “Code”) (and any current and future regulations or official interpretations thereof) (“FATCA”), the laws of Norway implementing FATCA or any agreement between the Company, a Guarantor and any taxing or governmental authority entered into for FATCA purposes.
[If the Security is not to bear interest prior to Maturity, insert — The principal of this Security shall not bear interest except in the case of a default in payment of principal upon acceleration, upon redemption or at Stated Maturity, and in such case the overdue principal and any overdue premium shall bear interest at the rate of % per annum (to the extent that the payment of such interest shall be legally enforceable), from the date such amounts are due until they are paid or made available for payment. Interest on any overdue principal or premium shall be payable on demand of the Trustee for the benefit of the Holders of this Security. Any such interest on any overdue principal or premium which is not paid on demand shall bear interest at the rate of % per annum (to the extent that the payment of such interest on interest shall be legally enforceable), from the date of such demand until the amount so demanded is paid or made available for payment. Interest on any overdue interest shall be payable on demand of the Trustee for the benefit of the Holders of this Security.]
Payment of the principal of (and premium, if any) and [if applicable, insert — any such] interest on this Security will be made at the office or agency of the Company maintained for that purpose in _____, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts [if applicable, insert — ; provided, however, that at the option of the Company payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register].
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed manually, by facsimile or electronically by the Trustee referred to on the reverse hereof, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed manually, by facsimile or electronically.
Dated:
| EQUINOR US CAPITAL LLC | ||
| By: |
| |
| Name | ||
| Title: | ||
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Section 203 Form of Reverse of Security
This Security is one of a duly authorized issue of securities of the Company (herein called the “Securities”), issued and to be issued in one or more series under an Indenture, dated as of ___, 20__ (herein called the “Indenture”, which term shall have the meaning assigned to it in such instrument), among the Company, as issuer, Equinor ASA, as Parent Guarantor, Equinor Energy AS, as Subsidiary Guarantor (herein called the “Guarantors”), and , as Trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Guarantors, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof [if applicable, insert —, limited in aggregate principal amount to U.S.$___].
[If applicable, insert — The Securities of this series are subject to redemption upon not less than 30 days’ notice by mail, [if applicable, insert — (1) on__ in any year commencing with the year ___ and ending with the year ___ through operation of the sinking fund for this series at a Redemption Price equal to 100% of the principal amount, and (2)] at any time [if applicable, insert — on or after , 20 ], as a whole or in part, at the election of the Company, at the following Redemption Prices (expressed as percentages of the principal amount): If redeemed [if applicable, insert — on or before ___, ___%, and if redeemed] during the 12-month period beginning ___ of the years indicated,
| Year |
Redemption Price |
Year |
Redemption Price |
and thereafter at a Redemption Price equal to % of the principal amount, together in the case of any such redemption [if applicable, insert — (whether through operation of the sinking fund or otherwise)] with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert — The Securities of this series are subject to redemption upon not less than 30 days’ notice by mail, (1) on ___ in any year commencing with the year ___ and ending with the year ___, through operation of the sinking fund for this series at the Redemption Prices for redemption through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below, and (2) at any time [if applicable, insert — on or after , 20___], as a whole or in part, at the election of the Company, at the Redemption Prices for redemption otherwise than through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below: If redeemed during the 12-month period beginning ___ of the years indicated,
| Year |
Redemption Price For Redemption Through Operation of the Sinking Fund |
Redemption Price For Redemption Otherwise Than Through Operation of the Sinking Fund |
and thereafter at a Redemption Price equal to ___% of the principal amount, together in the case of any such redemption (whether through operation of the sinking fund or otherwise) with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert — Notwithstanding the foregoing, the Company may not, prior to ___, redeem any Securities of this series as contemplated by [If applicable, insert — Clause (2) of] the preceding paragraph as a part of, or in anticipation of, any refunding operation by the application, directly or indirectly, of moneys borrowed having an interest cost to the Company (calculated in accordance with generally accepted financial practice) of less than ___% per annum.]
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[If applicable, insert — The sinking fund for this series provides for the redemption on in each year beginning with the year and ending with the year of [if applicable, insert — not less than U.S.$ ___ (“mandatory sinking fund”) and not more than] U.S.$ ___aggregate principal amount of Securities of this series. Securities of this series acquired or redeemed by the Company otherwise than through [if applicable, insert — mandatory] sinking fund payments may be credited against subsequent [if applicable, insert — mandatory] sinking fund payments otherwise required to be made [if applicable, insert — in the inverse order in which they become due].]
[If applicable, insert — If the Security is subject to redemption of any kind, insert — In the event of redemption of this Security in part only, a new Security or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.]
[If the Security is not subject to redemption, — This Security is not redeemable prior to Stated Maturity [except as permitted under Section 1108 (“Optional Redemption Due to Changes in Tax Treatment”)].]
[If the Security is not an Original Issue Discount Security, insert — If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert — If an Event of Default with respect to Securities of this series shall occur and be continuing, an amount of principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture. Such amount shall be equal to — insert formula for determining the amount.]
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the Guarantors and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company, the Guarantors and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series, at the time Outstanding, on behalf of the Holders of all Securities of such series to waive compliance by the Company or the Guarantors, or both, with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of not less than 25% in principal amount of the Securities of this series at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee shall not have received from the Holders of a majority in principal amount of Securities of this series at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where the principal of and any premium and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
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[The Securities of this series are issuable only in registered form without coupons in denominations of and any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.]
No service charge shall be made for any such registration of transfer or exchange, but the Company or the Trustee may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the Guarantors, the Trustee and any agent of the Company, a Guarantor or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes (subject to Section 307 of the Indenture), whether or not this Security be overdue, and neither the Company, the Guarantors, the Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture provides that the Company, at the Company’s option, (a) will be discharged from any and all obligations in respect of the Securities (except for certain obligations to register the transfer or exchange of Securities, replace stolen, lost or mutilated Securities, maintain paying agencies and hold moneys for payment in trust) or (b) need not comply with certain restrictive covenants of the Indenture, in each case if the Company deposits, in trust, with the Trustee money or U.S. Government Obligations which through the payment of interest thereon and principal thereof in accordance with their terms will provide money, in an amount sufficient to pay all the principal (including any mandatory sinking fund payments) of, and (premium, if any) and interest on, the Securities on the dates such payments are due in accordance with the terms of such Securities and Guarantees, and certain other conditions are satisfied.
All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Section 204 Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 301 for the Securities evidenced thereby, every Global Security authenticated and delivered hereunder shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
Section 205 Form of Trustee’s Certificate of Authentication.
The Trustee’s certificates of authentication shall be in substantially the following form:
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
Dated:
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| [●] As Trustee | ||
| By: |
| |
| Authorized Officer | ||
Section 206 Form of Guarantee.
Guarantees to be endorsed on the Securities shall be in substantially the form set forth below.
GUARANTEE
For value received, [Equinor ASA][Equinor Energy AS], a [public limited] [limited] company duly organized and existing under the laws of the Kingdom of Norway and having its corporate seat in Stavanger, Norway (herein called the “Guarantor”, which term includes any successor Person under the Indenture referred to in the Security upon which this Guarantee is endorsed), hereby unconditionally guarantees to the Holder of the Security upon which this Guarantee is endorsed and to the Trustee referred to in such Indenture the due and prompt payment of the principal of and any premium and interest (including additional amounts, if any, and sinking fund payments, if any) on all of the Securities on the dates and in the manner provided in the Indenture and in the Securities, when and as the same shall become due and payable, whether at the Stated Maturity, by declaration of acceleration, call for redemption or otherwise, according to the terms thereof and of the Indenture referred to therein. In case of the failure of Equinor US Capital LLC, a Delaware limited liability company (herein called the “Company”, which term includes any successor Person under such Indenture) punctually to make any such principal, premium or interest, additional amounts and sinking fund payments, the Guarantor hereby agrees to cause any such payment to be made promptly when and as the same shall become due and payable, whether at the Stated Maturity, by declaration of acceleration, call for redemption or otherwise, and as if such payment were made by the Company.
The Guarantor hereby further agrees, subject to the limitations and exceptions set forth below and unless otherwise specified in any Board Resolutions of the Company establishing the terms of Securities of a series in accordance with Section 301, that if any deduction or withholding for any present or future taxes, assessments or other governmental charges of the jurisdiction (or any political subdivision or taxing authority thereof or therein) in which the Guarantor is incorporated, organized or tax resident shall at any time be required by such jurisdiction (or any such political subdivision or taxing authority) in respect of any amounts to be paid by the Guarantor under this Guarantee, the Guarantor will pay to the Holder of a Security of such series such additional amounts as may be necessary in order that the net amounts paid to such Holder of such Security who, with respect to any such tax, assessment or other governmental charge, is not resident in such jurisdiction, after such deduction or withholding, shall be not less than the amounts specified in such Security to which such Holder is entitled; provided, however, that the Guarantor shall not be required to make any payment of additional amounts for or on account of:
| (a) | any tax, assessment or other governmental charge which would not have been imposed but for (i) the existence of any present or former connection between such Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Holder, if such Holder is an estate, trust, partnership or corporation) and the taxing jurisdiction or any political subdivision or territory or possession thereof or area subject to its jurisdiction, including, without limitation, such Holder (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen or resident thereof or being or having been present or engaged in trade or business therein or having or having had a permanent establishment therein or (ii) the presentation of a Security of such series (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later; |
| (b) | any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge; |
| (c) | any tax, assessment or other governmental charge which is payable otherwise than by withholding from payments of (or in respect of) principal of, or any interest on, the Securities of such series; |
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| (d) | any tax, assessment or other governmental charge that is imposed or withheld by reason of the failure to comply by the Holder or the beneficial owner of the Security of such series (i) to provide information concerning the nationality, residence or identity of the Holder or such beneficial owner or (ii) to make any declaration or other similar claim or satisfy any information or reporting requirements, which, in the case of (i) or (ii), is required or imposed by a statute, treaty, regulation or administrative practice of the taxing jurisdiction as a precondition to exemption from all or part of such tax, assessment or other governmental charge; |
| (e) | any tax, assessment or other governmental charge which such Holder would have been able to avoid by presenting such Security to another Paying Agent; or |
| (f) | any combination of items (a), (b), (c), (d), or (e) above; nor shall additional amounts be paid with respect to any payment of the principal of, or any interest on, any Security of such series to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent such payment would be required by the laws of the jurisdiction (or any political subdivision or taxing authority thereof or therein) to be included in the income for tax purposes of a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to such additional amounts had it been the Holder of such Security. |
The foregoing provisions shall apply mutatis mutandis to any withholding or deduction for or on account of any present or future taxes, assessments or governmental charges of whatever nature of any jurisdiction in which any successor Person to the Guarantor is incorporated, organized or tax resident, or any political subdivision or taxing authority thereof or therein; provided, however, that such payment of additional amounts may be subject to such further exceptions as may be established in the terms of such Securities established as contemplated in the Indenture referred to in such Securities.
The foregoing provisions regarding additional amounts will not apply to any Guarantor at any time when such Guarantor is incorporated in a jurisdiction in the United States.
Notwithstanding the foregoing provisions, a Guarantor (or any paying agent or any other Person) shall not be required to pay any additional amounts with respect to any withholding or deduction imposed pursuant to Section 1471-1474 of the United States Internal Revenue Code (the “Code”) (and any current and future regulations or official interpretations thereof) (“FATCA”), the laws of Norway implementing FATCA or any agreement between the Company, such Guarantor and any taxing or governmental authority entered into for FATCA purposes.
The Guarantor hereby agrees that its obligations hereunder shall be as if it were principal debtor and not merely surety, and shall be absolute and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of such Security or such Indenture, any failure to enforce the provisions of such Security or such Indenture, or any waiver, modification or indulgence granted to the Company with respect thereto, by the Holder of such Security or such Trustee, or any other circumstance which may otherwise constitute a legal or equitable discharge of a surety or guarantor; provided, however, that, notwithstanding the foregoing, no such waiver, modification or indulgence shall, without the consent of the Guarantor, increase the principal amount of such Security or the interest rate thereon or impose or increase any premium payable upon redemption thereof or after the stated maturity thereof. The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger or bankruptcy of the Company, any right to require a proceeding first against the Company, protest or notice with respect to such Security or the indebtedness evidenced thereby or with respect to any sinking fund payment required pursuant to the terms of such Security and all demands whatsoever, and covenants that this Guarantee will not be discharged except by payment in full of the principal of and any premium and interest (including additional amounts, if any, and sinking fund payments, if any) on such Security. This is a guarantee of payment and not of collection. The Guarantee does not hereby guarantee the performance by the Company of any other of the Company’s covenants, agreements, or obligations under the Securities or the Indenture.
This Guarantee (i) is a direct, unconditional, unsubordinated and unsecured obligation of the Guarantor and (ii) ranks at least pari passu in right of payment with all other senior unsecured and unsubordinated obligations of the Guarantor now or hereafter outstanding (other than obligations preferred by applicable law) and senior in priority of payment and in all other respects to all other obligations of the Guarantor that are designated as subordinate or junior in right of payment to this Guarantee.
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The Guarantor shall be subrogated to all rights of the Holder of such Security against the Company in respect of any amounts paid to such Holder by the Guarantor pursuant to the provisions of this Guarantee; provided, however, that the Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation until the principal of and any premium and interest (including additional amounts, if any, and sinking fund payments, if any) on all Securities of the same series issued under such Indenture shall have been paid in full.
No reference herein to such Indenture and no provision of this Guarantee or of such Indenture shall alter or impair the guarantee of the Guarantor, which is absolute and unconditional, of the due and punctual payment of the principal of and any premium and interest (including additional amounts, if any, and sinking fund payments, if any) on the Security upon which this Guarantee is endorsed at the times, place and rate, and in the coin or currency prescribed therein.
