AMENDED AND RESTATED AGENCY AGREEMENT
11 MAY 2023
EQUINOR ASA
as
Issuer
and
EQUINOR ENERGY AS
as Guarantor
THE BANK OF NEW YORK MELLON, LONDON BRANCH
as
Agent
and
THE BANK OF NEW YORK MELLON SA/NV, LUXEMBOURG BRANCH
as Paying Agent
in respect of a
€20,000,000,000
EURO MEDIUM TERM NOTE PROGRAMME
Allen & Overy LLP
0010155-0003437 UKO2: 2005996996.8
CONTENTS
Clause Page
1.
2.
3.
11
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
Schedule Page
1.
2.
Part 1 Form of Temporary Global Note ................................ ................................ ........ 79
Part 2 Form of Permanent Global Note ................................ ................................ ........ 87
Part 3 Form of Definitive Note ................................ ................................ ...................... 95
Part 4 Form of Coupon ................................ ................................ ................................ 98
Part 5 Form of Talon ................................ ................................ ................................ .... 99
3.
4.
5.
6.
7.
8.
Signatories ................................ ................................ ................................ ................................ ... 123
Appendix
1.
4
AMENDED AND RESTATED AGENCY AGREEMENT
in respect of a
€20,000,000,000
EURO MEDIUM TERM NOTE PROGRAMME
THIS AGREEMENT
is made on
11
May 2023
BETWEEN
:
(1)
EQUINOR ASA
of Forusbeen 50, N-4035 Stavanger, Norway in its capacity as an issuer of
Notes under the Programme (the
Issuer
);
(2)
EQUINOR ENERGY AS
of Forusbeen 50, N-4035 Stavanger, Norway (the
Guarantor
);
(3)
THE BANK OF NEW YORK MELLON, LONDON BRANCH
of 160 Queen Victoria Street,
London EC4V 4LA, United Kingdom (the
Agent
, which expression shall include any
successor agent appointed in accordance with clause 22); and
(4)
THE BANK OF NEW YORK MELLON SA/NV, LUXEMBOURG BRANCH
of Vertigo
Building - Polaris, 2-4 rue, Eugène Ruppert, L-2453 Luxembourg (together with the Agent,
the
Paying Agents
, which expression shall include any additional or successor paying
agent appointed in accordance with clause 22 and
Paying Agent
shall mean any of the
Paying Agents).
WHEREAS
:
(A)
Previous Agency Agreement
) dated 9 May 2022 in respect of a €20,000,000,000 Euro
Medium Term Note Programme (the
Programme
).
(B)
(C)
agreement (as modified and/or restated and/or supplemented from time to time, the
Programme Agreement
) dated 11 May 2023 with the Dealers named therein pursuant to
which the Issuer may issue Euro Medium Term Notes (the
Notes
) in an aggregate nominal
amount of up to €20,000,000,000 (or its equivalent in other currencies) under the
Programme.
(D)
global Note exchangeable in whole or in part for definitive Notes or for a permanent global
Note which will be exchangeable as described therein for definitive Notes.
IT IS HEREBY AGREED
as follows:
1.
1.1
applicable Final Terms shall have the same meanings in this Agreement, except where the
context requires otherwise or unless otherwise stated.
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5
1.2
Authorised Person
means any person who is designated in writing by the Issuer from time
to time to give Instructions to the Agent under the terms of this Agreement;
CGN
means a Temporary Global Note in the form set out in Part 1 of Schedule 2 or a
Permanent Global Note in the form set out in Part 2 of Schedule 2, in either case where the
applicable Final Terms specify that the Notes are not in New Global Note form;
Clearstream, Luxembourg
means Clearstream Banking S.A.;
Code
means the U.S. Internal Revenue Code of 1986, as amended;
Conditions
means, in relation to the Notes of any Series, the terms and conditions
endorsed on or incorporated by reference into the Note or Notes constituting such Series,
such terms and conditions being in or substantially in the form set out in Schedule 1 or in
such other form, having regard to the terms of the Notes of the relevant Series, as may be
agreed between the Issuer, the Agent and the relevant Dealer as completed by the Final
Terms applicable to the Notes of the relevant Series;
Coupon
means an interest coupon appertaining to a Definitive Note (other than a Zero
Coupon Note), such coupon being:
(a)
in Part 4A of Schedule 2 or in such other form, having regard to the terms of issue
of the Notes of the relevant Series, as may be agreed between the Issuer, the Agent
and the relevant Dealer; or
(b)
out in Part 4B of Schedule 2 or in such other form, having regard to the terms of
issue of the Notes of the relevant Series, as may be agreed between the Issuer, the
Agent and the relevant Dealer; or
(c)
Rate Note, in such form as may be agreed between the Issuer, the Agent and the
relevant Dealer,
and includes, where applicable, the Talon(s) appertaining thereto and any replacements for
Coupons and Talons issued pursuant to Condition 9;
Couponholders
means the several persons who are for the time being holders of the
Coupons and shall, unless the context otherwise requires, include the holders of the
Talons;
Deed of Covenant
means the deed of covenant, as modified and/or restated and/or
supplemented from time to time, dated 13 May 2020, substantially in the form set out in
Schedule 3, executed as a deed by the Issuer in favour of certain accountholders with
Euroclear and Clearstream, Luxembourg;
Deed Poll
means any Deed Poll as defined in Condition 14 the form of which is set out in
Schedule 6 hereto;
Definitive Note
means a definitive Note issued or, as the case may require, to be issued by
the Issuer in accordance with the provisions of the Programme Agreement or any other
agreement between the Issuer and the relevant Dealer in exchange for either a Temporary
Global Note or a Permanent Global Note (all as indicated in the applicable Final Terms),
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6
such definitive Note being in the form or substantially in the form set out in Part 3 of
Schedule 2 with such modifications (if any) as may be agreed between the Issuer, the
Agent and the relevant Dealer and having the Conditions endorsed
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7
thereon or, if permitted by the relevant authority or authorities, incorporating the Conditions
by reference and having the applicable Final Terms (or the relevant provisions thereof)
either endorsed thereon or attached thereto and (except in the case of a Zero Coupon
Note) having Coupons and, where appropriate, Talons attached thereto on issue;
Distribution Compliance Period
has the meaning given to such term in Regulation S
under the Securities Act;
Euroclear
means Euroclear Bank SA/NV;
Eurosystem-eligible NGN
means an NGN which is intended to be held in a manner which
would allow Eurosystem eligibility, as stated in the applicable Final Terms;
FATCA Withholding
means any withholding or deduction required pursuant to an
agreement described in Section 1471(b) of the Code or otherwise imposed pursuant to
Sections 1471 through 1474 of the Code (or any regulations thereunder or official
interpretations thereof) or an intergovernmental agreement between the United States and
another jurisdiction facilitating the implementation thereof (or any law implementing such an
intergovernmental agreement);
Fixed Rate Note
means a Note on which interest is calculated at a fixed rate payable in
arrear on a fixed date or dates in each year and on redemption or on such other dates as
may be agreed between the Issuer and the relevant Dealer (as indicated in the applicable
Final Terms);
Floating Rate Note
means a Note on which interest is calculated at a floating rate payable
in respect of such period or on such date(s) as may be agreed between the Issuer and the
relevant Dealer (as indicated in the applicable Final Terms);
Global Note
means a Temporary Global Note and/or a Permanent Global Note, as
applicable;
Grandfathering Date
means the date that is six months after the date on which final
regulations defining the term “foreign passthru payment” are published in the U.S. Federal
Register;
Guarantee
means the Deed of Guarantee, as modified and/or restated and/or
supplemented from time to time, executed by the Guarantor on 13 May 2020 in respect of
the Programme;
Instructions
means any written notices, directions or instructions received by the Agent
from an Authorised Person or from a person reasonably believed by the Agent to be an
Authorised Person;
Interest Commencement Date
means, in the case of interest-bearing Notes, the date
specified in the applicable Final Terms from (and including) which such Notes bear interest,
which may or may not be the Issue Date;
Issue Date
means the date of issue and purchase of a Note, in each case pursuant to and
in accordance with the Programme Agreement or any other agreement between the Issuer
and the relevant Dealer, being in the case of any Permanent Global Note or Definitive Note,
the same date as the date of issue of the Temporary Global Note which initially represented
such Note;
Issue Price
means the price, generally expressed as a percentage of the nominal amount
of the Notes, at which the Notes will be issued;
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8
Maturity Date
means, in relation to a Note, the date on which it is expressed to be
redeemable;
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9
NGN
means a Temporary Global Note in the form set out in Part 1 of Schedule 2 or a
Permanent Global Note in the form set out in Part 2 of Schedule 2, in either case where the
applicable Final Terms specify that the Notes are in New Global Note form;
Note
means a note denominated in Australian Dollars, Canadian Dollars, Danish Kroner,
Euro, Hong Kong Dollars, Japanese Yen, New Zealand Dollars, Norwegian Kroner, South
African Rand, Sterling, Swedish Kronor, Swiss Francs, U.S. Dollars or such other currency
or currencies as may be agreed between the Issuer and the relevant Dealer issued or to be
issued by the Issuer pursuant to the Programme Agreement or any other agreement
between the Issuer and the relevant Dealer and which shall initially be represented by, and
comprised in, a Temporary Global Note which may (in accordance with the terms of such
Temporary Global Note) be exchanged for either Definitive Notes or a Permanent Global
Note which Permanent Global Note may (in accordance with the terms of such Permanent
Global Note) in turn be exchanged for Definitive Notes (all as indicated in the applicable
Final Terms) and includes any replacements for a Note issued pursuant to Condition 9;
Noteholders
means the several persons who are for the time being holders of the Notes
save that, in respect of the Notes of any Series, for so long as such Notes or any part
thereof are represented by a Global Note held on behalf of Euroclear and/or of
Clearstream, Luxembourg, each person (other than Euroclear or Clearstream,
Luxembourg) who is for the time being shown in the records of Euroclear or of Clearstream,
Luxembourg as the holder of a particular nominal amount of the Notes of such Series (in
which regard any certificate or other document issued by Euroclear or Clearstream,
Luxembourg as to the nominal amount of such Notes standing to the account of any person
shall be conclusive and binding for all purposes save in the case of manifest error) shall be
treated by the Issuer, the Agent and any other Paying Agent as the holder of such nominal
amount of such Notes for all purposes other than with respect to the payment of principal or
interest on such Notes, for which purpose the bearer of the relevant Global Note shall be
treated by the Issuer, the Agent and any other Paying Agent as the holder of such nominal
amount of such Notes in accordance with and subject to the terms of the relevant Global
Note and the expressions
Noteholder
,
holder of Notes
and related expressions shall be
construed accordingly;
outstanding
means, in relation to the Notes of any Series, all the Notes issued other than
(a) those which have been redeemed in full in accordance with the Conditions, (b) those in
respect of which the date for redemption in accordance with the Conditions has occurred
and the redemption moneys wherefor (including all interest (if any) accrued thereon to the
date for such redemption and any interest (if any) payable under the Conditions after such
date) have been duly paid to the Agent as provided herein (and, where appropriate, notice
has been given to the Noteholders of the relevant Series in accordance with Condition 12)
and remain available for payment of the relevant Notes and/or Coupons, (c) those which
have become void under the Conditions, (d) those which have been purchased and
cancelled as provided in the Conditions, (e) those mutilated or defaced Notes which have
been surrendered in exchange for replacement Notes pursuant to the Conditions, (f) (for
the purpose only of determining how many Notes are outstanding and without prejudice to
their status for any other purpose) those Notes alleged to have been lost, stolen or
destroyed and in respect of which replacement Notes have been issued pursuant to the
Conditions, (g) Temporary Global Notes to the extent that they shall have been duly
exchanged for Permanent Global Notes and/or Definitive Notes and Permanent Global
Notes to the extent that they shall have been duly exchanged for Definitive Notes, in each
case pursuant to their respective provisions and (h) Temporary Global Notes and
Permanent Global Notes which have become void in accordance with their terms (provided
that at the Relevant Time (as defined in the Deed of Covenant) the Underlying Notes (as
defined in the Deed of Covenant) will be deemed to be still outstanding) and,
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10
PROVIDED THAT for each of the following purposes, namely:
0010155-0003437 UKO2: 2005996996.8
11
(i)
passing an Extraordinary Resolution (as defined in Schedule 4) in writing or an
Extraordinary Resolution by way of electronic consents given through the relevant
clearing systems as envisaged by Schedule 4; and
(ii)
for the purposes of paragraphs 2, 5 and 6 of Schedule 4 hereto,
those Notes (if any) which are for the time being held by any person (including but not
limited to the Issuer or any of its Subsidiaries) for the benefit of the Issuer or any of its
Subsidiaries shall (unless and until ceasing to be so held) be deemed not to be
outstanding;
Participating FFI
means a “participating FFI” as defined in US Treasury Regulations
Section 1.1471-1(b)(91) (or any successor provision) or any other entity whose payments
are subject to FATCA Withholding;
Permanent Global Note
means a global note in the form or substantially in the form set
out in Part 2 of Schedule 2 together with the copy of the applicable Final Terms attached
thereto with such modifications (if any) as may be agreed between the Issuer, the Agent
and the relevant Dealer, comprising some or all of the Notes of the same Series, issued by
the Issuer pursuant to the Programme Agreement or any other agreement between the
Issuer and the relevant Dealer in exchange for the whole or part of any Temporary Global
Note issued in respect of such Notes;
Put Notice
means a notice in the form set out in Schedule 5;
Series
means a Tranche of the Notes together with any further Tranche or Tranches of the
Notes which are (a) expressed to be consoli
dated
and form a single series and (b) identical
in all respects (including as to listing) except for their respective Issue Dates, Interest
Commencement Dates and/or Issue Prices and the expressions
Notes of the relevant
Series
and
holders of Notes of the relevant Series
and related expressions shall be
construed accordingly;
Talons
means the talons (if any) appertaining to, and exchangeable in accordance with the
provisions therein contained for further Coupons appertaining to, a Definitive Note (other
than a Zero Coupon Note), such talons being in the form or substantially in the form set out
in Part 5 of Schedule 2 or in such other form as may be agreed between the Issuer, the
Agent and the relevant Dealer and includes any replacements for Talons issued pursuant to
Condition 9;
Temporary Global Note
means a global note in the form or substantially in the form set
out in Part 1 of Schedule 2 together with the copy of the applicable Final Terms attached
thereto with such modifications (if any) as may be agreed between the Issuer, the Agent
and the relevant Dealer, comprising some or all of the Notes of the same Series, issued by
the Issuer pursuant to the Programme Agreement or any other agreement between the
Issuer and the relevant Dealer;
Tranche
means all Notes with the same Issue Date and subject to the same Final Terms;
and
Zero Coupon Note
means a Note on which no interest is payable.
1.3
and
vice versa
;
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12
(b)
(c)
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13
1.4
added tax or similar tax charged or chargeable in respect thereof to the extent not
recoverable as an input.
1.5
to Notes that do not have the benefit of the Guarantee.
1.6
of Notes and the provisions of this Agreement shall apply
mutatis mutandis
separately and
independently to the Notes of each Series and in this Agreement the expressions
Notes
,
Noteholders
,
Coupons
,
Couponholders
and
Talons
shall be construed accordingly.
1.7
or to any moneys payable by the Issuer under this Agreement shall have the meaning set
out in Condition 4(f).
1.8
relevant currency
shall be construed as references
to the currency in which the relevant Notes and/or Coupons are denominated.
1.9
only and shall not affect the interpretation of this Agreement. All references in this
Agreement to the provisions of any statute shall be deemed to be references to that statute
as from time to time modified, extended, amended or re-enacted or to any statutory
instrument, order or regulation made thereunder or under such re-enactment.
1.10
without limitation, this Agreement, the Programme Agreement, the Deed of Covenant, the
Guarantee, the Procedures Memorandum, the Notes and any Conditions appertaining
thereto) shall be construed as a reference to that agreement, instrument or document as
the same may be amended, modified, varied or supplemented from time to time.
1.11
context so permits, be deemed to include a reference to any additional or alternative
clearance system approved by the Issuer and the Agent or as otherwise specified in Part B
of the applied Final Terms.
1.12
records
of Euroclear and Clearstream, Luxembourg shall be to the
records that each of Euroclear and Clearstream, Luxembourg holds for its customers which
reflect the amount of such customer's interest in the Notes.
1.13
London Stock Exchange,
listing
and
listed
shall be construed to mean that such Notes
have been admitted to the Official List and admitted to trading on the London Stock
Exchange's main market and (ii) on any European Economic Area Stock Exchange,
listing
and
listed
shall be construed to mean that that Notes have been admitted to trading on a
market within that jurisdiction which is a regulated market for the purposes of the Markets in
Financial Instruments Directive (Directive 2014/65/EU, as amended).
1.14
1.15
amended and restated and shall take effect in the form set out in this Agency Agreement
and all references to the
Agency Agreement
,
this Agency Agreement
,
this Agreement
,
hereof
,
hereunder
and expressions of similar import in this Agency Agreement shall be
construed as references to the Previous Agency Agreement as so amended and restated.
Any Notes issued on or after the date hereof shall be issued pursuant to this Agency
0010155-0003437 UKO2: 2005996996.8
14
Agreement.
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15
2.
2.1
agent of the Issuer and the Guarantor upon the terms and subject to the conditions set out
below, for the purposes of,
inter alia
:
(a)
authenticating and delivering Definitive Notes;
(b)
Eurosystem- eligible NGN;
(c)
Notes, as the case may be, in accordance with the terms of Temporary Global
Notes and, in respect of any such exchange, (i) making all notations on Global
Notes which are CGNs as required by their terms and (ii) instructing Euroclear and
Clearstream, Luxembourg to make appropriate entries in their records in respect of
all Global Notes which are NGNs;
(d)
terms of such Permanent Global Notes and, in respect of any such exchange, (i)
making all notations on Permanent Global Notes which are CGNs as required by
their terms and (ii) instructing Euroclear and Clearstream, Luxembourg to make
appropriate entries in their records in respect of all Permanent Global Notes which
are NGNs;
(e)
Euroclear and Clearstream, Luxembourg to make appropriate entries in their
records in respect of all Global Notes which are NGNs;
(f)
(g)
to be communicated to the Noteholders;
(h)
requirements of any competent authority in respect of any relevant currency as may
be in force from time to time with respect to the Notes to be issued under the
Programme;
(i)
authorities such number of copies of each Final Terms which relates to Notes which
are to be listed as the relevant authority or authorities may reasonably require;
(j)
relevant Final Terms; and
(k)
this Agreement.
2.2
upon the terms and subject to the conditions set out below, for the purposes of paying
sums due on Notes and Coupons and of performing all other obligations and duties
imposed upon it by the Conditions and this Agreement. The obligations of the Paying
Agents under this Agreement shall be several and not joint.
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16
2.3
instructs the Agent to elect Euroclear and/or Clearstream, Luxembourg as common
safekeeper. From time to time, the Issuer and the Agent may agree to vary this election.
The Issuer acknowledges that any such election is subject to the right of Euroclear and
Clearstream, Luxembourg to jointly determine that the other shall act as common
safekeeper in relation to any such issue and agrees that no liability shall attach to the Agent
in respect of any such election made by it.
3.
3.1
by the Issuer and the Guarantor, the Issuer hereby authorises the Agent and the Agent
hereby agrees to take the steps required of the Agent in the Procedures Memorandum. For
this purpose the Agent will,
inter alia,
on behalf of the Issuer:
(a)
to a copy of the applicable master Temporary Global Note;
(b)
(c)
Temporary Global Note is a CGN) or specified common safekeeper (if the
Temporary Global Note is an NGN) for Euroclear and Clearstream, Luxembourg
and, in the case of a Temporary Global Note which is a Eurosystem-eligible NGN, to
instruct the common safekeeper to effectuate the same;
(d)
Euroclear and Clearstream, Luxembourg which are different from the common code
and ISIN assigned to Notes of any other Tranche of the same Series until at least
the expiry of the applicable Distribution Compliance Period of such Tranche as
notified by the Agent to the relevant Dealer; and
(e)
Luxembourg to make the appropriate entries in their records to reflect the initial
outstanding aggregate principal amount of the relevant Tranche of Notes.
3.2
holds:
(a)
to execute the same on behalf of the Issuer, which may be used by the Agent for
the purpose of preparing a Temporary Global Note in accordance with subclause
3.1(a); and
(b)
to execute the same on behalf of the Issuer, which may be used by the Agent for
the purpose of preparing a Permanent Global Note in accordance with clause 4
below.
3.3
effectuation using electronic means, it is authorised and instructed to destroy the Global
Note retained by it following its receipt of confirmation from the common safekeeper that
the relevant Global Note has been effectuated.
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17
4.
NOTES AND DEFINITIVE NOTES
4.1
in accordance with the terms thereof. Forthwith upon determining the Exchange
Date in respect of any Tranche, the Agent shall notify such determination to the
Issuer, the Guarantor, the relevant Dealer, Euroclear and Clearstream,
Luxembourg.
(b)
the Agent is hereby authorised on behalf of the Issuer:
(i)
complete a Permanent Global Note in accordance with the terms of the
Temporary Global Note applicable to such Tranche by attaching a copy of
the applicable Final Terms to a copy of the applicable master Permanent
Global Note;
(ii)
Permanent Global Note;
(iii)
Global Note is a CGN, to deliver such Permanent Global Note to the
common depositary which is holding the Temporary Global Note applicable
to such Tranche for the time being on behalf of Euroclear and/or
Clearstream, Luxembourg to hold on behalf of the Issuer pending its
exchange for such Temporary Global Note;
(iv)
Global Note is an NGN, to deliver the Permanent Global Note to the
common safekeeper which is holding the Temporary Global Note
representing the Tranche for the time being on behalf of Euroclear and/or
Clearstream, Luxembourg to effectuate (in the case of a Permanent Global
Note which is a Eurosystem-eligible NGN) and to hold on behalf of the
Issuer pending its exchange for the Temporary Global Note;
(v)
Global Note is a CGN, by attaching a copy of the applicable Final Terms to
the Permanent Global Note applicable to the relevant Series and entering
details of any exchange in whole or part as aforesaid; and
(vi)
Global Note is an NGN, to deliver the applicable Final Terms to the specified
common safekeeper for attachment to the Permanent Global Note
applicable to the relevant Series.
5.
5.1
the Agent is hereby authorised on behalf of the Issuer:
(a)
Agreement; and
(b)
Clearstream, Luxembourg.
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18
The Agent shall notify the Issuer forthwith upon receipt of a request for issue of (a)
Definitive Note(s) in accordance with the provisions of a Temporary Global Note or
Permanent Global Note, as the case may be, (and the aggregate nominal amount of such
Temporary Global Note or Permanent Global Note, as the case may be, to be exchanged
in connection therewith).
5.2
Notes with, if applicable, Coupons and Talons attached to enable the Agent to comply with
its obligations under this clause.
6.
6.1
Notes delivered to and held by it under this Agreement to be maintained in safe custody
and shall ensure that such Notes are issued only in accordance with the provisions of this
Agreement and the relevant Global Note and Conditions.
6.2
subclause 3.1 the Agent is entitled to treat a telephone or facsimile communication from a
person who the Agent believes to be the authorised representative of the Issuer or, as the
case may be, the Guarantor, named in the list referred to in, or notified pursuant to,
subclause 19.7 as sufficient instructions and authority of the Issuer and the Guarantor for
the Agent to act in accordance with subclause 3.1.
6.3
but held by the Agent in accordance with subclause 3.1 ceases to be authorised as
described in subclause 19.7, the Agent shall (unless the Issuer gives written notice to the
Agent that Notes signed by that person do not constitute valid and binding obligations of the
Issuer or otherwise until replacements have been provided to the Agent) continue to have
authority to issue any such Notes, and the Issuer hereby warrants to the Agent that such
Notes shall, unless notified as aforesaid, be valid and binding obligations of the Issuer.
Promptly upon such person ceasing to be authorised, the Issuer shall provide the Agent
with replacement Notes and upon receipt of such replacement Notes the Agent shall cancel
and destroy the Notes held by it which are signed by such person and shall provide to the
Issuer a confirmation of destruction in respect thereof specifying the Notes so cancelled
and destroyed.
6.4
Annex 1 of the Procedures Memorandum. If the Agent pays an amount (the
Advance
) to
the Issuer on the basis that a payment (the
Payment
) has been, or will be, received from a
Dealer and if the Payment is not received by the Agent on the date the Agent pays the
Issuer, the Issuer, failing which the Guarantor, shall repay to the Agent the Advance and
shall pay interest on the Advance (or the unreimbursed portion thereof) from (and including)
the date such Advance is made to (but excluding) the earlier of repayment of the Advance
and receipt by the Agent of the Payment (at a rate quoted at that time by the Agent as the
aggregate of one per cent. and its cost of funding the Advance provided that evidence of
the basis of such rate is given to the Issuer if so required).
6.5
Annex 1 of the Procedures Memorandum. Except in the case of issues where the Agent
does not act as receiving bank for the Issuer in respect of the purchase price of the Notes
being issued, if on the relevant Issue Date a Dealer does not pay the full purchase price
due from it in respect of any Note (the
Defaulted Note
) and, as a result, the Defaulted Note
remains in the Agent's distribution account with Euroclear and/or Clearstream, Luxembourg
after such Issue Date, the Agent will continue to hold the Defaulted Note to the order of the
Issuer. The Agent shall notify the Issuer forthwith of the failure of the Dealer to pay the full
0010155-0003437 UKO2: 2005996996.8
19
purchase price due from it in respect of any Defaulted Note and, subsequently, shall notify
the Issuer forthwith upon receipt from the Dealer of the full purchase price in respect of
such Defaulted Note.
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20
7.
7.1
financial centre of the payment), on each date on which any payment in respect of any
Note becomes due, transfer to an account specified by the Agent such amount in the
relevant currency as shall be sufficient for the purposes of such payment in funds settled
through such payment system as the Agent and the Issuer or, as the case may be, the
Guarantor may agree.
7.2
time) on the Business Day (as defined below) immediately preceding the date on which
any payment is to be made to the Agent pursuant to subclause 7.1, the Agent shall receive
a payment confirmation from the paying bank of the Issuer.
For the purposes of this clause
Business Day
means a day which is both:
(a)
and are open for general business (including dealing in foreign exchange and
foreign currency deposits) in London and any other place specified in the applicable
Final Terms as an Additional Business Centre; and
(b)
euro, a day on which commercial banks and foreign exchange markets settle
payments in the principal financial centre of the country of the relevant Specified
Currency (if other than London and any Additional Business Centre) and which, if
the Specified Currency is New Zealand Dollars, shall be Auckland or (ii) in relation
to any sum payable in euro, a day on which the Trans-European Automated Real
Time Gross Settlement Express Transfer System (known as TARGET or T2) is
operating.
7.3
Temporary Global Note will be made only to the extent that certification of non-U.S.
beneficial ownership as required by U.S. securities laws and U.S. Treasury regulations has
been received from Euroclear and/or Clearstream, Luxembourg in accordance with the
terms thereof.
7.4
7.2 above, the Agent or the relevant Paying Agent shall pay or cause to be paid all amounts
due in respect of the Notes on behalf of the Issuer (failing which the Guarantor) in the
manner provided in the Conditions. If any payment provided for in subclause 7.1 is made
late but otherwise in accordance with the provisions of this Agreement, the Agent and each
Paying Agent shall nevertheless make payments in respect of the Notes as aforesaid
following receipt by it of such payment.
7.5
received by the Agent pursuant to subclause 7.1 will be, or the amounts actually received
by it pursuant thereto are, insufficient to satisfy all claims in respect of all payments then
falling due in respect of the Notes, neither the Agent nor any Paying Agent shall be obliged
to pay any such claims until the Agent has received the full amount of all such payments.
7.6
of Notes or Coupons or to any Paying Agent at a time when it has not received payment in
full in respect of the relevant Notes in accordance with subclause 7.1 (the excess of the
amounts so paid over the amounts so received being the
Shortfall
), the Issuer, failing
which the Guarantor will, in addition to paying amounts due under subclause 7.1, pay to the
Agent on demand interest (at a rate which represents the aggregate of one per cent. and
0010155-0003437 UKO2: 2005996996.8
21
the Agent's cost of funding the Shortfall) on the Shortfall (or the unreimbursed portion
thereof) until the receipt in full by the Agent of the Shortfall.
0010155-0003437 UKO2: 2005996996.8
22
7.7
of Notes properly made by such Paying Agent in accordance with this Agreement and the
Conditions unless the Agent has notified the Paying Agent, prior to the opening of business
in the location of the office of the Paying Agent through which payment in respect of the
Notes can be made on the due date of a payment in respect of the Notes, that the Agent
does not expect to receive sufficient funds to make payment of all amounts falling due in
respect of such Notes.
7.8
Notes shall be made to, or to the order of, the holder of the Global Notes, subject to and in
accordance with the provisions of the Global Notes. On the occasion of any such payment
(i) in the case of a CGN, the Paying Agent to which the Global Note was presented for the
purpose of making such payment shall cause the appropriate Schedule to the relevant
Global Note to be annotated so as to evidence the amounts and dates of such payments of
principal and/or interest as applicable or (ii) in the case of any Global Note which is an
NGN, the Agent shall instruct Euroclear and Clearstream, Luxembourg to make appropriate
entries in their records to reflect such payment.
7.9
than by reason of a deduction required by law to be made therefrom or by reason of a
FATCA Withholding),
(i) the Paying Agent to which a Note is presented for the purpose of making such payment
shall, unless the Note is an NGN, make a record of such Shortfall on the Note and such
record shall, in the absence of manifest error, be
prima facie
evidence that the payment in
question has not to that extent been made or (ii) in the case of any Global Note which is an
NGN, the Agent shall instruct Euroclear and Clearstream, Luxembourg to make appropriate
entries in their records to reflect such shortfall in payment.
7.10
amended (or any terms of the Notes are waived) after the Grandfathering Date and (c) the
Issuer or the Guarantor determines in its sole discretion that FATCA Withholding will be
required in connection with any payment due to the Agent on any Notes, then the Issuer or
the Guarantor will be entitled to re-direct or reorganise any such payment in any way that it
sees fit in order that the payment may be made without FATCA Withholding provided that
any such redirected or reorganised payment is otherwise made in accordance with this
Agreement. The Issuer will promptly notify the Agent and the Noteholders of any such
redirection or reorganisation.
7.11
gross-up any payment hereunder or to pay any additional amount as a result of such
FATCA Withholding.
8.
DETERMINATION
8.1
Determinations and Notifications
(a)
is required to do under the Conditions, all subject to and in accordance with the Conditions.
(b)
result of the Agent having acted on any quotation given by any Reference Bank which
subsequently may be found to be incorrect.
(c)
other Paying Agents and (in respect of a Series of Notes listed on a Stock Exchange) the
0010155-0003437 UKO2: 2005996996.8
23
relevant Stock Exchange of,
inter alia
, each Rate of Interest, Interest Amount and Interest
Payment Date and all other amounts, rates and dates which it is obliged to determine or
calculate under the Conditions as
0010155-0003437 UKO2: 2005996996.8
24
soon as practicable after the determination thereof and of any subsequent amendment
thereto pursuant to the Conditions.