This Guarantee shall not be valid or obligatory for any purpose until the certificate of authentication of such Security shall have been executed by or on behalf of the Trustee manually, by facsimile or electronically, under such Indenture.
[If the Guarantor is Equinor Energy AS: This Guarantee is subject to release upon the terms set forth in the Indenture.]
This Guarantee shall be governed by and construed in accordance with the laws of the State of New York, except that the authorization and execution of the Guarantee shall be governed by the laws of the jurisdiction of organization of the Guarantor.
All terms used in this Guarantee which are defined in such Indenture shall have the meanings assigned to them in such Indenture.
IN WITNESS WHEREOF, the Guarantor has caused this instrument to be duly executed manually, by facsimile or electronically.
Dated:
| [EQUINOR ASA][EQUINOR ENERGY AS] | ||
| By: |
| |
| Name: | ||
| Title: | ||
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ARTICLE THREE
THE SECURITIES
Section 301 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in or pursuant to a Board Resolution of the Company or a Guarantor, as appropriate or pursuant to other appropriate corporate authorization, and, subject to Section 303, set forth, or determined in the manner provided, in an Officer’s Certificate of the Company or a Guarantor, as appropriate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series,
| (1) | the title of the Securities of the series (which shall distinguish the Securities of the series from Securities of any other series); |
| (2) | any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 304, 305, 306, 906 or 1107 and except for any Securities which, pursuant to Section 303, are deemed never to have been authenticated and delivered hereunder); |
| (3) | the Person to whom any interest on a Security of the series shall be payable, if other than the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest; |
| (4) | the date or dates on which the principal of any Securities of the series is payable; |
| (5) | the rate or rates at which any Securities of the series shall bear interest, if any, the date or dates from which any such interest shall accrue, the Interest Payment Dates on which any such interest shall be payable and the Regular Record Date for any such interest payable on any Interest Payment Date; |
| (6) | the place or places where the principal of and any premium and interest on any Securities of the series shall be payable; |
| (7) | if applicable, the period or periods within which, the price or prices at which and the terms and conditions upon which any Securities of the series may be redeemed, in whole or in part, at the option of the Company and, if other than by a Board Resolution, the manner in which any election to redeem the Securities shall be evidenced; |
| (8) | the obligation, if any, of the Company to redeem or purchase any Securities of the series pursuant to any sinking fund or analogous provisions or at the option of the Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which any Securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation; |
| (9) | if other than denominations of $1,000 and any integral multiple thereof, the denominations in which any Securities of the series shall be issuable; |
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| (10) | if the amount of principal of or any premium or interest on any Securities of the series may be determined with reference to an index or pursuant to a formula, the manner in which such amounts shall be determined; |
| (11) | if other than the currency of the United States of America, the currency, currencies or currency units in which the principal of or any premium or interest on any Securities of the series shall be payable and the manner of determining the equivalent thereof in the currency of the United States of America for any purpose, including for purposes of the definition of “Outstanding” in Section 101; |
| (12) | if the principal of or any premium or interest on any Securities of the series is to be payable, at the election of the Company or the Holder thereof, in one or more currencies or currency units other than that or those in which such Securities are stated to be payable, the currency, currencies or currency units in which the principal of or any premium or interest on such Securities as to which such election is made shall be payable, the periods within which and the terms and conditions upon which such election is to be made and the amount so payable (or the manner in which such amount shall be determined); |
| (13) | if other than the entire principal amount thereof, the portion of the principal amount of any Securities of the series which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 502; |
| (14) | if the principal amount payable at the Stated Maturity of any Securities of the series will not be determinable as of any one or more dates prior to the Stated Maturity, the amount which shall be deemed to be the principal amount of such Securities as of any such date for any purpose thereunder or hereunder, including the principal amount thereof which shall be due and payable upon any Maturity other than the Stated Maturity or which shall be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in any such case, the manner in which such amount deemed to be the principal amount shall be determined); |
| (15) | if applicable, that the Securities of the series, in whole or any specified part, shall be defeasible pursuant to Section 1302 or Section 1303 or both such Sections and, if other than by a Board Resolution, the manner in which any election to defease such Securities shall be evidenced; |
| (16) | if applicable, that any Securities of the series shall be issuable in whole or in part in the form of one or more Global Securities and, in such case, the respective Depositaries for such Global Securities, the form of any legend or legends which shall be borne by any such Global Security in addition to or in lieu of that set forth in Section 204 and any circumstances in addition to or in lieu of those set forth in Clause (ii) of the last paragraph of Section 305 in which any such Global Security may be exchanged in whole or in part for Securities registered, and any transfer of such Global Security in whole or in part may be registered, in the name or names of Persons other than the Depositary for such Global Security or a nominee thereof; |
| (17) | the Guarantee of the Securities of such series pursuant to Article Fourteen hereof; |
| (18) | any addition to or change in the Events of Default which applies to any Securities of the series and any change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 502; |
| (19) | with respect to such series of Securities, the “Stated Intervals” and the “Record Date” for purposes of Section 312(a) (in the case of non-interest bearing Securities) and 316(c), respectively, of the Trust Indenture Act; |
| (20) | if additional amounts pursuant to Section 1009 will not be payable by the Company or the Guarantor; and |
| (21) | any other terms of the series. |
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All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to the Board Resolution referred to above and (subject to Section 303) set forth, or determined in the manner provided, in the Officers’ Certificate referred to above or in any such indenture supplemental hereto.
If any of the terms of the series thereof are established by action taken pursuant to a Board Resolution of the Company or a Guarantor, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company or such Guarantor, as the case may be, and delivered to the Trustee at or prior to the delivery of the Officers’ Certificate setting forth the terms of the series or the guarantees thereof.
Notwithstanding Section 301(2) herein and unless otherwise expressly provided with respect to a series of Securities, the aggregate principal amount of a series of Securities may be increased and additional Securities of such series may be issued up to the maximum aggregate principal amount authorized with respect to such series as increased.
Section 302 Denominations.
The Securities of each series shall be issuable only in registered form without coupons and only in such denominations as shall be specified as contemplated by Section 301. In the absence of any such specified denomination with respect to the Securities of any series, the Securities of such series shall be issuable in denominations of $1,000 and any integral multiple thereof.
Section 303 Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by a duly authorized representative thereof. The signature of any such authorized representative may be manual, facsimile or electronic. Coupons shall bear the facsimile or electronic signature of any such authorized representative.
Securities bearing the manual, facsimile or electronic signatures of individuals who were at any time the proper officers of the Company or a Guarantor, as the case may be, shall bind the Company or such Guarantor, as the case may be, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company and Guarantees executed by a Guarantor to the Trustee for authentication, together with an Order for the authentication and delivery of such Securities, and the Trustee in accordance with the Order shall authenticate and deliver such Securities. If the form or terms of the Securities of the series or the form of the Guarantee endorsed thereon have been established by or pursuant to one or more Board Resolutions as permitted by Sections 201 and 301, in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel stating,
| (1) | if the form of such Securities or Guarantees has been established by or pursuant to Board Resolution as permitted by Section 201, that such form has been established in conformity with the provisions of this Indenture; |
| (2) | if the terms of such Securities have been established by or pursuant to Board Resolution as permitted by Section 301, that such terms have been established in conformity with the provisions of this Indenture; |
| (3) | that such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles, and |
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| (4) | that such Guarantees, when the Securities upon which they shall have been endorsed shall have been authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of such Guarantor enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles. |
If such form or terms have been so established, the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding paragraph, if all Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Officer’s Certificate otherwise required pursuant to Section 301 or the Order and Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior to the authentication of each Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security or Guarantee endorsed thereon shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual, facsimile or electronic signature of an authorized officer, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder and that such Security or Guarantee is entitled to the benefits of this Indenture. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 309, for all purposes of this Indenture such Security and Guarantee endorsed thereon shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
Section 304 Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company may execute, and upon Order the Trustee shall authenticate and deliver, temporary Securities substantially of the tenor of the definitive Securities in lieu of which they are issued, and having endorsed thereon Guarantees duly executed by the Guarantors substantially of the tenor of the definitive Guarantees, which Securities and Guarantees may be printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities and Guarantees may determine, as evidenced by such execution.
If temporary Securities of any series are issued, the Company will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Company in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor one or more definitive Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount, having endorsed thereon Guarantees duly executed by the Guarantors. Until so exchanged, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series.
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Section 305 Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register (the register maintained in such office and in any other office or agency of the Company in a Place of Payment being herein sometimes collectively referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Securities and of transfers of Securities. The Trustee is hereby appointed “Security Registrar” for the purpose of registering Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any series at the office or agency of the Company or the Security Register in a Place of Payment for that series, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount, each such Security having endorsed thereon Guarantees duly executed by the Guarantors.
At the option of the Holder, Securities of any series may be exchanged for other Securities of the same series, of any authorized denominations and of a like tenor and aggregate principal amount, each such Security having endorsed thereon Guarantees duly executed by the Guarantors, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company and the Guarantors, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Securities, but the Company or the Trustee may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or exchange any Securities of any series during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of Securities of that series selected for redemption under Section 1103 and ending at the close of business on the day of such mailing, or (ii) to register the transfer of or exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only to Global Securities:
| (1) | Each Global Security authenticated under this Indenture shall be registered in the name of the Depositary designated for such Global Security or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Security shall constitute a single Security for all purposes of this Indenture. |
| (2) | Notwithstanding any other provision in this Indenture, no Global Security may be exchanged in whole or in part for Securities registered, and no transfer of a Global Security in whole or in part may be registered, in the name of any Person other than the Depositary for such Global Security or a nominee thereof unless (A) such Depositary (i) has notified the Company that it is unwilling or unable to continue as Depositary for such Global Security or (ii) has ceased to be a clearing agency registered under the Exchange Act, (B) there shall have occurred and be continuing an Event of Default with respect to such Global Security or (C) there shall exist such circumstances, if any, in addition to or in lieu of the foregoing as have been specified for this purpose as contemplated by Section 301. |
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| (3) | Subject to Clause (2) above, any exchange of a Global Security for other Securities may be made in whole or in part, and all Securities issued in exchange for a Global Security or any portion thereof shall be registered in such names as the Depositary for such Global Security shall direct. |
| (4) | Every Security authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to this Section, Section 304, 306, 906 or 1107 or otherwise, shall be authenticated and delivered in the form of, and shall be, a Global Security, unless such Security is registered in the name of a Person other than the Depositary for such Global Security or a nominee thereof. |
Section 306 Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and of like tenor and principal amount, having endorsed thereon Guarantees duly executed by the Guarantors, and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security a new Security of the same series and of like tenor and principal amount, having endorsed thereon Guarantees duly executed by the Guarantors, and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company and the Guarantors, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and any such new Security shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 307 Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with respect to any series of Securities, interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in Clause (1) or (2) below:
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| (1) | The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security of such series and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this Clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be given to each Holder of Securities of such series by the Company in the manner set forth in Section 106, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following Clause (2). |
| (2) | The Company may make payment of any Defaulted Interest on the Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this Clause, such manner of payment shall be deemed practicable by the Trustee. |
Subject to the foregoing provisions of this Section, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
Section 308 Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the Company, the Guarantors, the Trustee and any agent of the Company, a Guarantor or the Trustee may treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of and any premium and (subject to Section 307) any interest on such Security and for all other purposes whatsoever, whether or not such Registered Security be overdue, and neither the Company, the Guarantors, the Trustee nor any agent of the Company, the Guarantors or the Trustee shall be affected by notice to the contrary.
No holder of any beneficial interest in any Global Security held on its behalf by a Depositary shall have any rights under this Indenture with respect to such Global Security, and such Depositary may be treated by the Company, the Guarantors, the Trustee, and any agent of the Company, a Guarantor or the Trustee as the owner of such Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall impair, as between a Depositary and such holders of beneficial interests, the operation of customary practices governing the exercise of the rights of the Depositary as Holder of any Security.
None of the Company, the Guarantors, the Trustee or any agent of the Company, a Guarantor or the Trustee shall have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests in a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
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Section 309 Cancellation.
All Securities surrendered for payment, redemption, registration of transfer or exchange or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The Company or a Guarantor may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company or such Guarantor may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which the Company has not issued and sold, and all Securities so delivered shall be promptly canceled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of as directed by an Order.
Section 310 Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401 Satisfaction and Discharge of Indenture.
This Indenture shall upon Order of the Company cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of Securities herein expressly provided for), and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when
| (1) | either |
| (A) | all Securities of the Company theretofore authenticated and delivered (other than (i) Securities which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 306 and (ii) Securities for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company or a Guarantor and thereafter repaid to the Company or such Guarantor or discharged from such trust, as provided in Section 1005) have been delivered to the Trustee for cancellation; or |
| (B) | all such Securities not theretofore delivered to the Trustee for cancellation, |
| (i) | have become due and payable, or |
| (ii) | will become due and payable at their Stated Maturity within one year, or |
| (iii) | are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company, |
and the Company or a Guarantor, in the case of (i), (ii) or (iii) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose money in an amount sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal and any premium and interest to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;
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| (2) | the Company or a Guarantor, as the case may be, has paid or caused to be paid all other sums payable hereunder by the Company; and |
| (3) | the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with. |
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company and the Guarantors to the Trustee under Section 607, the obligations of the Trustee to any Authenticating Agent under Section 614 and, if money shall have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of this Section, the obligations of the Trustee under Section 402 and the last paragraph of Section 1005 shall survive.
Section 402 Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1005, all money deposited with the Trustee pursuant to Section 401 shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company or a Guarantor acting as Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal and any premium and interest for whose payment such money has been deposited with the Trustee.
ARTICLE FIVE
REMEDIES
Section 501 Events of Default.
“Event of Default”, wherever used herein with respect to Securities of any series of the Company, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
| (1) | default in the payment of any interest or payment of any additional interest upon any Security of that series when it becomes due and payable, and continuance of such default for a period of 30 days; or |
| (2) | default in the payment of the principal of (or premium, if any, on) any Security of that series at its Maturity; or |
| (3) | default in the deposit of any sinking fund payment, when and as due by the terms of a Security of that series or beyond any period of grace provided with respect thereto; or |
| (4) | default in the performance, or breach, of any covenant or warranty of the Company or a Guarantor in this Indenture (other than a covenant or warranty a default in whose performance or whose breach is elsewhere in this Section specifically dealt with or which has expressly been included in this Indenture solely for the benefit of series of Securities other than that series), and continuance of such default or breach for a period of 90 days after there has been given, by registered or certified mail to the Company and the Guarantors by the Trustee or to the Company, the Guarantors and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of that series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or |
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| (5) | the entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Company or a Guarantor in an involuntary case or proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law of its respective jurisdiction of organization or incorporation, or (B) a decree or order adjudging the Company or a Guarantor bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company or a Guarantor under any applicable law of its respective jurisdiction of organization or incorporation, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or a Guarantor of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 90 consecutive days; or |
| (6) | the commencement by the Company or a Guarantor of a voluntary case or proceeding under the applicable laws of its respective jurisdiction of organization or incorporation relating to bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by the Company or a Guarantor to the entry of a decree or order for relief in respect of the Company or such Guarantor, respectively, in an involuntary case or proceeding under the applicable laws of its respective jurisdiction of organization or incorporation relating to bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against the Company or such Guarantor, or the filing by the Company or a Guarantor of a petition or answer or consent seeking reorganization or relief under the applicable laws of its respective jurisdiction or organization or incorporation, or the consent by the Company or a Guarantor to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or such Guarantor or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by the Company or a Guarantor in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company or a Guarantor in furtherance of any such action; or |
| (7) | any other Event of Default provided with respect to Securities of that series. |
Section 502 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series of the Company at the time Outstanding occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of that series may declare the principal amount of all the Securities of that series (or, if any Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified by the terms thereof) to be due and payable immediately, by a notice in writing to the Company and the Guarantors (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to Securities of any series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Securities of that series, by written notice to the Company, the Guarantors and the Trustee, may rescind and annul such declaration and its consequences if:
| (1) | the Company or a Guarantor has paid or deposited with the Trustee a sum sufficient to pay: |
| (A) | all overdue interest on all Securities of that series, |
| (B) | the principal of (and premium, if any, on) any Securities of that series which have become due otherwise than by such declaration of acceleration and any interest thereon at the rate or rates prescribed therefor in such Securities, |
| (C) | to the extent that payment of such interest is lawful, interest upon overdue interest at the rate or rates prescribed therefor in such Securities, and |
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| (D) | all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel; |
and
| (2) | all Events of Default with respect to Securities of that series, other than the non-payment of the principal of Securities of that series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 513. |
No such rescission shall affect any subsequent default or impair any right consequent thereon.
Section 503 Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
| (1) | default is made in the payment of any interest on any Security when such interest becomes due and payable and such default continues for a period of 30 days, or |
| (2) | default is made in the payment of the principal of (or premium, if any, on) any Security at the Maturity thereof, |
the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal and any premium and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and premium and on any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
Section 504 Trustee May File Proofs of Claim.
In case of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other similar judicial proceeding relative to the Company, a Guarantor or any other obligor upon the Securities, their property or their creditors, the Trustee shall be entitled and empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such proceeding. In particular, the Trustee shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder or coupon any plan of reorganization, arrangement, adjustment or composition affecting the Securities or coupons or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding; provided, however, that the Trustee may, on behalf of the Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors’ or other similar committee.
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Section 505 Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.
Section 506 Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal or any premium or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 607; and
SECOND: To the payment of the amounts then due and unpaid for principal of and any premium and interest on the Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal and any premium and interest, respectively.
Section 507 Limitation on Suits.
No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture or the Securities or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
| (1) | such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that such series; |
| (2) | the Holders of not less than 25% in principal amount of the Outstanding Securities of that series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder; |
| (3) | such Holder or Holders have offered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request; |
| (4) | the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and |
| (5) | no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities of that series; |
it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders.
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Section 508 Unconditional Right of Holders to Receive Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and any premium and (subject to Section 307) interest on such Security on the respective Stated Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment and such rights shall not be impaired without the consent of such Holder.
Section 509 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Guarantors, the Trustee and the Holders of Securities shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
Section 510 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 306, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders of Securities is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 511 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 512 Control by Holders.
The Holders of a majority in principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such series, provided that:
| (1) | such direction shall not be in conflict with any rule of law or with this Indenture, |
| (2) | the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction, and |
| (3) | subject to the provisions of Section 601, the Trustee shall have the right to decline to follow any such direction if the Trustee in good faith shall, by a Responsible Officer or Officers of the Trustee, determine that the proceeding so directed would involve the Trustee in personal liability. |
Section 513 Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the Securities of such series waive any past default hereunder with respect to such series and its consequences, except a default:
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| (1) | in the payment of the principal of or any premium or interest on any Security of such series, or |
| (2) | in respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected. |
Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 514 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, a court may require any party litigant in such suit to file an undertaking to pay the costs of such suit, and may assess reasonable costs against any such party litigant, in the manner and to the extent provided in the Trust Indenture Act; provided that neither this Section nor the Trust Indenture Act shall be deemed to authorize any court to require such an undertaking or to make such an assessment in any suit instituted by the Company or a Guarantor.
Section 515 Waiver of Stay or Extension Laws.
The Company and each of the Guarantors covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company and each of the Guarantors (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
Section 601 Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as specifically set forth in this Indenture and the Trust Indenture Act and no implied covenants nor obligations shall be read into this Indenture against the Trustee, except as otherwise required by the Trust Indenture Act. Notwithstanding the foregoing, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section.
Section 602 Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series, the Trustee shall give the Holders of Securities of such series notice of such default as and to the extent provided by the Trust Indenture Act; provided, however, that in the case of any default of the character specified in Section 501(4) with respect to Securities of such series, no such notice to Holders shall be given until at least 30 days after the occurrence thereof. For the purpose of this Section, the term “default” means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to Securities of such series.
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Section 603 Certain Rights of Trustee.
Subject to the provisions of Section 601:
| (a) | the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties, whether such paper or document be delivered in original, by facsimile or other electronic methods; |
| (b) | any request or direction of the Company or a Guarantor mentioned herein shall be sufficiently evidenced by an Order and any resolution of the Board of Directors of the Company or such Guarantor may be sufficiently evidenced by a Board Resolution; |
| (c) | whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate; |
| (d) | the Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon; |
| (e) | the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction; |
| (f) | the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company and the Guarantors, personally or by agent or attorney, provided that the Trustee shall not be entitled to such information which the Company or a Guarantor is prevented from disclosing as a matter of law or contract; and |
| (g) | the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder. |
Section 604 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee’s certificates of authentication, shall be taken as the statements of the Company or the Guarantors, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of Securities or the proceeds thereof.
Section 605 May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of any of the Company or a Guarantor, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Sections 608 and 613, may otherwise deal with the Company and the Guarantors with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.
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Section 606 Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on or investment of any money received by it hereunder except as otherwise agreed with the Company or a Guarantor, as the case may be.
Section 607 Compensation and Reimbursement.
The Company and the Guarantors jointly and severally agree:
| (1) | to pay to the Trustee from time to time such reasonable compensation as shall be agreed from time to time for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); |
| (2) | except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and |
| (3) | to indemnify the Trustee for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder, except to the extent that any such loss, liability or expense may be attributable to its negligence or bad faith. |
Section 608 Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. To the extent permitted by such Act the Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee under this Indenture with respect to Securities of more than one series.
Section 609 Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee hereunder with respect to the Securities of each series, which may be Trustee hereunder for Securities of one or more other series. Each Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus of at least U.S.$50,000,000 and has its Corporate Trust Office in New York, New York. If such Person publishes reports of condition at least annually, pursuant to law or to the requirements of its supervising or examining authority, then for the purposes of this Section and to the extent permitted by the Trust Indenture Act, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee with respect to the Securities of any series shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.
Section 610 Resignation and Removal; Appointment of Successor.
| (a) | No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 611. |
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| (b) | The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company and the Guarantors. If the instrument of acceptance by a successor Trustee required by Section 611 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series. |
| (c) | The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series, delivered to the Trustee and to the Company and the Guarantors. |
| (d) | If at any time: |
| (1) | the Trustee shall fail to comply with Section 608 after written request therefor by the Company or a Guarantor or by any Holder who has been a bona fide Holder of a Security for at least six months, or |
| (2) | the Trustee shall cease to be eligible under Section 609 and shall fail to resign after written request therefor by the Company or a Guarantor or by any such Holder, or |
| (3) | the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, |
then, in any such case, (i) the Company by a Board Resolution may remove the Trustee with respect to all Securities, or (ii) subject to Section 514, any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees.
| (e) | If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series) and shall comply with the applicable requirements of Section 611. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the Guarantors and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 611, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company or the Holders and accepted appointment in the manner required by Section 611, any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series. |
| (f) | The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series to all Holders of Securities of such series in the manner provided in Section 106. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office. |
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Section 611 Acceptance of Appointment by Successor.
| (a) | In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company, the Guarantors and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company, a Guarantor or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder. |
| (b) | In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the Guarantors, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series of the Company shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company, a Guarantor or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates. |
| (c) | Upon request of any such successor Trustee, the Company and the Guarantors shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be. |
| (d) | No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article. |
Section 612 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
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Section 613 Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company, a Guarantor or any other obligor upon the Securities, the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company, such Guarantor or any such other obligor.
Section 614 Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon original issue and upon exchange, registration of transfer or partial redemption thereof or pursuant to Section 306, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than U.S.$50,000,000 and subject to supervision or examination by Federal or State authority. If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall give notice of such appointment in the manner provided in Section 106 to all Holders of Securities of the series with respect to which such Authenticating Agent will serve. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.
The Company and the Guarantors jointly and severally agree to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
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| [●] | ||
| As Trustee | ||
| By: |
| |
| As Authenticating Agent | ||
| Title: | ||
| By: |
| |
| Authorized Signatory | ||
If all of the Securities of a series may not be originally issued at one time, and if the Trustee does not have an office capable of authenticating Securities upon original issuance located in a Place of Payment where the Company wishes to have Securities of such series authenticated upon original issuance, the Trustee, if so requested by the Company in writing (which writing need not comply with Section 102 and need not be accompanied by an Opinion of Counsel), shall appoint in accordance with this Section an Authenticating Agent having an office in a Place of Payment designated by such issuer with respect of such series of Securities.
Section 615 Patriot Act.
The parties hereto acknowledge that in accordance with Section 326 of the USA Patriot Act the Trustee and its agents, like all financial institutions, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with [●]. The parties hereto agree that they will provide the Trustee and its agents with such information as it may request in order for the Trustee and its agents to satisfy the requirements of the USA Patriot Act.
ARTICLE SEVEN
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND
PARENT GUARANTOR
Section 701 Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee, if the Trustee is not the Security Registrar:
| (a) | semi-annually, not later than 15 days after each Regular Record Date for each series of Securities at the time Outstanding, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of Securities as of such Regular Record Date, and |
| (b) | at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished; excluding from any such list names and addresses received by the Trustee in its capacity as Security Registrar. |
Section 702 Preservation of Information; Communications to Holders.
| (a) | The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Trustee as provided in Section 701 and the names and addresses of Holders received by the Trustee in its capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 701 upon receipt of a new list so furnished. |
| (b) | The rights of the Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee, shall be as provided by the Trust Indenture Act. |
| (c) | Every Holder of Securities, by receiving and holding the same, agrees with the Company, the Guarantors and the Trustee that neither the Company nor the Guarantors nor the Trustee nor any agent of any of them shall be held accountable by reason of any disclosure of information as to names and addresses of Holders of Securities made pursuant to the Trust Indenture Act. |
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Section 703 Reports by Trustee.
| (a) | On or about each July 15 following the date hereof, the Trustee shall transmit to Holders such reports, if any, dated as of the preceding May 15, concerning the Trustee and its actions under this Indenture as may be required pursuant to Section 313(a) of the Trust Indenture Act in the manner provided pursuant to Section 313(c) thereof. The Trustee shall also transmit to Holders such reports, if any, as may be required pursuant to Section 313(b) of the Trust Indenture Act at the times and in the manner provided pursuant thereto and to Section 313(c) thereof. |
| (b) | A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any Securities are listed, with the Commission and with the Company. The Company will notify the Trustee when any Securities are listed on any stock exchange or delisted therefrom. |
Section 704 Reports by Parent Guarantor.
The Parent Guarantor shall file with the Trustee and the Commission, and transmit to Holders, such information, documents and other reports, including financial information and statements and such summaries thereof, as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant to such Act; provided that any such information, documents or reports required to be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within 15 days after the same is filed with the Commission.
Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including compliance by the Company with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801 Company or Guarantors May Consolidate, Etc., Only on Certain Terms.