(d)
and Interest Payment Date and all other amounts, rates and dates which it is obliged to
determine or calculate under the Conditions to be published as required in accordance with
the Conditions as soon as possible after their determination or calculation.
(e)
publish the Rate of Interest, Interest Amount and/or Interest Payment Date in respect of any
Interest Period or any other amount, rate or date as provided in this clause, it shall
forthwith notify the Issuer, the Guarantor and the other Paying Agents of such fact.
(f)
applicable Final Terms in the manner specified in the applicable Final Terms. Unless
otherwise agreed between the Issuer and the relevant Dealer or unless the Agent is the
Calculation Agent (in which case the provisions of this Agreement shall apply), such
determinations shall be made on the basis of a Calculation Agency Agreement substantially
in the form of Appendix 1 to this Agreement.
8.2
Interest Determination, Screen Rate Determination including Fallback Provisions
(a)
in which the Rate of Interest is to be determined, the Rate of Interest for each Interest
Period will be determined in accordance with the Conditions.
(b)
the Relevant Screen Page is not available or the quotation or quotations required by the
Conditions are unavailable or following a Benchmark Event or Benchmark Transition Event.
9.
In the event that (a) the Issuer or the Guarantor is or becomes a Participating FFI and (b)
Notes are issued or amended (or any terms of the Notes are waived) after the
Grandfathering Date, the Issuer will notify the Agent as soon as is practicable of: (i) the fact
that the Issuer or the Guarantor is or has become a Participating FFI, and (ii) any other
information known to the Issuer and pertaining to the Issuer or, as the case may be, the
Guarantor, necessary for the Agent to determine the amount, if any, it is required to
withhold or deduct in respect of any FATCA Withholding in relation to any payment under
the Notes.
10.
10.1
Maturity Date in accordance with the Conditions, the Issuer shall, unless otherwise agreed,
give notice of such decision to the Agent not less than 15 days before the date on which the
Issuer will give notice to the Noteholders in accordance with the Conditions of such
redemption in order to enable the Agent to undertake its obligations herein and in the
Conditions.
10.2
required drawing in accordance with the Conditions but shall give the Issuer and the
Guarantor reasonable notice of the time and place proposed for such drawing and the
Issuer shall be entitled to send representatives to attend such drawing.
10.3
0010155-0003437 UKO2: 2005996996.8
25
shall at the same
previously drawn and not
0010155-0003437 UKO2: 2005996996.8
26
presented for redemption. Such notice shall specify the date fixed for redemption, the
redemption amount, the manner in which redemption will be effected and, in the case of a
partial redemption, the serial numbers of the Notes to be redeemed. Such notice will be
published in accordance with the Conditions. The Agent will also notify the other Paying
Agents of any date fixed for redemption of any Notes.
10.4
demand to holders of Notes, the Conditions of which provide for redemption at the option of
Noteholders. Upon receipt of any Note deposited in the exercise of such option in
accordance with the Conditions, the Paying Agent with which such Note is deposited shall
hold such Note (together with any Coupons and Talons relating to it deposited with it) on
behalf of the depositing Noteholder (but shall not, save as provided below, release it) until
the due date for redemption of the relevant Note consequent upon the exercise of such
option, when, subject as provided below, it shall present such Note (and any such Coupons
and Talons) to itself for payment of the amount due thereon together with any interest due
on such date in accordance with the Conditions and shall pay such moneys in accordance
with the directions of the Noteholder contained in the relevant Put Notice. If, prior to such
due date for its redemption, such Note becomes immediately due and payable or if upon
due presentation payment of such redemption moneys is improperly withheld or refused,
the Paying Agent concerned shall post such Note (together with any such Coupons and
Talons) by uninsured post to, and at the risk of, the relevant Noteholder unless the
Noteholder has otherwise requested and paid the costs of such insurance to the relevant
Paying Agent at the time of depositing the Notes at such address as may have been given
by the Noteholder in the relevant Put Notice. At the end of each period for the exercise of
such option, each Paying Agent shall promptly notify the Agent of the principal amount of
the Notes in respect of which such option has been exercised with it together with their
serial numbers and the Agent shall promptly notify such details to the Issuer. The Issuer or
the Guarantor shall provide to the Agent sufficient supplies of blank Put Notices for such
purposes.
11.
11.1
accordance with the Conditions the Agent shall forward a copy thereof to the Issuer and the
Guarantor.
11.2
Agent shall cause to be published all notices required to be given by the Issuer or the
Guarantor to the Noteholders in accordance with the Conditions.
12.
12.1
exchanged shall be cancelled by the Agent or Paying Agent by which they are redeemed,
paid or exchanged. In addition, the Issuer and the Guarantor shall immediately notify the
Agent in writing of all Notes which are purchased by or on behalf of the Issuer or the
Guarantor and all such Notes surrendered to a Paying Agent for cancellation, together (in
the case of Definitive Notes) with all unmatured Coupons or Talons (if any) attached thereto
or surrendered therewith, shall be cancelled by the Paying Agent to which they are
surrendered. Each of the other Paying Agents shall give to the Agent details of all
payments made by it and shall deliver all cancelled Notes, Coupons and Talons to the
Agent.
12.2
(a)
0010155-0003437 UKO2: 2005996996.8
27
aggregate amount paid in respect thereof;
0010155-0003437 UKO2: 2005996996.8
28
(b)
details of all unmatured Coupons or Talons (if any) attached thereto or delivered
therewith;
(c)
(d)
(e)
shall be given to the Issuer by the Agent as soon as reasonably practicable and in any
event upon written request within three months after the date of such repayment or, as the
case may be, payment or exchange.
12.3
destruction, furnish the Issuer upon written request with a certificate of the serial numbers
of the Notes (in the case of Notes in definitive form) and the number by maturity date of
Coupons and Talons so destroyed.
12.4
shall keep a full and complete record of all Notes, Coupons and Talons (other than serial
numbers of Coupons) and of their redemption, purchase by or on behalf of the Issuer or the
Guarantor and cancellation, payment or exchange (as the case may be) and of all
replacement Notes, Coupons or Talons issued in substitution for mutilated, defaced,
destroyed, lost or stolen Notes, Coupons or Talons. The Agent shall in respect of the
Coupons of each maturity retain (in the case of Coupons other than Talons) until the expiry
of ten years from the Relevant Date in respect of such Coupons and (in the case of Talons)
indefinitely either all paid or exchanged Coupons of that maturity or a list of the serial
numbers of Coupons of that maturity still remaining unpaid or unexchanged. The Agent
shall at all reasonable times make such record available to the Issuer, the Guarantor and
any persons authorised by it for inspection and for the taking of copies thereof or extracts
therefrom.
12.5
which is a CGN, to endorse or to arrange for the endorsement of the relevant Global Note
to reflect the reduction in the nominal amount represented by it by the amount so redeemed
or purchased and cancelled and (b) in the case of any Global Note which is an NGN, to
instruct Euroclear and Clearstream, Luxembourg to make appropriate entries in their
records to reflect such redemption or purchase and cancellation, as the case may be;
provided, that, in the case of a purchase or cancellation, the Issuer has notified the Agent
of the same in accordance with subclause 12.1.
12.6
a distinction between Notes, Coupons and Talons of each Series.
13.
13.1
to be available, upon request, to the Agent at its specified office for the purpose of issuing
replacement Notes, Coupons and Talons as provided below.
13.2
provisions of this clause, cause to be delivered any replacement Notes, Coupons and
Talons which the Issuer may determine to issue in place of Notes, Coupons and Talons
which have been lost, stolen, mutilated, defaced or destroyed.
0010155-0003437 UKO2: 2005996996.8
29
13.3
covered by such indemnity as the Issuer may reasonably require) any replacement Note
will only have attached
0010155-0003437 UKO2: 2005996996.8
30
to it Coupons and Talons corresponding to those (if any) attached to the mutilated or
defaced Note which is presented for replacement.
13.4
claimant therefor shall have:
(a)
(b)
and
(c)
Agent.
13.5
which replacement Notes, Coupons and Talons have been issued pursuant to this clause
and shall furnish the Issuer with a certificate stating the serial numbers of the Notes,
Coupons and Talons so cancelled and, unless otherwise instructed by the Issuer in writing,
shall destroy such cancelled Notes, Coupons and Talons and furnish the Issuer with a
destruction certificate containing the information specified in subclause 12.3.
13.6
Issuer and the other Paying Agents of the serial number of such replacement Note, Coupon
or Talon issued and (if known) of the serial number of the Note, Coupon or Talon in place of
which such replacement Note, Coupon or Talon has been issued. Whenever replacement
Coupons or Talons are issued pursuant to the provisions of this clause, the Agent shall also
notify the other Paying Agents of the maturity dates of the lost, stolen, mutilated, defaced or
destroyed Coupons or Talons and of the replacement Coupons or Talons issued.
13.7
Talons issued and shall make such record available at all reasonable times to the Issuer,
the Guarantor and any persons authorised by it for inspection and for the taking of copies
thereof or extracts therefrom.
13.8
been issued and in respect of which the serial number is known is presented to the Agent
or any of the other Paying Agents for payment, the Agent or, as the case may be, the
relevant other Paying Agent shall immediately send notice thereof to the Issuer and the
other Paying Agents.
14.
14.1
during normal business hours copies of all documents required to be so available by the
Conditions of any Notes. For these purposes, the Issuer, failing which the Guarantor, shall
furnish the Paying Agents with sufficient copies of each of the relevant documents.
14.2
to be so available by the Conditions of any Notes, following the Noteholder’s prior written
request and provision of proof of holding and identity (in a form satisfactory to the relevant
Paying Agent).
15.
15.1
have effect in the same manner as if set out in this Agreement.
0010155-0003437 UKO2: 2005996996.8
31
15.2
request of any Noteholder shall issue voting certificates and block voting instructions in
accordance with
0010155-0003437 UKO2: 2005996996.8
32
Schedule 4 and shall forthwith give notice to the Issuer in writing of any revocation or
amendment of a block voting instruction. Each of the Agent and the other Paying Agents
will keep a full and complete record of all voting certificates and block voting instructions
issued by it and will, not less than 24 hours before the time appointed for holding a meeting
or adjourned meeting, deposit at such place as the Agent shall designate or approve, full
particulars of all voting certificates and block voting instructions issued by it in respect of
such meeting or adjourned meeting. The Issuer shall provide to the Agent sufficient
supplies of such voting certificates and block voting instructions for such purposes.
16.
16.1
commissions as the Issuer, the Guarantor and the Agent shall separately agree in respect
of the services of the Agent and the other Paying Agents hereunder together with any
expenses reasonably incurred (including legal, printing, postage, fax, cable and advertising
expenses) incurred by the Agent and the other Paying Agents in connection with their said
services.
16.2
Paying Agents and will reimburse their expenses promptly after the receipt of the relevant
moneys from the Issuer or, as the case may be, the Guarantor. Neither the Issuer nor the
Guarantor shall be responsible for any such payment or reimbursement by the Agent to
the other Paying Agents.
16.3
expenses payable under this clause 16 may be reviewed and increased from time to time in
accordance with the Agent’s or any other relevant Paying Agent’s then current fee levels.
In addition, the Agent reserves the right at any time and from time to time to charge the
Issuer properly incurred additional fees and expenses in respect of the performance by the
Agent or such other Paying Agent of services hereunder in respect of any exercise by the
Issuer or the Noteholders of any call or put option, exchanges, conversions, solicitations,
offers, tenders or any other process that requires communication with the Noteholders.
17.
17.1
and its officers, directors, employees, agents and shareholders harmless from and against
any and all liabilities that are properly incurred by each of them and their respective officers,
directors, employees, agents and shareholders arising directly or indirectly out of or in
connection with this Agreement (including value added tax or similar tax pursuant to clause
1.4 of this Agreement and stamp and other documentary taxes and duties pursuant to
clause 27 of this Agreement, but excluding all other taxes), including, without limitation, any
payment made by the Agent relying on information received by it pursuant to clause 7 and
the legal costs and expenses as such expenses are incurred (including, without limitation,
the expenses of any experts, counsel, agents or other professional advisers) of
investigating, preparing for or defending itself against any action, claim or liability in
connection with its performance hereunder. In no event however, shall the Issuer or the
Guarantor be obliged to indemnify the Agent and keep the Agent harmless from any fees,
expenses, charges and/or liabilities (i) incurred by the Agent as a result of its own fraud,
wilful misconduct or negligence, or (ii) the reimbursement of which is governed by another
clause of this Agreement.
17.2
termination or expiry of this Agreement including any termination under any bankruptcy law
or similar.
0010155-0003437 UKO2: 2005996996.8
33
18.
Upon the Issuer or, as the case may be, the Guarantor being discharged from its obligation
to make payments in respect of any Notes pursuant to the relevant Conditions, and
provided that there is no outstanding,
bona fide
and proper claim in respect of any such
payments, the Agent shall forthwith on demand pay to the Issuer or, as the case may be,
the Guarantor sums equivalent to any amounts paid to it by the Issuer or, as the case may
be, the Guarantor for the purposes of such payments.
19.
19.1
the purpose of this Agreement in the same manner as other money paid to a banker by its
customers except:
(a)
(b)
(c)
thereon.
19.2
Agents shall act solely as agents of the Issuer and the Guarantor and will not thereby
assume any obligations towards or relationship of agency or trust for or with any of the
owners or holders of the Notes, Coupons or Talons.
19.3
to perform such obligations and duties, and shall be obliged to perform such duties and
only such duties as are herein (including Schedule 8 in the case of the Agent), in the
Conditions and in the Procedures Memorandum specifically set forth and no implied duties
or obligations shall be read into this Agreement or the Notes against the Agent and the
other Paying Agents. Each of the Paying Agents (other than the Agent) agrees that if any
information that is required by the Agent to perform the duties set out in Schedule 8
becomes known to it, it will promptly provide such information to the Agent.
19.4
advisers shall be full and complete protection in respect of any action taken, omitted or
suffered hereunder in good faith and in accordance with the opinion of such advisers.
19.5
for or in respect of any action taken, omitted or suffered in reliance upon any instruction,
request or order from the Issuer or the Guarantor or any notice, resolution, direction,
consent, certificate, affidavit, Note, statement, cable, telex or other paper or document
which it reasonably believes to be genuine and to have been delivered, signed or sent by
the proper party or parties or upon written instructions from the Issuer or the Guarantor.
19.6
may become the owner of, or acquire any interest in, any Notes, Coupons or Talons with
the same rights that it or they would have if the Agent or the relevant other Paying Agent,
as the case may be, concerned were not appointed hereunder, and may engage or be
interested in any financial or other transaction with the Issuer or the Guarantor and may act
on, or as depositary, trustee or agent for, any committee or body of holders of Notes or
Coupons or in connection with any other obligations of the Issuer or the Guarantor as freely
as if the Agent or the relevant other Paying Agent, as the case may be, were not appointed
hereunder.
0010155-0003437 UKO2: 2005996996.8
34
19.7
persons authorised to execute documents and take action on its behalf in connection with
this Agreement and shall notify the Agent immediately in writing if any of such persons
ceases to be so authorised or if any additional person becomes so authorised together, in
the case of an additional authorised person, with evidence satisfactory to the Agent that
such person has been so authorised.
19.8
event be liable for indirect, punitive or consequential loss or damage of any kind
whatsoever (including but not limited to lost profits), whether or not foreseeable, even if the
Agent has been advised of the likelihood of such loss or damage and regardless of whether
the claim for loss or damage is made in negligence, for breach of contract or otherwise.
19.9
be liable to any person for any matter or thing done or omitted in any way in connection
with the transaction documents save in relation to its own wilful default, negligence, fraud or
wilful misconduct, including that of its officers and employees.
19.10
refrain from taking without liability) any action under this Agency Agreement (including
without limitation, any legal action or proceedings under or in connection with this Agency
Agreement) or the other transaction documents which in its reasonable opinion may be
illegal or contrary to any law or regulation applicable to it (including, without limitation, the
laws of the United States of America or any jurisdiction forming part of it or England and
Wales or Luxembourg) or any direction or regulation of any agency of any such state or
jurisdiction. The Agent may without liability do anything which is, in its reasonable opinion,
necessary to comply with any such law, directive, policy or regulation. In such event, the
Agent shall, where legally permissible and reasonably practicable, take all reasonable steps
to notify the Issuer that it has so refrained.
20.
20.1
the Notes pursuant to Condition 2(c) (
Termination of Guarantee
), the Guarantor will be
deemed to be simultaneously released from its rights and obligations as the Guarantor
under this Agreement from (and including) the Guarantee Termination Date, without
prejudice to any obligations which may have accrued prior to that time, without the need for
any further act or thing to be done.
20.2
such termination as soon as reasonably practicable after such termination.
21.
A copy of all communications relating to the subject matter of this Agreement between the
Issuer, the Guarantor and the Noteholders or Couponholders and any of the Paying Agents
(other than the Agent) shall be sent to the Agent by the other relevant Paying Agent.
22.
22.1
until moneys for the payment of all amounts in respect of all outstanding Notes have been
made available to the Agent and have been returned to the Issuer or, as the case may be,
the Guarantor as provided herein:
0010155-0003437 UKO2: 2005996996.8
35
(a)
Paying Agent (which may be the Agent) with a specified office in such place as may
be required by the rules and regulations of the relevant Stock Exchange or other
relevant authority;
(b)
(c)
In addition, the Issuer and the Guarantor shall forthwith appoint a Paying Agent having a
specified office in New York City in the circumstances described in the second paragraph of
Condition 4(d). Any variation, termination, appointment or change shall only take effect
(other than in the case of insolvency (as provided in subclause 22.5 below), when it shall be
of immediate effect) after not less than 30 nor more than 45 days' prior notice thereof shall
have been given to the Noteholders in accordance with Condition 12.
22.2
by giving at least 90 days' written notice to the Issuer and the Guarantor of such intention
on its part, specifying the date on which its desired resignation shall become effective.
22.3
the Issuer and the Guarantor on at least 30 days' notice by the filing with it of an instrument
in writing signed on behalf of the Issuer and the Guarantor specifying such removal and the
date when it shall become effective.
22.4
take effect upon the appointment by the Issuer and the Guarantor as hereinafter provided,
of a successor Agent and (other than in cases of insolvency of the Agent) on the expiry of
the notice to be given under clause 24. The Issuer and the Guarantor agree with the Agent
that if, by the day falling ten days before the expiry of any notice under subclause 22.2, the
Issuer and the Guarantor have not appointed a successor Agent, then the Agent shall be
entitled, on behalf of the Issuer and the Guarantor to appoint as a successor Agent in its
place a reputable financial institution of good standing which the Issuer shall approve (such
approval not to be unreasonably withheld or delayed).
22.5
adjudged bankrupt or insolvent, or files a voluntary petition in bankruptcy or makes an
assignment for the benefit of its creditors or consents to the appointment of an
administrator, liquidator or administrative or other receiver of all or a substantial part of its
property, or admits in writing its inability to pay or meet its debts as they mature or
suspends payment thereof, or if any order of any court is entered approving any petition
filed by or against it under the provisions of any applicable bankruptcy or insolvency law or
if a receiver of it or of all or a substantial part of its property is appointed or if any officer
takes charge or control of it or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, a successor Agent, which shall be a reputable financial
institution of good standing may be appointed by the Issuer and the Guarantor by an
instrument in writing filed with the successor Agent. Upon the appointment as aforesaid of
a successor Agent and acceptance by the latter of such appointment and (other than in
case of insolvency of the Agent when it shall be of immediate effect) upon expiry of the
notice to be given under clause 24 the Agent so superseded shall cease to be the Agent
hereunder.
22.6
the Agent, terminate the appointment of any of the other Paying Agents at any time and/or
appoint one or more further other Paying Agents by giving to the Agent, and to the relevant
other Paying Agent at least 45 days' notice in writing to that effect (other than in the case of
0010155-0003437 UKO2: 2005996996.8
36
insolvency of the other Paying
Agent).
0010155-0003437 UKO2: 2005996996.8
37
22.7
appointments hereunder at any time by giving the Issuer, the Guarantor and the Agent at
least 45 days' written notice to that effect.
22.8
(a)
records referred to in subclauses 12.4 and 13.7 to the successor Agent hereunder;
and
(b)
commissions, fees and expenses for the services theretofore rendered hereunder in
accordance with the terms of clause 16.
22.9
shall, without further act, deed or conveyance, become vested with all the authority, rights,
powers, trusts, immunities, duties and obligations of its predecessor or, as the case may be,
a Paying Agent with like effect as if originally named as Agent or (as the case may be) a
Paying Agent hereunder.
22.10
connection with any payments due on the Notes and such FATCA Withholding would not
have arisen but for the Paying Agent not being or having ceased to be a person to whom
payments are free from FATCA Withholding, the Issuer or Guarantor will be entitled, during
the period in which that Paying Agent is not a person to whom payments are free from
FATCA Withholding, to terminate the Paying Agent with 10 days’ notice and such
termination will be effective from any such time specified in writing to such Paying Agent.
23.
Any corporation into which the Agent or any other Paying Agent may be merged or
converted, or any corporation with which the Agent or any of the other Paying Agents may
be consolidated, or any corporation resulting from any merger, conversion or consolidation
to which the Agent or any of the other Paying Agents shall be a party, or any corporation to
which the Agent or any of the other Paying Agents shall sell or otherwise transfer all or
substantially all the assets of the Agent or any other Paying Agent, or any corporation to
which the Agent or any other Paying Agent shall sell or otherwise transfer all or
substantially all of its corporate trust business shall, on the date when such merger,
conversion, consolidation or transfer becomes effective and to the extent permitted by any
applicable laws, become the successor Agent or, as the case may be, other Paying Agent
under this Agreement without the execution or filing of any paper or any further act on the
part of the parties hereto, unless otherwise required by the Issuer or the Guarantor, and
after the said effective date all references in this Agreement to the Agent or, as the case
may be, such other Paying Agent shall be deemed to be references to such corporation.
Written notice of any such merger, conversion, consolidation or transfer shall forthwith be
given to the Issuer and the Guarantor by the Agent or other Paying Agent.
24.
Following receipt of notice of resignation from the Agent or any other Paying Agent and
forthwith upon appointing a successor Agent or, as the case may be, further or other
Paying Agents or on giving notice to terminate the appointment of the Agent or, as the case
may be, other Paying Agent, the Agent (on behalf of and at the expense of the Issuer,
failing which the Guarantor) shall give or cause to be given not more than 45 days' nor less
than 30 days' notice thereof to the Noteholders in accordance with the Conditions.
0010155-0003437 UKO2: 2005996996.8
38
25.
If the Agent or any other Paying Agent determines to change its specified office it shall
(after having, in any such case other than a change of specified office within the same city,
obtained the prior written approval of the Issuer and the Guarantor thereto) give to the
Issuer, the Guarantor and (if applicable) the Agent written notice of such determination
giving the address of the new specified office which shall be in the same city and stating the
date on which such change is to take effect, which shall not be less than 45 days thereafter.
The Agent (on behalf of the Issuer, failing which the Guarantor) but at its own expense)
shall within 15 days of receipt of such notice (unless the appointment of the Agent or the
other relevant Paying Agent, as the case may be, is to terminate pursuant to clause 22 on
or prior to the date of such change) give or cause to be given not more than 45 days' nor
less than 30 days' notice thereof to the Noteholders in accordance with the Conditions.
26.
26.1
(a)
hereof or such other address as may be notified by the recipient in accordance with
this clause and, if so delivered, shall be deemed to have been delivered at time of
receipt; or
(b)
the sender within 24 hours of the time of sending, to the relevant email address
specified on the signature pages hereof or such other email address as may be
notified by the recipient in accordance with this clause; or
(c)
or such other address as may be notified by the recipient in accordance with this
clause and, if so sent, shall be deemed to have been delivered immediately after
transmission provided such transmission is confirmed when an acknowledgement of
receipt is received.
26.2
and become effective on the next business day. Every communication shall be irrevocable
save in respect of any manifest error therein.
26.3
liable for any losses arising to the Agent or any other entity of The Bank of New York
Mellon Group receiving or transmitting any data from any Issuer, any Authorised Person or
any party to the transaction via any non-secure method of transmission or communication,
such as, but without limitation, by facsimile or email. The parties hereto accept that some
methods of communication are not secure and the Agent or any other entity of The Bank of
New York Mellon Group shall incur no liability for receiving Instructions via any such non-
secure method. The Agent or any other entity of The Bank of New York Mellon Group is
authorised to comply with and rely upon any such notice, Instructions or other
communications believed by it to have been sent or given by an Authorised Person or an
appropriate party to the transaction (or authorised representative thereof). The Issuer or
authorised officer of the Issuer shall use all reasonable endeavours to ensure that
Instructions transmitted to the Agent or any other entity of The Bank of New York Mellon
Group pursuant to this Agreement are complete and correct. Any Instructions shall be
conclusively deemed to be valid Instructions from the Issuer or authorised officer of the
Issuer to the Agent or any other entity of The Bank of New York Mellon Group for the
purposes of this Agreement.
0010155-0003437 UKO2: 2005996996.8
39
27.
The Issuer, failing which the Guarantor, agrees to pay any and all stamp and other
documentary taxes or duties which may be payable in connection with the execution,
delivery, performance and enforcement of this Agreement.
28.
If, under any applicable law and whether pursuant to a judgment being made or registered
against the Issuer and/or the Guarantor or in the liquidation, insolvency or analogous
process of the Issuer and/or the Guarantor or for any other reason, any payment under or
in connection with this Agreement is made or falls to be satisfied in a currency (the
other
currency
) other than that in which the relevant payment is expressed to be due (the
required currency
) under this Agreement, then, to the extent that the payment (when
converted into the required currency at the rate of exchange on the date of payment or, if it
is not practicable for the Agent or the relevant other Paying Agent to purchase the required
currency with the other currency on the date of payment, at the rate of exchange as soon
thereafter as it is practicable for it to do so or, in the case of a liquidation, insolvency or
analogous process at the rate of exchange on the latest date permitted by applicable law
for the determination of liabilities in such liquidation, insolvency or analogous process)
actually received by the Agent or the relevant other Paying Agent falls short of the amount
due under the terms of this Agreement, the Issuer and the Guarantor jointly and severally
undertake that they shall, as a separate and independent obligation, indemnify and hold
harmless the Agent and each other Paying Agent against the amount of such shortfall. For
the purpose of this clause,
rate of exchange
means the rate at which the Agent or the
relevant other Paying Agent is able on the relevant date to purchase the required currency
with the other currency and shall take into account any premium and other costs of
exchange.
29.
This Agreement may be amended in writing by agreement between the Issuer, the
Guarantor, the Agent and the other Paying Agents, but without the consent of any
Noteholder or Couponholder, for the purpose of curing any ambiguity or of curing,
correcting or supplementing any defective provision contained herein or in any manner
which the parties may mutually deem necessary or desirable and which shall not be
materially prejudicial to the interests of the Noteholders. The Issuer, the Guarantor and the
Agent may also agree any modification pursuant to Condition 13 of the Notes.
30.
The descriptive headings in this Agreement are for convenience of reference only and shall
not define or limit the provisions hereof.
31.
A person who is not a party to this Agency Agreement or any agency agreement
supplemental hereto has no right under the Contracts (Rights of Third Parties) Act 1999 to
enforce any term of this Agency Agreement or any agency agreement supplemental hereto,
but this does not affect any right or remedy of a third party which exists or is available apart
from that Act.
32.
32.1
with it are governed by, and shall be construed in accordance with, English law.
0010155-0003437 UKO2: 2005996996.8
40
32.2
arise of out of or in connection with this Agreement (including a dispute relating to any non-
contractual obligations arising out of or in connection with this Agreement) and accordingly
any legal action or proceedings arising out of or in connection with this Agreement
(
Proceedings
) (including any Proceedings relating to any non-contractual obligations
arising out of or in connection with this Agreement) may be brought in such courts. The
Issuer irrevocably submits to the jurisdiction of such courts and waives any objection to
Proceedings in any such courts whether on the ground of venue or on the ground that
Proceedings have been brought in an inconvenient forum. This submission is made for the
benefit of each of the Paying Agents and, to the extent allowed by applicable law, shall not
limit the right of any of them to take Proceedings in any other court of competent jurisdiction
nor shall the taking of Proceedings in one or more jurisdictions preclude the taking of
Proceedings in any other jurisdiction (whether concurrently or not).
The Issuer and the Guarantor irrevocably appoints Equinor UK Limited (whose offices are
at the date of this Agreement at One Kingdom Street, Paddington Central, London W2
6BD) as their authorised agent for service of process in England. If for any reason such
agent shall cease to be such agent for service of process, the Issuer and/or the Guarantor,
as the case may be, shall forthwith, on request of the Agent, appoint a new agent for
service of process in England and deliver to the Agent a copy of the new agent's
acceptance of that appointment within 30 days. Nothing in this Agreement shall affect the
right to serve process in any other manner permitted by law.
33.
33.1
of counterparts, each of which shall be deemed to be an original, but all such counterparts
shall together constitute one and the same instrument.
34.
34.1
unenforceable in any respect under the law of any jurisdiction, that will not affect or impair
(i) the validity, legality or enforceability under the law of that jurisdiction of any other
provision in or obligation under this Agreement, and (ii) the validity, legality or enforceability
under the law of any other jurisdiction of that or any other provision in or obligation under
this Agreement.
35.
Notwithstanding and to the exclusion of any other term of this Agreement or any other
agreements, arrangements, or understanding between the parties to this Agreement, each
of the parties to this Agreement acknowledges and accepts that a BRRD Liability arising
under this Agreement may be subject to the exercise of Bail-in Powers by the Relevant
Resolution Authority, and acknowledges, accepts, and agrees to be bound by:
(a)
to any BRRD Liability of any BRRD Entity (a
Relevant BRRD Party
) to any other party
under this Agreement, that (without limitation) may include and result in any of the
following, or some combination thereof:
(i)
thereon;
(ii)
or other obligations of the Relevant BRRD Party or another person, and the issue to
0010155-0003437 UKO2: 2005996996.8
41
or
obligations;
0010155-0003437 UKO2: 2005996996.8
42
(iii)
(iv)
including any interest, if applicable, thereon, or the date on which any payments are
due, including by suspending payment for a temporary period; and
(b)
Resolution Authority, to give effect to the exercise of Bail-in Powers by the Relevant
Resolution Authority.
For the purposes of this clause 35:
Bail-in Legislation
means, in relation to a member state of the European Economic Area
which has implemented, or which at any time implements, the BRRD, the relevant
implementing law, regulation, rule or requirement as described in the EU Bail-in Legislation
Schedule from time to time;
Bail-in Powers
means any Write-down and Conversion Powers as defined in the EU Bail-
in Legislation Schedule, in relation to the relevant Bail-in Legislation;
BRRD
means Directive 2014/59/EU of 15 May 2014 establishing the framework for the
recovery and resolution of credit institutions and investment firms, as amended or replaced
from time to time;
BRRD Entity
means any party to this Agreement that is subject to Bail-in Powers;
BRRD Liability
means any liability in respect of which the relevant Bail-in Powers may be
exercised;
EU Bail-in Legislation Schedule
means the document described as such, then in effect,
and published by the Loan Market Association (or any successor person) from time to time;
and
Relevant Resolution Authority
means, in respect of any Relevant BRRD Party, the
resolution authority with the ability to exercise any Bail-in Powers in relation to such
Relevant BRRD Party.
IN WITNESS WHEREOF
the parties hereto have executed this Agreement as of the date first
above written.
0010155-0003437 UKO2: 2005996996.8
43
SCHEDULE 1
TERMS AND CONDITIONS OF THE NOTES OTHER THAN VPS NOTES
This Note is one of a Series (as defined below) of Notes issued by Equinor ASA (the
Issuer
)
pursuant to the Agency Agreement (as defined below).
References herein to the
Notes
shall be references to the Notes of this Series and shall
mean:
(i)
Denomination in the Specified Currency;
(ii)
(iii)
The Notes and the Coupons (as defined below) also have the benefit of an amended and
restated Agency Agreement (such Agency Agreement, as modified and/or restated and/or
supplemented from time to time, the
Agency Agreement
) dated 11 May 2023 and made
among the Issuer, Equinor Energy AS (the
Guarantor
), The Bank of New York Mellon,
London Branch as issuing and principal paying agent (the
Agent
, which expression shall
include any successor agent specified in the applicable Final Terms) and the other paying
agents named therein (together with the Agent, the
Paying Agents
, which expression shall
include any additional or successor paying agents).
If so indicated in the applicable Final Terms, the Notes will (subject to Condition 2(c)
(
Termination of Guarantee
)) have the benefit of the deed of guarantee executed by the
Guarantor (such deed as modified and/or restated and/or supplemented from time to time,
the
Guarantee
) dated 13 May 2020.
Interest bearing definitive Notes have interest coupons (
Coupons
) and in the case of Notes
which, when issued in definitive form, have more than 27 interest payments remaining talons
for further Coupons (
Talons
) attached on issue. Any reference herein to Coupons or
coupons shall, unless the context otherwise requires, be deemed to include a reference to
Talons or talons.
The final terms for this Note (or the relevant provisions thereof) are set out in Part A of the
Final Terms attached to or endorsed on this Note and complete these Terms and
Conditions. References to the
applicable Final Terms
are to Part A of the Final Terms (or
the relevant provisions thereof) attached to or endorsed on this Note.
Any reference to
Noteholders
shall mean the holders of the Notes, and shall, in relation to
any Notes represented by a global Note, be construed as provided below. Any reference
herein to
Couponholders
shall mean the holders of any Coupons, and shall, unless the
context otherwise requires, include the holders of any Talons.
As used herein,
Tranche
means all Notes with the same Issue Date and which are subject
to the same Final Terms and
Series
means a Tranche of Notes together with any further
Tranche or Tranches of Notes which are (i) expressed to be consolidated and form a single
series and (ii) identical in all respects (including as to listing and admission to trading) except
for their respective Issue Dates, Interest Commencement Dates and/or Issue Prices.
0010155-0003437 UKO2: 2005996996.8
44
The Noteholders and the Couponholders are entitled to the benefit of the Deed of Covenant
(such Deed of Covenant, as modified and/or restated and/or supplemented from time to
time, the
Deed of Covenant
) dated 13 May 2020 and made by the Issuer. The original of
the Deed of Covenant is held by a common depositary on behalf of Euroclear (as defined
below) and Clearstream, Luxembourg (as defined below).
Copies of the Agency Agreement and the Deed of Covenant (i) are available for inspection
or collection during normal business hours at the specified office of each of the Agent and
the other Paying Agents or (ii) may be provided by email to a Noteholder following their prior
written request to the Agent or any other Paying Agent and provision of proof of holding and
identity (in a form satisfactory to the Agent or the relevant Paying Agent, as the case may
be). When the Notes are to be admitted to trading on the main market of the London Stock
Exchange plc, the applicable Final Terms will be published on the website of the London
Stock Exchange plc through a regulatory information service. The applicable Final Terms
will, during normal business hours, be available for viewing at and copies may be obtained
from the registered office of the Issuer and from the specified office of each of the Paying
Agents by a Noteholder upon such Noteholder producing evidence satisfactory to the
relevant Paying Agent as to its holding of such Notes and its identity. The Noteholders and
the Couponholders are deemed to have notice of, and are entitled to the benefit of, all the
provisions of the Agency Agreement and the applicable Final Terms which are applicable to
them.
Words and expressions defined in the Agency Agreement or used in the applicable Final
Terms shall have the same meanings where used in these Terms and Conditions unless the
context otherwise requires or unless otherwise stated and provided that, in the event of
inconsistency between the Agency Agreement and the applicable Final Terms, the
applicable Final Terms will prevail.
1. Form, Denomination and Title
The Notes are in bearer form and, in the case of definitive Notes, serially numbered, in the
currency (the
Specified Currency
) and the denominations (the
Specified
Denomination(s)
) specified in the applicable Final Terms. Notes of one Specified
Denomination may not be exchanged for Notes of another Specified Denomination.
This Note may be a Fixed Rate Note, a Floating Rate Note, a Zero Coupon Note or a
combination of any of the foregoing, depending upon the Interest Basis shown in the
applicable Final Terms.
Definitive Notes are issued with Coupons attached, unless they are Zero Coupon Notes in
which case references to Coupons and Couponholders in these Terms and Conditions are
not applicable.
Subject as set out below, title to the Notes and Coupons will pass by delivery. The Issuer,
the Guarantor, and any Paying Agent may deem and treat the bearer of any Note or Coupon
as the absolute owner thereof (whether or not overdue and notwithstanding any notice of
ownership or writing thereon or notice of any previous loss or theft thereof) for all purposes
but, in the case of any global Note, without prejudice to the provisions set out in the next
succeeding paragraph.
For so long as any of the Notes is represented by a global Note held on behalf of Euroclear
Bank SA/NV (
Euroclear
) and/or Clearstream Banking S.A. (
Clearstream, Luxembourg
)
each person (other than Euroclear or Clearstream, Luxembourg) who is for the time being
0010155-0003437 UKO2: 2005996996.8
45
shown in the records of Euroclear or of Clearstream, Luxembourg as the holder of a
particular nominal amount of such Notes (in which regard any certificate or other document
issued by Euroclear or Clearstream, Luxembourg as to the nominal amount of such Notes
standing to the account of any person shall be conclusive and binding for all purposes save
in the case of manifest error) shall be treated by the Issuer, the Guarantor (in the case of
Notes having the benefit of the Guarantee), the Agent and any other Paying Agent as the
holder of such nominal amount of such Notes for all purposes other than with respect to the
payment of principal or interest on such nominal amount of such Notes, for which purpose
the bearer of the relevant global Note shall be treated by the Issuer, the Guarantor (in the
case of Notes having the benefit of the Guarantee), the Agent and any other Paying Agent
as the holder of such nominal amount of such Notes in accordance with and subject to the
terms of the relevant global Note and the expressions
Noteholder
and
holder of Notes
and
related expressions shall be construed accordingly. Notes which are represented by a global
Note will be transferable only in accordance with the rules and procedures for the time being
of Euroclear or of Clearstream, Luxembourg, as the case may be.
2. Status of the Notes and the Guarantee
(a)
The Notes and the relative Coupons (if any) constitute unsecured and unsubordinated
obligations of the Issuer and shall at all times rank
pari passu
and without any preference
among themselves. The payment obligations of the Issuer under the Notes and the relative
Coupons (if any) shall, save for such exceptions as may be provided by applicable
legislation, at all times rank at least equally with all its other present and future unsecured
and unsubordinated obligations.
(b)
The obligations of the Guarantor under the Guarantee constitute unsecured and
unsubordinated obligations of the Guarantor and shall at all times rank
pari passu
and
without any preference among themselves and (with the exception of obligations in respect
of national and local taxes and certain other statutory exceptions and subject as aforesaid)
at least equally with all its other present and future unsecured and unsubordinated
obligations.
(c)
(i)
Guarantee Termination Date. As soon as reasonably practicable after such
termination (and by no later than 15 Business Days (as defined in Condition 3(b)(i)
(
Interest Payment Dates
)) after the Guarantee Termination Date), the Guarantor or
the Issuer shall provide notice of such termination to the Noteholders and
Couponholders in accordance with Condition 12 (
Notices
).
For the purposes of this Condition 2(c)(i):
Guarantee Termination Date
means the first date on which the aggregate amount
of indebtedness for borrowed money for which the Guarantor is an obligor (as a
guarantor, co-issuer or borrower) does not exceed 10 per cent. of the aggregate
principal amount of indebtedness for borrowed money of the Issuer and its
Subsidiaries (as defined in Condition 8 (
Events of Default
)), on a consolidated basis,
as of such time; and
0010155-0003437 UKO2: 2005996996.8
46
the amount of the Guarantor's indebtedness for borrowed money shall not include (A)
any Notes subject to this Condition 2(c) (
Termination of Guarantee
), (B) any other
debt the terms of which permit the termination of the Guarantor's guarantee of such
debt under similar circumstances, as long as the Guarantor's obligations in respect of
such other debt are terminated at substantially the same time as the Guarantee, and
(C) any debt that is being refinanced at substantially the same time that the
Guarantee of the Notes is being terminated,
provided that
any obligations of the
Guarantor in respect of the debt that is incurred in the refinancing shall be included in
the calculation of the Guarantor's indebtedness for borrowed money.
(ii)
pursuant to Condition 8(e) (
Events of Default
) as a result of the Guarantee being
terminated pursuant to this Condition 2(c) (
Termination of Guarantee
).
3. Interest
(a)
Each Fixed Rate Note bears interest from (and including) the Interest Commencement Date
at the rate(s) per annum equal to the Rate(s) of Interest payable in arrear on the Interest
Payment Date(s) in each year and on the Maturity Date if that does not fall on an Interest
Payment Date.
If the Notes are in definitive form, except as provided in the applicable Final Terms, the
amount of interest payable on each Interest Payment Date in respect of the Fixed Interest
Period ending on (but excluding) such date will amount to the Fixed Coupon Amount.
Payments of interest on any Interest Payment Date will, if so specified in the applicable Final
Terms, amount to the Broken Amount(s) so specified.
As used in these Conditions,
Fixed Interest Period
means the period from (and including)
an Interest Payment Date (or the Interest Commencement Date) to (but excluding) the next
(or first) Interest Payment Date.
Except in the case of Notes in definitive form where a Fixed Coupon Amount or Broken
Amount is specified in the applicable Final Terms, interest shall be calculated in respect of
any period by applying the Rate of Interest to:
(A)
aggregate outstanding nominal amount of the Fixed Rate Notes represented by such
Global Note; or
(B)
and, in each case, multiplying such sum by the applicable Day Count Fraction.
The resultant figure (including after application of any Fixed Coupon Amount or Broken
Amount to the Calculation Amount in the case of Fixed Rate Notes in definitive form) shall be
rounded to the nearest sub-unit of the relevant Specified Currency, half of any such sub-unit
being rounded upwards or otherwise in accordance with applicable market convention.
Where the Specified Denomination of a Fixed Rate Note in definitive form is a multiple of the
Calculation Amount, the amount of interest payable in respect of such Fixed Rate Note shall
be the product of the amount (determined in the manner provided above) for the Calculation
0010155-0003437 UKO2: 2005996996.8
47
Amount and the amount by which the Calculation Amount is multiplied to reach the Specified
Denomination, without any further rounding.
In these Conditions,
Day Count Fraction
means, in respect of the calculation of an amount
of interest in accordance with this Condition 3(a) (
Interest on Fixed Rate Notes
):
(i)
(a)
(and including) the most recent Interest Payment Date (or, if none, the Interest
Commencement Date) to (but excluding) the relevant payment date (the
Accrual Period) is equal to or shorter than the Determination Period during
which the Accrual Period ends, the number of days in such Accrual Period
divided by the product of (1) the number of days in such Determination Period
and (2) the number of Determination Dates (as specified in the applicable
Final Terms) that would occur in one calendar year; or
(b)
Determination Period during which the Accrual Period ends, the sum of:
(1)
Period in which the Accrual Period begins divided by the product of (x)
the number of days in such Determination Period and (y) the number
of Determination Dates (as specified in the applicable Final Terms)
that would occur in one calendar year; and
(2)
Determination Period divided by the product of (x) the number of days
in such Determination Period and (y) the number of Determination
Dates that would occur in one calendar year; and
(ii)
from (and including) the most recent Interest Payment Date (or, if none, the Interest
Commencement Date) to (but excluding) the relevant payment date (such number of
days being calculated on the basis of a year of 360 days with 12 30-day months)
divided by 360.
In these Conditions:
Determination Period
means each period from (and including) a Determination Date to but
excluding the next Determination Date (including, where either the Interest Commencement
Date or the final Interest Payment Date is not a Determination Date, the period commencing
on the first Determination Date prior to, and ending on the first Determination Date following
after, such date); and
sub-unit
means, with respect to any currency other than euro, the lowest amount of such
currency that is available as legal tender in the country of such currency and, with respect to
euro, means one cent.
(b)
(i)
Interest Payment Dates
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48
Each Floating Rate Note bears interest from (and including) the Interest
Commencement Date and such interest will be payable in arrear on either:
(A)
Interest Payment Date
) in
each year specified in the applicable Final Terms; or
(B)
Terms, each date (each an
Interest Payment Date
) which falls the number of
months or other period specified as the Specified Period in the applicable
Final Terms after the preceding Interest Payment Date or, in the case of the
first Interest Payment Date, after the Interest Commencement Date.
Such interest will be payable in respect of each Interest Period (which expression,
shall, in these Terms and Conditions, mean the period from (and including) an
Interest Payment Date (or the Interest Commencement Date) to (but excluding) the
next (or first) Interest Payment Date or the relevant payment date if the Notes
become payable on a date other than an Interest Payment Date).
If a Business Day Convention is specified in the applicable Final Terms and (x) if
there is no numerically corresponding day in the calendar month in which an Interest
Payment Date should occur or (y) if any Interest Payment Date would otherwise fall
on a day which is not a Business Day, then, if the Business Day convention specified
is:
(1)
Condition 3(b)(i)(B) above, the Floating Rate Convention, such Interest
Payment Date (i) in the case of (x) above, shall be the last day that is a
Business Day in the relevant month and the provisions of (B) below shall
apply
mutatis mutandis
or (ii) in the case of (y) above, shall be postponed to
the next day which is a Business Day unless it would thereby fall into the next
calendar month, in which event (A) such Interest Payment Date shall be
brought forward to the immediately preceding Business Day and (B) each
subsequent Interest Payment Date shall be the last Business Day in the
month which falls in the Specified Period after the preceding applicable
Interest Payment Date occurred; or
(2)
postponed to the next day which is a Business Day; or
(3)
shall be postponed to the next day which is a Business Day unless it would
thereby fall into the next calendar month, in which event such Interest
Payment Date shall be brought forward to the immediately preceding
Business Day; or
(4)
brought forward to the immediately preceding Business Day.
In this Condition,
Business Day
means:
(A)
payments and are open for general business (including dealing in foreign
exchange and foreign currency deposits) in any Additional Business Centre
(other than TARGET System) specified in the applicable Final Terms;
0010155-0003437 UKO2: 2005996996.8
49
(B)
applicable Final Terms, a day on which the Trans-European Automated Real-
Time Gross Settlement Express Transfer System (known as TARGET or T2)
or any successor or replacement for that system (the
TARGET System
) is
open; and
(C)
euro, a day on which commercial banks and foreign exchange markets settle
payments and are open for general business (including dealing in foreign
exchange and foreign currency deposits) in the principal financial centre of the
country of the relevant Specified Currency (which if the Specified Currency is
New Zealand dollars shall be Auckland) or (2) in relation to any sum payable
in euro, a day on which the TARGET System is open.
(ii)
Rate of Interest
The Rate of Interest payable from time to time in respect of Floating Rate Notes will
be determined in the manner specified in the applicable Final Terms.
(A)
Where ISDA Determination is specified in the applicable Final Terms as the manner
in which the Rate of Interest is to be determined, the Rate of Interest for each Interest
Period will be the relevant ISDA Rate plus or minus (as indicated in the applicable
Final Terms) the Margin (if any). For the purposes of this sub-paragraph (A),
ISDA
Rate
for an Interest Period means a rate equal to the Floating Rate that would be
determined by the Agent or the Calculation Agent, as applicable, under an interest
rate swap transaction if the Agent or the Calculation Agent, as applicable, were acting
as Calculation Agent (as defined in the ISDA Definitions (as defined below)) for that
swap transaction under the terms of an agreement incorporating (i) if “2006 ISDA
Definitions” is specified in the applicable Final Terms, the 2006 ISDA Definitions as
amended and updated as at the Issue Date of the first Tranche of the Notes,
published by the International Swaps and Derivatives Association, Inc. (
ISDA
); or (ii)
if “2021 ISDA Definitions” is specified in the applicable Final Terms, the latest
version of the 2021 ISDA Interest Rate Derivatives Definitions as at the Issue Date of
the first Tranche of the Notes, published by ISDA (together, the
ISDA Definitions
)
and under which:
(1)
(2)
Final Terms;
(3)
(4)
Overnight Rate Compounding Method is one of the following as specified in
the applicable Final Terms:
(A)
(B)
(C)
0010155-0003437 UKO2: 2005996996.8
50
(5)
Index Method is Compounded Index Method with Observation Period Shift, as
specified in the applicable Final Terms.
In connection with the Overnight Rate Compounding Method, references in the ISDA
Definitions to numbers or other items specified in the relevant confirmation shall be
deemed to be references to the numbers or other items specified for such purpose in
the applicable Final Terms.
For the purposes of this sub-paragraph (A), (i)
Floating Rate
,
Floating Rate Option
,
Designated Maturity
,
Reset Date
,
Overnight Floating Rate Option
,
Overnight
Rate Compounding Method
,
Compounding with Lookback
,
Compounding with
Observation Period Shift
,
Compounding with Lockout
,
Averaging with
Lookback
,
Averaging with Observation Period Shift
,
Averaging with Lockout
,
Compounded Index Floating Rate Option
,
Index Method
and
Compounded
Index Method with Observation Period Shift
have the meanings given to those
terms in the ISDA Definitions, (ii) the definition of
Banking Day
in the ISDA
Definitions shall be amended to insert after the words "are open for" in the second
line, the word "general" and (iii)
Euro-zone
means the region comprised of Member
States of the European Union that adopt the single currency in accordance with the
Treaty on European Union.
(B)
Where “Screen Rate Determination” is specified in the applicable Final Terms as the
manner in which the Rate of Interest is to be determined and “Term Rate” is specified
in the applicable Final Terms to be “Applicable”, the Rate of Interest for each Interest
Period will, subject to Condition 3(b)(viii) (
Benchmark Discontinuation
) and subject as
provided below, be either:
(1)
(2)
0.000005 being rounded upwards) of the offered quotations,
(expressed as a percentage rate per annum) for the Reference Rate (being either
EURIBOR or NIBOR or STIBOR, in each case for the relevant currency and/or
period, all as specified in the applicable Final Terms) which appears or appear, as the
case may be, on the Relevant Screen Page (or such replacement page on that
service which displays the information) as at the Specified Time on the Interest
Determination Date in question plus or minus (as indicated in the applicable Final
Terms) the Margin (if any), all as determined by the Agent or the Calculation Agent,
as applicable. If five or more of such offered quotations are available on the Relevant
Screen Page, the highest (or, if there is more than one such highest quotation, one
only of such quotations) and the lowest (or, if there is more than one such lowest
quotation, one only of such quotations) shall be disregarded by the Agent or the
Calculation Agent, as applicable, for the purpose of determining the arithmetic mean
(rounded as provided above) of such offered quotations.
If, other than in the circumstances described in Condition 3(b)(viii) (
Benchmark
Discontinuation
) below, the Relevant Screen Page is not available or if, in the case of
Condition 3(b)(ii)(B)(1), no such offered quotation appears or, in the case of Condition
3(b)(ii)(B)(2), fewer than three such offered quotations appear, in each case as at the
0010155-0003437 UKO2: 2005996996.8
51
time specified in Condition 3(b)(ii)(B) the Agent or the Calculation Agent, as
applicable, shall request each of the Reference Banks to provide the Agent or the
Calculation Agent, as applicable, with its offered quotation (expressed as a
percentage rate per annum) for the Reference Rate at approximately the Specified
Time on the Interest Determination Date in question. If two or more of the Reference
Banks provide the Agent or the Calculation Agent, as applicable, with such offered
quotations, the Rate of Interest for such Interest Period shall be the arithmetic mean
(rounded if necessary to the fifth decimal place with 0.000005 being rounded
upwards) of such offered quotations plus or minus (as appropriate) the Margin (if
any), all as determined by the Agent or the Calculation Agent, as applicable.
If on any Interest Determination Date one only or none of the Reference Banks
provides the Agent or the Calculation Agent, as applicable, with such offered
quotations as provided in the preceding paragraph, the Rate of Interest for the
relevant Interest Period shall be the rate per annum which the Agent or the
Calculation Agent, as applicable, determines as being the arithmetic mean (rounded
if necessary to the fifth decimal place, with 0.000005 being rounded upwards) of the
rates, as communicated to (and at the request of) the Agent or the Calculation Agent,
as applicable, by the Reference Banks or any two or more of them, at which such
banks were offered, at approximately the Specified Time on the relevant Interest
Determination Date, deposits in the Specified Currency for a period equal to that
which would have been used for the Reference Rate by leading banks in the Euro-
zone inter-bank market (if the Reference Rate is EURIBOR) or the Norwegian inter-
bank market (if the Reference Rate is NIBOR) or the Stockholm inter-bank market (if
the Reference Rate is STIBOR) plus or minus (as appropriate) the Margin (if any) or,
if fewer than two of the Reference Banks provide the Agent or the Calculation Agent,
as applicable, with such offered rates, the offered rate for deposits in the Specified
Currency for a period equal to that which would have been used for the Reference
Rate, or the arithmetic mean (rounded as provided above) of the offered rates for
deposits in the Specified Currency for a period equal to that which would have been
used for the Reference Rate, at which, at approximately the Specified Time on the
relevant Interest Determination Date, any one or more banks (which bank or banks is
or are in the opinion of the Issuer suitable for such purpose) informs the Agent or the
Calculation Agent, as applicable, it is quoting to leading banks in the Euro-zone inter-
bank market (if the Reference Rate is EURIBOR) or the Norwegian inter-bank market
(if the Reference Rate is NIBOR) or the Stockholm inter-bank market (if the
Reference Rate is STIBOR) plus or minus (as appropriate) the Margin (if any),
provided that, if the Rate of Interest cannot be determined in accordance with the
foregoing provisions of this paragraph, the Rate of Interest shall be determined as at
the last preceding Interest Determination Date (though substituting, where a different
Margin is to be applied to the relevant Interest Period from that which applied to the
last preceding Interest Period, the Margin relating to the relevant Interest Period, in
place of the Margin relating to that last preceding Interest Period).
Reference Banks
means, in the case of Condition 3(b)(ii)(B)(1) above, those banks
whose offered rates were used to determine such quotation when such quotation last
appeared on the Relevant Screen Page and, in the case of Condition 3(b)(ii)(B)(2)
above, those banks whose offered quotations last appeared on the Relevant Screen
Page when no fewer than three such offered quotations appeared, and in each case,
as selected by the Issuer.
0010155-0003437 UKO2: 2005996996.8
52
Specified Time
means 11.00 a.m. (Brussels time) if the Reference Rate is
EURIBOR, 11.00 a.m. (Stockholm time) if the Reference Rate is STIBOR or 12.00
noon (Oslo time) if the Reference Rate is NIBOR.
(C)
Screen Rate Determination for Floating Rate Notes – Compounded Daily SONIA –
Non-Index Determination
Where the applicable Final Terms specifies: (1) “Screen Rate Determination” as the
manner in which the Rate of Interest is to be determined and “Overnight Rate” to be
“Applicable”; (2) “Compounded Daily SONIA” as the Reference Rate; and (3) “Index
Determination” to be “Not Applicable”, the Rate of Interest for an Interest Period will,
subject to Condition 3(b)(viii) (
Benchmark Discontinuation
) and as provided below, be
Compounded Daily SONIA Formula Rate with respect to such Interest Period plus or
minus (as indicated in the applicable Final Terms) the applicable Margin (if any).
As used in these Conditions,
Compounded Daily SONIA Formula Rate
means,
with respect to an Interest Period, the rate of return of a daily compound interest
investment during the Observation Period corresponding to such Interest Period (with
the daily SONIA reference rate as reference rate for the calculation of interest) as
calculated by the Agent or the Calculation Agent, as applicable, as at the relevant
Interest Determination Date, in accordance with the following formula (and the
resulting percentage will be rounded, if necessary, to the fifth decimal place, with
0.000005 being rounded upwards):
where:
d
is the number of calendar days in:
(1)
Final Terms, the relevant Interest Period; or
(2)
the applicable Final Terms, the relevant Observation Period;
d
o
is the number of London Banking Days in:
(1)
Final Terms, the relevant Interest Period; or
(2)
the applicable Final Terms, the relevant Observation Period;
i
is a series of whole numbers from one to d
o
, each representing a London
Banking Day in chronological order from, and including, the first London
Banking Day in:
(1)
Final Terms, the relevant Interest Period; or
0010155-0003437 UKO2: 2005996996.8
53
(2)
the applicable Final Terms, the relevant Observation Period;
London Banking Day
means any day on which commercial banks are open
for general business (including dealing in foreign exchange and foreign
currency deposits) in London;
n
i
, for any London Banking Day "i", means the number of calendar days from
(and including) such London Banking Day "i" up to (but excluding) the
following London Banking Day;
Observation Period
means, in respect of an Interest Period, the period from
(and including) the date falling "p" London Banking Days prior to the first day
of such Interest Period to (but excluding) the date falling "p" London Banking
Days prior to (1) the Interest Payment Date for such Interest Period or (2)
such earlier date, if any, on which the Notes become due and payable;
p
means:
(1)
Final Terms, the number of London Banking Days specified as the
“Lag Period” in the applicable Final Terms (or, if no such number is so
specified, five London Banking Days); or
(2)
the applicable Final Terms, the number of London Banking Days
specified as the “Observation Shift Period” in the applicable Final
Terms (or, if no such number is so specified, five London Banking
Days);
SONIA reference rate
means, in respect of any London Banking Day (
LBD
x
),
a reference rate equal to the daily Sterling Overnight Index Average (
SONIA
)
rate for LBD
x
as provided by the administrator of SONIA to authorised
distributors and as then published on the Relevant Screen Page (or, if the
Relevant Screen Page is unavailable, as otherwise published by such
authorised distributors) on the London Banking Day immediately following
LBD
x
; and
SONIA
i
means the SONIA reference rate for:
(1)
Final Terms, the London Banking Day falling "p" London Banking
Days prior to the relevant London Banking Day "i"; or
(2)
the applicable Final Terms, the relevant London Banking Day "i".
If, where any Rate of Interest is to be calculated pursuant to this Condition 3(b)(ii)(C),
in respect of any London Banking Day for which the SONIA reference rate is required
to be determined, the Agent or the Calculation Agent, as applicable, determines that
the applicable SONIA reference rate is not available on the Relevant Screen Page
and has not otherwise been published by the relevant authorised distributors, then
(unless the Agent or the Calculation Agent, as applicable, has been notified of any
0010155-0003437 UKO2: 2005996996.8
54
Successor Rate or Alternative Rate (and any related Adjustment Spread and/or
Benchmark Amendments) pursuant to Condition 3(b)(viii) (
Benchmark
Discontinuation
), if applicable) the SONIA reference rate in respect of such London
Banking Day shall be:
(1)
Bank Rate
) prevailing at 5.00 p.m.
(London time) (or, if earlier, the close of business) on such London Banking
Day; plus (II) the mean of the spread of the SONIA reference rate to the Bank
Rate over the previous five London Banking Days on which a SONIA
reference rate has been published, excluding the highest spread (or, if there
is more than one highest spread, one only of those highest spreads) and
lowest spread (or, if there is more than one lowest spread, one only of those
lowest spreads) to the Bank Rate; or
(2)
(I) the SONIA reference rate published on the Relevant Screen Page (or
otherwise published by the relevant authorised distributors) for the first
preceding London Banking Day on which the SONIA reference rate was
published on the Relevant Screen Page (or otherwise published by the
relevant authorised distributors) or (II) if this is more recent, the latest rate
determined under (1) above,
and, in each case, references to the "SONIA reference rate" in this Condition
3(b)(ii)(C) shall be construed accordingly.
In the event that the Rate of Interest cannot be determined in accordance with the
foregoing provisions, the Rate of Interest shall (subject to Condition 3(b)(viii)
(
Benchmark Discontinuation
)) be:
(1)
substituting, where a different Margin, Maximum Rate of Interest and/or
Minimum Rate of Interest is to be applied to the relevant Interest Period from
that which applied to the last preceding Interest Period, the Margin, Maximum
Rate of Interest and/or Minimum Rate of Interest (as the case may be)
relating to the relevant Interest Period, in place of the Margin, Maximum Rate
of Interest and/or Minimum Rate of Interest (as applicable) relating to that last
preceding Interest Period); or
(2)
Interest which would have been applicable to such Notes for the first
scheduled Interest Period had the Notes been in issue for a period equal in
duration to the first scheduled Interest Period but ending on (and excluding)
the Interest Commencement Date (but applying the Margin and, if applicable,
any Maximum Rate of Interest and/or Minimum Rate of Interest, applicable to
the first scheduled Interest Period).
If the Notes become due and payable in accordance with Condition 8 (
Events of
Default
), the final Rate of Interest shall be calculated for the period from (and
including) the previous Interest Payment Date to (but excluding) the date on which
the Notes become so due and payable, and such Rate of Interest shall continue to
apply to the Notes for so long as interest continues to accrue thereon as provided in
Condition 3(c) (
Accrual of Interest
).
0010155-0003437 UKO2: 2005996996.8
55
(D)
Screen Rate Determination for Floating Rate Notes – Compounded Daily SONIA –
Index Determination
Where the applicable Final Terms specifies: (1) “Screen Rate Determination” as the
manner in which the Rate of Interest is to be determined and “Overnight Rate” to be
“Applicable”; (2) “Compounded Daily SONIA” as the Reference Rate; and (3) “Index
Determination” to be “Applicable”, the Rate of Interest for an Interest Period will,
subject to Condition 3(b)(viii) (
Benchmark Discontinuation
) and as provided below, be
the Compounded Daily SONIA Index Rate with respect to such Interest Period plus or
minus (as indicated in the applicable Final Terms) the applicable Margin (if any).
Compounded Daily SONIA Index Rate
means, with respect to an Interest Period,
the rate of return of a daily compound interest investment as calculated by the Agent
or the Calculation Agent, as applicable, on the relevant Interest Determination Date in
accordance with the following formula (and the resulting percentage will be rounded,
if necessary, to the fifth decimal place, with 0.000005 being rounded upwards):
where:
d
is the number of calendar days from (and including) the day in relation to
which SONIA Compounded Index
Start
is determined to (but excluding) the day
in relation to which SONIA Compounded Index
End
is determined;
London Banking Day
has the meaning set out in Condition 3(b)(ii)(C) above;
Relevant Number
is the number specified as such in the applicable Final
Terms (or, if no such number is specified, five);
SONIA Compounded Index
End
means the SONIA Compounded Index value
relating to the London Banking Day falling the Relevant Number of London
Banking Days prior to (1) the Interest Payment Date for the relevant Interest
Period or (2) such earlier date, if any, on which the Notes become due and
payable;
SONIA Compounded Index
Start
means the SONIA Compounded Index value
relating to the London Banking Day falling the Relevant Number of London
Banking Days prior to the first day of the relevant Interest Period; and
the
SONIA Compounded Index
means, with respect to any London Banking
Day, the value of the SONIA compounded index that is provided by the
administrator of the SONIA reference rate to authorised distributors and as
then published on the Relevant Screen Page (or, if the Relevant Screen Page
is unavailable, as otherwise published by such authorised distributors) in
respect of such London Banking Day.