Neither the Company nor any Guarantor shall (i) consolidate with or merge into another Person (other than a consolidation or merger of the Company into a Guarantor), or (ii) convey, transfer or lease all or substantially all of its and its Subsidiaries’ properties and assets, taken as a whole, to another Person (other than one or more direct or indirect wholly owned Subsidiaries), whether such conveyance, transfer or lease is made directly or indirectly through one or more wholly owned Subsidiaries holding such properties and assets or a portion thereof, or (iii) permit any Person to consolidate with or merge into the Company or a Guarantor, as the case may be, or (other than a direct or indirect wholly owned Subsidiary) convey, transfer or lease all or substantially all of its properties and assets to the Company or a Guarantor, as the case may be, unless:
| (1) | in case the Company or a Guarantor, as the case may be, shall consolidate with or merge into another Person or convey, transfer or lease all or substantially all of its and its Subsidiaries’ properties and assets taken as a whole, to any Person, the Person formed by such consolidation into which the Company or such Guarantor, as the case may be, is merged or the Person which acquires by conveyance or transfer, or which leases, all or substantially all of the properties and assets of the Company and its Subsidiaries or such Guarantor and its Subsidiaries, in each case taken as a whole, shall be a Corporation, shall be organized and validly existing, under the laws of any applicable jurisdiction and shall expressly assume, by an indenture supplemental hereto executed and delivered to the Trustee in form reasonably satisfactory to the Trustee, in the case of |
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| the Company, the due and punctual payment of the principal of and any premium and interest on all the Securities and the performance or observance of every covenant of this Indenture on the part of the Company to be performed or observed, and in the case of a Guarantor, the due and punctual performance of the Guarantee and the performance or observance of every covenant of this Indenture on the part of such Guarantor to be performed or observed; |
| (2) | immediately after giving effect to such transaction and treating any indebtedness which becomes an obligation of the Company or such Guarantor, as the case may be, or any of their respective Subsidiaries as a result of such transaction as having been incurred by the Company or such Guarantor, as the case may be, or such Subsidiary at the time of such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have happened and be continuing; |
| (3) | the Company or the such Guarantor, as the case may be, has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with. |
Section 802 Successor Substituted.
Upon any consolidation of the Company or a Guarantor with, or merger of the Company or a Guarantor, as the case may be, into, any other Person or any conveyance, transfer or lease of all or substantially all of the properties and assets of the Company or such Guarantor and its Subsidiaries, taken as a whole in accordance with Section 801, the successor Person formed by such consolidation into which the Company or such Guarantor, as the case may be, is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for and may exercise every right and power of, the Company or such Guarantor under this Indenture with the same effect as if such successor Person had been named as the Company or such Guarantor, as the case may be, herein, and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities and the Guarantees, as the case may be.
Section 803 Substitution of the Company on Certain Terms
| (a) | The Parent Guarantor or any Subsidiary organized under the laws of the United States or England and Wales or Norway or a jurisdiction that is a member country of the Organization for Economic Cooperation and Development (or any successor thereto) may assume the obligations of the Company under any of the Securities, in whole or in part, and the Company shall, with respect to such Securities, be relieved of all its obligations and covenants under this Indenture and the Securities as the issuer of such Securities, provided that: |
| (1) | the Parent Guarantor, or such Subsidiary, as the case may be, shall be validly existing under the laws of the applicable jurisdiction; |
| (2) | the Parent Guarantor, or such Subsidiary, as the case may be, shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, the due and punctual payment of the principal of and any premium and interest on all the Securities and the performance of every covenant of this Indenture on the part of the Company to be performed or observed; and |
| (3) | immediately after giving effect to such transaction and treating any indebtedness which becomes an obligation of the Parent Guarantor or any Subsidiary as a result of such transaction as having been incurred by the Parent Guarantor or such Subsidiary at the time of such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have happened and be continuing. |
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| (b) | If the Parent Guarantor assumes the obligations of the Company in respect of any Securities and under this Indenture to the extent relating to such Securities, in whole (but not in part), the Guarantee of the Parent Guarantor with respect to such Securities shall terminate without any requirement that any action be taken by the Company, the Parent Guarantor or the Trustee. |
| (c) | Upon any assumption pursuant to Section 804(a) by the Parent Guarantor or a Subsidiary of the obligations of the Company, the Parent Guarantor or such Subsidiary, as the case may be, shall, to the extent of such assumption, succeed to, and be substituted for, and may exercise every right and power of the, the Company, under this Indenture with the same effect as if the Parent Guarantor or such Subsidiary, as applicable, had been named herein as the Company and thereafter the Company shall be relieved of all obligations and covenants under this Indenture and the Securities, in each case to the extent of such assumption. |
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a Board Resolution, the Guarantors, when authorized by or pursuant to Board Resolutions and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:
| (1) | to evidence the succession of another Person to the Company or a Guarantor and the assumption by any such successor of the covenants of the Company or such Guarantor, as the case may be, herein and in the Securities or the Guarantees; or |
| (2) | to add to the covenants of the Company or a Guarantor for the benefit of the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company or a Guarantor; or |
| (3) | to add any additional Events of Default for the benefit of the Holders of all or any series of Securities (and if such additional Events of Default are to be for the benefit of less than all series of Securities, stating that such additional Events of Default are expressly being included solely for the benefit of such series); or |
| (4) | to add any additional present, future or contingent payment obligation of a Guarantor under its Guarantee or any future guarantee for the benefit of the Holders of all or any series of Securities (and if such additional payment obligations are to be for the benefit of less than all series of Securities, stating that such additional payment obligations are expressly being included solely for the benefit of such series); or |
| (5) | to add to or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of Securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons, or to permit or facilitate the issuance of Securities in uncertificated form; or |
| (6) | to add to, change or eliminate any of the provisions of this Indenture in respect of one or more series of Securities, provided, however, that any such addition, change or elimination (i) shall neither (A) apply to any Security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (B) modify the rights of the Holder of any such Security with respect to such provision or (ii) shall become effective only when there is no such Security Outstanding; or |
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| (7) | to secure the Securities; or |
| (8) | to establish the form or terms of Securities of any series or the form of Guarantee as permitted by Sections 201 and 301; or |
| (9) | to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 611(b); or (10) to cure any ambiguity, to correct or supplement any provision herein which may be inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture, provided, however, that such action pursuant to this Clause (9) shall not adversely affect the interests of the Holders of Securities of any series in any material respect. |
Section 902 Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities of each series affected by such supplemental indenture, by Act of said Holders delivered to the Company, the Guarantors, and the Trustee, the Company, when authorized by or pursuant to a Board Resolution, the Guarantors, when authorized by or pursuant to Board Resolutions, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby,
| (1) | change the Stated Maturity of the principal of, or any installment of principal of or interest on, any Security, or reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof, or change any obligation of the Company or a Guarantor to pay additional amounts pursuant to Section 1009, or reduce the amount of the principal of an Original Issue Discount Security or any other Security which would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502, or change any Place of Payment where, or the coin or currency in which, any Security or any premium or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or |
| (2) | reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or |
| (3) | modify any of the provisions of this Section, Section 513 or Section 1008, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby; provided, however, that this clause shall not be deemed to require the consent of any Holder with respect to changes in the references to “the Trustee” and concomitant changes in this Section and Section 1008, or the deletion of this proviso, in accordance with the requirements of Sections 611(b) and 901(10), or |
| (4) | change in any manner adverse to the interests of the Holders of Securities the terms and conditions of the obligations of a Guarantor in respect of the due and prompt payment of the principal thereof (and premium, if any) and interest thereon or any sinking fund payments provided in respect thereof. |
A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
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It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
Section 903 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Section 904 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
Section 905 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act as in effect at the time of the execution thereof.
Section 906 Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company and the Guarantors shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee, the Company and the Guarantors, to any such supplemental indenture may be prepared and executed by the Company, the Guarantees endorsed thereon may be executed by the Guarantors, and such Securities may be authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
Section 1001 Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay the principal of and any premium and interest on the Securities of that series in accordance with the terms of the Securities and this Indenture.
Section 1002 Maintenance of Office or Agency by Company.
The Company will maintain in each Place of Payment for any series of Securities an office or agency where Securities of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.
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The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes or where such notices and demands may be served and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
Section 1003 Maintenance of Office or Agency by Guarantor.
Each Guarantor will maintain in each Place of Payment for any series of Securities an office or agency where Securities of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange and where notices and demands to or upon such Guarantor in respect of the Securities of that series and this Indenture may be served. The applicable Guarantor will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time a Guarantor shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and such Guarantor hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.
Each Guarantor may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes or where such notices and demands may be served and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve such Guarantor of its obligation to maintain an office or agency in each Place of Payment for Securities of any series for such purposes. The applicable Guarantor will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
Section 1004 Reserved.
Section 1005 Money for Securities Payments to Be Held in Trust.
If the Company or a Guarantor shall at any time act as its own Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal of or any premium or interest on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal and any premium and interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of Securities, it will, prior to each due date of the principal of or any premium or interest on any Securities of that series, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be held as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will (i) comply with the provisions of the Trust Indenture Act applicable to it as a Paying Agent and (ii) during the continuance of any default by the Company (or any other obligor upon the Securities of that series) in the making of any payment in respect of the Securities of that series, and upon the written request of the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent for payment in respect of the Securities of that series.
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The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company or a Guarantor, in trust for the payment of the principal of or any premium or interest on any Security of any series and remaining unclaimed for two years after such principal, premium or interest has become due and payable shall be paid to the Company or the applicable Guarantor, as the case may be, on its Order, or (if then held by the Company or a Guarantor) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company or such Guarantor for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company or the applicable Guarantor as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in the Borough of Manhattan, The City of New York, New York, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company.
Section 1006 Statement by Officer as to Default.
The Company and each Guarantor will deliver to the Trustee, within 120 days after the end of each fiscal year of the Company ending after the date hereof, an Officer’s Certificate (which need not comply with the requirements of Section 102), stating whether or not to the best knowledge of the signers thereof the Company or such Guarantor, as the case may be, is in default in the performance and observance of any of the terms, provisions and conditions of this Indenture (without regard to any period of grace or requirement of notice provided hereunder) and, if the Company or such Guarantor, as the case may be, shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge.
Section 1007 Corporate Existence.
Subject to Article Eight, the Company and each Guarantor will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence, rights (charter and statutory) and franchises; provided, however, that neither the Company nor any Guarantor shall be required to preserve any such right or franchise if its Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company or such Guarantors, as the case may be, and that the loss thereof is not disadvantageous in any material respect to the Holders.
Section 1008 Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 301 for Securities of such series, the Company and the Guarantors may, with respect to the Securities of any series, omit in any particular instance to comply with any term, provision or condition set forth in any covenant provided pursuant to Section 901(2) or 901(7) for the benefit of the Holders of such series or any term, provision or condition set forth in an indenture supplemental hereto, if before the time for such compliance the Holders of at least a majority in principal amount of the Outstanding Securities of such series shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and Guarantors and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect.
Section 1009 Additional Amounts.
Unless otherwise specified in any Board Resolutions of the Company or a Guarantor establishing the terms of Securities of a series in accordance with Section 301 or the form of Guarantee relating thereto, if any deduction or withholding for any present or future taxes, assessments or other governmental charges of the jurisdiction (or any
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political subdivision or taxing authority thereof or therein) in which the Company or such Guarantor is incorporated, organized or tax resident shall at any time be required by such jurisdiction (or any such political subdivision or taxing authority) in respect of any amounts to be paid by the Company of principal of or interest on a Security of any series, or by such Guarantor under its Guarantee, the Company or such Guarantor, as the case may be, will pay to the Holder of a Security of such series such additional amounts as may be necessary in order that the net amounts paid to such Holder of such Security who, with respect to any such tax, assessment or other governmental charge, is not resident in such jurisdiction, after such deduction or withholding, shall be not less than the amounts specified in such Security to which such Holder is entitled; provided, however, that the Company or such Guarantor, as the case may be, shall not be required to make any payment of additional amounts for or on account of:
| (a) | any tax, assessment or other governmental charge which would not have been imposed but for (i) the existence of any present or former connection between such Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Holder, if such Holder is an estate, trust, partnership or corporation) and the taxing jurisdiction or any political subdivision or territory or possession thereof or area subject to its jurisdiction, including, without limitation, such Holder (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen or resident thereof or being or having been present or engaged in trade or business therein or having or having had a permanent establishment therein or (ii) the presentation of a Security of such series (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later; |
| (b) | any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge; |
| (c) | any tax, assessment or other governmental charge which is payable otherwise than by withholding from payments of (or in respect of) principal of, or any interest on, the Securities of such series; |
| (d) | any tax, assessment or other governmental charge that is imposed or withheld by reason of the failure to comply by the Holder or the beneficial owner of the Security of such series (i) to provide information concerning the nationality, residence or identity of the Holder or such beneficial owner or (ii) to make any declaration or other similar claim or satisfy any information or reporting requirements, which, in the case of (i) or (ii), is required or imposed by a statute, treaty, regulation or administrative practice of the taxing jurisdiction as a precondition to exemption from all or part of such tax, assessment or other governmental charge; |
| (e) | any tax, assessment or other governmental charge which such Holder would have been able to avoid by presenting such Security to another Paying Agent; or |
| (f) | any combination of items (a), (b), (c), (d), or (e) above; nor shall additional amounts be paid with respect to any payment of the principal of, or any interest on, any Security of such series to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent such payment would be required by the laws of the jurisdiction (or any political subdivision or taxing authority thereof or therein) to be included in the income for tax purposes of a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to such additional amounts had it been the Holder of such Security. |
The foregoing provisions shall apply mutatis mutandis to any withholding or deduction for or on account of any present or future taxes, assessments or governmental charges of whatever nature of any jurisdiction in which any successor Person to the Company or a Guarantor, as the case may be, is incorporated, organized or tax resident, or any political subdivision or taxing authority thereof or therein; provided, however, that such payment of additional amounts may be subject to such further exceptions as may be established in the terms of such Securities established as contemplated by Section 301; provided further that the foregoing provisions regarding additional amounts will not apply to any Guarantor at any time when such Guarantor is incorporated in a jurisdiction in the United States, and will apply to the Company only any time it is incorporated in a jurisdiction outside of the United States.