If, where any Rate of Interest is to be calculated pursuant to this Condition 3(b)(ii)(D),
the Agent or the Calculation Agent, as applicable, determines that the relevant
SONIA Compounded Index value required to determine SONIA Compounded
Index
Start
or SONIA Compounded Index
End
is not available on the Relevant Screen
Page and has not otherwise been published by the relevant authorised distributors by
0010155-0003437 UKO2: 2005996996.8
56
5.00 p.m. (London time) (or, if later, by the time falling one hour after the customary
or scheduled time for publication thereof in accordance with the then-prevailing
operational procedures of the administrator of the SONIA reference rate or of such
other information service, as the case may be) on the relevant Interest Determination
Date, the Compounded Daily SONIA Index Rate for the applicable Interest Period for
which the relevant SONIA Compounded Index value is not available shall be
"Compounded Daily SONIA Formula Rate" determined in accordance with Condition
3(b)(ii)(C) above as if Index Determination had been specified as being Not
Applicable in the applicable Final Terms, and for these purposes: (1) the
"Observation Method" shall be deemed to be "Observation Shift" and (2) the
"Observation Shift Period" shall be deemed to be equal to the Relevant Number of
London Banking Days, as if those alternative elections had been made in the
applicable Final Terms.
If the Notes become due and payable in accordance with Condition 8 (
Events of
Default
), the final Rate of Interest shall be calculated for the period from (and
including) the previous Interest Payment Date to (but excluding) the date on which
the Notes become so due and payable, and such Rate of Interest shall continue to
apply to the Notes for so long as interest continues to accrue thereon as provided in
Condition 3(c) (
Accrual of Interest
).
(E)
Screen Rate Determination for Floating Rate Notes – Compounded Daily SOFR –
Non-Index Determination
Where the applicable Final Terms specifies: (1) “Screen Rate Determination” as the
manner in which the Rate of Interest is to be determined and “Overnight Rate” to be
“Applicable”; (2) “Compounded Daily SOFR” as the Reference Rate; and (3) “Index
Determination” to be “Not Applicable”, the Rate of Interest for an Interest Period will,
subject to Condition 3(b)(ix) (
Benchmark Discontinuation – SOFR
) and as provided
below, be Compounded Daily SOFR Formula Rate with respect to such Interest
Period plus or minus (as indicated in the applicable Final Terms) the applicable
Margin (if any).
Compounded Daily SOFR Formula Rate
means, with respect to an Interest Period,
the rate of return of a daily compound interest investment in U.S. dollars (with the
Secured Overnight Financing Rate as the reference rate for the calculation of
interest) as calculated by the Agent or the Calculation Agent, as applicable, on the
relevant Interest Determination Date in accordance with the following formula (and
the resulting percentage will be rounded, if necessary, to the nearest fifth decimal
place, with 0.000005 being rounded upwards):
where:
d
is the number of calendar days in:
(1)
Method in the applicable Final Terms, the relevant Interest Period; or
0010155-0003437 UKO2: 2005996996.8
57
(2)
the applicable Final Terms, the relevant Observation Period;
d
o
is the number of U.S. Government Securities Business Days in:
(1)
Method in the applicable Final Terms, the relevant Interest Period; or
(2)
the applicable Final Terms, the relevant Observation Period;
i
is a series of whole numbers from one to d
o
, each representing the relevant
U.S. Government Securities Business Day in chronological order from, and
including, the first U.S. Government Securities Business Day in:
(1)
Method in the applicable Final Terms, the relevant Interest Period; or
(2)
the applicable Final Terms, the relevant Observation Period;
Lock-out Period
means the period from (and including) the day following the
Interest Determination Date to (but excluding) the corresponding Interest
Payment Date;
n
i
, for any U.S. Government Securities Business Day "i", means the number
of calendar days from (and including) such U.S. Government Securities
Business Day "i" up to (but excluding) the following U.S. Government
Securities Business Day;
Observation Period
means, in respect of an Interest Period, the period from
(and including) the date falling "p" U.S. Government Securities Business Days
prior to the first day of such Interest Period to (but excluding) the date falling
"p" U.S. Government Securities Business Days prior to (1) the Interest
Payment Date for such Interest Period or (2) such earlier date, if any, on
which the Notes become due and payable;
p
means:
(1)
applicable Final Terms, the number of U.S. Government Securities
Business Days specified as the "Lookback Period (
p
)" in the
applicable Final Terms (or, if no such number is so specified, five U.S.
Government Securities Business Days); or
(2)
applicable Final Terms, zero U.S. Government Securities Business
Days; or
(3)
the applicable Final Terms, the number of U.S. Government Securities
Business Days specified as the "Observation Shift Period" in the
applicable Final Terms (or, if no such number is so specified, five U.S.
Government Securities Business Days);
0010155-0003437 UKO2: 2005996996.8
58
Reference Day
means each U.S. Government Securities Business Day in the
relevant Interest Period, other than any U.S. Government Securities Business
Day in the Lock-out Period;
SOFR
means, in respect of any U.S. Government Securities Business Day, a
rate determined in accordance with the following provisions:
(1)
Government Securities Business Day that appears on the SOFR
Administrator's Website at or about 3.00 p.m. (New York City time) on
the U.S. Government Securities Business Day immediately following
such U.S. Government Securities Business Day; and
(2)
both a Benchmark Transition Event and its related Benchmark
Replacement Date have occurred, then the Agent or the Calculation
Agent, as applicable, shall use the Secured Overnight Financing Rate
published on the SOFR Administrator's Website for the first preceding
U.S. Government Securities Business Day on which the Secured
Overnight Financing Rate was published on the SOFR Administrator's
Website;
SOFR
i
means, in respect of any U.S. Government Securities Business Day
"i":
(1)
applicable Final Terms, SOFR in respect of the U.S. Government
Securities Business Day falling "
p
" U.S. Government Securities
Business Days prior to the relevant U.S. Government Securities
Business Day "i"; or
(2)
applicable Final Terms:
(I)
“i” that is a Reference Day, SOFR in respect of the U.S.
Government Securities Business Day immediately preceding
such Reference Day; or
(II)
“i” that is not a Reference Day (being a U.S. Government
Securities Business Day in the Lock-out Period), SOFR in
respect of the U.S. Government Securities Business Day
immediately preceding the last Reference Day of the relevant
Interest Period (such last Reference Day coinciding with the
Interest Determination Date); or
(3)
the applicable Final Terms, SOFR in respect of such U.S. Government
Securities Business Day "i"; and
U.S. Government Securities Business Day
means any day except for a
Saturday, a Sunday or a day on which the Securities Industry and Financial
Markets Association recommends that the fixed income departments of its
0010155-0003437 UKO2: 2005996996.8
59
members be closed for the entire day for purposes of trading in U.S.
government securities.
Certain other capitalised terms used in the foregoing terms and provisions
relating to determination of the Compounded Daily SOFR Formula Rate have
the meanings set forth under Condition 3(b)(ix) (
Benchmark Discontinuation –
SOFR
) below.
Notwithstanding anything to the contrary, if both a Benchmark Transition Event and
its related Benchmark Replacement Date have occurred with respect to the
Compounded Daily SOFR Formula Rate (or any component part thereof), the
benchmark replacement provisions set forth in Condition 3(b)(ix) (
Benchmark
Discontinuation – SOFR
) below shall apply for the purposes of all determinations of
the Rate of Interest in respect of the Notes.
If the Notes become due and payable in accordance with Condition 8 (
Events of
Default
), the final Rate of Interest shall be calculated for the period from (and
including) the previous Interest Payment Date to (but excluding) the date on which
the Notes become so due and payable, and such Rate of Interest shall continue to
apply to the Notes for so long as interest continues to accrue thereon as provided in
Condition 3(c) (
Accrual of Interest
).
(F)
Screen Rate Determination for Floating Rate Notes – Compounded Daily SOFR –
Index Determination
Where the applicable Final Terms specifies: (1) “Screen Rate Determination” as the
manner in which the Rate of Interest is to be determined and “Overnight Rate” to be
“Applicable”; (2) “Compounded Daily SOFR” as the Reference Rate; and (3) “Index
Determination” to be “Applicable”, the Rate of Interest for an Interest Period will,
subject to Condition 3(b)(ix) (
Benchmark Discontinuation – SOFR
) and as provided
below, be the Compounded Daily SOFR Index Rate with respect to such Interest
Period plus or minus (as indicated in the applicable Final Terms) the applicable
Margin (if any).
Compounded SOFR Index Rate
means, with respect to an Interest Period, the rate
of return of a daily compound interest investment as calculated by the Agent or the
Calculation Agent, as applicable, on the relevant Interest Determination Date in
accordance with the following formula (and the resulting percentage will be rounded,
if necessary, to the nearest fifth decimal place, with 0.000005 being rounded
upwards):
where:
d
is the number of calendar days from (and including) the day in relation to
which "SOFR Index
Start
" is determined to (but excluding) the day in relation to
which "SOFR Index
End
" is determined;
Relevant Number
is the number specified as such in the applicable Final
Terms (or, if no such number is specified, five);
0010155-0003437 UKO2: 2005996996.8
60
SOFR Index
End
means the SOFR Index value relating to the U.S. Government
Securities Business Day falling the Relevant Number of U.S. Government
Securities Business Days prior to (1) the Interest Payment Date for the
relevant Interest Period or (2) such earlier date, if any, on which the Notes
become due and payable;
SOFR Index
Start
means the SOFR Index value relating to the U.S.
Government Securities Business Day falling the Relevant Number of U.S.
Government Securities Business Days prior to the first date of the relevant
Interest Period;
the
SOFR Index
means, with respect to any U.S. Government Securities
Business Day, prior to a Benchmark Replacement Date, the SOFR Index
published for such U.S. Government Securities Business Day as such value
appears on the SOFR Administrator's Website at 3:00 p.m. (New York City
time) on such U.S. Government Securities Business Day; and
U.S. Government Securities Business Day
has the meaning set out in
Condition 3(b)(ii)(E) above.
Certain other capitalised terms used in the foregoing terms and provisions
relating to determination of the Compounded SOFR Index Rate have the
meanings set forth under Condition 3(b)(ix) (
Benchmark Discontinuation –
SOFR
) below.
If, where any Rate of Interest is to be calculated pursuant to this Condition 3(b)(ii)(F),
the Agent or the Calculation Agent, as applicable, determines that the SOFR
Index
Start
or the SOFR Index
End
does not appear on the SOFR Administrator's
Website by 3.00 p.m. (New York City time) on the relevant Interest Determination
Date and a Benchmark Transition Event and its related Benchmark Replacement
Date have not occurred with respect to the Compounded SOFR Index Rate (or any
component part thereof), the Compounded SOFR Index Rate for the applicable
Interest Period for which such SOFR Index value is not available shall be the
"Compounded Daily SOFR Formula Rate" determined in accordance with Condition
3(b)(ii)(E) above as if Index Determination had been specified as being Not
Applicable in the applicable Final Terms, and for these purposes: (1) the
"Observation Method" shall be deemed to be "Observation Shift", and (2) the
"Observation Shift Period" shall be deemed to be equal to the Relevant Number of
U.S. Government Securities Business Days, as if those alternative elections had
been made in the applicable Final Terms.
Notwithstanding anything to the contrary, if both a Benchmark Transition Event and
its related Benchmark Replacement Date have occurred with respect to the
Compounded SOFR Index Rate (or any component part thereof), the benchmark
replacement provisions set forth in Condition 3(b)(ix) (
Benchmark Discontinuation –
SOFR
) below shall apply for the purposes of all determinations of the Rate of Interest
in respect of the Notes.
If the Notes become due and payable in accordance with Condition 8 (
Events of
Default
), the final Rate of Interest shall be calculated for the period from (and
including) the previous Interest Payment Date to (but excluding) the date on which
the Notes become so due and payable, and such Rate of Interest shall continue to
0010155-0003437 UKO2: 2005996996.8
61
apply to the Notes for so long as interest continues to accrue thereon as provided in
Condition 3(c) (
Accrual of Interest
).
(G)
Screen Rate Determination for Floating Rate Notes – Average SOFR
Where the applicable Final Terms specifies: (1) “Screen Rate Determination” as the
manner in which the Rate of Interest is to be determined and “Overnight Rate” to be
“Applicable”; (2) “Average SOFR” as the Reference Rate; and (3) “Index
Determination” to be “Not Applicable”, the Rate of Interest for an Interest Period will,
subject to Condition 3(b)(ix) (
Benchmark Discontinuation – SOFR
) and as provided
below, be the Average SOFR Rate with respect to such Interest Period plus or minus
(as indicated in the applicable Final Terms) the applicable Margin (if any).
Average SOFR Rate
means, with respect to an Interest Period, the arithmetic mean
of SOFR in effect during such Interest Period as calculated by the Agent or the
Calculation Agent, as applicable, on the relevant Interest Determination Date in
accordance with the following formula (and the resulting percentage will be rounded,
if necessary, to the nearest fifth decimal place, with 0.000005 being rounded
upwards):
where
d
o
,
i
,
SOFR
,
SOFR
i
,
n
i
and
d
have the meanings set out in Condition
3(b)(ii)(E) above.
Notwithstanding anything to the contrary, if both a Benchmark Transition Event and
its related Benchmark Replacement Date have occurred with respect to the Average
SOFR Rate (or any component part thereof), the benchmark replacement provisions
set forth in Condition 3(b)(ix) (
Benchmark Discontinuation – SOFR
) below shall apply
for the purposes of all determinations of the Rate of Interest in respect of the Notes.
If the Notes become due and payable in accordance with Condition 8 (
Events of
Default
), the final Rate of Interest shall be calculated for the period from (and
including) the previous Interest Payment Date to (but excluding) the date on which
the Notes become so due and payable, and such Rate of Interest shall continue to
apply to the Notes for so long as interest continues to accrue thereon as provided in
Condition 3(c) (
Accrual of Interest
).
(iii)
Minimum and/or Maximum Rate of Interest
If the applicable Final Terms specifies a Minimum Rate of Interest for any Interest
Period, then, in the event that the Rate of Interest in respect of such Interest Period
determined in accordance with the provisions of paragraph (ii) above is less than
such Minimum Rate of Interest, the Rate of Interest for such Interest Period shall be
such Minimum Rate of Interest. If the applicable Final Terms specifies a Maximum
Rate of Interest for any Interest Period, then, in the event that the Rate of Interest in
respect of such Interest Period determined in accordance with the provisions of
paragraph (ii) above is greater than such Maximum Rate of Interest, the Rate of
Interest for such Interest Period shall be such Maximum Rate of Interest.
(iv)
Determination of Rate of Interest and Calculation of Interest Amounts
0010155-0003437 UKO2: 2005996996.8
62
The Agent or the Calculation Agent, as applicable, will at or as soon as practicable
after each time at which the Rate of Interest is to be determined, determine the Rate
of Interest for the relevant Interest Period.
The Agent or the Calculation Agent, as applicable, will calculate the amount of
interest (the
Interest Amount
) payable on the Floating Rate Notes for the relevant
Interest Period by applying the Rate of Interest to:
(A)
the aggregate outstanding nominal amount of the Notes represented by such
Global Note; or
(B)
and, in each case, multiplying such sum by the applicable Day Count Fraction, and
rounding the resultant figure to the nearest sub-unit of the relevant Specified
Currency half of any such sub-unit being rounded upwards or otherwise in
accordance with applicable market convention. Where the Specified Denomination of
a Floating Rate Note in definitive form is a multiple of the Calculation Amount, the
Interest Amount payable in respect of such Note shall be the product of the amount
(determined in the manner provided above) for the Calculation Amount and the
amount by which the Calculation Amount is multiplied to reach the Specified
Denomination, without any further rounding.
Day Count Fraction
means, in respect of the calculation of an amount of interest in
accordance with this Condition 3 (
Interest
):
(i)
Terms, the actual number of days in the Interest Period divided by 365 (or, if
any portion of that Interest Period falls in a leap year, the sum of (I) the actual
number of days in that portion of the Interest Period falling in a leap year
divided by 366 and (II) the actual number of days in that portion of the Interest
Period falling in a non-leap year divided by 365);
(ii)
number of days in the Interest Period divided by 365;
(iii)
number of days in the Interest Period divided by 365 or, in the case of an
Interest Payment Date falling in a leap year, 366;
(iv)
days in the Interest Period divided by 360;
(v)
Terms, the number of days in the Interest Period divided by 360, calculated on
a formula basis as follows:
[360
(Y
2
1
)]
[30
(M
2
M
1
)] (D
2
D
1
)
DayCount Fraction
where:
360
0010155-0003437 UKO2: 2005996996.8
63
"Y
1
" is the year, expressed as a number, in which the first day of the Interest
Period falls:
"Y
2
" is the year, expressed as a number, in which the day immediately
following the last day of the Interest Period falls;
"M
1
" is the calendar month, expressed as a number, in which the first day of
the Interest Period falls;
"M
2
" is the calendar month, expressed as a number, in which the day
immediately following the last day of the Interest Period falls;
"D
1
" is the first calendar day, expressed as a number, of the Interest Period,
unless such number is 31, in which case D
1
will be 30; and
"D
2
" is the calendar day, expressed as a number, immediately following the
last day included in the Interest Period, unless such number would be 31 and
D
1
is greater than 29, in which case D
2
will be 30;
(vi)
the number of days in the Interest Period divided by 360, calculated on a
formula basis as follows:
[360
(Y
2
1
)]
[30
(M
2
M
1
)] (D
2
D
1
)
DayCount Fraction
where:
360
"Y
1
" is the year, expressed as a number, in which the first day of the Interest
Period falls:
"Y
2
" is the year, expressed as a number, in which the day immediately
following the last day of the Interest Period falls;
"M
1
" is the calendar month, expressed as a number, in which the first day of
the Interest Period falls;
"M
2
" is the calendar month, expressed as a number, in which the day
immediately following the last day of the Interest Period falls;
"D
1
" is the first calendar day, expressed as a number, of the Interest Period,
unless such number would be 31, in which case D
1
will be 30; and
"D
2
" is the calendar day, expressed as a number, immediately following the
last day included in the Interest Period, unless such number would be 31, in
which case D
2
will be 30; or
(vii)
days in the Interest Period divided by 360, calculated on a formula basis as
follows:
DayCount Fraction
[360
(Y
2
1
)]
[30
(M
2
M
1
)] (D
2
D
1
) 360
0010155-0003437 UKO2: 2005996996.8
64
where:
"Y
1
" is the year, expressed as a number, in which the first day of the Interest
Period falls:
"Y
2
" is the year, expressed as a number, in which the day immediately
following the last day of the Interest Period falls;
"M
1
" is the calendar month, expressed as a number, in which the first day of
the Interest Period falls;
"M
2
" is the calendar month, expressed as a number, in which the day
immediately following the last day of the Interest Period falls;
"D
1
" is the first calendar day, expressed as a number, of the Interest Period,
unless (i) that day is the last day of February or (ii) such number would be 31,
in which case D1 will be 30; and
"D
2
" is the calendar day, expressed as a number, immediately following the
last day included in the Interest Period, unless (i) that day is the last day of
February but not the Maturity Date or (ii) such number would be 31 and D
2
will
be 30.
(v)
Linear Interpolation
Where Linear Interpolation is specified as applicable in respect of an Interest Period
in the applicable Final Terms, the Rate of Interest for such Interest Period shall be
calculated by the Agent or the Calculation Agent, as applicable, by straight line linear
interpolation by reference to two rates based on the relevant Reference Rate (where
Screen Rate Determination is specified as applicable in the applicable Final Terms)
or the relevant Floating Rate Option (where ISDA Determination is specified as
applicable in the applicable Final Terms), one of which shall be determined as if the
Designated Maturity were the period of time for which rates are available next shorter
than the length of the relevant Interest Period and the other of which shall be
determined as if the Designated Maturity were the period of time for which rates are
available next longer than the length of the relevant Interest Period provided however
that if there is no rate available for a period of time next shorter or, as the case may
be, next longer, then the Agent or the Calculation Agent, as applicable, shall
determine such rate at such time and by reference to such sources as an
independent adviser, appointed by the Issuer and acting in good faith and in a
commercially reasonable manner as an expert, determines appropriate.
Designated Maturity
means, in relation to Screen Rate Determination, the period of
time designated in the Reference Rate.
(vi)
Notification of Rate of Interest and Interest Amounts
(A)
Terms as the manner in which the Rate of Interest is to be determined and
“Overnight Rate” is specified in the applicable Final Terms to be “Applicable”,
the Agent or the Calculation Agent, as applicable, will cause the Rate of
Interest and each Interest Amount for each Interest Period and the relevant
Interest Payment Date to be notified to the Issuer and any stock exchange on
which the relevant Floating Rate Notes are for the time being listed and notice
0010155-0003437 UKO2: 2005996996.8
65
thereof to be published in accordance with Condition 12 (
Notices
) as soon as
possible after their determination but in no event later than the fourth London
Business Day thereafter. Each Interest Amount and Interest Payment Date so
notified may subsequently be amended (or appropriate alternative
arrangements made by way of adjustment) without prior notice in the event of
an extension or shortening of the Interest Period. Any such amendment will be
promptly notified to each stock exchange on which the relevant Floating Rate
Notes are for the time being listed and to the Noteholders in accordance with
Condition 12 (
Notices
). For the purposes of this paragraph, the expression
London Business Day
means a day (other than a Saturday or a Sunday) on
which banks and foreign exchange markets are open for general business in
London.
(B)
as the manner in which the Rate of Interest is to be determined and
“Overnight Rate” is specified in the applicable Final Terms to be “Applicable”,
the Agent or the Calculation Agent, as applicable, will cause the Rate of
Interest and each Interest Amount for each Interest Period and the relevant
Interest Payment Date to be notified to the Issuer and any stock exchange on
which the relevant Floating Rate Notes are for the time being listed and notice
thereof to be published in accordance with Condition 12 (
Notices
) as soon as
possible after their determination but in no event later than (1) where the
applicable Final Terms specifies the Reference Rate as “Compounded Daily
SONIA”, the second London Banking Day thereafter or (2) where the
applicable Final Terms specifies the Reference Rate as “Compounded Daily
SOFR” or “Average SOFR”, the second U.S. Government Securities Business
Day thereafter. Each Rate of Interest, Interest Amount and Interest Payment
Date so notified may subsequently be amended (or appropriate alternative
arrangements made by way of adjustment) without prior notice in the event of
an extension or shortening of the relevant Interest Period. Any such
amendment or alternative arrangements will promptly be notified to each stock
exchange on which the relevant Floating Rate Notes are for the time being
listed and to the Noteholders in accordance with Condition 12 (
Notices
).
(vii)
Certificates to be Final
All certificates, communications, opinions, determinations, calculations, quotations
and decisions given, expressed, made or obtained for the purposes of the provisions
of this Condition 3(b) (
Interest on Floating Rate Notes
) by the Agent, an Independent
Adviser (as defined below) or the Calculation Agent, as applicable, shall (in the
absence of wilful default, bad faith or manifest error) be binding on the Issuer, the
Issuer’s designee (as defined below), the Guarantor (in the case of Notes having the
benefit of the Guarantee), the Agent, the Calculation Agent, the other Paying Agents
and all Noteholders and Couponholders and (in the absence as aforesaid) no liability
to the Issuer, the Issuer’s designee, the Guarantor (in the case of Notes having the
benefit of the Guarantee), the Noteholders or the Couponholders shall attach to the
Agent, an Independent Adviser or the Calculation Agent, as applicable, in connection
with the exercise or non-exercise by it of its powers, duties and discretions pursuant
to such provisions.
(viii)
Benchmark Discontinuation
0010155-0003437 UKO2: 2005996996.8
66
Notwithstanding the foregoing provisions of this Condition 3(b) (
Interest on Floating
Rate Notes
), if:
(1)
Compounded Daily SOFR nor Average SOFR; and
(2)
occurred in relation to a Reference Rate at any time when any Rate of
Interest (or the relevant component thereof) remains to be determined by
reference to such Reference Rate,
then the following provisions shall apply:
(A)
practicable, an Independent Adviser (as defined below) to determine (without
any requirement for any consent or approval of the Noteholders or the
Couponholders), no later than 10 days prior to the relevant Interest
Determination Date relating to the next succeeding Interest Period (the
IA
Determination Cut-off Date
), a Successor Rate (as defined below) or,
alternatively, if there is no Successor Rate, an Alternative Reference Rate (as
defined below), and in either case an Adjustment Spread (as defined below),
for the purposes of determining the Rate of Interest (or the relevant
component part thereof) applicable to the Notes;
(B)
applicable) is determined in accordance with paragraph (A) above, such
Successor Rate or, failing which, such Alternative Reference Rate (as
applicable) shall be the Reference Rate for each of the future Interest Periods
for which the Rate of Interest (or the relevant component thereof) was
otherwise to be determined by reference to the relevant Reference Rate
(subject to the subsequent operation of, and to adjustment as provided in, this
Condition 3(b)(viii) (
Benchmark Discontinuation
));
(C)
Alternative Reference Rate (as applicable) in accordance with the above
provisions, the Independent Adviser, following consultation with the Issuer,
may also specify changes to these Conditions, including but not limited to the
Day Count Fraction, Relevant Screen Page, Specified Time, Business Day
Convention, Business Day, Interest Determination Date, Reference Banks,
Additional Business Centre and/or the definition of Reference Rate applicable
to the Notes, and/or the method for determining the fallback to the Reference
Rate in relation to the Notes, in each case in order to follow market practice in
relation to the Successor Rate or the Alternative Reference Rate (as
applicable). If a Successor Rate or Alternative Rate is determined in
accordance with the foregoing provisions, the Independent Adviser (in
consultation with the Issuer) will determine the Adjustment Spread to be
applied to such Successor Rate or Alternative Rate (as the case may be) for
each subsequent determination of a relevant Rate of Interest (or a relevant
component part thereof) by reference to such Successor Rate or Alternative
Rate (as applicable). For the avoidance of doubt, the Issuer shall be obliged,
and the Issuer shall direct the Agent (if applicable) who (upon such direction)
shall be obliged, in each case without the requirement for any consent or
approval of the Noteholders or the Couponholders, to use its reasonable
0010155-0003437 UKO2: 2005996996.8
67
endeavours to effect such amendments to the Agency Agreement and these
Conditions, as applicable, as may be specified by the Independent Adviser
following consultation with the Issuer in order to give effect to this Condition
3(b)(viii)(C) (such amendments, the
Benchmark Amendments
). For the
avoidance of doubt, no Noteholder or Couponholder consent shall be required
in connection with effecting the Benchmark Amendments or such other
changes, including for the execution of any documents, amendments or other
steps by the Issuer, the Guarantor (in the case of Notes having the benefit of
the Guarantee) or the Agent (if required). Notwithstanding the foregoing
provisions of this Condition, the Agent shall not be required to agree to the
amendments and changes referred to above that in the Agent’s opinion,
acting reasonably and in good faith, imposes more onerous obligations upon it
or exposes it to additional duties, responsibilities or liability, or reduces or
amends the protective provisions afforded to the Agent in the Agency
Agreement.
(D)
or Alternative Reference Rate (as applicable), the applicable Adjustment
Spread and the specific terms of any Benchmark Amendments give notice
thereof to the Agent and, in accordance with Condition 12 (
Notices
), the
Noteholders and the Couponholders (which notice shall be irrevocable);
(E)
applicable Adjustment Spread, is not determined by an Independent Adviser
in accordance with the above provisions prior to the relevant IA Determination
Cut-off Date, then the Rate of Interest for the next Interest Period shall be
determined by reference to the original Reference Rate and the fallback
provisions set out in Condition 3(b)(ii)(B), (C) or (D), as applicable; for the
avoidance of doubt, in such circumstances the Rate of Interest for any
subsequent Interest Periods shall be subject to the subsequent operation of,
and to adjustment as provided in, this Condition 3(b)(viii) (
Benchmark
Discontinuation
); and
(F)
(
Benchmark Discontinuation
) shall act in good faith and in a commercially
reasonable manner and in accordance with the provisions of this Condition
3(b)(viii) (
Benchmark Discontinuation
) in respect of any determination made
by it pursuant to this Condition 3(b)(viii) (
Benchmark Discontinuation
).
The occurrence of a Benchmark Event shall be determined by the Issuer and
promptly notified by the Issuer to the Agent, the Calculation Agent and the Paying
Agents. For the avoidance of doubt, none of the Agent, the Calculation Agent or the
Paying Agents shall have any responsibility for making such determination.
For the purposes of this Condition 3(b)(viii) (
Benchmark Discontinuation
):
Adjustment Spread
means the spread (which may be positive, negative or zero),
quantum or formula or methodology for calculating a spread, which the Independent
Adviser (in consultation with the Issuer) determines is required to be applied to the
Successor Rate or the Alternative Reference Rate (as applicable) and is the spread,
quantum, formula or methodology which:
0010155-0003437 UKO2: 2005996996.8
68
(1)
replacement of the Reference Rate with the Successor Rate by any Relevant
Nominating Body (as defined below); or
(2)
to in (1) above has been made, or in the case of an Alternative Reference Rate,
the Independent Adviser (in consultation with the Issuer) determines is
recognised or acknowledged as being in customary market usage in international
debt capital markets transactions which reference the Reference Rate, where
such rate has been replaced by the Successor Rate or the Alternative Reference
Rate (as applicable); or
(3)
Independent Adviser (in consultation with the Issuer) determines as being the
industry standard for over-the-counter derivative transactions which reference
the original Reference Rate, where such rate has been replaced by the
Successor Rate or the Alternative Reference Rate (as applicable); or
(4)
the Independent Adviser (in consultation with the Issuer) in its discretion
determines (acting in good faith and in a commercially reasonable manner) to be
appropriate;
Alternative Reference Rate
means the rate that the Independent Adviser (in
consultation with the Issuer) determines (acting in good faith and in a commercially
reasonable manner) has replaced the relevant Reference Rate in customary market
usage in the international debt capital markets for the purposes of determining
floating rates of interest (or the relevant component thereof) in respect of bonds
denominated in the Specified Currency and with an interest period of a comparable
duration to the relevant Interest Period, or, if the Independent Adviser (in consultation
with the Issuer) determines that there is no such rate, such other rate as the
Independent Adviser (in consultation with the Issuer) determines in its sole discretion
is most comparable to the relevant Reference Rate;
Benchmark Event
means, with respect to a Reference Rate:
(1)
consecutive Business Days or (B) ceasing to exist or be administered; or
(2)
Reference Rate that it will, on or before a specified date, cease publishing such
Reference Rate permanently or indefinitely (in circumstances where no
successor administrator has been appointed that will continue publication of such
Reference Rate) and (B) the date falling six months prior to the specified date
referred to in (2)(A); or
(3)
Reference Rate that such Reference Rate has been permanently or indefinitely
discontinued; or
(4)
administrator of such Reference Rate that such Reference Rate will, on or before
0010155-0003437 UKO2: 2005996996.8
69
a specified date, be permanently or indefinitely discontinued and (B) the date
falling six months prior to the specified date referred to in (4)(A); or
(5)
administrator of such Reference Rate that means such Reference Rate will be
prohibited from being used or that its use will be subject to restrictions or adverse
consequences, in each case on or before a specified date and (B) the date
falling six months prior to the specified date referred to in (5)(A); or
(6)
that, in the view of such supervisor, such Reference Rate is no longer
representative of its underlying market; or
(7)
Reference Rate that, in the view of such supervisor, such Reference Rate will, as
of a specified date, no longer be representative of its underlying market and (B)
the date falling six months prior to the specified date referred to in (7)(A); or
(8)
the Issuer, the Agent, the Calculation Agent, any other party specified in the
applicable Final Terms as being responsible for calculating the Rate of Interest
or any Paying Agent to calculate any payments due to be made to any
Noteholder or Couponholder using such Reference Rate;
Independent Adviser
means an independent financial institution of international
repute or other independent financial adviser experienced in the international debt
capital markets, in each case appointed by the Issuer at its own expense. For the
avoidance of doubt, neither the Agent nor the Calculation Agent shall act as the
Independent Adviser unless it accepts such appointment in writing;
Relevant Nominating Body
means, in respect of a Reference Rate:
(1)
central bank or other supervisory authority which is responsible for supervising
the administrator of the Reference Rate; or
(2)
constituted at the request of (a) the central bank for the currency to which the
Reference Rate relates, (b) any central bank or other supervisory authority which
is responsible for supervising the administrator of the Reference Rate, (c) a
group of the aforementioned central banks or other supervisory authorities, or (d)
the Financial Stability Board or any part thereof; and
Successor Rate
means the rate that the Independent Adviser (in consultation with
the Issuer) determines (acting in good faith and in a commercially reasonable
manner) is a successor to or replacement of the Reference Rate which is formally
recommended by any Relevant Nominating Body.
(ix)
Benchmark Discontinuation – SOFR
Notwithstanding the foregoing provisions of this Condition 3(b) (
Interest on Floating
Rate Notes
), if:
0010155-0003437 UKO2: 2005996996.8
70
(1)
Compounded Daily SOFR or Average SOFR; and
(2)
determined by reference to the Benchmark,
then the following provisions shall apply:
(A)
Benchmark Replacement
If the Issuer or its designee determines prior to the Reference Time on the relevant
Interest Determination Date that a Benchmark Transition Event and its related
Benchmark Replacement Date have occurred with respect to the then-current
Benchmark, the Benchmark Replacement will replace the then-current Benchmark for
all purposes relating to the Notes in respect of all determinations on such date and all
determinations on all subsequent dates (subject to any subsequent application of this
Condition 3(b)(ix) with respect to such Benchmark Replacement).
In the event that the Issuer or its designee is unable to, or does not, determine a
Benchmark Replacement, or a Benchmark Replacement is not implemented in
accordance with this Condition 3(b)(ix), prior to 5:00 p.m. (New York City time) on the
relevant Interest Determination Date, the Rate of Interest for the relevant Interest
Period shall be:
(1)
substituting, where a different Margin, Maximum Rate of Interest and/or
Minimum Rate of Interest is to be applied to the relevant Interest Period from
that which applied to the last preceding Interest Period, the Margin, Maximum
Rate of Interest and/or Minimum Rate of Interest (as the case may be)
relating to the relevant Interest Period, in place of the Margin, Maximum Rate
of Interest and/or Minimum Rate of Interest (as applicable) relating to that last
preceding Interest Period); or
(2)
Interest which would have been applicable to such Series of Notes for the first
scheduled Interest Period had the Notes been in issue for a period equal in
duration to the first scheduled Interest Period but ending on (and excluding)
the Interest Commencement Date (and applying the Margin and, if applicable,
any Maximum Rate of Interest and/or Minimum Rate of Interest, applicable to
the first scheduled Interest Period).
(B)
Benchmark Replacement Conforming Changes
In connection with the implementation of a Benchmark Replacement, the Issuer or its
designee will have the right to make Benchmark Replacement Conforming Changes
from time to time.
The Issuer shall be obliged, and the Issuer shall direct the Agent (if applicable) who
(upon such direction) shall be obliged, in each case without the requirement for any
consent or approval of the Noteholders or the Couponholders, to use its reasonable
endeavours to effect any Benchmark Replacement Conforming Changes (including,
inter alia
, by the execution of a supplemental Agency Agreement). For the avoidance
of doubt, no Noteholder or Couponholder consent shall be required in connection with
effecting the Benchmark Replacement Conforming Changes or such other changes,
0010155-0003437 UKO2: 2005996996.8
71
including for the execution of any documents, amendments or other steps by the
Issuer, the Guarantor (in the case of Notes having the benefit of the Guarantee) or
the Agent (if required).
Notwithstanding the foregoing provisions of this Condition, the Agent shall not be
required to agree to the amendments and changes referred to above that in the
Agent’s opinion, acting reasonably and in good faith, imposes more onerous
obligations upon it or exposes it to additional duties, responsibilities or liability, or
reduces or amends the protective provisions afforded to the Agent in the Agency
Agreement.
(C)
Decisions and Determinations
Any determination, decision or election that may be made by the Issuer or its
designee pursuant to this Condition 3(b)(ix), including (without limitation) any
determination with respect to a tenor, rate or adjustment or of the occurrence or non-
occurrence of an event, circumstance or date and any decision to take or refrain from
taking any action or any selection, will be conclusive and binding absent manifest
error, may be made in the Issuer's or its designee's sole discretion (as applicable),
and, notwithstanding anything to the contrary in these Conditions, shall become
effective without any requirement for the consent or approval of Noteholders,
Couponholders or any other party. Neither the Agent nor the Calculation Agent (if
applicable) shall have any responsibility to make any such determinations or exercise
discretion with respect to the foregoing.
In connection with any Benchmark Replacement Conforming Changes in accordance
with this Condition 3(b)(ix), if and for so long as the Notes are admitted to trading and
listed on the official list of a stock exchange, the Issuer shall comply with the rules of
that stock exchange.
The Agent and the Calculation Agent (if applicable) shall be entitled to conclusively
rely on any determination made by the Issuer or its designee and, in the absence of
fraud, negligence or wilful default, will have no liability for actions taken at the
direction of the Issuer or its designee.
(D)
Notice and Certification
Any Benchmark Replacement Conforming Changes determined under this Condition
3(b)(ix) shall be notified promptly by the Issuer to the Agent, the Calculation Agent (if
applicable) and, in accordance with Condition 12 (
Notices
), the Noteholders. Such
notice shall be irrevocable and shall specify the effective date of such Benchmark
Replacement Conforming Changes.
(E)
Definitions
In this Condition 3(b)(ix):
Benchmark
means, initially, SOFR (provided that if a Benchmark Transition Event
and its related Benchmark Replacement Date have occurred with respect to SOFR
(or the published daily SOFR used in the calculation thereof) or any Benchmark
which has replaced it in accordance with this Condition 3(b)(ix), then the term
"
Benchmark
" means the applicable Benchmark Replacement);
0010155-0003437 UKO2: 2005996996.8
72
Benchmark Replacement
means the first alternative set forth in the order below that
can be determined by the Issuer or its designee as of the Benchmark Replacement
Date:
(1)
recommended by the Relevant Governmental Body as the replacement for
the then-current Benchmark and (II) the Benchmark Replacement
Adjustment;
(2)
Adjustment; or
(3)
Issuer or its designee as the replacement for the then-current Benchmark
giving due consideration to any industry-accepted rate of interest as a
replacement for the then-current Benchmark for U.S. dollar denominated
floating rate notes at such time and (II) the Benchmark Replacement
Adjustment;
Benchmark Replacement Adjustment
means the first alternative set forth in the
order below that can be determined by the Issuer or its designee as of the
Benchmark Replacement Date:
(1)
adjustment, (which may be a positive or negative value or zero) that has been
selected or recommended by the Relevant Governmental Body for the
applicable Unadjusted Benchmark Replacement;
(2)
ISDA Fallback Rate, then the ISDA Fallback Adjustment; or
(3)
that has been selected by the Issuer or its designee giving due consideration
to any industry-accepted spread adjustment, or method for calculating or
determining such spread adjustment, for the replacement of the then-current
Benchmark with the applicable Unadjusted Benchmark Replacement for U.S.
dollar denominated floating rate notes at such time;
Benchmark Replacement Conforming Changes
means, with respect to any
Benchmark Replacement, any technical, administrative or operational changes
(including changes to the definition of Interest Period, timing and frequency of
determining rates and making payments of interest, rounding amounts or tenors, and
other administrative matters) that the Issuer or its designee decides may be
appropriate to reflect the adoption of such Benchmark Replacement in a manner
substantially consistent with market practice (or, if the Issuer or its designee decides
that adoption of any portion of such market practice is not administratively feasible or
if the Issuer or its designee determines that no market practice for use of the
Benchmark Replacement exists, in such other manner as the Issuer or its designee
determines is reasonably necessary);
Benchmark Replacement Date
means the earliest to occur of the following events
with respect to the then-current Benchmark (including the daily published component
used in the calculation thereof):
0010155-0003437 UKO2: 2005996996.8
73
(1)
Event", the later of (1) the date of the public statement or publication of
information referenced therein and (2) the date on which the administrator of
the Benchmark permanently or indefinitely ceases to provide the Benchmark
(or such component); or
(2)
the date of the public statement or publication of information referenced
therein.
For the avoidance of doubt, if the event giving rise to the Benchmark Replacement
Date occurs on the same day as, but earlier than, the Reference Time on the relevant
Interest Determination Date, the Benchmark Replacement Date will be deemed to
have occurred prior to the Reference Time for such determination;
Benchmark Transition Event
means the occurrence of one or more of the following
events with respect to the then-current Benchmark (including the daily published
component used in the calculation thereof):
(1)
administrator of the Benchmark (or such component) announcing that such
administrator has ceased or will cease to provide the Benchmark (or such
component), permanently or indefinitely, provided that, at the time of such
statement or publication, there is no successor administrator that will continue
to provide the Benchmark (or such component);
(2)
for the administrator of the Benchmark (or such component), the central bank
for the currency of the Benchmark (or such component), an insolvency official
with jurisdiction over the administrator for the Benchmark (or such
component), a resolution authority with jurisdiction over the administrator for
the Benchmark (or such component) or a court or an entity with similar
insolvency or resolution authority over the administrator for the Benchmark (or
such component), which states that the administrator of the Benchmark (or
such component) has ceased or will cease to provide the Benchmark (or such
component) permanently or indefinitely, provided that, at the time of such
statement or publication, there is no successor administrator that will continue
to provide the Benchmark (or such component); or
(3)
for the administrator of the Benchmark announcing that the Benchmark is no
longer representative;
designee
means an affiliate or any other agent of the Issuer;
ISDA Definitions
means the 2006 ISDA Definitions published by ISDA or any
successor thereto, as amended or supplemented from time to time, or any successor
definitional booklet for interest rate derivatives published from time to time;
ISDA Fallback Adjustment
means the spread adjustment (which may be a positive
or negative value or zero) that would apply for derivatives transactions referencing
the ISDA Definitions to be determined upon the occurrence of an index cessation
event with respect to the Benchmark;
0010155-0003437 UKO2: 2005996996.8
74
ISDA Fallback Rate
means the rate that would apply for derivatives transactions
referencing the ISDA Definitions to be effective upon the occurrence of an index
cessation date with respect to the Benchmark for the applicable tenor excluding the
applicable ISDA Fallback Adjustment;
Reference Time
with respect to any determination of the Benchmark means (1) if the
Benchmark is SOFR, 3:00 p.m. (New York City time) or such other time as is
reasonably agreed between the Issuer or its designee and the Agent or the
Calculation Agent, as applicable and (2) if the Benchmark is not SOFR, the time
determined by the Issuer or its designee in accordance with the Benchmark
Replacement Conforming Changes;
Relevant Governmental Body
means the Federal Reserve Board and/or the
Federal Reserve Bank of New York, or a committee officially endorsed or convened
by the Federal Reserve Board and/or the Federal Reserve Bank of New York or any
successor thereto;
SOFR
with respect to any day means the Secured Overnight Financing Rate
published for such day by the SOFR Administrator on the SOFR Administrator's
Website;
SOFR Administrator
means the Federal Reserve Bank of New York (or a successor
administrator of SOFR);
SOFR Administrator's Website
means the website of the Federal Reserve Bank of
New York, or any successor source; and
Unadjusted Benchmark Replacement
means the Benchmark Replacement
excluding the Benchmark Replacement Adjustment.
(c)
Each Note (or in the case of the redemption of part only of a Note, that part only of such
Note) will cease to bear interest (if any) from the date for its redemption unless payment of
principal is improperly withheld or refused. In such event, interest will continue to accrue until
whichever is the earlier of:
(i)
(ii)
such Note has been received by the Agent and notice to that effect has been given to
the Noteholders in accordance with Condition 12 (
Notices
).
4. Payments
(a)
Subject as provided below:
(i)
account in the relevant Specified Currency maintained by the payee with, or at the
option of the payee by a cheque in such Specified Currency drawn on, a bank in the
principal financial centre of the country of such Specified Currency (which, if the
Specified Currency is New Zealand dollars, shall be Auckland); and
0010155-0003437 UKO2: 2005996996.8
75
(ii)
account to which euro may be credited or transferred) specified by the payee or at
the option of the payee, by a euro cheque.
Payments will be subject in all cases to any fiscal or other laws and regulations applicable
thereto in the place of payment, but without prejudice to the provisions of Condition 6
(
Taxation
).
(b)
Payments of principal in respect of definitive Notes will (subject as provided below) be made
in the manner provided in paragraph (a) above only against presentation and surrender (or,
in the case of part payment of any sum due, endorsement) of definitive Notes, and payments
of interest in respect of definitive Notes will (subject as provided below) be made as
aforesaid only against presentation and surrender (or, in the case of part payment of any
sum due, endorsement) of Coupons, in each case at the specified office of any Paying Agent
outside the United States (which expression, as used herein, means the United States of
America (including the States and the District of Columbia and its possessions)).
Fixed Rate Notes in definitive form should be presented for payment together with all
unmatured Coupons appertaining thereto (which expression shall for this purpose include
Coupons falling to be issued on exchange of matured Talons), failing which the amount of
any missing unmatured Coupon (or, in the case of payment not being made in full, the same
proportion of the amount of such missing unmatured Coupon as the sum so paid bears to
the sum due) will be deducted from the sum due for payment. Each amount of principal so
deducted will be paid in the manner mentioned above against surrender of the relative
missing Coupon at any time before the expiry of 10 years after the Relevant Date (as
defined in Condition 6 (
Taxation
)) in respect of such principal (whether or not such Coupon
would otherwise have become void under Condition 7 (
Prescription
)) or, if later, five years
from the date on which such Coupon would otherwise have become due, but in no event
thereafter.
Upon any Fixed Rate Note in definitive form becoming due and repayable prior to its Maturity
Date, all unmatured Talons (if any) appertaining thereto will become void and no further
Coupons will be issued in respect thereof.
Upon the date on which any Floating Rate Note in definitive form becomes due and
repayable, unmatured Coupons and Talons (if any) relating thereto (whether or not attached)
shall become void and no payment or, as the case may be, exchange for further Coupons
shall be made in respect thereof.
If the due date for redemption of any definitive Note is not an Interest Payment Date, interest
(if any) accrued in respect of such Note from (and including) the preceding Interest Payment
Date or, as the case may be, the Interest Commencement Date shall be payable only
against surrender of the relevant definitive Note.
(c)
Payments of principal and interest (if any) in respect of Notes represented by any global
Note will (subject as provided below) be made in the manner specified above in relation to
definitive Notes or otherwise in the manner specified in the relevant global Note, where
applicable against presentation or surrender, as the case may be, of such global Note at the
specified office of any Paying Agent outside the United States.
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76
A record of each payment made against presentation or surrender of such global Note,
distinguishing between any payment of principal and any payment of interest, will be made
on such global Note either by the Paying Agent to which it was presented or in the records of
Euroclear and Clearstream, Luxembourg, as applicable.
(d)
The holder of a global Note shall be the only person entitled to receive payments in respect
of Notes represented by such global Note and the Issuer or, as the case may be, the
Guarantor will be discharged by payment to, or to the order of, the holder of such global
Note in respect of each amount so paid. Each of the persons shown in the records of
Euroclear or Clearstream, Luxembourg as the beneficial holder of a particular nominal
amount of Notes represented by such global Note must look solely to Euroclear or
Clearstream, Luxembourg, as the case may be, for their share of each payment so made by
the Issuer or, as the case may be, the Guarantor to, or to the order of, the holder of such
global Note.
Notwithstanding the foregoing provisions of this Condition, if any amount of principal and/or
interest in respect of Notes is payable in U.S. dollars, such U.S. dollar payments of principal
and/or interest in respect of such Notes will be made at the specified office of a Paying
Agent in the United States if:
(i)
States with the reasonable expectation that such Paying Agents would be able to
make payment in U.S. dollars at such specified offices outside the United States of the
full amount of principal and interest on the Notes in the manner provided above when
due;
(ii)
outside the United States is illegal or effectively precluded by exchange controls or
other similar restrictions on the full payment or receipt of principal and interest in U.S.
dollars; and
(iii)
opinion of the Issuer and the Guarantor (in the case of Notes having the benefit of the
Guarantee), adverse tax consequences to the Issuer and the Guarantor (in the case of
Notes having the benefit of the Guarantee).
(e)
If the date for payment of any amount in respect of any Note or Coupon is not a Payment
Day, the holder thereof shall not be entitled to payment until the next following Payment Day
in the relevant place and shall not be entitled to further interest or other payment in respect
of such delay. For these purposes,
Payment Day
means any day which (subject to
Condition 7 (
Prescription
)) is:
(i)
and are open for general business (including dealing in foreign exchange and foreign
currency deposits) in:
(a)
(b)
the applicable Final Terms;
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(ii)
Final Terms, a day on which the TARGET System is open; and
(iii)
on which commercial banks and foreign exchange markets settle payments and are
open for general business (including dealing in foreign exchange and foreign currency
deposits) in the principal financial centre of the country of the relevant Specified
Currency (which if the Specified Currency is New Zealand dollars shall be Auckland) or
(2) in relation to any sum payable in euro, a day on which the TARGET System is
open.
(f)
Any reference in these Terms and Conditions to principal in respect of the Notes shall be
deemed to include, as applicable:
(i)
Condition 6 (
Taxation
);
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
the Issuer under or in respect of the Notes.
Any reference in these Terms and Conditions to interest in respect of the Notes shall be
deemed to include, as applicable, any additional amounts which may be payable with
respect to interest under Condition 6 (
Taxation
).
5. Redemption and Purchase
(a)
Unless previously redeemed or purchased and cancelled as specified below, each Note will
be redeemed by the Issuer at its Final Redemption Amount specified in, or determined in the
manner specified in, the applicable Final Terms in the relevant Specified Currency on the
Maturity Date.
(b)
The Notes may be redeemed at the option of the Issuer in whole, but not in part, at any time
(if this Note is not a Floating Rate Note) or on any Interest Payment Date (if this Note is a
Floating Rate Note), on giving not less than 30 nor more than 60 days' notice to the
Noteholders (which notice shall be irrevocable), if:
(i)
become obliged to pay additional amounts as provided or referred to in Condition 6
0010155-0003437 UKO2: 2005996996.8
78
(
Taxation
) or (in the case of Notes having the benefit of the Guarantee) the Guarantor
would be unable for reasons outside its control to procure payment by the Issuer and
in making payment itself would be required to pay such additional amounts, in each
case as a result of any change in, or amendment to, the laws or regulations of the
Kingdom of Norway or any political subdivision or any authority thereof or therein
having power to tax, or any change in the application or official interpretation of such
laws or regulations, which change or amendment becomes effective on or after the
Issue Date of the first Tranche of the Notes; and
(ii)
(in the case of Notes having the benefit of the Guarantee) taking reasonable measures
available to it,
provided that no such notice of redemption shall be given earlier than 90 days (or, in the
case of Floating Rate Notes, a number of days which is equal to the aggregate of the
number of days falling within the then current interest period applicable to the Floating Rate
Notes plus 60 days) prior to the earliest date on which the Issuer or, as the case may be, the
Guarantor (in the case of Notes having the benefit of the Guarantee) would be obliged to pay
such additional amounts were a payment in respect of the Notes then due.
Prior to the publication of any notice of redemption pursuant to this Condition 5(b)
(
Redemption for Tax Reasons
), the Issuer shall deliver to the Agent a certificate signed by
one director of the Issuer or, as the case may be, one director of the Guarantor (in the case
of Notes having the benefit of the Guarantee) stating that the Issuer is entitled to effect such
redemption and setting forth a statement of facts showing that the conditions precedent to
the right of the Issuer so to redeem have occurred, and an opinion of independent legal
advisers of recognised standing to the effect that the Issuer or, as the case may be, the
Guarantor (in the case of Notes having the benefit of the Guarantee) has or will become
obliged to pay such additional amounts as a result of such change or amendment.
Notes redeemed pursuant to this Condition 5(b) (
Redemption for Tax Reasons
) will be
redeemed at their Early Redemption Amount referred to in paragraph (g) below together (if
appropriate) with interest accrued to (but excluding) the date of redemption.
(c)
If Issuer Call is specified as being applicable in the applicable Final Terms, the Issuer shall,
having given:
(i)
Condition 12 (
Notices
); and
(ii)
Agent;
(which notices shall be irrevocable), redeem all or, if so specified in the applicable Final
Terms, some only of the Notes then outstanding on any Optional Redemption Date and at
the Optional Redemption Amount(s) specified in, or determined in the manner specified in,
the applicable Final Terms together, if appropriate, with interest accrued to (but excluding)
the relevant Optional Redemption Date. Any such redemption may, at the Issuer’s discretion,
be subject to one or more conditions precedent, in which case the notice of redemption shall
state the applicable condition precedent(s) and that, in the Issuer’s discretion, the Optional
Redemption Date may be delayed until such time as any or all such conditions shall be
0010155-0003437 UKO2: 2005996996.8
79
satisfied (or waived by the Issuer in its sole discretion), or such redemption may not occur in
the event that any or all such conditions shall not have been satisfied (or waived by the
Issuer in its sole discretion) by the Optional Redemption Date, or by the Optional
Redemption Date so delayed.
Any such redemption must be of a nominal amount not less than the Minimum Redemption
Amount and not more than a Higher Redemption Amount in each case as may be specified
in the applicable Final Terms. In the case of a partial redemption of Notes, the Notes to be
redeemed (
Redeemed Notes
) will be selected individually by lot, in the case of Redeemed
Notes represented by definitive Notes, and in accordance with the rules of Euroclear and/or
Clearstream, Luxembourg, (to be reflected in the records of Euroclear and Clearstream,
Luxembourg as either a pool factor or a reduction in nominal amount, at their discretion) in
the case of Redeemed Notes represented by a global Note, not more than 30 days prior to
the date fixed for redemption (such date of selection being hereinafter called the
Selection
Date
). In the case of Redeemed Notes represented by definitive Notes, a list of the serial
numbers of such Redeemed Notes will be published in accordance with Condition 12
(
Notices
) not less than 15 days prior to the date fixed for redemption. No exchange of the
relevant global Note will be permitted during the period from (and including) the Selection
Date to (and including) the date fixed for redemption pursuant to this paragraph (c) and
notice to that effect shall be given by the Issuer to the Noteholders in accordance with
Condition 12 (
Notices
) at least 15 days prior to the Selection Date.
(d)
If Make-Whole Redemption is specified as being applicable in the applicable Final Terms,
the Issuer may, having given not less than 15 nor more than 60 days' notice (or such other
notice period as may be specified in the applicable Final Terms) to the Noteholders in
accordance with Condition 12 (
Notices
) (which notice shall be irrevocable and shall specify
the date fixed for redemption (the
Make-Whole Redemption Date
)), redeem all or (if
redemption in part is specified as being applicable in the applicable Final Terms) some only
of the Notes then outstanding on any Make-Whole Redemption Date and at the Make-Whole
Redemption Amount together, if appropriate, with interest accrued to (but excluding) the
relevant Make-Whole Redemption Date. Any such redemption may, at the Issuer’s
discretion, be subject to one or more conditions precedent, in which case the notice of
redemption shall state the applicable condition precedent(s) and that, in the Issuer’s
discretion, the Make-Whole Redemption Date may be delayed until such time as any or all
such conditions shall be satisfied (or waived by the Issuer in its sole discretion), or such
redemption may not occur in the event that any or all such conditions shall not have been
satisfied (or waived by the Issuer in its sole discretion) by the Make-Whole Redemption
Date, or by the Make-Whole Redemption Date so delayed.
If redemption in part is specified as being applicable in the applicable Final Terms, any such
redemption must be of a nominal amount not less than the Minimum Redemption Amount
and not more than the Maximum Redemption Amount in each case as may be specified in
the applicable Final Terms.
In the case of a partial redemption of Notes, the Redeemed Notes will be selected
individually by lot, in the case of Redeemed Notes represented by definitive Notes, and in
accordance with the rules of Euroclear and/or Clearstream, Luxembourg (to be reflected in
the records of Euroclear and Clearstream, Luxembourg as either a pool factor or a reduction
in nominal amount, at their discretion), in the case of Redeemed Notes represented by a
Global Note, on a Selection Date not more than 30 days prior to the Make-Whole
Redemption Date. In the case of Redeemed Notes represented by definitive Notes, a list of
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80
the serial numbers of such Redeemed Notes will be published in accordance with Condition
12 (
Notices
) not less than 15 days prior to the Make-Whole Redemption Date. No exchange
of the relevant Global Note will be permitted during the period from (and including) the
Selection Date to (and including) the Make-Whole Redemption Date pursuant to this
paragraph (d) and notice to that effect shall be given by the Issuer to the Noteholders in
accordance with Condition 12 (
Notices
) at least 15 days prior to the Selection Date.
In this Condition 5(d) (
Make-Whole Redemption
),
Make-Whole Redemption Amount
means (A) the outstanding principal amount of the relevant Note or (B) if higher, the sum, as
determined by the Make-Whole Calculation Agent, of the present values of the remaining
scheduled payments of principal and interest to maturity (or, if Issuer Call is specified as
being applicable in the applicable Final Terms, and the Optional Redemption Amount
applicable to any Optional Redemption Date is specified as being an amount per Calculation
Amount equal to 100 per cent. of the principal amount of the Note, the remaining scheduled
payments of principal and interest to the first such Optional Redemption Date (assuming that
the Notes are to be redeemed on such date), as specified in the applicable Final Terms) on
the Notes to be redeemed (not including any portion of such payments of interest accrued to
the date of redemption) discounted to the Make-Whole Redemption Date on an annual basis
at the Reference Rate plus the Make-Whole Redemption Margin specified in the applicable
Final Terms, where:
CA Selected Bond
means a government security or securities (which, if the Specified
Currency is euro, will be a
German Bundesobligationen
) selected by the Make-Whole
Calculation Agent as having a maturity comparable to the remaining term of the Notes to be
redeemed that would be utilised, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities of comparable maturity
to the remaining term of such Notes;
Make-Whole Calculation Agent
means an independent investment, merchant or
commercial bank or financial institution selected by the Issuer for the purposes of calculating
the Make-Whole Redemption Amount, and notified to the Noteholders in accordance with
Condition 12 (
Notices
);
Reference Bond
means (A) if CA Selected Bond is specified in the applicable Final Terms,
the relevant CA Selected Bond or (B) if CA Selected Bond is not specified in the applicable
Final Terms, the security specified in the applicable Final Terms, provided that if the Make-
Whole Calculation Agent advises the Issuer that, for reasons of illiquidity or otherwise, the
relevant security specified is not appropriate for such purpose, such other central bank or
government security as the Make-Whole Calculation Agent may, with the advice of
Reference Market Makers, determine to be appropriate;
Reference Bond Price
means (i) the average of three Reference Market Maker Quotations
for the relevant Make-Whole Redemption Date, after excluding the highest and lowest
Reference Market Maker Quotations, (ii) if the Make-Whole Calculation Agent obtains fewer
than three, but more than one, such Reference Market Maker Quotations, the average of all
such quotations, or (iii) if only one such Reference Market Maker Quotation is obtained, the
amount of the Reference Market Maker Quotation so obtained;
Reference Market Maker Quotations
means, with respect to each Reference Market
Maker and any Make-Whole Redemption Date, the average, as determined by the Make-
Whole Calculation Agent, of the bid and asked prices for the Reference Bond (expressed in
each case as a percentage of its principal amount) quoted in writing to the Make-Whole
0010155-0003437 UKO2: 2005996996.8
81
Calculation Agent at the Quotation Time specified in the applicable Final Terms on the
Reference Rate Determination Day specified in the applicable Final Terms;
Reference Market Makers
means three brokers or market makers of securities such as the
Reference Bond selected by the Make-Whole Calculation Agent or such other three persons
operating in the market for securities such as the Reference Bond as are selected by the
Make-Whole Calculation Agent in consultation with the Issuer; and
Reference Rate
means, with respect to any Make-Whole Redemption Date, the rate per
annum equal to the equivalent yield to maturity of the Reference Bond, calculated using a
price for the Reference Bond (expressed as a percentage of its principal amount) equal to
the Reference Bond Price for such Make-Whole Redemption Date. The Reference Rate will
be calculated on the Reference Rate Determination Day specified in the applicable Final
Terms.
(e)
If Issuer Residual Call is specified as being applicable in the applicable Final Terms and, at
any time, the outstanding aggregate nominal amount of the Notes is equal to or less than 25
per cent. (or such other percentage as may be specified in the applicable Final Terms as
being the Residual Call Threshold) of the aggregate nominal amount of the Series issued
(other than as a result of a partial redemption of the Notes pursuant to Condition 5(c)
(
Redemption at the Option of the Issuer (Issuer Call)
) or Condition 5(d) (
Make-Whole
Redemption
)), the Notes may be redeemed at the option of the Issuer in whole, but not in
part, at any time (if this Note is not a Floating Rate Note) or on any Interest Payment Date (if
this Note is a Floating Rate Note), on giving not less than 15 and not more than 60 days’
notice (or such other notice period as may be specified in the applicable Final Terms) to the
Noteholders in accordance with Condition 12 (
Notices
) (which notice shall be irrevocable
and shall specify the date fixed for redemption) at the Residual Call Early Redemption
Amount together, if appropriate, with interest accrued to (but excluding) the date of
redemption.
(f)
If Investor Put is specified as being applicable in the applicable Final Terms, upon the holder
of any Note giving to the Issuer in accordance with Condition 12 (
Notices
) not less than 15
nor more than 30 days' notice the Issuer will, upon the expiry of such notice, redeem, in
whole (but not in part), such Note on the Optional Redemption Date and at the Optional
Redemption Amount specified in the applicable Final Terms together, if appropriate, with
interest accrued to (but excluding) the Optional Redemption Date.