Notwithstanding the foregoing provisions, the Company and the Guarantors (or any paying agent or any other Person) shall not be required to pay any additional amounts with respect to any withholding or deduction imposed pursuant to Section 1471-1474 of the United States Internal Revenue Code (the “Code”) (and any current and future regulations or official interpretations thereof) (“FATCA”), the laws of Norway implementing FATCA or any agreement between the Company, a Guarantor and any taxing or governmental authority entered into for FATCA purposes.
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Subject to the foregoing provisions, whenever in this Indenture there is mentioned, in any context, the payment of the principal of or any premium or interest on, or in respect of, any Security of any series or payment of any related coupon or the net proceeds received on the sale or exchange of any Security of any series, such mention shall be deemed to include mention of the payment of additional amounts provided for in this Section to the extent that, in such context, additional amounts are, were or would be payable in respect thereof pursuant to the provisions of this Section and express mention of the payment of additional amounts (if applicable) in any provisions hereof shall not be construed as excluding additional amounts in those provisions hereof where such express mention is not made.
If the terms of the Securities of a series established as contemplated by Section 301 do not specify that additional amounts pursuant to the Section will not be payable by the Company or a Guarantor, at least 10 days prior to the first Interest Payment Date with respect to that series of Securities (or if the Securities of that series will not bear interest prior to Maturity, the first day on which a payment of principal and any premium is made), and at least 10 days prior to each date of payment of principal and any premium or interest if there has been any change with respect to the matters set forth in the below-mentioned Officer’s Certificate, the Company or such Guarantor, as the case may be, will furnish the Trustee and the Company’s principal Paying Agent or Paying Agents, if other than the Trustee, with an Officer’s Certificate instructing the Trustee and such Paying Agent or Paying Agents whether any payments due under the related Securities or Guarantee shall be made to Holders of Securities of that series without withholding for or on account of any tax, assessment or other governmental charge described in the Securities or the related Guarantee. If any such withholding shall be required, then such Officer’s Certificate shall specify by country the amount, if any, required to be withheld on such payments to such Holders of Securities and the Company or such Guarantors (only if a payment under said Securities or Guarantee is then due) will pay to the Trustee or such Paying Agent or Paying Agents the additional amounts required by this Section.
Each of the Company and the Guarantors covenants to indemnify each of the Trustee and any Paying Agent for, and to hold each of them harmless against, any loss, liability or expense arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers’ Certificate furnished pursuant to this Section, except to the extent that any such loss, liability or expense is due to its own negligence or bad faith.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101 Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated by Section 301 for such Securities) in accordance with this Article.
Section 1102 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by a Board Resolution or in another manner specified as contemplated by Section 301 for such Securities. In case of any redemption at the election of the Company of less than all the Securities of any series (including any such redemption affecting only a single Security), the Company shall, at least 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be reasonably satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the principal amount of Securities of such series to be redeemed and, if applicable, of the tenor of the Securities to be redeemed. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officer’s Certificate evidencing compliance with such restriction.
Section 1103 Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless all the Securities of such series and of a specified tenor are to be redeemed or unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not previously called for redemption, by such method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of a portion of the principal amount of any Security of such series, provided that the unredeemed portion of the principal amount of any Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security. If less than all the Securities of such series and of a specified tenor are to be redeemed (unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series and specified tenor not previously called for redemption in accordance with the preceding sentence. The Trustee shall promptly notify the Company in writing of the Securities selected for redemption as aforesaid and, in the case of any Securities selected for partial redemption as aforesaid, the principal amounts thereof to be redeemed.
The provisions of the preceding paragraph shall not apply with respect to any redemption affecting only a single Security, whether such Security is to be redeemed in whole or in part. In the case of any such redemption in part, the unredeemed portion of the principal amount of the Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.
Section 1104 Notice of Redemption.
Notice of redemption shall be given by first class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed, at the address of such Holder appearing in the Security Register.
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All notices of redemption shall state:
| (1) | the Redemption Date, |
| (2) | the Redemption Price or, if not ascertainable, the manner of calculation thereof, |
| (3) | if less than all the Outstanding Securities of any series consisting of more than a single Security are to be redeemed, the identification (and, in the case of partial redemption of any such Securities, the principal amounts) of the particular Securities to be redeemed and, if less than all the Outstanding Securities of any series consisting of a single Security are to be redeemed, the principal amount of the particular Security to be redeemed, |
| (4) | that on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date, |
| (5) | the place or places where each such Security is to be surrendered for payment of the Redemption Price, |
| (6) | that the redemption is for a sinking fund, if such is the cases, and |
| (7) | the CUSIP number or numbers, if any, with respect to such Securities. |
Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company’s request, by the Trustee in the name and at the expense of the Company and shall be irrevocable.
Section 1105 Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company or a Guarantor is acting as its own Paying Agent, segregate and hold in trust as provided in Section 1005) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities which are to be redeemed on that date.
Section 1106 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Securities shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price, together with accrued interest to the Redemption Date; provided, however, that, unless otherwise specified as contemplated by Section 301, installments of interest whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal and any premium shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.
Section 1107 Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series and of like tenor, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered; provided, that if a Global Security is so surrendered, such new Security so issued shall be a new Global Security in a denomination equal to the unredeemed portion of the principal of the Global Security so surrendered.
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Section 1108 Optional Redemption Due to Changes in Tax Treatment.
Each series of Securities contained in one or more particular issues may be redeemed at the option of the Company or a Guarantor, in whole but not in part, at any time (except in the case of Securities that have a variable rate of interest, which may be redeemed on any Interest Payment Date) at a Redemption Price equal to the principal amount thereof plus accrued interest to the date fixed for redemption (except in the case of Outstanding Original Issue Discount Securities which may be redeemed at the Redemption Price specified by the terms of such series of Securities) if, (a) as a result of any change in or amendment to the laws or any regulations or rulings promulgated thereunder of the Kingdom of Norway or any political subdivision or taxing authority thereof or therein affecting taxation (or, in the case of a successor Person to the Company or a Guarantor, of the jurisdiction in which the Company or such successor Person is incorporated, organized or tax resident, or any political subdivision or taxing authority thereof or therein) or any change in the official application or interpretation of such laws, regulations or rulings, or any change in the official application or interpretation of, or any execution of or amendment to, any treaty or treaties affecting taxation to which such jurisdiction or such political subdivision or taxing authority (or such other jurisdiction or political subdivision or taxing authority) is a party, which change, execution or amendment becomes effective on or after the date specified for such series pursuant to the terms of the Security or Section 301(8) (or in the case of a successor Person to the Company or a Guarantor, the date on which such successor Person became such pursuant to Sections 801 and 802) or (b) as a result of any delivery or of any requirement to deliver definitive Securities (having used all reasonable efforts to avoid having to issue such definitive Securities), the Company or such Guarantor (or such successor Person) is or would be required to pay additional amounts with respect to the Securities on the next succeeding Interest Payment Date as described in Section 1009, and the payment of such additional amounts in the case of (b) above cannot be avoided by the use of any reasonable measures available to the Company or such Guarantor. Prior to the giving of notice of redemption of such Securities pursuant to this Indenture, the Company or the applicable Guarantor, as the case may be, will deliver to the Trustee an Officer’s Certificate, stating that the Company or such Guarantor, as the case may be, is entitled to effect such redemption and setting forth in reasonable detail a statement of circumstances showing that the conditions precedent to the right of the Company or such Guarantor, as the case may be, to redeem such Securities pursuant to this Section have been satisfied.
Further, if a successor Person into which the Company or a Guarantor is merged or to whom the Company or a Guarantor has conveyed, transferred or leased its properties or assets has been or would be required to pay any additional amounts with respect to the Securities as a result of such transaction, each series of Securities may be redeemed at the option of such Person in whole, but not in part, at any time (except in the case of Securities that have a variable rate of interest, which may be redeemed on any Interest Payment Date), at a redemption price equal to the principal amount thereof plus accrued interest to the date fixed for redemption (except in the case of Outstanding Original Issue Discount Securities which may be redeemed at the Redemption Price specified by the terms of such series of Securities). Prior to the giving of notice of redemption of such Securities pursuant to this Indenture, such Person shall deliver to the Trustee an Officer’s Certificate, stating that such person is entitled to effect such redemption and setting forth in reasonable detail a statement of circumstances showing that the conditions precedent to the right of such Person to redeem such Securities pursuant to this Section have been satisfied.
ARTICLE TWELVE
SINKING FUNDS
Section 1201 Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of any series except as otherwise specified as contemplated by Section 301 for such Securities.
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The minimum amount of any sinking fund payment provided for by the terms of any Securities is herein referred to as a “mandatory sinking fund payment”, and any payment in excess of such minimum amount provided for by the terms of such Securities is herein referred to as an “optional sinking fund payment”. If provided for by the terms of any Securities, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 1202. Each sinking fund payment shall be applied to the redemption of Securities as provided for by the terms of such Securities.
Section 1202 Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other than any previously called for redemption), and (2) may apply as a credit Securities of a series which have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to any Securities of such series required to be made pursuant to the terms of such Securities as and to the extent provided for by the terms of such Securities; provided that the Securities to be so credited have not been previously so credited. The Securities to be so credited shall be received and credited for such purpose by the Trustee at the Redemption Price, as specified in the Securities so to be redeemed, for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 1203 Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any Securities, the Company will deliver to the Trustee an Officer’s Certificate specifying the amount of the next ensuing sinking fund payment for such Securities pursuant to the terms of such Securities, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities pursuant to Section 1202 and will also deliver to the Trustee any Securities to be so delivered. Not less than 50 days prior to each such sinking fund payment date, the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 1103 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 1104. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 1301 Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have Section 1302 or Section 1303 applied to any Securities or any series of Securities, as the case may be, designated pursuant to Section 301 as being defeasible pursuant to such Section 1302 or 1303, in accordance with any applicable requirements provided pursuant to Section 301 and upon compliance with the conditions set forth below in this Article. Any such election shall be evidenced by a Board Resolution or in another manner specified as contemplated by Section 301 for such Securities.
Section 1302 Defeasance and Discharge.
Upon the Company’s exercise of its option (if any) to have this Section applied to any Securities or any series of Securities, as the case may be, the Company shall be deemed to have been discharged from its obligations with respect to such Securities as provided in this Section on and after the date the conditions set forth in Section 1304 are satisfied (hereinafter called “Defeasance”). For this purpose, such Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by such Securities and to have satisfied all other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense of the Company shall execute proper instruments acknowledging the same), subject to the following which shall survive until otherwise terminated or discharged hereunder: (1) the rights of Holders of such Securities to receive, solely from the trust fund described in Section 1304 and as more fully set forth in such Section, payments in respect of the principal of and any premium and interest on such Securities when payments are due, (2) the
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obligations of the Company, where applicable, with respect to such Securities under Sections 304, 305, 306, 1002 and 1005, (3) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (4) this Article. Subject to compliance with this Article, the Company may exercise its option (if any) to have this Section applied to any Securities notwithstanding the prior exercise of its option (if any) to have Section 1303 applied to such Securities.
Section 1303 Covenant Defeasance.
Upon the Company’s exercise of its option (if any) to have this Section applied to any Securities or any series of Securities, as the case may be, (1) the Company shall be released from any covenants provided pursuant to Section 901(2) or 901(7) for the benefit of the Holders of such Securities, (2) the occurrence of any event specified in Sections 501(4) (with respect to any such covenants provided pursuant to Section 901(2) or 901(7)) and 501(7) shall be deemed not to be or result in an Event of Default, in each case with respect to such Securities as provided in this Section on and after the date the conditions set forth in Section 1304 are satisfied (hereinafter called “Covenant Defeasance”). For this purpose, such Covenant Defeasance means that, with respect to such Securities, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such specified Section (to the extent so specified in the case of Section 501(4)), whether directly or indirectly by reason of any reference elsewhere herein to any such Section or by reason of any reference in any such Section to any other provision herein or in any other document, but the remainder of this Indenture and such Securities shall be unaffected thereby.
Section 1304 Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section 1302 or Section 1303 to any Securities or any series of Securities, as the case may be:
| (1) | The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee which satisfies the requirements contemplated by Section 609 and agrees to comply with the provisions of this Article applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefits of the Holders of such Securities, (A) money in an amount, or (B) U.S. Government Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount, or (C) a combination thereof, in each case sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or any such other qualifying trustee) to pay and discharge, the principal of and any premium and interest on such Securities on the respective Stated Maturities, in accordance with the terms of this Indenture and such Securities. As used herein, “U.S. Government Obligation” means (x) any security which is (i) a direct obligation of the United States of America for the payment of which the full faith and credit of the United States of America is pledged or (ii) an obligation of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in the case of either (i) or (ii), is not callable or redeemable at the option of the issuer thereof, and (y) any depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any U.S. Government Obligation which is specified in Clause (x) above and held by such bank for the account of the holder of such depositary receipt, or with respect to any specific payment of principal of or interest on any U.S. Government Obligation which is so specified and held, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of principal or interest evidenced by such depositary receipt. |
| (2) | In the event of an election to have Section 1302 apply to any Securities or any series of Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (A) the Company has received from, or there has been published by, the Internal Revenue |
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| Service a ruling or (B) since the date of this instrument, there has been a change in the applicable U.S. federal income tax law, in either case (A) or (B) to the effect that, and based thereon such opinion shall confirm that, the Holders of such Securities will not recognize gain or loss for U.S. federal income tax purposes as a result of the deposit, Defeasance and discharge to be effected with respect to such Securities and will be subject to U.S. federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit, Defeasance and discharge were not to occur. |
| (3) | In the event of an election to have Section 1303 apply to any Securities or any series of Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Securities will not recognize gain or loss for U.S. federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Securities and will be subject to U.S. federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur. |
| (4) | The Company shall have delivered to the Trustee an Officer’s Certificate to the effect that neither such Securities nor any other Securities of the same series, if then listed on any securities exchange, will be delisted as a result of such deposit. |
| (5) | No event which is, or after notice or lapse of time or both would become, an Event of Default with respect to such Securities or any other Securities shall have occurred and be continuing at the time of such deposit or, with regard to any such event specified in Sections 501(5) and (6), at any time on or prior to the 90th day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until after such 90th day). |
| (6) | Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Securities are in default within the meaning of such Act). |
| (7) | Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which the Company is a party or by which it is bound. |
| (8) | Such Defeasance or Covenant Defeasance shall not result in the trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act unless such trust shall be registered under such Act or exempt from registration thereunder. |
| (9) | The Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent with respect to such Defeasance or Covenant Defeasance have been complied with. |
Section 1305 Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1005, all money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee or other qualifying trustee (solely for purposes of this Section and Section 1306, the Trustee and any such other trustee are referred to collectively as the “Trustee”) pursuant to Section 1304 in respect of any Securities shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any such Paying Agent (including the Company acting as Paying Agent) as the Trustee may determine, to the Holders of such Securities, of all sums due and to become due thereon in respect of principal and any premium and interest, but money so held in trust need not be segregated from other funds except to the extent required by law.