If this Note is in definitive form and held outside Euroclear and Clearstream, Luxembourg, to
exercise the right to require redemption of this Note the holder of this Note must deliver such
Note at the specified office of any Paying Agent at any time during normal business hours of
such Paying Agent falling within the notice period, accompanied by a duly completed and
signed notice of exercise in the form (for the time being current) obtainable from any
specified office of any Paying Agent (a
Put Notice
) and in which the holder must specify a
bank account (or, if payment is by cheque, an address) to which payment is to be made
under this Condition accompanied by this Note or evidence satisfactory to the Paying Agent
concerned that this Note will, following delivery of the Put Notice, be held to its order or
under its control. If this Note is represented by a global Note or is in definitive form and held
through Euroclear or Clearstream, Luxembourg, to exercise the right to require redemption
of this Note the holder of this Note must, within the notice period, give notice to the Agent of
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82
such exercise in accordance with the standard procedures of Euroclear and Clearstream,
Luxembourg (which may include notice being given on their instruction by Euroclear or
Clearstream, Luxembourg or any common depositary or common safekeeper, as the case
may be, for them to the Agent by electronic means) in a form acceptable to Euroclear and
Clearstream, Luxembourg from time to time.
Any Put Notice or other notice given in accordance with the standard procedures of
Euroclear and Clearstream, Luxembourg given by a holder of any Note pursuant to this
paragraph shall be irrevocable except where prior to the due date of redemption an Event of
Default shall have occurred and be continuing in which event such holder, at its option, may
elect by notice to the Issuer to withdraw the notice given pursuant to this paragraph and
instead to declare such Note forthwith due and payable pursuant to Condition 8 (
Events of
Default
).
(g)
For the purpose of paragraph (b) above and Condition 8 (
Events of Default
), the Notes will
be redeemed at the Early Redemption Amount calculated as follows:
(i)
Final Redemption Amount thereof;
(ii)
which is or may be less or greater than the Issue Price or which is payable in a
Specified Currency other than that in which the Notes are denominated, at the amount
specified in, or determined in the manner specified in, the applicable Final Terms or, if
no such amount or manner is so specified in the Final Terms, at their nominal amount;
or
(iii)
accordance with the following formula:
Early Redemption Amount = RP x (1 + AY)
y
where:
RP
means the Reference Price;
AY
means the Accrual Yield expressed as a decimal; and
y
is the Day Count Fraction specified in the applicable Final Terms which will be
either (i) 30/360 (in which case the numerator will be equal to the number of days
(calculated on the basis of a 360 day year consisting of 12 months of 30 days each)
from (and including) the Issue Date of the first Tranche of the Notes to (but
excluding) the date fixed for redemption or (as the case may be) the date upon which
such Note becomes due and repayable and the denominator will be 360 (ii)
Actual/360 (in which case the numerator will be equal to the actual number of days
from (and including) the Issue Date of the first Tranche of the Notes to (but
excluding) the date fixed for redemption or (as the case may be) the date upon which
such Note becomes due and repayable and the denominator will be 360) or (iii)
Actual/365 (in which case the numerator will be equal to the actual number of days
from (and including) the Issue Date of the first Tranche of the Notes to (but
excluding) the date fixed for redemption or (as the case may be) the date upon which
such Note becomes due and repayable and the denominator will be 365).
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83
(h)
The Issuer or the Guarantor (in the case of Notes having the benefit of the Guarantee) may
at any time purchase Notes (provided that, in the case of definitive Notes, all unmatured
Coupons and Talons appertaining thereto are purchased therewith) at any price in the open
market or otherwise. Such Notes may be held, reissued, resold or, at the option of the Issuer
or the Guarantor (in the case of Notes having the benefit of the Guarantee), surrendered to
any Paying Agent for cancellation.
(i)
All Notes which are redeemed will forthwith be cancelled (together with all unmatured
Coupons attached thereto or surrendered therewith at the time of redemption). All Notes so
cancelled and the Notes purchased and cancelled pursuant to paragraph (g) above (together
with all unmatured Coupons cancelled therewith) shall be forwarded to the Agent and cannot
be reissued or resold.
(j)
If the amount payable in respect of any Zero Coupon Note upon redemption of such Zero
Coupon Note pursuant to paragraph (a), (b), (c), (d), (e) or (f) above or upon its becoming
due and repayable as provided in Condition 8 (
Events of Default
) is improperly withheld or
refused, the amount due and repayable in respect of such Zero Coupon Note shall be the
amount calculated as provided in paragraph (g)(iii) above as though the references therein
to the date fixed for the redemption or the date upon which such Zero Coupon Note
becomes due and payable were replaced by references to the date which is the earlier of:
(i)
paid; and
(ii)
received by the Agent and notice to that effect has been given to the Noteholders in
accordance with Condition 12 (
Notices
).
6. Taxation
All payments of principal and interest in respect of the Notes and Coupons by the Issuer or
(in the case of Notes having the benefit of the Guarantee) the Guarantor shall be made free
and clear of, and without withholding or deduction for, any taxes, duties, assessments or
governmental charges (
Taxes
) of whatever nature imposed, levied, collected, withheld or
assessed by or within the Kingdom of Norway or any authority therein or thereof having
power to tax, unless such withholding or deduction is required by law. In such event, the
Issuer or, as the case may be, the Guarantor (in the case of Notes having the benefit of the
Guarantee) shall pay such additional amounts as will result in receipt by the holders of the
Notes or Coupons of such amounts as would have been received by them had no such
withholding or deduction been required, except that no such additional amounts shall be
payable with respect to any Note or Coupon:
(a)
(b)
Note or Coupon by reason of the holder or beneficial owner having some connection
with the Kingdom of Norway other than the mere holding of such Note or Coupon; or
0010155-0003437 UKO2: 2005996996.8
84
(c)
extent that the holder thereof would have been entitled to such additional amounts on
presenting the same for payment on such thirtieth day; or
(d)
10-80 on payments to related companies or undertakings (as such term is defined in
the Norwegian Tax Act section 10-82) tax resident in a low-tax jurisdiction (as such
term is defined in the Norwegian Tax Act section 10-63).
In addition, any amounts to be paid on the Notes will be paid net of any deduction or
withholding imposed or required pursuant to sections 1471 through 1474 of the U.S. Internal
Revenue Code of 1986 (or any regulations thereunder or official interpretations thereof)
(
FATCA
) or any intergovernmental agreement with the United States to implement FATCA
(
IGA
) (or any law implementing such an intergovernmental agreement), and no additional
amounts will be required to be paid on account of any such deduction or withholding.
Relevant Date
means whichever is the later of (i) the date on which such payment first
becomes due and (ii) if the full amount payable has not been received by the Agent on or
prior to such due date, the date on which, the full amount having been so received, notice to
that effect is duly given to the Noteholders in accordance with Condition 12 (
Notices
).
7. Prescription
The Notes and Coupons will become void unless claims in respect of principal and/or
interest are made within a period of 10 years (in the case of principal) and five years (in the
case of interest) after the Relevant Date therefor.
There shall not be included in any Coupon sheet issued on exchange of a Talon any Coupon
the claim for payment in respect of which would be void pursuant to this Condition 7
(
Prescription
) or Condition 4(b) (
Presentation of definitive Notes and Coupons)
or any Talon
which would be void pursuant to Condition 4(b) (
Presentation of definitive Notes and
Coupons)
.
8. Events of Default
If any one or more of the following events (each an
Event of Default
) shall occur and is
continuing:
(a)
fails to pay any principal or interest on any of the Notes when due and such failure
continues, in the case of principal or interest, for a period of 30 days; or
(b)
does not perform or comply with any one or more of its other obligations in the Notes
which default is incapable of remedy or is not remedied within 90 days after notice of
such default shall have been given to the Agent at its specified office by any
Noteholder; or
(c)
is (or is, or could be, deemed by law or a court to be) insolvent or bankrupt or unable
to pay its debts, stops, suspends or threatens to stop or suspend payment of all or a
material part of (or of a particular type of) its debts, proposes or makes a general
assignment or an arrangement or composition with or for the benefit of the relevant
creditors in respect of any of such debts or a moratorium is agreed or declared in
0010155-0003437 UKO2: 2005996996.8
85
respect of or affecting all or any part of (or of a particular type of) the debts of the
Issuer or (in the case of Notes having the benefit of the Guarantee) the Guarantor; or
(d)
of the Issuer or (in the case of Notes having the benefit of the Guarantee) the
Guarantor, or (B) the Issuer or (in the case of Notes having the benefit of the
Guarantee) the Guarantor ceases or threatens to cease to carry on all or substantially
all of its business or operations, except:
(i)
(ii)
(iii)
reorganisation, merger or consolidation, on terms approved by an Extraordinary
Resolution of the Noteholders; or
(e)
(
Termination of Guarantee
), if the Guarantee ceases to be, or is claimed by the Issuer
or the Guarantor not to be, in full force and effect; or
(f)
effect to any of the events referred to in (c) to (e) above,
then any Note may, by notice given in writing to the Agent at its specified office by the holder
be declared immediately due and payable whereupon it shall become immediately due and
payable at the Early Redemption Amount (as described in Condition 5(g) (
Early Redemption
Amounts
)), together with accrued interest (if any) to the date of repayment, without further
formality unless such Event of Default shall have been remedied prior to the receipt of such
notice by the Agent.
As used herein:
Asset Transfer
means, at any particular time, any transfer or transfers by the Issuer or (in
the case of Notes having the benefit of the Guarantee) the Guarantor of all or substantially
all of its and its Subsidiaries' business or operations, taken as a whole, to one or more direct
or indirect wholly-owned Subsidiaries and/or, in the case of the Guarantor, to the Issuer;
Permitted Reorganisation
means any (i) consolidation by the Issuer or (in the case of
Notes having the benefit of the Guarantee) the Guarantor with, or merger of the Issuer or (in
the case of Notes having the benefit of the Guarantee) the Guarantor into, another person,
or (ii) conveyance, transfer or lease by the Issuer or (in the case of Notes having the benefit
of the Guarantee) the Guarantor of all or substantially all of its and its Subsidiaries'
properties and assets, taken as a whole, to any person, in each case where:
(a)
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 Issuer and
its Subsidiaries or the Guarantor and its Subsidiaries, in each case taken as a whole,
(such person, the Successor) shall be a corporation, partnership or trust, shall be
organised and validly existing under the laws of any jurisdiction and shall expressly
assume, by way of a deed of assumption governed by English law (the
Deed of
Assumption
), all obligations of the Issuer and/or the Guarantor, as applicable, under
the Notes and/or the Guarantee, as applicable; and
0010155-0003437 UKO2: 2005996996.8
86
(b)
certificate signed by one director of the Issuer or, as the case may be, one director of
the Guarantor (in the case of Notes having the benefit of the Guarantee) stating that
such consolidation, merger, conveyance, transfer or lease comply with the
requirements of this definition and that all conditions precedent provided for in this
definition relating to such transaction have been complied with, and (2) legal opinions
from (A) a leading firm of lawyers to the Successor in the country of incorporation of
the Successor, and (B) a leading firm of lawyers to the Successor in England, in each
case to the effect that, as a matter of the relevant law, the Deed of Assumption
constitutes legal, valid and binding obligations of the Successor and is enforceable in
accordance with its terms, such opinions to be available for inspection by
Noteholders and Couponholders at the specified offices of the Agent; and
Subsidiary
means, at any particular time, a company of which the Issuer or (in the case of
Notes having the benefit of the Guarantee) the Guarantor directly or indirectly owns or
controls at least a majority of the outstanding voting stock having power to elect directors of
such company.
9. Replacement of Notes, Coupons and Talons
Should any Note, Coupon or Talon be lost, stolen, mutilated, defaced or destroyed, it may be
replaced at the specified office of the Agent or any Replacement Agent upon payment by the
claimant of such costs and expenses as may be incurred in connection therewith and on
such terms as to evidence and indemnity as the Issuer may reasonably require. Mutilated or
defaced Notes, Coupons or Talons must be surrendered before replacements will be issued.
10. Agent and Paying Agents
The names of the initial Agent and the other initial Paying Agents and their initial specified
offices are set out below.
The Issuer and the Guarantor (in the case of Notes having the benefit of the Guarantee) is
entitled to vary or terminate the appointment of any Paying Agent and/or appoint additional
or other Paying Agents and/or approve any change in the specified office through which any
Paying Agent acts, provided that:
(i)
Paying Agent with a specified office in such place as may be required by the rules and
regulations of the relevant stock exchange or other relevant authority;
(ii)
(iii)
In addition, the Issuer and the Guarantor (in the case of Notes having the benefit of the
Guarantee) shall forthwith appoint a Paying Agent having a specified office in New York City
in the circumstances described in the final paragraph of Condition 4(d) (
General provisions
applicable to payments
). Notice of any variation, termination, appointment or change in
Paying Agents will be given to the Noteholders promptly by the issuer in accordance with
Condition 12 (
Notices
).
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87
11. Exchange of Talons
On and after the Interest Payment Date, on which the final Coupon comprised in any
Coupon sheet matures, the Talon (if any) forming part of such Coupon sheet may be
surrendered at the specified office of the Agent or any other Paying Agent in exchange for a
further Coupon sheet including (if such further Coupon sheet does not include Coupons to
(and including) the final date for the payment of interest due in respect of the Note to which it
appertains) a further Talon, subject to the provisions of Condition 7 (
Prescription
).
12. Notices
All notices regarding the Notes shall be published in a leading English language daily
newspaper of general circulation in London. It is expected that such publication will be made
in the Financial Times or any other daily newspaper in London. The Issuer shall also ensure
that notices are duly published in a manner which complies with the rules and regulations of
any stock exchange or other relevant authority on which the Notes are for the time being
listed or by which they have been admitted to trading including publication on the website of
the relevant stock exchange or relevant authority if required by those rules. Any such notice
will be deemed to have been given on the date of the first publication or, where required to
be published in both newspapers, on the date of the first publication in both such
newspapers.
Until such time as any definitive Notes are issued, there may (provided that, in the case of
Notes listed on any stock exchange or admitted to trading by another relevant authority,
such stock exchange or relevant authority permits), so long as the global Note(s) is or are
held in its/their entirety on behalf of Euroclear and Clearstream, Luxembourg, be substituted
for such publication in such newspaper(s) or such website the delivery of the relevant notice
to Euroclear and Clearstream, Luxembourg for communication by them to the holders of the
Notes. Any such notice shall be deemed to have been given to the holders of the Notes on
the day on which the said notice was given to Euroclear and Clearstream, Luxembourg.
Notices to be given by any holder of the Notes shall be in writing and given by lodging the
same, together (in the case of any Note in definitive form) with the relative Note or Notes,
with the Agent. Whilst any of the Notes are represented by a global Note, such notice may
be given by any holder of a Note to the Agent via Euroclear and/or Clearstream,
Luxembourg, as the case may be, in such manner as the Agent and Euroclear and/or
Clearstream, Luxembourg, as the case may be, may approve for this purpose.
13. Meetings of Noteholders, Modification and Waiver
The Agency Agreement contains provisions for convening meetings (including by way of
conference call or by use of a videoconference platform) of Noteholders to consider matters
affecting their interests, including the sanctioning by Extraordinary Resolution of a
modification of any of these Conditions. Such a meeting may be convened by Noteholders
holding not less than 10 per cent. in nominal principal amount of the Notes for the time being
outstanding. The quorum for any meeting convened to consider an Extraordinary Resolution
will be two or more persons holding or representing a clear majority in nominal amount of the
Notes for the time being outstanding, or at any adjourned meeting one or more persons
being or representing Noteholders whatever the nominal amount of the Notes held or
represented, unless the business of such meeting includes consideration of proposals,
inter
alia
, (i) to modify the maturity of the Notes or the dates on which interest is payable in
respect of the Notes, (ii) to reduce or cancel the principal amount of interest on the Notes,
(iii) to change the currency of payment of the Notes or the Coupons, (iv) to modify the
0010155-0003437 UKO2: 2005996996.8
88
provisions concerning the quorum required at any meeting of Noteholders or the majority
required to pass an Extraordinary Resolution, or (v) to modify or cancel the obligations of the
Guarantor under the Guarantee, in which case the necessary quorum will be two or more
persons holding or representing not less than 75 per cent., or at any adjourned meeting not
less than 25 per cent., in principal amount of the Notes for the time being outstanding. The
Agency Agreement provides that (i) a resolution passed at a meeting duly convened and
held in accordance with the Agency Agreement by a majority consisting of not less than 75
per cent. of the votes cast on such resolution, (ii) a resolution in writing signed by or on
behalf of the holders of not less than 75 per cent. in nominal amount of the Notes for the
time being outstanding or (iii) consent given by way of electronic consents through the
relevant clearing system(s) (in a form satisfactory to the Agent) by or on behalf of the holders
of not less than 75 per cent. in nominal amount of the Notes for the time being outstanding,
shall, in each case, be effective as an Extraordinary Resolution of the Noteholders. Any
Extraordinary Resolution duly passed shall be binding on Noteholders (whether or not they
were present at any meeting, and whether or not they voted on such resolution) and on all
Couponholders.
The Agent, the Issuer and (in the case of Notes having the benefit of the Guarantee) the
Guarantor may agree, without the consent of the Noteholders or Couponholders, to:
(i)
the sole opinion of the Issuer and (in the case of Notes having the benefit of the
Guarantee) the Guarantor, not prejudicial to the interests of the Noteholders; or
(ii)
sole opinion of the Issuer and (in the case of Notes having the benefit of the
Guarantee) the Guarantor, of a formal, minor or technical nature or is made to correct
a manifest error or to comply with mandatory provisions of the law of the jurisdiction in
which the Issuer is incorporated.
Any such modification shall be binding on the Noteholders and the Couponholders and any
such modification shall be notified to the Noteholders in accordance with Condition 12
(
Notices
) as soon as practicable thereafter.
In addition, the Agent shall be obliged to use its reasonable endeavours to effect any
Benchmark Amendments or Benchmark Replacement Confirming Changes in the
circumstances and as otherwise set out in Condition 3(b)(viii) (
Benchmark Discontinuation
)
or Condition 3(b)(ix) (
Benchmark Discontinuation – SOFR
) above (as applicable), without the
consent of the Noteholders or the Couponholders.
14. Substitution
The Issuer, or any previously substituted company, may at any time, without the consent of
the Noteholders or the Couponholders, substitute for itself as principal debtor under the
Notes and the Coupons a company (the
Substitute
) as principal debtor under the Notes or
Coupons in the manner specified in Schedule 6 to the Agency Agreement, provided that no
payment in respect of the Notes or the Coupons is at the relevant time overdue. The
substitution shall be made by a deed poll (the
Deed Poll
), to be substantially in the form
exhibited to the Agency Agreement, and may take place only if:
(i)
be unconditionally and irrevocably guaranteed by Equinor ASA (in such capacity, the
0010155-0003437 UKO2: 2005996996.8
89
New Guarantor
and such guarantee, the
New Guarantee
) and (in the case of Notes
having the benefit of the Guarantee) the Guarantor, by means of the Deed Poll;
(ii)
obtaining of any necessary consents) to ensure that the Deed Poll, the Notes and
Coupons represent valid, legally binding and enforceable obligations of the Substitute
and in the case of the Deed Poll of the New Guarantor and (in the case of Notes
having the benefit of the Guarantee) the Guarantor have been taken, fulfilled and done
and are in full force and effect;
(iii)
consequential amendments, as if it had been an original party to it;
(iv)
exchange shall have confirmed that following the proposed substitution of the
Substitute the Notes would continue to be listed on such stock exchange;
(v)
the Agent) from a lawyer or firm of lawyers with a leading securities practice in (i) the
Kingdom of Norway and, if applicable, any Substitute Jurisdiction (as defined in the
final paragraph of this Condition 14 (
Substitution
)) and (ii) England, in each case as to
the fulfilment of the preceding conditions of this Condition 14 (
Substitution
) and the
other matters specified in the Deed Poll; and
(vi)
Noteholders, stating that copies, or, pending execution, the agreed text, of all
documents in relation to the substitution which are referred to above, or which might
otherwise reasonably be regarded as material to Noteholders, will be available for
inspection at the specified office of each of the Paying Agents. References in
Condition 8 (
Events of Default
) to obligations under the Notes shall be deemed to
include obligations under the Deed Poll, and the events listed in Condition 8 (
Events of
Default
) shall be deemed to include the New Guarantee not being (or being claimed by
the New Guarantor not to be) in full force and effect and the provisions of Condition
8(c) to 8(e) (
Events of Default
) inclusive (other than the words "other than in respect of
the termination of the Guarantee pursuant to Condition 2(c) (
Termination of
Guarantee
)" in Condition 8(e)) shall be deemed to apply in addition to the New
Guarantor.
In connection with any proposed substitution pursuant to this Condition 14 (
Substitution
), the
Issuer (or previously substituted company, as the case may be) or Substitute shall not be
required to have regard to, or be in any way liable for, the consequences of such substitution
for individual Noteholders or the Couponholders resulting from their being for any purpose
domiciled or resident in, or otherwise connected with, or subject to the jurisdiction of, any
particular territory. No Noteholder or Couponholder shall, in connection with any such
substitution, be entitled to claim from the Issuer (or previously substituted company, as the
case may be) or Substitute any indemnification or payment in respect of any tax
consequence of any such substitution upon such individual Noteholders or Couponholders,
except to the extent already provided in Condition 6 (
Taxation
) as modified in accordance
with the following paragraph.
Where a substitution takes place pursuant to this Condition 14 (
Substitution
) and the
Substitute is subject, by reason of its incorporation or residence for tax purposes, to a
jurisdiction or any political subdivision or any authority thereof or therein having power to tax
0010155-0003437 UKO2: 2005996996.8
90
(the
Substitute Jurisdiction
) other than the Kingdom of Norway (or, as the case may be,
the jurisdiction of incorporation or residence for tax purposes of the preceding substituted
company) or any political subdivision or any authority thereof or therein having power to tax
(the
Previous Jurisdiction
), references to the Previous Jurisdiction in Condition 5(b)
(
Redemption for Tax Reasons
) and Condition 6 (
Taxation
) shall, in respect of any payments
to be made by the Substitute (but not in respect of payments to be made by (A) the New
Guarantor under the New Guarantee or (B) (in the case of Notes having the benefit of the
Guarantee) the Guarantor), be deemed to be replaced by references to the Substitute
Jurisdiction, and Conditions 5(b) (
Redemption for Tax Reasons
) and 6 (
Taxation
) shall be
deemed to be modified accordingly when the substitution takes place.
15. Further Issues
The Issuer shall be at liberty from time to time without the consent of the Noteholders or
Couponholders to create and issue further notes having terms and conditions the same as
the Notes or the same in all respects save for the amount and date of the first payment of
interest thereon and so that the same shall be consolidated and form a single Series with the
outstanding Notes.
16. Contracts (Rights of Third Parties) Act 1999
A person who is not a Noteholder has no right under the Contracts (Rights of Third Parties)
Act 1999 (the Act) to enforce any term of the Notes, but this does not affect any right or
remedy of a third party which exists or is available apart from the Act.
17. Governing Law and Submission to Jurisdiction
(a)
contractual obligations arising out of or in connection with the Agency Agreement, the
Guarantee, the Notes and the Coupons are governed by, and shall be construed in
accordance with, English law.
(b)
any disputes (including a dispute relating to any non-contractual obligations) which
may arise out of or in connection with the Guarantee, the Notes or the Coupons and
accordingly any legal action or proceedings arising out of or in connection with the
Guarantee, the Notes or the Coupons (
Proceedings
) may be brought in such courts.
Each of the Issuer and the Guarantor irrevocably submits to the jurisdiction of such
courts and waives any objection to Proceedings in any such courts whether on the
ground of venue or on the ground that the Proceedings have been brought in an
inconvenient forum.
(c)
only. To the extent permitted by applicable law, each of the Noteholders and
Couponholders may take Proceedings against the Issuer and/or the Guarantor in any
other court of competent jurisdiction and concurrent Proceedings in any number of
jurisdictions.
(d)
registered office in England for the time being at One Kingdom Street, Paddington
Central, London W2 6BD to receive service of process in any Proceedings in England
based on any of the Notes or Coupons. If for any reason the Issuer or Guarantor does
not have such an agent in England, it will promptly appoint a substitute process agent
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91
and notify the Noteholders of such appointment. Nothing herein shall affect the right to
serve process in any other manner permitted by law.
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AGENT
The Bank of New York Mellon, London
Branch 160 Queen Victoria Street
London EC4V 4LA
United Kingdom
PAYING AGENT
The Bank of New York Mellon SA/NV, Luxembourg Branch
Vertigo Building - Polaris
2-4 rue, Eugène
Ruppert L-2453
Luxembourg
and/or such other or further Agent and other or further Paying Agents and/or specified offices as
may from time to time be duly appointed by the Issuer and notice of which has been given to the
Noteholders.
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93
SCHEDULE 2
FORMS OF GLOBAL AND DEFINITIVE NOTES, COUPONS AND TALONS
PART 1
FORM OF TEMPORARY GLOBAL NOTE
EQUINOR ASA
TEMPORARY GLOBAL NOTE
Unconditionally and (subject to Condition 2(c)) irrevocably
guaranteed by EQUINOR ENERGY AS
This Global Note is a Temporary Global Note in respect of a duly authorised issue of Notes (the
Notes
) of Equinor ASA (the
Issuer
) described, and having the provisions specified, in Part A of the
attached Final Terms (the
Final Terms
). References in this Global Note to the Conditions shall be
to the Terms and Conditions of the Notes other than VPS Notes as set out in Schedule 1 to the
Agency Agreement (as defined below) as completed by the information set out in the Final Terms,
but in the event of any conflict between the provisions of (a) that Schedule or (b) this Global Note
and the information set out in the Final Terms, the Final Terms will prevail.
Words and expressions defined or set out in the Conditions and/or the Final Terms shall have the
same meaning when used in this Global Note.
This Global Note is issued subject to, and with the benefit of, the Conditions and an Agency
Agreement (the
Agency Agreement
, which expression shall be construed as a reference to that
agreement as the same may be amended, supplemented, novated or restated from time to time)
dated 11 May 2023 and made between the Issuer, Equinor Energy AS as guarantor (the
Guarantor
), The Bank of New York Mellon, London Branch (the
Agent
) and the other agents
named in it.
For value received the Issuer, subject to and in accordance with the Conditions, promises to pay to
the bearer of this Global Note on the Maturity Date and/or on such earlier date(s) as all or any of
the Notes represented by this Global Note may become due and repayable in accordance with the
Conditions, the amount payable under the Conditions in respect of the Notes represented by this
Global Note on each such date and to pay interest (if any) on the nominal amount of the Notes
from time to time represented by this Global Note calculated and payable as provided in the
Conditions together with any other sums payable under the Conditions, upon (if the Final Terms
indicates that this Global Note is not intended to be a New Global Note) presentation and, at
maturity, surrender of this Global Note to or to the order of the Agent or any of the other paying
agents located outside the United States (except as provided in the Conditions) from time to time
appointed by the Issuer and the Guarantor in respect of the Notes, but in each case subject to the
requirements as to certification provided below.
If the Final Terms indicates that this Global Note is intended to be a New Global Note, the nominal
amount of Notes represented by this Global Note shall be the aggregate nominal amount from time
to time entered in the records of both Euroclear Bank SA/NV and Clearstream Banking S.A.
(together, the
relevant Clearing Systems
). The records of the relevant Clearing Systems (which
expression in this Global Note means the records that each relevant Clearing System holds for its
customers which reflect the amount of such customer's interest in the Notes) shall be conclusive
evidence of the nominal amount of Notes represented by this Global Note and, for these purposes,
a statement issued by a relevant Clearing System stating the nominal amount of Notes
0010155-0003437 UKO2: 2005996996.8
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represented by this Global Note at any time (which statement shall be made
0010155-0003437 UKO2: 2005996996.8
95
available to the bearer upon request) shall be conclusive evidence of the records of the relevant
Clearing System at that time.
If the Final Terms indicates that this Global Note is not intended to be a New Global Note, the
nominal amount of the Notes represented by this Global Note shall be the amount stated in the
Final Terms or, if lower, the nominal amount most recently entered by or on behalf of the Issuer in
the relevant column in Part 2 or 3 of Schedule One or in Schedule Two.
On any redemption or payment of interest being made in respect of, or purchase and cancellation
of, any of the Notes represented by this Global Note the Issuer shall procure that:
(a)
details of such redemption, payment or purchase and cancellation (as the case may be)
shall be entered
pro rata
in the records of the relevant Clearing Systems and, upon any
such entry being made, the nominal amount of the Notes recorded in the records of the
relevant Clearing Systems and represented by this Global Note shall be reduced by the
aggregate nominal amount of the Notes so redeemed or purchased and cancelled; or
(b)
details of such redemption, payment or purchase and cancellation (as the case may be)
shall be entered by or on behalf of the Issuer in Schedule One and the relevant space in
Schedule One recording any such redemption, payment or purchase and cancellation (as
the case may be) shall be signed by or on behalf of the Issuer. Upon any such redemption,
purchase and cancellation, the nominal amount of the Notes represented by this Global
Note shall be reduced by the nominal amount of the Notes so redeemed or purchased and
cancelled.
Payments due in respect of Notes for the time being represented by this Global Note shall be
made to the bearer of this Global Note and each payment so made will discharge the Issuer's
obligations in respect thereof. Any failure to make the entries referred to above shall not affect
such discharge.
Prior to the Exchange Date (as defined below), all payments (if any) on this Global Note will only
be made to the bearer hereof to the extent that there is presented to the Agent by a relevant
Clearing System a certificate to the effect that it has received from or in respect of a person entitled
to a particular nominal amount of the Notes (as shown by its records) a certificate of non-US
beneficial ownership in the form required by it. The bearer of this Global Note will not be entitled to
receive any payment of interest due on or after the Exchange Date unless upon due certification
exchange of this Global Note is improperly withheld or refused.
On or after the date (the
Exchange Date
) which is 40 days after the Issue Date this Global Note
may be exchanged in whole or in part (free of charge) for, as specified in the Final Terms, either:
(a)
in Part 3, Part 4 and Part 5 respectively of Schedule 2 to the Agency Agreement (on the
basis that all the appropriate details have been included on the face of such Definitive
Notes and (if applicable) Coupons and Talons and the Final Terms (or the relevant
provisions of the Final Terms) have been endorsed on or attached to such Definitive
Notes); or
(b)
Note, interests recorded in the records of the relevant Clearing Systems in a Permanent
Global Note or, (ii) if the Final Terms indicates that this Global Note is not intended to be a
New Global Note, a Permanent Global Note, which, in either case, is in or substantially in
the form set out in Part 2 of Schedule 2 to the Agency Agreement (together with the Final
Terms attached to it),
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in each case upon notice being given by a relevant Clearing System acting on the instructions of
any holder of an interest in this Global Note.
If Definitive Notes and (if applicable) Coupons and/or Talons have already been issued in
exchange for all the Notes represented for the time being by the Permanent Global Note, then this
Global Note may only thereafter be exchanged for Definitive Notes and (if applicable) Coupons
and/or Talons in accordance with the terms of this Global Note.