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The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 1304 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Order of the Company any money or U.S. Government Obligations held by it as provided in Section 1304 with respect to any Securities which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect the Defeasance or Covenant Defeasance, as the case may be, with respect to such Securities.
Section 1306 Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in accordance with this Article with respect to any Securities by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations under this Indenture and such Securities from which the Company has been discharged or released pursuant to Section 1302 or 1303 shall be revived and reinstated as though no deposit had occurred pursuant to this Article with respect to such Securities, until such time as the Trustee or Paying Agent is permitted to apply all money held in trust pursuant to Section 1305 with respect to such Securities in accordance with this Article; provided, however, that if the Company makes any payment of principal of or any premium or interest on any such Security following such reinstatement of its obligations, the Company shall be subrogated to the rights (if any) of the Holders of such Securities to receive such payment from the money so held in trust.
ARTICLE FOURTEEN
GUARANTEE
Section 1401 Guarantee
For value received, each Guarantor hereby unconditionally guarantees to the Holder of the Security upon which this Guarantee is endorsed and to the Trustee referred to in such Indenture the due and prompt payment of the principal of and any premium and interest (including additional amounts, if any, and sinking fund payments, if any) on all of the Securities on the dates and in the manner provided in the Indenture and in the Securities, when and as the same shall become due and payable, whether at the Stated Maturity, by declaration of acceleration, call for redemption or otherwise, according to the terms thereof and of the Indenture referred to therein. In case of the failure of the Company punctually to make any such principal, premium or interest, additional amounts and sinking fund payments, such Guarantor hereby agrees to cause any such payment to be made promptly when and as the same shall become due and payable, whether at the Stated Maturity, by declaration of acceleration, call for redemption or otherwise, and as if such payment were made by the Company.
Each Guarantor hereby further agrees, subject to the limitations and exceptions set forth below and unless otherwise specified in any Board Resolutions of the Company establishing the terms of Securities of a series in accordance with Section 301, that if any deduction or withholding for any present or future taxes, assessments or other governmental charges of the jurisdiction (or any political subdivision or taxing authority thereof or therein) in which such Guarantor is incorporated, organized or tax resident shall at any time be required by such jurisdiction (or any such political subdivision or taxing authority) in respect of any amounts to be paid by such Guarantor under this Guarantee, such Guarantor will pay to the Holder of a Security of such series such additional amounts as may be necessary in order that the net amounts paid to such Holder of such Security who, with respect to any such tax, assessment or other governmental charge, is not resident in such jurisdiction, after such deduction or withholding, shall be not less than the amounts specified in such Security to which such Holder is entitled; provided, however, that the Guarantors shall not be required to make any payment of additional amounts for or on account of:
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| (a) | any tax, assessment or other governmental charge which would not have been imposed but for (i) the existence of any present or former connection between such Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Holder, if such Holder is an estate, trust, partnership or corporation) and the taxing jurisdiction or any political subdivision or territory or possession thereof or area subject to its jurisdiction, including, without limitation, such Holder (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen or resident thereof or being or having been present or engaged in trade or business therein or having or having had a permanent establishment therein or (ii) the presentation of a Security of such series (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later; |
| (b) | any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge; |
| (c) | any tax, assessment or other governmental charge which is payable otherwise than by withholding from payments of (or in respect of) principal of, or any interest on, the Securities of such series; |
| (d) | any tax, assessment or other governmental charge that is imposed or withheld by reason of the failure to comply by the Holder or the beneficial owner of the Security of such series (i) to provide information concerning the nationality, residence or identity of the Holder or such beneficial owner or (ii) to make any declaration or other similar claim or satisfy any information or reporting requirements, which, in the case of (i) or (ii), is required or imposed by a statute, treaty, regulation or administrative practice of the taxing jurisdiction as a precondition to exemption from all or part of such tax, assessment or other governmental charge; |
| (e) | any tax, assessment or other governmental charge which such Holder would have been able to avoid by presenting such Security to another Paying Agent; or |
| (f) | any combination of items (a), (b), (c), (d), or (e) above; nor shall additional amounts be paid with respect to any payment of the principal of, or any interest on, any Security of such series to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent such payment would be required by the laws of the jurisdiction (or any political subdivision or taxing authority thereof or therein) to be included in the income for tax purposes of a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to such additional amounts had it been the Holder of such Security. |
The foregoing provisions shall apply mutatis mutandis to any withholding or deduction for or on account of any present or future taxes, assessments or governmental charges of whatever nature of any jurisdiction in which any successor Person to a Guarantor is incorporated, organized or tax resident, or any political subdivision or taxing authority thereof or therein; provided, however, that such payment of additional amounts may be subject to such further exceptions as may be established in the terms of such Securities established as contemplated in the Indenture referred to in such Securities.
The foregoing provisions regarding additional amounts will not apply to any Guarantor at any time when such Guarantor is incorporated in a jurisdiction in the United States.
Notwithstanding the foregoing provisions, a Guarantor (or any paying agent or any other Person) shall not be required to pay any additional amounts with respect to any withholding or deduction imposed pursuant to Section 1471-1474 of the United States Internal Revenue Code (the “Code”) (and any current and future regulations or official interpretations thereof) (“FATCA”), the laws of Norway implementing FATCA or any agreement between the Company, such Guarantor and any taxing or governmental authority entered into for FATCA purposes.
Each Guarantor hereby agrees that its obligations hereunder shall be as if it were principal debtor and not merely surety, and shall be absolute and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of such Security or such Indenture, any failure to enforce the provisions of such Security or such Indenture, or any waiver, modification or indulgence granted to the Company with respect thereto, by the Holder of such Security or such Trustee, or any other circumstance which may otherwise constitute a legal or equitable discharge of a surety or guarantor; provided, however, that, notwithstanding the foregoing, no such waiver, modification or indulgence shall, without the consent of such Guarantor, increase the principal amount of such Security or the interest rate thereon or impose or increase any premium payable upon redemption thereof or after the stated maturity thereof. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims
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with a court in the event of merger or bankruptcy of the Company, any right to require a proceeding first against the Company, protest or notice with respect to such Security or the indebtedness evidenced thereby or with respect to any sinking fund payment required pursuant to the terms of such Security and all demands whatsoever, and covenants that this Guarantee will not be discharged except by payment in full of the principal of and any premium and interest (including additional amounts, if any, and sinking fund payments, if any) on such Security. This is a guarantee of payment and not of collection. The Guarantee does not hereby guarantee the performance by the Company of any other of the Company’s covenants, agreements, or obligations under the Securities or the Indenture.
This Guarantee (i) is a direct, unconditional, unsubordinated and unsecured obligation of the applicable Guarantor and (ii) ranks at least pari passu in right of payment with all other senior unsecured and unsubordinated obligations of such Guarantor now or hereafter outstanding (other than obligations preferred by applicable law) and senior in priority of payment and in all other respects to all other obligations of such Guarantor that are designated as subordinate or junior in right of payment to this Guarantee.
A Guarantor shall be subrogated to all rights of the Holder of such Security against the Company in respect of any amounts paid to such Holder by such Guarantor pursuant to the provisions of this Guarantee; provided, however, that such Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation until the principal of and any premium and interest (including additional amounts, if any, and sinking fund payments, if any) on all Securities of the same series issued under such Indenture shall have been paid in full.
No reference herein to such Indenture and no provision of this Guarantee or of such Indenture shall alter or impair the guarantee of the applicable Guarantor, which is absolute and unconditional, of the due and punctual payment of the principal of and any premium and interest (including additional amounts, if any, and sinking fund payments, if any) on the Security upon which this Guarantee is endorsed at the times, place and rate, and in the coin or currency prescribed therein.
This Guarantee shall not be valid or obligatory for any purpose until the certificate of authentication of such Security shall have been executed by or on behalf of the Trustee, manually, by facsimile or electronically, under such Indenture.
This Guarantee shall be governed by and construed in accordance with the laws of the State of New York, except that the authorization and execution of this Guarantee shall be governed by the laws of the jurisdiction of organization of the applicable Guarantor.
Section 1402 Subrogation
A Guarantor shall be subrogated to all rights of the Holder of a Security against the Company in respect of any amounts paid to such Holder by such Guarantor pursuant to the provisions of this Guarantee; provided, however, that such Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation until the principal of (and premium, if any) and interest on all Securities of the relevant series shall have been paid in full.
Section 1403 Execution and Delivery of the Guarantee
To evidence its guarantee set forth in Section 1401, each Guarantor hereby agrees to execute the Guarantee in a form established pursuant to Section 206, to be endorsed on each Security authenticated and delivered by the Trustee. Each such Guarantee shall be signed manually, by facsimile or electronically by a person duly authorized thereto by Board Resolution of the applicable Guarantor.
Guarantees bearing the facsimile or electronic signature of any individual who was at any time such an authorized person of a Guarantor shall bind such Guarantor, notwithstanding that such individual shall have ceased to be such an authorized person prior to the authentication and delivery of the Securities upon which such Guarantees are endorsed or was not such an authorized person at the date of such Securities.
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The delivery of any Security by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Guarantee endorsed thereon on behalf of the applicable Guarantor.
Section 1404 Release of Subsidiary Guarantor
The Subsidiary Guarantor will automatically and unconditionally be released from all obligations under its Guarantees, and its Guarantees shall thereupon terminate and be discharged and of no further force or effect, in the event that at substantially the same time as its Guarantees are terminated pursuant to this Section 1404, the aggregate amount of indebtedness for money borrowed for which the Subsidiary Guarantor is an obligor (as a guarantor, co-issuer or borrower) does not exceed ten percent (10%) of the aggregate principal amount of indebtedness for money borrowed of the Parent Guarantor and its Subsidiaries, on a consolidated basis, as of such time. For purposes of this Section 1404, the amount of the Subsidiary Guarantor’s indebtedness for money borrowed shall not include (x) any other debt the terms of which permit the termination of the Subsidiary Guarantor’s guarantee of such debt under similar circumstances, as long as the Subsidiary Guarantor’s obligations in respect of such other debt are terminated at substantially the same time as its Guarantees pursuant to this Section 1404, and (y) any debt that is being refinanced at substantially the same time that its Guarantees are being released pursuant to this Section 1404, provided that any obligations of the Subsidiary Guarantor in respect of the debt that is incurred in the refinancing shall be included in the calculation of the Subsidiary Guarantor’s indebtedness for money borrowed. For the avoidance of doubt, this Section 1404 shall not release the Parent Guarantor (or any successor thereto) of its guarantee.
* * * * *
This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed on their respective behalves, all as of the day and year first above written.
| EQUINOR US CAPITAL LLC | ||
| By: |
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| Name: | ||
| Title: | ||
| EQUINOR ASA | ||
| By: |
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| Name: | ||
| Title: | ||
| EQUINOR ENERGY AS | ||
| By: |
| |
| Name: | ||
| Title: | ||
| [●] | ||
| By: |
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| Name: | ||
| By: |
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| Name: | ||
| Title: | ||
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Exhibit 5.1
[Equinor ASA letterhead]
Equinor ASA
Forusbeen 50
N-4035 Stavanger
Norway
Equinor Energy AS
Forusbeen 50
N-4035 Stavanger
Norway
Equinor US Capital LLC
120 Long Ridge Road
Suite 3E01
Stamford, CT 06902
United States of America
July 10, 2020
Ladies and Gentlemen:
I have acted as Chief Counsel Legal, Legal Corporate of Equinor ASA, a corporation existing under the Norwegian Public Companies Act (the “Company”) and Equinor Energy AS, a corporation existing under the Norwegian Companies Act and a wholly owned subsidiary of the Company (the “Guarantor”) in connection with the registration under the Securities Act of 1933, as amended (the “Securities Act”) of an indeterminate principal amount of (i) debt securities (the “Debt Securities”) of the Company and of Equinor US Capital LLC, a Delaware limited liability company (“Equinor Capital”), and the related guarantees (the “Guarantees”) by the Guarantor and, in the case of Debt Securities of Equinor Capital, also by the Company, and (ii) ordinary shares (the “Ordinary Shares”) of the Company. I am delivering this opinion pursuant to the requirements of Form F-3.
In connection with my opinion, I have examined such corporate records, certificates and other documents and such questions of law as I have deemed necessary or appropriate for purposes of this opinion.
Based upon and subject to the foregoing, I am of the opinion that:
| (a) | the Company has been duly incorporated and is validly existing as a public limited company (allmennaksjeselskap) under the laws of the Kingdom of Norway; |
| (b) | the Guarantor has been duly incorporated and is validly existing as a limited company (aksjeselskap) under the laws of the Kingdom of Norway; |
| (c) | The Indenture relating to the Debt Securities and Guarantees, dated as of April 15, 2009, as supplemented and amended by the Supplemental Indenture No. 1, dated as of May 26, 2010, as further supplemented and amended by the Supplemental Indenture No. 2, dated as of May 16, 2018, as further supplemented and amended by the Supplemental Indenture No. 3, dated as of September 10, 2018 and as further supplemented and amended by the Supplemental Indenture No. 4 dated as of November 18, 2019, in each case among the Company, the Guarantor and Deutsche Bank Trust Company Americas, as Trustee (the “Indenture”), has been duly authorized, executed and delivered by the Company and the Guarantor and constitutes a valid and legally binding obligation of each of the Company and the Guarantor, enforceable against each in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles; |
| (d) | when the Registration Statement on Form F-3 (the “Registration Statement”) has become effective under the Act, the terms of the Debt Securities of the Company and the related Guarantees and of their issuance and sale have been duly established in conformity with the Indenture so as not to violate any applicable law or result in a default under or breach of any agreement or instrument then binding upon the Company or the Guarantor, as applicable, and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company or the Guarantor, as applicable, and the Debt Securities of the Company and the related Guarantees have been duly executed and, in the case of the Debt Securities of the Company, authenticated in accordance with the Indenture and issued and sold as contemplated in the Registration Statement, the Debt Securities of the Company will constitute valid and legally binding obligations of the Company and the Guarantees by the Guarantor will constitute valid and legally binding obligations of the Guarantor, in each case, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles; |
| (e) | when the Registration Statement has become effective under the Act, the Indenture relating to the Debt Securities of Equinor Capital has been duly authorized, executed and delivered by the parties thereto in substantially the form filed as Exhibit 4.7 to the Registration Statement (the “Equinor Capital Indenture”), the terms of the Debt Securities of Equinor Capital and the related Guarantees and of their issuance and sale have been duly established in conformity with the Equinor Capital Indenture so as not to violate any applicable law or result in a default under or breach of any agreement or instrument then binding upon Equinor Capital, the Company or the Guarantor as applicable, and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over Equinor Capital, the Company or the Guarantor as applicable, and the Debt Securities of Equinor Capital and the related Guarantees have been duly executed and, in the case of the Debt Securities of Equinor Capital, authenticated in accordance with the Equinor Capital Indenture and issued and sold as contemplated in the |
-2-
| Registration Statement, the Guarantees by the Company and the Guarantor will constitute their valid and legally binding obligations, in each case, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles; |
| (f) | when the Registration Statement has become effective under the Act and the Ordinary Shares are issued and delivered against full payment therefor as contemplated in the Registration Statement and in conformity with the Company’s memorandum and articles of association and so as not to violate any applicable law, such Ordinary Shares will have been validly issued, fully paid and non-assessable (i.e., no further contributions in respect thereof will be required to be made to the Company by the holders thereof, by reason solely of their being such holders); and |
| (g) | the statements in the Prospectus included in the Registration Statement under the captions “Enforceability of Civil Liabilities”, “Taxation — Norwegian Taxation of Debt Securities and Payments under the Guarantees” and “Taxation — Norwegian Taxation of Ordinary Shares and ADSs”, to the extent such statements relate to matters of Norwegian law or regulation or to the provision of documents governed by the laws of Norway therein described, fairly present the information called for with respect to such legal matters and documents and fairly summarize the matters referred to therein. |
The opinions expressed herein are limited to questions arising under the laws of the Kingdom of Norway as they stand and have been interpreted in published case law of the courts in the Kingdom of Norway as of the date hereof, and I have not investigated the laws of any jurisdiction other than the Kingdom of Norway and I do not express or imply an opinion on the laws of any jurisdiction other than the Kingdom of Norway.
This opinion is furnished to you solely for your benefit and may not be used or relied upon by or published or communicated to any other person or entity for any purpose whatsoever without my prior written consent.
I hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the references to me under the caption “Validity of Securities” in the Prospectus included therein. In giving this consent, I do not thereby admit that I am within the category of persons whose consent is required within Section 7 of the Act.
| Very truly yours, |
| /s/ Åse Koll Lunde |
| Åse Koll Lunde |
| Chief Counsel Legal |
-3-
Exhibit 5.2
July 10, 2020
Equinor ASA,
Forusbeen 50,
N-4035 Stavanger,
Norway.
Equinor Energy AS,
Forusbeen 50,
N-4035 Stavanger,
Norway.
Equinor US Capital LLC,
120 Long Ridge Road, Suite 3E01,
Stamford, CT 06902, USA.
Ladies and Gentlemen:
In connection with the registration under the Securities Act of 1933 (the “Act”), by Equinor ASA, a Norwegian corporation (the “Company”) of an indeterminate principal amount of (i) debt securities (the “Debt Securities”) of the Company and of Equinor US Capital LLC, a Delaware limited liability company (“Equinor Capital”), the related guarantees (the “Guarantees”) of the Debt Securities by Equinor Energy AS (the “Guarantor”) and, in the case of the Debt Securities of Equinor Capital also by the Company and (ii) ordinary shares (the “Ordinary Shares”), nominal value NOK 2.50 per share, of the Company, we, as your United States counsel, have examined such corporate records, certificates and other documents, and such questions of law, as we have considered necessary or appropriate for the purposes of this opinion.
Upon the basis of such examination, it is our opinion that:
(i) when the Registration Statement on Form F-3 (the “Registration Statement”) has become effective under the Act, the terms of the Debt Securities of the Company and the related Guarantees and of their issuance and sale have been duly established in conformity with the Indenture relating to such Debt Securities and Guarantees, dated as of April 15, 2009, as amended and supplemented by Supplemental Indenture No. 1, dated as of May 26, 2010, as further amended and supplemented by Supplemental Indenture No. 2, dated as of May 16, 2018, as further amended and supplemented by Supplemental Indenture No. 3, dated as of
Equinor ASA
Equinor Energy AS
Equinor US Capital LLC
-2-
September 10, 2018, and as further amended and supplemented by Supplemental Indenture No. 4, dated as of November 18, 2019, in each case among the Company, the Guarantor and Deutsche Bank Trust Company Americas, as Trustee (the “Indenture”), so as not to violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Company or the Guarantor, as applicable, and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company or the Guarantor, as applicable, and the Debt Securities of the Company and the related Guarantees have been duly executed and, in the case of the Debt Securities of the Company, authenticated in accordance with the Indenture and issued and sold as contemplated in the Registration Statement, the Debt Securities of the Company will constitute valid and legally binding obligations of the Company and the Guarantees by the Guarantor will constitute valid and legally binding obligations of the Guarantor, in each case, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles; and
(ii) when the Registration Statement has become effective under the Act, the Indenture relating to the Debt Securities of Equinor Capital has been duly authorized, executed and delivered by the parties thereto in substantially the form filed as Exhibit 4.7 to the Registration Statement (the “Equinor Capital Indenture”), the terms of the Debt Securities of Equinor Capital and the related Guarantees and of their issuance and sale have been duly established in conformity with the Equinor Capital Indenture so as not to violate any applicable law or result in a default under or breach of any agreement or instrument binding upon Equinor Capital, the Company or the Guarantor, as applicable, and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over Equinor Capital, the Company or the Guarantor, as applicable, and the Debt Securities of Equinor Capital and the related Guarantees have been duly executed and, in the case of the Debt Securities of Equinor Capital, authenticated in accordance with the Equinor Capital Indenture and issued and sold as contemplated in the Registration Statement, the Debt Securities of Equinor Capital will constitute valid and legally binding obligations of Equinor Capital and the Guarantees by the Company and the Guarantor will constitute their respective valid and legally binding obligations, in each case, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
In rendering the foregoing opinion, we are not passing upon, and assume no responsibility for, any disclosure in any registration statement or any related prospectus or other offering material relating to the offer and sale of the Debt Securities and Ordinary Shares.
We note that, as of the date of this opinion, a judgment for money in an action based on a Debt Security denominated in a foreign currency or currency unit or the related Guarantee in a Federal or state court in the United States ordinarily would be enforced in the United States only in United States dollars. The date used to determine the rate of conversion of the foreign currency or currency unit in which a
Equinor ASA
Equinor Energy AS
Equinor US Capital LLC
-3-
particular Debt Security is denominated or the related Guarantee into United States dollars will depend upon various factors, including which court renders the judgment. Under Section 27 of the New York Judiciary Law, a state court in the State of New York rendering a judgment on a Debt Security or related Guarantee denominated in a foreign currency would be required to render such judgment in the foreign currency in which the Debt Security or Guarantee is denominated, and such judgment would be converted into United States dollars at the exchange rate prevailing on the date of entry of the judgment.
The foregoing opinion is limited to the Federal laws of the United States, the laws of the State of New York and the Limited Liability Company Act of the State of Delaware, and we are expressing no opinion as to the effect of the laws of any other jurisdiction. For the purposes of our opinion, we have assumed that (i) the Company and the Guarantor have each been duly incorporated, (ii) the Company is a validly existing public limited company (allmennaksjeselskap), (iii) the Guarantor is validly existing as a limited company (aksjeselskap), (iv) the Indenture has been duly authorized, executed and delivered by the Company and the Guarantor, in each case, under the laws of the Kingdom of Norway, (v) the Equinor Capital Indenture will be duly authorized, executed and delivered the Company and the Guarantor, in each case, under the laws of the Kingdom of Norway, (vi) the execution and delivery of the Equinor Capital Indenture will not result in any breach or violation of, or conflict with, any Norwegian statute, rule or regulation and (vii) the provisions of the Indenture and the Equinor Capital Indenture designating the law of the State of New York as the governing law of such indenture will be valid and binding on each of the Company and the Guarantor under the laws of the Kingdom of Norway. With respect to all matters of Norwegian law, we note that you have received an opinion, dated today’s date, of the Chief Counsel Legal, Legal Corporate of Equinor ASA and Equinor Energy AS.
Also, we have relied as to certain factual matters on information obtained from public officials, officers of the Company, the Guarantor and Equinor Capital and other sources believed by us to be responsible, and we have assumed that the Indenture has been duly authorized, executed and delivered by the Trustee thereunder, which assumption we have not independently verified.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the references to us under the heading “Validity of Securities” in the prospectus included in the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act.
| Very truly yours, |
| /s/ SULLIVAN & CROMWELL LLP |
Exhibit 8.2
July 10, 2020
Equinor ASA,
Forusbeen 50,
N-4035 Stavanger,
Norway.
Equinor Energy AS,
Forusbeen 50,
N-4035 Stavanger,
Norway.
Equinor US Capital LLC,
120 Long Ridge Road,
Suite 3E01,
Stamford, CT 06902.
Ladies and Gentlemen:
We have acted as United States federal income tax counsel to Equinor ASA (“Equinor”), Equinor Energy AS (“Equinor Energy”) and Equinor US Capital LLC (“Equinor Capital”) in connection with the registration under the Securities Act of 1933 (the “Act”) by (i) Equinor of an indeterminate amount of debt securities fully and unconditionally guaranteed by Equinor Energy and of ordinary shares, which ordinary shares may be represented by American Depositary Shares, evidenced by American Depositary Receipts and (ii) Equinor Capital of an interderminate amount of debt securities fully and unconditionally guaranteed by Equinor and Equinor Energy. We hereby confirm to you that the statements of United States tax law set forth under the heading “TAXATION — United States Taxation” in the Registration Statement on Form F-3 (“Registration Statement”), dated as of the date hereof, are accurate in all material respects.
| Equinor ASA Equinor Energy AS Equinor US Capital LLP |
-2- |
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to us under the heading “TAXATION — United States Taxation.” In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act.
| Very truly yours, |
| /s/ SULLIVAN & CROMWELL LLP |
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the reference to our firm under the caption “Experts” in the Registration Statement on Form F-3 and related prospectus of Equinor ASA, Equinor Energy AS and Equinor US Capital LLC and to the incorporation by reference therein of our report dated 19 March 2020, with respect to the consolidated financial statements of Equinor ASA and the effectiveness of internal control over financial reporting of Equinor ASA included in the Annual Report (Form 20-F) for the year ended 31 December 2019, filed with the Securities and Exchange Commission.
| /s/ Ernst & Young AS |
| Ernst & Young AS |
Stavanger, Norway
10 July 2020
A member firm of Ernst & Young Global Limited
Exhibit 23.2
Consent of Independent Registered Public Accounting Firm
The board of directors
Equinor ASA
We consent to the use of our report dated 5 March 2019, with respect to the consolidated balance sheet of Equinor ASA and subsidiaries as of 31 December 2018, and the related consolidated statements of income, comprehensive income, changes in equity and cash flows for each of the years in the two-year period ended 31 December 2018, and the related notes (collectively the “consolidated financial statements”), before the effects of the adjustments to retrospectively apply the change in reclassification of Physically settled commodity derivatives as presented in Note 3, and retrospectively apply the disaggregation of Natural gas revenues in Note 3, incorporated herein by reference and to the reference to our firm under the heading ‘Experts’ in the prospectus.