This Global Note may be exchanged by the bearer hereof on any day (other than a Saturday or
Sunday) on which banks are open for general business in London. The Issuer shall procure that,
as appropriate, (i) the Definitive Notes or (as the case may be) the Permanent Global Note issued
and delivered, or (ii) the interests in the Permanent Global Note (where the Final Terms indicates
that this Global Note is intended to be a New Global Note) shall be recorded in the records of the
relevant Clearing System, in each case in exchange for only that portion of this Global Note in
respect of which there shall have been presented to the Agent by a relevant Clearing System a
certificate to the effect that it has received from or in respect of a person entitled to a beneficial
interest in a particular nominal amount of the Notes (as shown by its records) a certificate of non-
US beneficial ownership from such person in the form required by it. The aggregate nominal
amount of Definitive Notes or interests in a Permanent Global Note issued upon an exchange of
this Global Note will, subject to the terms hereof, be equal to the aggregate nominal amount of this
Global Note submitted by the bearer for exchange.
On an exchange of the whole of this Global Note, this Global Note shall be surrendered to or to the
order of the Agent. On an exchange of part only of this Global Note, the Issuer shall procure that:
(a)
details of such exchange shall be entered
pro rata
in the records of the relevant Clearing
Systems; or
(b)
details of such exchange shall be entered by or on behalf of the Issuer in Schedule Two
and the relevant space in Schedule Two recording such exchange shall be signed by or on
behalf of the Issuer, whereupon the nominal amount of this Global Note and the Notes
represented by this Global Note shall be reduced by the nominal amount so exchanged.
On any exchange of this Global Note for a Permanent Global Note, details of such
exchange shall also be entered by or on behalf of the Issuer in Schedule Two to the
Permanent Global Note and the relevant space in Schedule Two to the Permanent Global
Note recording such exchange shall be signed by or on behalf of the Issuer.
Until the exchange of the whole of this Global Note, the bearer of this Global Note shall in all
respects (except as otherwise provided in this Global Note) be entitled to the same benefits as if
they were the bearer of Definitive Notes and the relative Coupons and/or Talons (if any)
represented by this Global Note. Accordingly, except as ordered by a court of competent
jurisdiction or as required by law or applicable regulation, the Issuer and any Paying Agent may
deem and treat the holder of this Global Note as the absolute owner of this Global Note for all
purposes.
In the event that this Global Note (or any part of it) has become due and repayable in accordance
with the Conditions or that the Maturity Date (if any) has occurred and, in either case, payment in
full of the amount due has not been made to the bearer in accordance with the provisions set out
above, then from 8.00 p.m. (London time) on such day each Noteholder will become entitled to
proceed directly against the Issuer on, and subject to, the terms of the Deed of Covenant executed
by the Issuer on 13 May 2020 (as amended, supplemented, novated and/or restated as at the
Issue Date) in respect of the Notes and the bearer will have no further rights under this Global
Note (but without prejudice to the rights which the bearer or any other person may have under the
Deed of Covenant).
0010155-0003437 UKO2: 2005996996.8
97
No rights are conferred on any person under the Contracts (Rights of Third Parties) Act 1999 to
enforce any term of this Global Note, but this does not affect any right or remedy of any person
which exists or is available apart from that Act.
If any provision in or obligation under this Global Note is or becomes invalid, illegal or
unenforceable in any respect under the law of any jurisdiction, that will not affect or impair (i) the
validity, legality or enforceability under the law of that jurisdiction of any other provision in or
obligation under this Global Note, and (ii) the validity, legality or enforceability under the law of any
other jurisdiction of that or any other provision in or obligation under this Global Note.
This Global Note and any non-contractual obligations arising out of or in connection with it are
governed by, and shall be construed in accordance with, English law.
This Global Note shall not be valid unless authenticated by the Agent and, if the Final Terms
indicates that this Global Note is intended to be a NGN (i) which is intended to be held in a manner
which would allow Eurosystem eligibility or (ii) in respect of which effectuation is applicable,
effectuated by the entity appointed as common safe-keeper by the relevant Clearing Systems.
IN WITNESS
whereof the Issuer has caused this Global Note to be duly executed on its behalf.
EQUINOR ASA
By:
Authenticated without
recourse, warranty or liability
by
THE BANK OF NEW YORK
MELLON, LONDON BRANCH
By:
Effectuated without recourse,
warranty or liability by
...................................................
as common safekeeper
By:
0010155-0003437 UKO2: 2005996996.8
98
SCHEDULE ONE TO THE TEMPORARY GLOBAL NOTE
1
PART 1
INTEREST PAYMENTS
Date
made
Total amount of interest
payable Amount of interest
paid
Confirmation of payment
on behalf of the Issuer
1
Global Note.
*
See the most recent entry in Part 2 or 3 of Schedule One or in Schedule Two in order to determine
this amount.
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99
PART 2
REDEMPTIONS
Date
made
Total amount
of principal
payable
Amount of
principal paid
Remaining nominal
amount of this
Global Note
following such
redemption
*
Confirmation of
redemption on
behalf of the Issuer
*
See the most recent entry in Part 2 or 3 of Schedule One or in Schedule Two in order to determine
this amount.
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100
PART 3
PURCHASES AND CANCELLATIONS
Date
made
Part of nominal
amount of this Global
Note purchased and
cancelled
Remaining nominal
amount of this Global Note
following such purchase
and cancellation
*
Confirmation of
purchase and
cancellation on behalf
of the Issuer
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101
SCHEDULE TWO TO THE TEMPORARY GLOBAL NOTE
2
EXCHANGES
FOR DEFINITIVE NOTES OR PERMANENT GLOBAL NOTE
The following exchanges of a part of this Global Note for Definitive Notes or a Permanent Global
Note have been made:
Date
made
Nominal amount of this
Global Note exchanged
for Definitive Notes or a
Permanent Global Note
Remaining nominal
amount of this Global
Note following such
exchange
*
Notation made on
behalf of the Issuer
2
Global Note.
*
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102
PART 2
FORM OF PERMANENT GLOBAL NOTE
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS INCLUDING THE
LIMITATIONS PROVIDED IN SECTIONS 165(J) AND 1287(A) OF THE INTERNAL REVENUE
CODE.
EQUINOR ASA
PERMANENT GLOBAL NOTE
Unconditionally and (subject to Condition 2(c)) irrevocably
guaranteed by EQUINOR ENERGY AS
This Global Note is a Permanent Global Note in respect of a duly authorised issue of Notes (the
Notes
) of Equinor ASA (the
Issuer
) described, and having the provisions specified, in Part A of the
attached Final Terms (the
Final Terms
). References in this Global Note to the Conditions shall be
to the Terms and Conditions of the Notes other than VPS Notes as set out in Schedule 1 to the
Agency Agreement (as defined below) as completed by the information set out in the Final Terms,
but in the event of any conflict between the provisions of (a) that Schedule or (b) this Global Note
and the information set out in the Final Terms, the Final Terms will prevail.
Words and expressions defined or set out in the Conditions and/or the Final Terms shall have the
same meaning when used in this Global Note.
This Global Note is issued subject to, and with the benefit of, the Conditions and an Agency
Agreement (the
Agency Agreement
, which expression shall be construed as a reference to that
agreement as the same may be amended, supplemented, novated or restated from time to time)
dated 11 May 2023 and made between the Issuer, Equinor Energy AS (the
Guarantor
), The Bank
of New York Mellon, London Branch (the
Agent
) and the other agents named in it.
For value received the Issuer, subject to and in accordance with the Conditions, promises to pay to
the bearer of this Global Note on the Maturity Date and/or on such earlier date(s) as all or any of
the Notes represented by this Global Note may become due and repayable in accordance with the
Conditions, the amount payable under the Conditions in respect of the Notes represented by this
Global Note on each such date and to pay interest (if any) on the nominal amount of the Notes
from time to time represented by this Global Note calculated and payable as provided in the
Conditions together with any other sums payable under the Conditions, upon (if the Final Terms
indicates that this Global Note is not intended to be a New Global Note) presentation and, at
maturity, surrender of this Global Note to or to the order of the Agent or any of the other paying
agents located outside the United States (except as provided in the Conditions) from time to time
appointed by the Issuer and the Guarantor in respect of the Notes.
If the Final Terms indicates that this Global Note is intended to be a New Global Note, the nominal
amount of Notes represented by this Global Note shall be the aggregate amount from time to time
entered in the records of both Euroclear Bank SA/NV and Clearstream Banking S.A. (together, the
relevant Clearing Systems
). The records of the relevant Clearing Systems (which expression in
this Global Note means the records that each relevant Clearing System holds for its customers
which reflect the amount of such customer's interest in the Notes) shall be conclusive evidence of
the nominal amount of Notes represented by this Global Note and, for these purposes, a statement
issued by a relevant Clearing System stating the nominal amount of Notes represented by this
Global Note at any time (which statement shall be made
0010155-0003437 UKO2: 2005996996.8
103
available to the bearer upon request) shall be conclusive evidence of the records of the relevant
Clearing System at that time.
If the Final Terms indicates that this Global Note is not intended to be a New Global Note, the
nominal amount of the Notes represented by this Global Note shall be the aggregate nominal
amount stated in the Final Terms or, if lower, the nominal amount most recently entered by or on
behalf of the Issuer in the relevant column in Part 2 or 3 of Schedule One or in Schedule Two.
On any redemption or payment of interest being made in respect of, or purchase and cancellation
of, any of the Notes represented by this Global Note the Issuer shall procure that:
(i)
details of such redemption, payment or purchase and cancellation (as the case may be)
shall be entered
pro rata
in the records of the relevant Clearing Systems and, upon any
such entry being made, the nominal amount of the Notes recorded in the records of the
relevant Clearing Systems and represented by this Global Note shall be reduced by the
aggregate nominal amount of the Notes so redeemed or purchased and cancelled; or
(ii)
details of such redemption, payment or purchase and cancellation (as the case may be)
shall be entered by or on behalf of the Issuer in Schedule One and the relevant space in
Schedule One recording any such redemption, payment or purchase and cancellation (as
the case may be) shall be signed by or on behalf of the Issuer. Upon any such redemption
or purchase and cancellation, the nominal amount of the Notes represented by this Global
Note shall be reduced by the nominal amount of the Notes so redeemed or purchased and
cancelled.
Payments due in respect of Notes for the time being represented by this Global Note shall be
made to the bearer of this Global Note and each payment so made will discharge the Issuer's
obligations in respect thereof. Any failure to make the entries referred to above shall not affect
such discharge.
Where the Notes have initially been represented by one or more Temporary Global Notes, on any
exchange of any such Temporary Global Note for this Global Note or any part of it, the Issuer shall
procure that:
(i)
details of such exchange shall be entered in the records of the relevant Clearing Systems;
or
(ii)
details of such exchange shall be entered by or on behalf of the Issuer in Schedule Two
and the relevant space in Schedule Two recording any such exchange shall be signed by
or on behalf of the Issuer, whereupon the nominal amount of the Notes represented by this
Global Note shall be increased by the nominal amount any such Temporary Global Note so
exchanged.
In certain circumstances further notes may be issued which are intended on issue to be
consolidated and form a single Series with the Notes. In such circumstances the Issuer shall
procure that:
(i)
details of such further notes shall be entered in the records of the relevant Clearing
Systems such that the nominal amount of Notes represented by this Global Note shall be
increased by the amount of such further notes so issued; or
0010155-0003437 UKO2: 2005996996.8
104
(ii)
details of such further notes shall be entered by or on behalf of the Issuer in Schedule Two
and the relevant space in Schedule Two recording such further notes shall be signed by
or on behalf of the Issuer,
0010155-0003437 UKO2: 2005996996.8
105
whereupon the nominal amount of the Notes represented by this Global Note shall be
increased by the nominal amount of any such further notes so issued.
This Global Note may be exchanged in whole but not in part (free of charge) for security printed
Definitive Notes and (if applicable) Coupons and/or Talons in the form set out in Part 3, Part 4 and
Part 5 respectively of Schedule 2 to the Agency Agreement (on the basis that all the appropriate
details have been included on the face of such Definitive Notes and (if applicable) Coupons and
Talons and the Final Terms (or the relevant provisions of the Final Terms) have been endorsed on
or attached to such Definitive Notes) either, as specified in the Final Terms:
(a)
Clearstream,
Luxembourg acting on the instructions of any holder of an interest in this Global Note; or
(b)
An
Exchange Event
means:
(i)
(ii)
business for a continuous period of 14 days (other than by reason of holiday, statutory or
otherwise) or have announced an intention permanently to cease business or have in fact
done so and no successor clearing system is available.
If this Global Note is only exchangeable following the occurrence of an Exchange Event:
(A)
the occurrence of an Exchange Event; and
(B)
Systems acting on the instructions of any holder of an interest in this Global Note may give
notice to the Agent requesting exchange. Any such exchange shall occur no later than 45
days after the date of receipt of the first relevant notice by the Agent.
Any such exchange will be made on any day (other than a Saturday or Sunday) on which banks
are open for general business in London by the bearer of this Global Note. On an exchange of this
Global Note, this Global Note shall be surrendered to or to the order of the Agent. The aggregate
nominal amount of Definitive Notes issued upon an exchange of this Global Note will be equal to
the aggregate nominal amount of this Global Note at the time of such exchange.
Until the exchange of this Global Note, the bearer of this Global Note shall in all respects (except
as otherwise provided in this Global Note) be entitled to the same benefits as if they were the
bearer of Definitive Notes and the relative Coupons and/or Talons (if any) represented by this
Global Note. Accordingly, except as ordered by a court of competent jurisdiction or as required by
law or applicable regulation, the Issuer and any Paying Agent may deem and treat the holder of
this Global Note as the absolute owner of this Global Note for all purposes.
In the event that (a) this Global Note (or any part of it) has become due and repayable in
accordance with the Conditions or that the Maturity Date has occurred and, in either case, payment
in full of the amount due has not been made to the bearer in accordance with the provisions set out
above, or (b) following an Exchange Event, this Global Note is not duly exchanged for definitive
Notes by the day provided above, then from
8.00 p.m. (London time) on such day each Noteholder will become entitled to proceed directly
against the Issuer on, and subject to, the terms of the Deed of Covenant executed by the Issuer on
13 May 2020 (as amended, supplemented, novated and/or restated as at the Issue Date) in
0010155-0003437 UKO2: 2005996996.8
106
respect of the Notes and the bearer
0010155-0003437 UKO2: 2005996996.8
107
will have no further rights under this Global Note (but without prejudice to the rights which the
bearer or any other person may have under the Deed of Covenant).
No rights are conferred on any person under the Contracts (Rights of Third Parties) Act 1999 to
enforce any term of this Global Note, but this does not affect any right or remedy of any person
which exists or is available apart from that Act.
If any provision in or obligation under this Global Note is or becomes invalid, illegal or
unenforceable in any respect under the law of any jurisdiction, that will not affect or impair (i) the
validity, legality or enforceability under the law of that jurisdiction of any other provision in or
obligation under this Global Note, and (ii) the validity, legality or enforceability under the law of any
other jurisdiction of that or any other provision in or obligation under this Global Note.
This Global Note and any non-contractual obligations arising out of or in connection with it are
governed by, and shall be construed in accordance with, English law.
This Global Note shall not be valid unless authenticated by the Agent and, if the Final Terms
indicates that this Global Note is intended to be a NGN (i) which is intended to be held in a manner
which would allow Eurosystem eligibility or (ii) in respect of which effectuation is applicable,
effectuated by the entity appointed as common safekeeper by the relevant Clearing Systems.
IN WITNESS
whereof the Issuer has caused this Global Note to be duly executed on its behalf.
EQUINOR ASA
By:
Authenticated without
recourse, warranty or liability
by
THE BANK OF NEW YORK
MELLON, LONDON BRANCH
By:
Effectuated without recourse,
warranty or liability by
...................................................
as common safekeeper
By:
0010155-0003437 UKO2: 2005996996.8
108
SCHEDULE ONE TO THE PERMANENT GLOBAL NOTE
3
PART 1
INTEREST PAYMENTS
Date
made
Total amount of interest
payable Amount of interest
paid
Confirmation of payment
on behalf of the Issuer
3
Global Note.
*
See the most recent entry in Part 2 or 3 of Schedule One or in Schedule Two in order to determine
this amount.
0010155-0003437 UKO2: 2005996996.8
109
PART 2
REDEMPTIONS
Date
made
Total amount
of principal
payable
Amount of
principal paid
Remaining nominal
amount of this
Global Note
following such
redemption
*
Confirmation of
redemption on
behalf of the
Issuer
*
See the most recent entry in Part 2 or 3 of Schedule One or in Schedule Two in order to determine
this amount.
0010155-0003437 UKO2: 2005996996.8
110
PART 3
PURCHASES AND CANCELLATIONS
Date
made
Part of nominal amount
of this Global Note
purchased and
cancelled
Remaining nominal
amount of this Global Note
following such purchase
and cancellation
*
Confirmation of
purchase and
cancellation on behalf
of the Issuer
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111
SCHEDULE TWO TO THE PERMANENT GLOBAL NOTE
4
SCHEDULE OF EXCHANGES AND ISSUES OF FURTHER
NOTES
The following exchanges or further notes affecting the nominal amount of this Global Note have been
made:
Date
made
Nominal amount of
Temporary Global
Note exchanged for
this Global Note or
nominal amount of
further notes issued
Remaining nominal
amount of this Global
Note following such
exchange or further
notes issued
*
Notation made on
behalf of the Issuer
0010155-0003437 UKO2: 2005996996.8
112
4
Global Note.
*
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113
PART 3
FORM OF DEFINITIVE NOTE
(
Face of Note
)
[ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS INCLUDING THE
LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE
CODE.]
(1)
EQUINOR ASA
unconditionally and (subject to Condition 2(c)) irrevocably
guaranteed by EQUINOR ENERGY AS
[
Specified Currency and Nominal Amount of Tranche
]
EURO MEDIUM TERM NOTES DUE [
Year of Maturity
]
This Note is one of a duly authorised issue of Euro Medium Term Notes denominated in the
Specified Currency maturing on the Maturity Date (the
Notes
) of Equinor ASA (the
Issuer
).
References herein to the Conditions shall be to the Terms and Conditions of the Notes other than
VPS Notes [endorsed hereon/set out in Schedule 1 to the Agency Agreement (as defined below)
which shall be incorporated by reference herein and have effect as if set out herein] as completed
by the Final Terms (the
Final Terms
) (or the relevant provisions of the Final Terms) endorsed
hereon, but in the event of any conflict between the provisions of the Conditions and the
information in the Final Terms, the Final Terms will prevail.
This Note is issued subject to, and with the benefit of, the Conditions and an amended and
restated Agency Agreement (the
Agency Agreement
, which expression shall be construed as a
reference to that agreement as the same may be amended, supplemented or restated from time to
time) dated 11 May 2023 and made between [(
inter alios
)] the Issuer, Equinor Energy AS as
guarantor, The Bank of New York Mellon, London Branch (the
Agent
) and the other parties named
therein.
For value received, the Issuer, subject to and in accordance with the Conditions, promises to pay
to the bearer hereof on the Maturity Date and/or on such earlier date(s) as this Note may become
due and repayable in accordance with the Conditions, the amount payable under the Conditions in
respect of this Note on each such date and to pay interest (if any) on this Note calculated and
payable as provided in the Conditions together with any other sums payable under the Conditions.
If any provision in or obligation under this Note is or becomes invalid, illegal or unenforceable in
any respect under the law of any jurisdiction, that will not affect or impair (i) the validity, legality or
enforceability under the law of that jurisdiction of any other provision in or obligation under this
Note, and
(ii) the validity, legality or enforceability under the law of any other jurisdiction of that or any other
provision in or obligation under this Note.
This Note shall not be validly issued unless authenticated by the Agent.
IN WITNESS
whereof the Issuer has caused this Note to be duly executed on its behalf.
EQUINOR ASA
0010155-0003437 UKO2: 2005996996.8
114
(1)
0010155-0003437 UKO2: 2005996996.8
115
By: ............................................
Authorised Signatory
Authenticated without recourse,
warranty or liability by
THE BANK OF NEW YORK MELLON, LONDON BRANCH
By:
0010155-0003437 UKO2: 2005996996.8
116
(
Reverse of Note
)
Terms and Conditions of the Notes other than VPS Notes
[
Terms and Conditions of the Notes other than VPS Notes to be as
set out in Schedule 1 to the Agency Agreement
]
Final Terms
[
Here may be set out text of Final
Terms relating to the Notes
]
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117
PART 4
FORM OF COUPON
(
Face of Coupon
)
EQUINOR ASA
[
Specified Currency and Nominal Amount
Tranche
] NOTES DUE [
Year of Maturity
]
Series No. [ ]
Part A
[
For Fixed Rate Notes
:
This Coupon is payable to bearer, separately Coupon
for negotiable and subject to the Terms and [
]
Conditions of the Notes other than
VPS Notes of the said Notes. due
on [
20[ ]]
Part B
[
For Floating Rate Notes
:
Coupon for the amount due in accordance with Coupon
due the Terms and Conditions of the Notes other than
VPS Notes on the said Notes on in [ ]
the Interest Payment Date falling in 20[ ]]
[ ] 20[ ].
This Coupon is payable to bearer,
separately negotiable and subject to
such Terms and Conditions of the Notes
other than
VPS Notes, under which it may become
void before its due date.]
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES TAX LAWS INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
00 000000 [ISIN] 00 000000
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118
PART 5
FORM OF TALON
(
Face of Talon
)
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS INCLUDING THE
LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE
CODE.
EQUINOR ASA
[
Specified Currency and Nominal Amount of
Tranche
] EURO MEDIUM TERM NOTES DUE [
Year
of Maturity
]
Series No. [ ]
On and after [ ] further Coupons [and a further Talon] appertaining to the Note to which this Talon
appertains will be issued at the specified office of the Agent or any of the Paying Agents set out on
the reverse hereof (and/or any other or further Paying Agents and/or specified offices as may from
time to time be duly appointed and notified to the Noteholders) upon production and surrender of
this Talon.
This Talon may, in certain circumstances, become void under the Terms and Conditions of the
Notes other than VPS Notes endorsed on the Notes to which this Talon appertains.
EQUINOR ASA
By: ............................................
Authorised Signatory
0010155-0003437 UKO2: 2005996996.8
119
(
Reverse of Coupon and Talon
)
AGENT
The Bank of New York Mellon, London
Branch 160 Queen Victoria Street
London EC4V 4LA
United Kingdom
PAYING AGENT
The Bank of New York Mellon SA/NV, Luxembourg Branch
Vertigo Building - Polaris
2-4 rue, Eugène
Ruppert L-2453
Luxembourg
and/or such other or further Agent and other or further Paying Agents and/or specified offices as
may from time to time be duly appointed by the Issuer and notice of which has been given to the
Noteholders.
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120
SCHEDULE 3
FORM OF DEED OF COVENANT
THIS DEED OF COVENANT
is made on 13 May 2020 by
EQUINOR ASA
(the
Issuer
) in favour of
the account holders specified below of Clearstream Banking S.A., Euroclear Bank SA/NV, and/or
any other additional clearing system or systems as are specified in Part B of the Final Terms
relating to any Note (as defined below) (each a
Clearing System
).
WHEREAS
:
(A)
Programme Agreement
, which expression includes the same as it may be further
amended and/or restated and/or supplemented from time to time) dated 13 May 2020 with
the Dealers named therein under which the Issuer proposes from time to time to issue
Euro Medium Term Notes (the
Notes
).
(B)
initially be represented by, and comprised in, Temporary Global Notes (the
Temporary
Global Notes
) and thereafter may be represented by, and comprised in, Permanent Global
Notes (the
Permanent Global Notes
, the Temporary Global Notes and Permanent Global
Notes being herein together called the
Global Notes
) representing a certain number of
underlying Notes (the
Underlying Notes
).
(C)
Systems (each such Clearing System or all such Clearing Systems together, the
Relevant
Clearing System
). Upon such deposit of a Global Note the Underlying Notes represented
by such Global Note will be credited to a securities account or securities accounts with the
Relevant Clearing System. Any account holder with the Relevant Clearing System which
has Underlying Notes credited to its securities account from time to time (each a
Relevant
Account Holder
) will, subject to and in accordance with the terms and conditions and
operating procedures or management regulations of the Relevant Clearing System, be
entitled to transfer such Underlying Notes and (subject to and upon payment being made by
the Issuer to the bearer in accordance with the terms of the relevant Global Note) will be
entitled to receive payments from the Relevant Clearing System calculated by reference to
the Underlying Notes credited to its securities account.
(D)
have no further rights under the Global Note (but without prejudice to the rights which any
person may have pursuant to this Deed of Covenant). The time at which this occurs is
hereinafter referred to as the
Relevant Time
. In such circumstances each Relevant
Account Holder will, subject to and in accordance with the terms of this Deed, acquire
against the Issuer all those rights which such Relevant Account Holder would have had if,
prior to the Relevant Time, duly executed and authenticated Definitive Note(s) (as defined
in the Agency Agreement (the
Agency Agreement
, which expression includes the same as
it may be further amended and/or restated and/or supplemented from time to time) dated
13 May 2020) and interest coupons (the
Coupons
) appertaining to the Definitive Note(s) (if
appropriate) had been issued in respect of its Underlying Note(s) and such Definitive
Notes(s) and Coupons (if appropriate) were held and beneficially owned by such Relevant
Account Holder.
NOW THIS DEED WITNESSES AS FOLLOWS
:
1.
with the terms thereof, the Issuer hereby undertakes and covenants with each Relevant
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Account Holder (other than when any Relevant Clearing System is an account holder of
any other Relevant Clearing System) that each Relevant Account Holder shall
automatically acquire at the Relevant Time,
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122
without the need for any further action on behalf of any person, against the relevant Issuer
all those rights which such Relevant Account Holder would have had if at the Relevant
Time it held and beneficially owned duly executed and authenticated Definitive Note(s) and
Coupons (if appropriate) in respect of each Underlying Note represented by such Global
Note which such Relevant Account Holder has credited to its securities account with the
Relevant Clearing System at the Relevant Time. The Issuer's obligation pursuant to this
clause shall be a separate and independent obligation by reference to each Underlying
Note which a Relevant Account Holder has credited to its securities account with the
Relevant Clearing System and the Issuer agrees that a Relevant Account Holder may
assign its rights hereunder in whole or in part.
2.
the Relevant Account Holders and the number of Underlying Notes credited to the
securities account of each Relevant Account Holder. For the purposes hereof a statement
issued by the Relevant Clearing System stating:
(a)
(b)
account of such Relevant Account Holder as at the opening of business on the first
day following the Relevant Time on which the Relevant Clearing System is open for
business,
shall be conclusive evidence of the records of the Relevant Clearing System at the Relevant
Time.
3.
System (in the absence of manifest error) shall be final and conclusive for all purposes in
connection with the Relevant Account Holders with securities accounts with the Relevant
Clearing System.
4.
payment to be made by it under this Deed, it will comply with the provisions of Condition 6
to the extent that they apply to any payments in respect of Underlying Notes as if those
provisions had been set out in full in this Deed.
5.
and penalties, payable on or in connection with the execution of this Deed and any action
taken by any Relevant Account Holder to enforce the provisions of this Deed.
6.
that it has all corporate power, and has taken all necessary corporate or other steps, to
enable it to execute, deliver and perform this Deed, and that this Deed constitutes a legal,
valid and binding obligation of the Issuer enforceable in accordance with its terms subject
to the laws of bankruptcy and other laws affecting the rights of creditors generally.
7.
from time to time and for the time being. This Deed shall be deposited with and held by the
depositary or common safekeeper, as the case may be, for the Relevant Clearing System
(being at the date hereof The Bank of New York Mellon at One Canada Square, London
E14 5AL) until all the obligations of the Issuer hereunder have been discharged in full.
8.
production of, and the right of every Relevant Account Holder to obtain (upon payment of a
reasonable charge) a copy of, this Deed, and further acknowledges and covenants that the
obligations binding upon it contained herein are owed to, and shall be for the account of,
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each and every Relevant Account Holder, and that each Relevant Account Holder shall be
entitled severally to enforce the said obligations against the Issuer.
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9.
unenforceable in any respect under the law of any jurisdiction, that will not affect or impair
(i) the validity, legality or enforceability under the law of that jurisdiction of any other
provision in or obligation under this Deed, and (ii) the validity, legality or enforceability
under the law of any other jurisdiction of that or any other provision in or obligation under
this Deed.
10.
governed by, and shall be construed in accordance with, English law.
The courts of England are to have jurisdiction to settle any disputes which may arise out of
or in connection with this Agreement (including a dispute relating to any non-contractual
obligations arising out of or in connection with this Agreement) and accordingly any legal
action or proceedings arising out of or in connection with this Agreement (
Proceedings
)
may be brought in such courts. The Issuer irrevocably submits to the jurisdiction of such
courts and waives any objection to Proceedings in any such courts whether on the ground
of venue or on the ground that the Proceedings have been brought in an inconvenient
forum. This submission is made for the benefit of each of the Relevant Account Holders
and, to the extent allowed by applicable law, shall not limit the right or any of them to take
Proceedings in any other court of competent jurisdiction nor shall the taking of Proceedings
in one or more jurisdictions preclude the taking of Proceedings in any other jurisdiction
(whether concurrently or not).
The Issuer irrevocably appoints Equinor UK Limited (whose offices are at the date of this
Agreement at One Kingdom Street, Paddington Central, London W2 6BD) as its authorised
agent for service of process in England. If for any reason such agent shall cease to be
such agent for service of process, the Issuer shall forthwith, on request of the Agent,
appoint a new agent for service of process in England and deliver to the Agent a copy of
the new agent's acceptance of that appointment within 30 days. Nothing in this Agreement
shall affect the right to serve process in any other manner permitted by law.
IN WITNESS
whereof the Issuer has caused this Deed to be duly executed the day and year
first above mentioned.
EXECUTED
as a
DEED
)
by EQUINOR ASA and signed and )
delivered as a deed on its )
behalf by )
an authorised representative of the company )
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SCHEDULE 4
PROVISIONS FOR MEETINGS OF NOTEHOLDERS
1.
unless the context otherwise requires:
(a)
voting certificate
shall mean an English language certificate issued by a Paying
Agent and dated in which it is stated:
(i)
voting instruction has been issued and is outstanding in respect of the
meeting specified in such voting certificate and any adjourned such meeting)
bearing specified serial numbers were deposited with such Paying Agent or
(to the satisfaction of such Paying Agent) were held to its order or under its
control and that no such Notes will cease to be so deposited or held until the
first to occur of:
(A)
applicable, any adjourned such meeting; and
(B)
same; and
(ii)
adjourned such meeting in respect of the Notes represented by such
certificate;
(b)
block voting instruction
shall mean an English language document issued by
a Paying Agent and dated in which:
(i)
certificate has been issued and is outstanding in respect of the meeting
specified in such block voting instruction and any adjourned such meeting)
have been deposited with such Paying Agent or (to the satisfaction of such
Paying Agent) were held to its order or under its control and that no such
Notes will cease to be so deposited or held until the first to occur of:
(A)
applicable, any adjourned such meeting; and
(B)
time for which such meeting or any adjourned such meeting is
convened of the receipt issued by such Paying Agent in respect of
each such deposited Note which is to be released or (as the case
may require) the Note or Notes ceasing with the agreement of the
Paying Agent to be held to its order or under its control and the giving
of notice by the Paying Agent to the Issuer in accordance with
paragraph 17 hereof of the necessary amendment to the block voting
instruction;
(ii)
Agent that the vote(s) attributable to the Note or Notes so deposited or held
should be cast in a particular way in relation to the resolution or resolutions
to be put to such meeting or any adjourned such meeting and that all such
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instructions are during the period commencing
for which such meeting or any adjourned
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such meeting is convened and ending at the conclusion or adjournment
thereof neither revocable nor capable of amendment;
(iii)
are listed distinguishing with regard to each such resolution between those
in respect of which instructions have been given as aforesaid that the votes
attributable thereto should be cast in favour of the resolution and those in
respect of which instructions have been so given that the votes attributable
thereto should be cast against the resolution; and
(iv)
proxy
) is or are authorised and instructed by such Paying Agent to cast the
votes attributable to the Notes so listed in accordance with the instructions
referred to in paragraph (iii) above as set out in such document.