Our report with respect to the 2018 consolidated financial statements refers to a change in policy for lifting imbalances.
| /s/ KPMG AS |
| KPMG AS |
Stavanger, Norway
10 July 2020
Exhibit 23.5
DEGOLYER AND MACNAUGHTON
5001 SPRING VALLEY ROAD
SUITE 800 EAST
DALLAS, TEXAS 75244
Equinor ASA
Forusbeen 50
N-4035 Stavanger
Norway
Ladies and Gentlemen:
We hereby consent to the references to DeGolyer and MacNaughton under the heading “Experts” in the Equinor ASA, Equinor Energy AS and Equinor US Capital LLC United States Securities and Exchange Commission Registration Statement on Form F-3 and the incorporation by reference therein of our report of third party dated February 14, 2020, concerning our independent evaluation of certain properties in which Equinor ASA has represented it holds an interest, which is included as Exhibit 15(a)(iv) to the Equinor ASA Annual Report on Form 20-F for the year ended December 31, 2019.
| Very truly yours, |
| /s/ DeGOLYER and MacNAUGHTON |
| DeGOLYER and MacNAUGHTON |
| Texas Registered Engineering Firm F-716 |
Exhibit 25.1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
| ☐ | CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
DEUTSCHE BANK TRUST COMPANY AMERICAS
(formerly BANKERS TRUST COMPANY)
(Exact name of trustee as specified in its charter)
| NEW YORK | 13-4941247 | |||
| (Jurisdiction of Incorporation or organization if not a U.S. national bank) |
(I.R.S. Employer Identification no.) |
| 60 WALL STREET NEW YORK, NEW YORK | 10005 | |
| (Address of principal executive offices) |
(Zip Code) |
Deutsche Bank Trust Company Americas
Attention: Mirko Mieth
Legal Department
60 Wall Street, 36th Floor
New York, New York 10005
(212) 250 – 1663
(Name, address and telephone number of agent for service)
Equinor ASA
(Exact name of obligor as specified in its charter)
| Kingdom of Norway | Not Applicable | |||
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) | |||
| Forusbeen 50, N-4035 Stavanger, Norway |
||||
| (Address of principal executive offices) | (Zip code) | |||
Equinor Energy AS
(Exact name of obligor as specified in its charter)
| Kingdom of Norway | Not Applicable | |||
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) | |||
| Forusbeen 50, N-4035 Stavanger, Norway |
||||
| (Address of principal executive offices) | (Zip code) | |||
Debt Securities
Fully and Unconditionally Guaranteed by Equinor Energy AS
(A Wholly Owned Subsidiary of Equinor ASA)
(Title of the Indenture securities)
Item 1. General Information.
Furnish the following information as to the trustee.
| (a) | Name and address of each examining or supervising authority to which it is subject. |
| Name | Address | |
| Federal Reserve Bank (2nd District) | New York, NY | |
| Federal Deposit Insurance Corporation | Washington, D.C. | |
| New York State Banking Department | Albany, NY |
| (b) | Whether it is authorized to exercise corporate trust powers. |
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the Trustee, describe each such affiliation.
None.
Item 3. -15. Not Applicable
Item 16. List of Exhibits.
| Exhibit 1 - | Restated Organization Certificate of Bankers Trust Company dated August 31, 1998; Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated September 25, 1998; Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated December 18, 1998; Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated September 3, 1999; and Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated March 14, 2002, incorporated herein by reference to Exhibit 1 filed with Form T-1 Statement, Registration No. 333-201810. | |
| Exhibit 2 - | Certificate of Authority to commence business, incorporated herein by reference to Exhibit 2 filed with Form T-1 Statement, Registration No. 333-201810. | |
| Exhibit 3 - | Authorization of the Trustee to exercise corporate trust powers, incorporated herein by reference to Exhibit 3 filed with Form T-1 Statement, Registration No. 333-201810. | |
| Exhibit 4 - | Existing By-Laws of Deutsche Bank Trust Company Americas, approved March 29, 2019, incorporated herein by reference to Exhibit S-3ASR filed with Form T-1 Statement, Registration No. 333-236787. | |
| Exhibit 5 - | Not applicable. | |
| Exhibit 6 - | Consent of Bankers Trust Company required by Section 321(b) of the Act, incorporated herein by reference to Exhibit 6 filed with Form T-1 Statement, Registration No. 333-201810. | |
| Exhibit 7 - | A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority. | |
| Exhibit 8 - | Not Applicable. | |
| Exhibit 9 - | Not Applicable. | |
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Deutsche Bank Trust Company Americas, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on this 7th day of July, 2020.
| DEUTSCHE BANK TRUST COMPANY AMERICAS | ||
| By: | /s/ Debra A. Schwalb | |
| Name: Debra A. Schwalb | ||
| Title: Vice President | ||
Exhibit 7
DEUTSCHE BANK TRUST COMPANY AMERICAS
00623
New York, NY 10005
| Board of Governors of the Federal Reserve System | OMB Number 7100-0036 | |||
| Federal Deposit Insurance Corporation | OMB Number 3064-0052 | |||
| Office of the Comptroller of the Currency | OMB Number 1557-0081 | |||
| Approval expires March 31, 2023 | ||||
| Page 1 of 86 |
Federal Financial Institutions Examination Council
|
Consolidated Reports of Condition and Income for a Bank with Domestic Offices Only—FFIEC 041 |
Submission of Reports
The estimated average burden associated with this information collection is 50.11 hours per respondent and is expected to vary by institution, depending on individual circumstances. Burden estimates include the time for reviewing instructions, gathering and maintaining data in the required form, and completing the information collection, but exclude the time for compiling and maintaining business records in the normal course of a respondent’s activities. A Federal agency may not conduct or sponsor, and an organization (or a person) is not required to respond to a collection of information, unless it displays a currently valid OMB control number. Comments concerning the accuracy of this burden estimate and suggestions for reducing this burden should be directed to the Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20503, and to one of the following: Secretary, Board of Governors of the Federal Reserve System, 20th and C Streets, NW, Washington, DC 20551; Legislative and Regulatory Analysis Division, Office of the Comptroller of the Currency, Washington, DC 20219; Assistant Executive Secretary, Federal Deposit Insurance Corporation, Washington, DC 20429.
| 03/2020 |
| 06/2012 |
DEUTSCHE BANK TRUST COMPANY AMERICAS
00623
New York, NY 10005
| FFIEC 041 |
| Page 17 of 86 |
| RC-1 |
Consolidated Report of Condition for Insured Banks and Savings Associations for March 31, 2020
All schedules are to be reported in thousands of dollars. Unless otherwise indicated, report the amount outstanding as of the last business day of the quarter.
Schedule RC—Balance Sheet
| Dollar Amounts in Thousands |
RCON | Amount | ||||||||||||||||
| Assets |
||||||||||||||||||
| 1. Cash and balances due from depository institutions (from Schedule RC-A): |
|
|||||||||||||||||
| a. Noninterest-bearing balances and currency and coin (1) |
|
0081 | 32,000 | 1.a. | ||||||||||||||
| b. Interest-bearing balances (2) |
|
0071 | 11,612,000 | 1.b. | ||||||||||||||
| 2. Securities: |
|
|||||||||||||||||
|
a. Held-to-maturity securities (from Schedule RC-B, column A) (3) |
|
JJ34 | 0 | 2.a. | ||||||||||||||
|
b. Available-for-sale securities (from Schedule RC-B, column D) |
|
1773 | 0 | 2.b. | ||||||||||||||
| c. Equity securities with readily determinable fair values not held for trading (4) |
|
JA22 | 6,000 | 2.c. | ||||||||||||||
| 3. Federal funds sold and securities purchased under agreements to resell: |
|
|||||||||||||||||
| a. Federal funds sold |
|
B987 | 0 | 3.a. | ||||||||||||||
| b. Securities purchased under agreements to resell (5, 6) |
|
B989 | 14,923,000 | 3.b. | ||||||||||||||
| 4. Loans and lease financing receivables (from Schedule RC-C): |
|
|||||||||||||||||
| a. Loans and leases held for sale |
|
5369 | 0 | 4.a. | ||||||||||||||
| b. Loans and leases held for investment |
B528 | 12,980,000 | 4.b. | |||||||||||||||
| c. LESS: Allowance for loan and lease losses |
3123 | 33,000 | 4.c. | |||||||||||||||
| d. Loans and leases held for investment, net of allowance (item 4.b minus 4.c) (7) |
|
B529 | 12,947,000 | 4.d. | ||||||||||||||
| 5. Trading assets (from Schedule RC-D) |
|
3545 | 0 | 5. | ||||||||||||||
| 6. Premises and fixed assets (including capitalized leases) |
|
2145 | 14,000 | 6. | ||||||||||||||
| 7. Other real estate owned (from Schedule RC-M) |
|
2150 | 3,000 | 7. | ||||||||||||||
| 8. Investments in unconsolidated subsidiaries and associated companies |
|
2130 | 0 | 8. | ||||||||||||||
| 9. Direct and indirect investments in real estate ventures |
|
3656 | 0 | 9. | ||||||||||||||
| 10.Intangible assets (from Schedule RC-M) |
|
2143 | 18,000 | 10. | ||||||||||||||
| 11.Other assets (from Schedule RC-F) (6) |
|
2160 | 1,982,000 | 11. | ||||||||||||||
| 12.Total assets (sum of items 1 through 11) |
|
2170 | 41,537,000 | 12. | ||||||||||||||
| Liabilities |
|
|||||||||||||||||
| 13. Deposits: |
|
|||||||||||||||||
| a. In domestic offices (sum of totals of columns A and C from Schedule RC-E) |
|
2200 | 28,955,000 | 13.a. | ||||||||||||||
| (1)Noninterest-bearing (8) |
6631 | 9,512,000 | 13.a.(1) | |||||||||||||||
| (2)Interest-bearing |
6636 | 19,443,000 | 13.a.(2) | |||||||||||||||
| b. Not applicable |
|
|||||||||||||||||
| 14. Federal funds purchased and securities sold under agreements to repurchase: |
|
|||||||||||||||||
| a. Federal funds purchased (9) |
|
B993 | 0 | 14.a. | ||||||||||||||
| b. Securities sold under agreements to repurchase (10) |
|
B995 | 0 | 14.b. | ||||||||||||||
| 15. Trading liabilities (from Schedule RC-D) |
|
3548 | 0 | 15. | ||||||||||||||
| 16. Other borrowed money (includes mortgage indebtedness) (from Schedule RC-M) |
|
3190 | 375,000 | 16. | ||||||||||||||
| 17. and 18. Not applicable |
|
|||||||||||||||||
| 19. Subordinated notes and debentures (11) |
|
3200 | 0 | 19. | ||||||||||||||
| 1. | Includes cash items in process of collection and unposted debits. |
| 2. | Includes time certificates of deposit not held for trading. |
| 3. | Institutions that have adopted ASU 2016-13 should report in item 2.a amounts net of any applicable allowance for credit losses, and item 2.a should equal Schedule RC-B, item 8, column A, less Schedule RI-B, Part II, item 7, column B. |
| 4. | Item 2.c is to be completed only by institutions that have adopted ASU 2016-01, which includes provisions governing the accounting for investments in equity securities. See the instructions for further detail on ASU 2016-01. |
| 5. | Includes all securities resale agreements, regardless of maturity. |
| 6. | Institutions that have adopted ASU 2016-13 should report in items 3.b and 11 amounts net of any applicable allowance for credit losses. |
| 7. | Institutions that have adopted ASU 2016-13 should report in item 4.c the allowance for credit losses on loans and leases. |
| 8. | Includes noninterest-bearing demand, time, and savings deposits. |
| 9. | Report overnight Federal Home Loan Bank advances in Schedule RC, item 16, “Other borrowed money.” |
| 10. | Includes all securities repurchase agreements, regardless of maturity. |
| 11. | Includes limited-life preferred stock and related surplus. |
| 03/2020 |
| 06/2012 |
DEUTSCHE BANK TRUST COMPANY AMERICAS
00623
New York, NY 10005
| FFIEC 041 |
| Page 18 of 86 |
| RC-2 |
Schedule RC—Continued
| Dollar Amounts in Thousands |
RCON | Amount | ||||||||||
| Liabilities—continued |
||||||||||||
| 20. Other liabilities (from Schedule RC-G) |
2930 | 2,396,000 | 20. | |||||||||
| 21. Total liabilities (sum of items 13 through 20) |
2948 | 31,726,000 | 21. | |||||||||
| 22. Not applicable |
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| Equity Capital |
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| Bank Equity Capital |
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| 23. Perpetual preferred stock and related surplus |
3838 | 0 | 23. | |||||||||
| 24. Common stock |
3230 | 2,127,000 | 24. | |||||||||
| 25. Surplus (exclude all surplus related to preferred stock) |
3839 | 931,000 | 25. | |||||||||
| 26. a. Retained earnings |
3632 | 6,754,000 | 26.a. | |||||||||
| b. Accumulated other comprehensive income (1) |
B530 | (1,000 | ) | 26.b. | ||||||||
| c. Other equity capital components (2) |
A130 | 0 | 26.c. | |||||||||
| 27. a. Total bank equity capital (sum of items 23 through 26.c) |
3210 | 9,811,000 | 27.a. | |||||||||
| b. Noncontrolling (minority) interests in consolidated subsidiaries |
3000 | 0 | 27.b. | |||||||||
| 28. Total equity capital (sum of items 27.a and 27.b) |
G105 | 9,811,000 | 28. | |||||||||
| 29. Total liabilities and equity capital (sum of items 21 and 28) |
3300 | 41,537,000 | 29. | |||||||||
| Memoranda |
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| To be reported with the March Report of Condition. |
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| 1. Indicate in the box at the right the number of the statement below that best describes the most comprehensive level of auditing work performed for the bank by independent external auditors as of any date during 2019 |
|
RCON 6724 |
|
|
Number 2a |
|
M.1. | |||||
| To be reported with the March Report of Condition. |
RCON | Date | ||||||||||||||
| 2. Bank’s fiscal year-end date (report the date in MMDD format) |
8678 | 1231 | M.2. |
| 1. | Includes, but is not limited to, net unrealized holding gains (losses) on available-for-sale securities, accumulated net gains (losses) on cash flow hedges, and accumulated defined benefit pension and other postretirement plan adjustments. |
| 2. | Includes treasury stock and unearned Employee Stock Ownership Plan shares. |
06/2012