The holder of any voting certificate or the proxies named in any block voting
instruction shall for all purposes in connection with the relevant meeting or
adjourned meeting of Noteholders be deemed to be the holder of the Notes to which
such voting certificate or block voting instruction relates and the Paying Agent with
which such Notes have been deposited or the person holding the same to the order
or under the control of such Paying Agent shall be deemed for such purposes not to
be the holder of those Notes.
(c)
Notes
are to the Notes in respect of which the relevant
meeting is convened.
2.
less than 10 per cent. in nominal amount of the Notes for the time being outstanding, shall
convene a meeting of the Noteholders and if the Issuer makes default for a period of seven
days in convening such a meeting the same may be convened by the requisitionists.
Whenever the Issuer is about to convene any such meeting it shall forthwith give notice in
writing to the Agent and the Dealers of the day, time and place thereof (which need not be
a physical place and instead may be by way of conference call, including by use of a
videoconference platform) and of the nature of the business to be transacted thereat.
Every such meeting shall be held at such time and place as the Agent may approve.
3.
which the meeting is held) specifying the place, day and hour of meeting shall be given to
the Noteholders prior to any meeting of the Noteholders in the manner provided by
Condition 12. Such notice shall state generally the nature of the business to be transacted
at the meeting thereby convened but (except for an Extraordinary Resolution) it shall not
be necessary to specify in such notice the terms of any resolution to be proposed. Such
notice shall include a statement to the effect that Notes may be deposited with Paying
Agents for the purpose of obtaining voting certificates or appointing proxies not less than 24
hours before the time fixed for the meeting or that, in the case of corporations, they may
appoint representatives by resolution of their directors or other governing body. A copy of
the notice shall be sent by post to the Issuer (unless the meeting is convened by the
Issuer).
4.
shall be entitled to take the chair at every such meeting but if no such nomination is made
or if at any meeting the person nominated shall not be present within fifteen minutes after
the time appointed for holding the meeting the Noteholders present shall choose one of
their number to be Chair.
5.
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being proxies and holding or representing in the aggregate not less than 20 per cent. in
nominal amount of the Notes for the time being outstanding shall (except for the purpose
of passing an Extraordinary
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Resolution) form a quorum for the transaction of business and no business (other than the
choosing of a Chair) shall be transacted at any meeting unless the requisite quorum be
present at the commencement of business. The quorum at any such meeting for passing
an Extraordinary Resolution shall (subject as provided below) be one or more persons
present holding Notes or voting certificates or being proxies and holding or representing in
the aggregate a clear majority in nominal amount of the Notes for the time being
outstanding PROVIDED THAT at any meeting the business of which includes any of the
following matters (each of which shall only be capable of being effected after having been
approved by Extraordinary Resolution) namely:
(a)
nominal amount payable upon maturity; or
(b)
in respect of any interest in respect of the Notes or variation of the method of
calculating the rate of interest in respect of the Notes; or
(c)
the applicable Final Terms of any Note; or
(d)
appertaining thereto are to be made; or
(e)
(f)
below; or
(g)
the quorum shall be one or more persons present holding Notes or voting certificates or
being proxies and holding or representing in the aggregate not less than 75 per cent. in
nominal amount of the Notes for the time being outstanding. An Extraordinary Resolution
passed at any meeting of the holders of Notes will be binding on all holders of Notes,
whether or not they are present at the meeting, and on all holders of Coupons appertaining
to such Notes.
6.
present the meeting shall if convened upon the requisition of Noteholders be dissolved. In
any other case it shall stand adjourned to the same day in the next week (or if such day is a
public holiday the next succeeding business day) at the same time and place (except in the
case of a meeting at which an Extraordinary Resolution is to be proposed in which case it
shall stand adjourned for such period being not less than 14 days nor more than 42 days,
and at such place as may be appointed by the Chair and approved by the Agent) and at
such adjourned meeting one or more persons present holding Notes or voting certificates or
being proxies (whatever the nominal amount of the Notes so held or represented by them)
shall (subject as provided below) form a quorum and shall (subject as provided below) have
power to pass any Extraordinary Resolution or other resolution and to decide upon all
matters which could properly have been dealt with at the meeting from which the
adjournment took place had the requisite quorum been present PROVIDED THAT at any
adjourned meeting the business of which includes any of the matters specified in the
proviso to paragraph 5 above the quorum shall be one or more persons present holding
Notes or voting certificates or being proxies and holding or representing in the aggregate
not less than a clear majority in nominal amount of the Notes for the time being
outstanding.
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7.
shall be given in the same manner as notice of an original meeting but as if 10 were
substituted for 21 in paragraph 3 above and such notice shall (except in cases where the
proviso to paragraph 6 above
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shall apply when it shall state the relevant quorum) state that one or more persons present
holding Notes or voting certificates or being proxies at the adjourned meeting whatever the
nominal amount of the Notes held or represented by them will form a quorum. Subject as
aforesaid it shall not be necessary to give any notice of an adjourned meeting.
8.
every question submitted to a meeting shall be decided in the first instance by a show of
hands. In case of equality of votes the Chair shall both on a show of hands and on a poll
have a casting vote in addition to the vote or votes (if any) to which they may be entitled as
a Noteholder or as a holder of a voting certificate or as a proxy.
9.
meeting or a poll is (before or on the declaration of the result of the show of hands)
demanded by the Chair or the Issuer or by one or more persons present holding Notes or
voting certificates or being proxies (whatever the nominal amount of the Notes so held by
them), a declaration by the Chair that a resolution has been carried or carried by a
particular majority or lost or not carried by a particular majority shall be conclusive evidence
of the fact without proof of the number or proportion of the votes recorded in favour of or
against such resolution.
10.
taken in such manner and subject as hereinafter provided either at once or after an
adjournment as the Chair directs and the result of such poll shall be deemed to be the
resolution of the meeting at which the poll was demanded as at the date of the taking of the
poll. The demand for a poll shall not prevent the continuance of the meeting for the
transaction of any business other than the motion on which the poll has been demanded.
11.
same from time to time and from place to place but no business shall be transacted at any
adjourned meeting except business which might lawfully (but for lack of required quorum)
have been transacted at the meeting from which the adjournment took place.
12.
adjournment shall be taken at the meeting without adjournment.
13.
Save as aforesaid, but without prejudice to the proviso to the definition of
outstanding
in
subclause 1.2 of this Agreement, no person shall be entitled to attend and speak nor shall
any person be entitled to vote at any meeting of the Noteholders or join with others in
requisitioning the convening of such a meeting unless they either produce the Note or
Notes of which they are the holder or a voting certificate or is a proxy. Neither the Issuer
nor any of its Subsidiaries shall be entitled to vote at any meeting in respect of Notes held
by it for the benefit of any such company and no other person shall be entitled to vote at
any meeting in respect of Notes held by it for the benefit of any such company. Nothing
herein contained shall prevent any of the proxies named in any block voting instruction
from being a director, officer or representative of or otherwise connected with the Issuer.
14.
(a)
or voting certificate or is a proxy shall have one vote; and
(b)
(i)
denominated in a single currency, each minimum integral amount of such
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currency; and
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(ii)
one currency, each €1.00 or, in the case of a Note denominated in a
currency other than euro, the equivalent of €1.00 in such currency at the
Agent's spot buying rate for the relevant currency against euro at or about
11.00 a.m. (London time) on the date of publication of the notice of the
relevant meeting (or of the original meeting of which such meeting is an
adjournment),
or such other amount as the Agent shall in its absolute discretion stipulate in
nominal amount of Notes so produced or represented by the voting certificate so
produced or in respect of which they are a proxy.
Without prejudice to the obligations of the proxies named in any block voting instruction any
person entitled to more than one vote need not use all their votes or cast all the votes to
which they are entitled in the same way.
15.
16.
to the Issuer of its due execution on behalf of the relevant Paying Agent shall be deposited
at such place as the Agent shall approve not less than 24 hours before the time appointed
for holding the meeting or adjourned meeting at which the proxies named in the block
voting instruction propose to vote and in default the block voting instruction shall not be
treated as valid unless the Chair of the meeting decides otherwise before such meeting or
adjourned meeting proceeds to business. A certified copy of each block voting instruction
shall be deposited with the Agent before the commencement of the meeting or adjourned
meeting but the Agent shall not thereby be obliged to investigate or be concerned with the
validity of or the authority of the proxies named in any such block voting instruction.
17.
notwithstanding the previous revocation or amendment of the block voting instruction or of
any of the Noteholders' instructions pursuant to which it was executed PROVIDED THAT
no intimation in writing of such revocation or amendment shall have been received from the
relevant Paying Agent by the Issuer at its registered office (or such other place as may
have been approved by the Agent for the purpose) by the time being 24 hours before the
time appointed for holding the meeting or adjourned meeting at which the block voting
instruction is to be used.
18.
following powers exercisable by Extraordinary Resolution (subject to the provisions relating
to quorum contained in paragraphs 5 and 6 above) only, namely:
(a)
the Issuer and the Noteholders and Couponholders or any of them;
(b)
respect of the rights of the Noteholders and Couponholders against the Issuer or
against any of its property whether such rights shall arise under this Agreement, the
Notes or the Coupons or otherwise;
(c)
the Conditions, the Notes, the Coupons or the Deed of Covenant which shall be
proposed by the Issuer;
(d)
Agreement or the Notes is required to be given by Extraordinary Resolution;
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(e)
committees to represent the interests of the Noteholders and to confer upon such
committee or committees any powers or discretions which the Noteholders could
themselves exercise by Extraordinary Resolution;
(f)
or the conversion of the Notes into or the cancellation of the Notes in consideration
of, shares, stock, notes, bonds, debentures, debenture stock and/or other
obligations and/or securities of the Issuer or any other company formed or to be
formed, or for or into or in consideration of cash, or partly for or into or in
consideration of such shares, stock, notes, bonds, debentures, debenture stock
and/or other obligations and/or securities as aforesaid and partly for or into or in
consideration of cash; and
(g)
previous substitute) as the principal debtor in respect of the Notes and the
Coupons.
19.
passed as a resolution in writing or (iii) passed by way of electronic consents given by
Noteholders through the relevant clearing system(s), in accordance with the provision
hereof shall be binding upon all the Noteholders whether present or not present at such
meeting referred to in (i) above and whether or not voting and upon all Couponholders and
each of them shall be bound to give effect thereto accordingly and the passing of any such
resolution shall be conclusive evidence that the circumstances justify the passing thereof.
Notice of the result of the voting on any resolution duly considered by the Noteholders shall
be published in accordance with Condition 12 by the Issuer within 14 days of such result
being known PROVIDED THAT the non-publication of such notice shall not invalidate such
resolution.
20.
Extraordinary Resolution
when used in this Agreement or the Conditions
means
(a) a resolution passed at a meeting of the Noteholders duly convened and held in
accordance with the provisions herein contained by a majority consisting of not less than 75
per cent. of the persons voting thereat upon a show of hands or if a poll be duly demanded
then by a majority consisting of not less than 75 per cent. of the votes given on such poll or
(b) a resolution in writing signed by or on behalf of the holders of not less than 75 per cent.
in nominal amount of the Notes for the time being outstanding, which resolution in writing
may be contained in one document or in several documents in similar form each signed by
or on behalf of one or more of the Noteholders or (c) consent given by way of electronic
consents through the relevant clearing system(s) (in a form satisfactory to the Agent) by or
on behalf of the holders of not less than 75 per cent. in nominal amount of the Notes for the
time being outstanding.
21.
made and duly entered in books to be from time to time provided for that purpose by the
Issuer and any such Minutes as aforesaid if purporting to be signed by the Chair of the
meeting at which such resolutions were passed or proceedings had shall be conclusive
evidence of the matters therein contained and until the contrary is proved every such
meeting in respect of the proceedings of which Minutes have been made shall be deemed
to have been duly held and convened and all resolutions passed or proceedings had
thereat to have been duly passed or had.
22.
Issuer, the Noteholders or the Couponholders prescribe such further regulations regarding
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the requisitioning and/or
thereat as the Agent may in its sole discretion think fit (including, without limitation, the
holding of meetings by conference call, including by use of a videoconference platform).
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SCHEDULE 5
FORM OF PUT NOTICE
for Notes in definitive form
EQUINOR ASA
[
title of relevant Series of Notes
]
By depositing this duly completed Notice with any Paying Agent for the above Series of Notes (the
Notes
) the undersigned holder of such Notes surrendered with this Notice and referred to below
irrevocably exercises its option to have such Notes redeemed in accordance with Condition 5(
f
) on
[redemption date].
This Notice relates to Notes in the aggregate nominal amount of
.............. bearing the following serial numbers:
................................................................
................................................................
................................................................
If the Notes referred to above are to be returned (1) to the undersigned under subclause 10.4 of
the Agency Agreement, they should be returned by post to:
.........................
.........................
.........................
Payment Instructions
Please make payment in respect of the above-mentioned Notes by [cheque posted to the above
address/transfer to the following bank account] (2):
Bank: ................................
Branch Address: ................................
Branch Code: ................................
Account Number: ................................
Signature of holder: ................................
Duly authorised on behalf of [
]
[To be completed by recipient Paying
Agent]
Details of missing unmatured Coupons .................... (3)
Received by: .........................
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[Signature and stamp of Paying Agent]
At its office at: .................................
On: ......................................
Notes
(1)
at the risk of the Noteholder, unless the Noteholder otherwise requests and pays the costs
of such insurance to the relevant Paying Agent at the time of depositing the Note referred
to above.
(2)
(3)
N.B. The Paying Agent with whom the above-mentioned Notes are deposited will not in any
circumstances be liable to the depositing Noteholder or any other person for any loss or
damage arising from any act, default or omission of such Paying Agent in relation to the
said Notes or any of them unless such loss or damage was caused by the fraud or gross
negligence of such Paying Agent or its directors, officers or employees.
This Put Notice is not valid unless all of the paragraphs requiring completion are duly
completed. Once validly given this Put Notice is irrevocable except in the
circumstances set out in subclause 10.4 of the Agency Agreement.
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SCHEDULE 6
FORM OF DEED POLL
This Deed Poll is made on [ ] by [
name of existing issuer
] as existing issuer (in its capacity as
existing issuer of the Notes (as defined below), the
Existing Issuer
), a company incorporated
in [ ], [and] [
name of Substitute
] as the substitute of the Existing Issuer (the
Substitute
), a
company incorporated in [
] [and Equinor ASA [and Equinor Energy AS] as guarantor[s] (in
[its][their] capacity as guarantor[s], the
Guarantor[s]
), [a company][companies] incorporated in
The Kingdom of Norway].
(A)
Programme Agreement
which expression includes the same as it may be amended,
supplemented or restated from time to time) with the Dealers named therein under which
the Existing Issuer has issued and has outstanding Euro Medium Term Notes (
Notes
).
(B)
dated 11 May 2023 (the
Agency Agreement
which expression includes the same as it may
be amended, supplemented or restated from time to time) and entered into between,
inter
alios
, the Existing Issuer, The Bank of New York Mellon, London Branch as Agent (the
Agent
which expression shall include its successor or successors for the time being under
the Agency Agreement) and the other parties named therein.
(C)
Deed of
Covenant
, which expression includes the same as it may be amended, supplemented or
restated from time to time) relating to Global Notes (as defined in the Agency Agreement)
issued by the Existing Issuer pursuant to the Programme Agreement.
(D)
Substitute for the Existing Issuer as the issuer of the Notes. Expressions defined in the
Agency Agreement have the same meaning in this Deed unless the context requires
otherwise.
(E)
Notes
include any
Underlying Notes
(as defined in the Deed of
Covenant). References herein to
Coupons
are to Coupons relating to the Notes.
References herein to
Holder
means any Noteholder, Couponholder or, in relation to any
Underlying Notes, any Relevant Account Holder.
THIS DEED WITNESSES
as follows:
1.
been given by the Existing Issuer pursuant to Condition 14 and all the other requirements of
such Condition have been met (the
Effective Date
), it shall be deemed to be
the Issuer
for
all purposes in respect of the Notes and any Coupons and accordingly it shall be entitled to
all the rights, and subject to all the liabilities, on the part of the Existing Issuer contained in
them.
2.
(a)
issuer of the Notes, contained in the Notes and any Coupons; and
(b)
Conditions
) shall be amended as follows:
(i)
the Kingdom of Norway
[(or, as the case may be, the
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jurisdiction of
preceding substituted
0010155-0003437 UKO2: 2005996996.8
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company)] in Condition 5(b) shall, in respect of payments to be made by the
Substitute (but not in respect of payments to be made by [[(A)] the New
Guarantor (as defined below) ][[or (B)] the Guarantor[s])] under this Deed
Poll), be replaced by references to "[
jurisdiction of a country of residence of
the Substitute for tax purposes and/or, if different, of its incorporation
]"; and
(ii)
the Kingdom of Norway
[(or, as the case may be, the
jurisdiction of incorporation or residence for tax purposes of the preceding
substituted company)] in Condition 6 shall, in respect of payments to be
made by the Substitute (but not in respect of payments to be made by [[(A)]
the New Guarantor (as defined below) ][[or (B)] the Guarantor[s])] under this
Deed Poll), be replaced by references to "[
jurisdiction of a country of
residence of the Substitute for tax purposes and/or, if different, of its
incorporation
]".
3.
New Guarantor
)[ and the] Guarantor[s][,
subject (in the case of Equinor Energy AS) to Condition [2(c)] (
Termination of the
Guarantee
) and clause 3(g) below,] unconditionally and irrevocably guarantee[s] [on
a joint and several basis] that, if for any reason the Substitute does not pay any sum
payable by it under any Note or Coupon (whether or not attached to it) or this Deed
on the date specified for such payment (whether on the normal due date, on
acceleration or otherwise), [the New Guarantor ][or] the Guarantor[s] will pay that
sum in the currency in which it is payable under such Note to the Holder on that
date on demand to [either][ the New Guarantor at [
]][ or ]the Guarantor[s] at [
]].
(b)
effecting the Substitute's obligations, [each of][ the New Guarantor ][and ][the
Guarantor[s]] will be [jointly and severally] liable under this Deed as if it were the
sole principal debtor and not merely a surety. Accordingly, [each of][ the New
Guarantor][and][ the Guarantor[s]] will not be discharged, nor will its liability be
affected, by anything which would not discharge it or affect is liability if it were the
sole principal debtor (including (i) any time, indulgence, concession, waiver or
consent at any time given to the Substitute or any other person, (ii) any amendment
or supplement to any of the Conditions or to this Deed or to any security or other
guarantee or indemnity, (iii) the making or absence of any demand on the Substitute
or any other person for payment, (iv) the enforcement or absence of enforcement of
any Note or any Coupon or this Deed or of any security or other guarantee or
indemnity, (v) the taking, existence or release of any security, guarantee or
indemnity, (vi) the winding-up, dissolution, amalgamation, reconstruction or
reorganisation of the Substitute or any other person or (vii) the illegality, invalidity or
unenforceability of or any defect in any provision of any Note or any Coupon or this
Deed or any of the Substitute's obligations under any of them).
(c)
Condition [2(c)] (
Termination of Guarantee
) and clause 3(g) below, the
Guarantor[s]'[s] respective] obligations under this Deed are and will remain in full
force and effect by way of continuing security until no sum remains payable under
the Notes or any Coupons or this Deed. Furthermore, these obligations of [each of][
the New Guarantor ][and ][the Guarantor[s]] are additional to, and not instead of,
any security or other guarantee or indemnity at any time existing in favour of any
person, whether from [the New Guarantor][, ][the Guarantor[s]] or otherwise, and
may be enforced without first having recourse to the Substitute, any other person,
any security or any other guarantee or indemnity. [The][Each of the][ New
Guarantor ][and][ the Guarantor[s]] irrevocably waive[s] all notices and demands
0010155-0003437 UKO2: 2005996996.8
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whatsoever.
0010155-0003437 UKO2: 2005996996.8
142
(d)
no right of the [New Guarantor ][or ][the Guarantor[s]], by reason of the performance
of any of [its][their] obligations under this Deed, to be indemnified by the Substitute
or to take the benefit of or enforce any security or other guarantee or indemnity shall
be exercised or enforced.
(e)
and severally] indemnify the relevant Holder against any cost, loss, expense or
liability sustained or incurred by it (other than value added tax or similar tax to the
extent recoverable by the relevant Holder) as a result of it being required for any
reason (including any bankruptcy, insolvency, winding-up, dissolution, or similar law
of any jurisdiction) to refund all or part of any amount received or recovered by it in
respect of any sum payable by the Substitute under any relevant Note or Coupon
or this Deed and [each of ][the New Guarantor ][and
][the Guarantor[s]] shall in any event pay to it on demand the amount as refunded by
it.
(f)
Guarantor ][and
][the Guarantor[s]] unconditionally and irrevocably agrees[, on a joint and several
basis]: (i) that any sum which, although expressed to be payable by the Substitute
under any Note or any Coupon or this Deed, is for any reason (whether or not now
existing and whether or not now known or becoming known to the Substitute, [the
New Guarantor][ the Guarantor[s]] or any Noteholder or Couponholder) not
recoverable from [either [of ]][the New Guarantor ][or
][the Guarantor[s]] on the basis of a guarantee shall nevertheless be recoverable
from it if it were the sole principal debtor and shall be paid by it to the relevant
Holder on demand and
(ii) as a primary obligation to indemnify each Holder against any loss suffered by it
as a result of any sum expressed to be payable by the Substitute under any Note or
any Coupon or this Deed not being paid by the time, on the date and otherwise in
the manner specified therein or any payment obligation of the Substitute under any
Note or any Coupon or this Deed being or becoming void, voidable or unenforceable
for any reason (whether or not now existing and whether or not now known or
becoming known to the Substitute, [the New Guarantor][, the Guarantor[s]] or any
Noteholder or Couponholder), the amount of that loss being the amount expressed
to be payable by the Substitute in respect of the relevant sum.
(g)
Termination
of Guarantee
) from its obligations under this Deed Poll will take effect automatically
unconditionally, without prejudice to any obligations which may have accrued prior
to that time, without the need for any further act or thing to be done.]
4.
Deed shall be made free and clear of, and without withholding or deduction for, any taxes,
duties, assessments or governmental charges (
Taxes
) of whatever nature imposed, levied,
collected, withheld or assessed by or within the Kingdom of Norway or any authority therein
or thereof having power to tax, unless such withholding or deduction is required by law. In
that event [either [of]][the New Guarantor ][or ][the Guarantor[s]] shall pay such additional
amounts as will result in receipt by the Noteholders and Couponholders of such amounts as
would have been received by them had no such withholding or deduction been required,
except that no such additional amounts shall be payable in respect of any Note or Coupon:
(a)
Coupon for payment in the Kingdom of Norway;
0010155-0003437 UKO2: 2005996996.8
143
(b)
owner is liable) to such Taxes by reason of the Holder having some connection with
the Kingdom of Norway other than the mere holding of the Note or Coupon;
0010155-0003437 UKO2: 2005996996.8
144
(c)
Coupon for payment more than 30 days after the Relevant Date (as defined in the
Conditions) except to the extent that such Holder would have been entitled to such
additional amounts on presenting the same for payment on such thirtieth day;
(d)
section 10-80 on payments to related companies or undertakings (as such term is
defined in the Norwegian Tax Act section 10-82) tax resident in a low-tax jurisdiction
(as such term is defined in the Norwegian Tax Act section 10-63); or
(e)
5.
modifications, to [the New Guarantor ][, ][the Guarantor[s]] and to [its][their respective]
obligations under this Deed. For the avoidance of doubt:
(a)
Status of Guarantee
) the payment obligations shall include those
of [the New Guarantor ][and ][the Guarantor[s]] under this Deed;
(b)
Termination of Guarantee
) shall apply,
mutatis mutandis
, to the
obligations of Equinor Energy AS (but not, for the avoidance of doubt, the
[New][other] Guarantor) under clause 3 of this Deed;]
(c)
Redemption for Tax Reasons
):
(i)
obligations of the [New Guarantor ][[and ][the Guarantor[s][, as applicable,]
under clause 3 of this Deed; and
(ii)
the New Guarantor ][and ][the Guarantor[s]]";
(d)
Purchases
) shall apply,
mutatis mutandis,
to [the New Guarantor ][,
][the Guarantor[s]] and any Notes so purchased shall not entitle the holder to vote
at, or attend, or be counted towards the quorum at meetings of the Noteholders for
such Notes;
(e)
Events of Default
):
(i)
Winding-up
), shall include a
reference to [the New Guarantor][ and ][the Guarantor[s]];
(ii)
be wholly-owned and controlled by Equinor ASA; and
(iii)
Guarantor ][or ][either of ][the Guarantor[s]] under this Deed are not (or are
claimed by [the New Guarantor ][or ][either of ][the Guarantor[s]] not to be) in
full force and effect; and
(f)
Meetings of Noteholders, Modification and Waiver
) an extra
category shall be added to the proposals for which a special quorum is required,
namely a proposal to modify or cancel the obligations of [either [of]][ the New
Guarantor][ or ][the Guarantor[s]] under this Deed.
0010155-0003437 UKO2: 2005996996.8
145
6.
the undertakings and the covenants binding upon them contained in this Deed shall be for
the benefit of each and every Holder and each Holder shall be entitled severally to enforce
such obligations against the Substitute[, / and][ the New Guarantor ][and ][ the
Guarantor[s]].
7.
New Guarantor ][and ][the Guarantor[s]] by the Agent at its specified office for the time
being under the Conditions and the Substitute[, / and][ the New Guarantor ][and][ the
Guarantor[s]] hereby acknowledge the right of every Noteholder to production of this Deed
and, upon request and payment of the expenses incurred in connection therewith, to the
production of a copy hereof certified by the Agent to be a true and complete copy.
8.
amendment under Schedule 4 of the Agency Agreement and any such amendment of this
Deed will constitute one of the proposals specified in Condition 13 (
Meetings of
Noteholders, Modification and Waiver
) to which special quorum provisions apply.
9.
governed by, and shall be construed in accordance with, English law.
10.
or in connection with this Deed and accordingly any legal action or proceedings arising out
of or in connection with this Deed (
Proceedings
) may be brought in such courts. Each of
the Substitute[, / and][ the New Guarantor ][and][ the Guarantor[s]] irrevocably submits to
the jurisdiction of such courts and waives any objection to Proceedings in such courts
whether on the ground of venue or on the ground that the Proceedings have been brought
in an inconvenient forum. This submission is made for the benefit of each Holder and shall
not limit the right of any of them to take Proceedings in any other court of competent
jurisdiction nor shall the taking of Proceedings in one or more jurisdictions preclude the
taking of Proceedings in any other jurisdiction (whether concurrently or not).
11.
1999 to enforce any term of this Deed, but this does not affect any right or remedy of any
person which exists or is available apart from that Act.
12.
appoints [ ] of [ ] as its agent in England to receive service of process in
respect of any Proceedings in England. If for any reason it does not have such an agent
for service of process, the Substitute[, / or][ the New Guarantor ][or ][the [relevant]
Guarantor], as the case may be, will promptly appoint a substitute process agent and notify
the Noteholders of such appointment in accordance with the Conditions. Nothing herein
shall affect the right to serve process in any other manner permitted by law.
IN WITNESS
whereof this Deed has been executed as a deed poll on the date stated at the
beginning.
EXECUTED
as a
DEED
)
by EQUINOR ASA and signed )
and delivered as a deed on its )
behalf by )
an authorised representative of the company )
0010155-0003437 UKO2: 2005996996.8
146
EXECUTED
as a
DEED
)
by [
Substitute
] and signed )
and delivered as a deed on its )
behalf by )
an authorised representative of the company )
[
EXECUTED
as a
DEED
)
by EQUINOR ENERGY AS and signed
)
and signed )
and delivered as a deed on its )
behalf by )
an authorised representative of the company )]
0010155-0003437 UKO2: 2005996996.8
147
SCHEDULE 7
FORM OF ISSUER – ICSDs AGREEMENT
Agreement to be sent to both:
Euroclear Bank SA/NV
New Issues Department
1 Boulevard du Roi Albert
II B-1210 Brussels,
Belgium
newissues.issuerageement@euroclear.
com Fax: +32 (0) 2 224 1421
and Clearstream Banking
SA New Issues
Department 42
Avenue J.F. Kennedy
L-1855 Luxembourg
issueragreements@clearstream.co
m Fax: +44 (0)207 862 7005
PROGRAMME FORM
AGREEMENT ENTERED INTO THIS 10 MAY, OF 2019, AMONG:
Name of issuer: Equinor ASA
Address of issuer: Forusbeen 50, N-4035 Stavanger, Norway (the
Issuer
); and
Euroclear Bank SA/NV of 1 Boulevard du Roi Albert II, B-1210 Brussels, Belgium and Clearstream
Banking SA of 42 Avenue J.F. Kennedy, L-1855 Luxembourg (each a
Relevant Clearing
System
).
Subject: Acceptance of:
Programme Name:
Equinor ASA €20,000,000,000 Euro Medium Term Note Programme
Programme Number: 4138
This agreement sets forth the understanding of the parties with respect to securities to be issued,
as applicable, in (i) bearer New Global Note form (
NGN Securities
) or (ii) registered form under
the New Safekeeping Structure (
NSS Securities
) under the above-captioned programme (the
Securities
) that the Issuer may request be made eligible for settlement with Euroclear Bank
SA/NV and Clearstream Banking SA (the
ICSDs
).
In order to allow the ICSDs to accept the Securities as eligible for settlement with the ICSDs and to
properly service the Securities, the Issuer hereby represents and warrants to the ICSDs that in all
matters relating to the Securities it will, and it will require any agent appointed by it to, comply with
the requirements for the Securities set out herein.
1.
(a)
IOA
) of the Securities, each of them will (in
the case of NGN Securities) maintain their respective portion of the IOA through their
records; will (in the case of NSS Securities) reflect through their records their respective
portion of the IOA as maintained by the NSS securities' register; will undertake daily
reconciliations of such amounts with each other; and will ensure on a daily basis that the
aggregate total of their respective records matches the IOA;
(b)
obligations with respect to the Securities upon the receipt of (i) a redemption payment as
required pursuant to the terms of the Securities; and (ii) a confirmation from the Issuer or
0010155-0003437 UKO2: 2005996996.8
148
its agent of a mark
-up (that is,
0010155-0003437 UKO2: 2005996996.8
149
increase) or mark-down (that is, decrease) of the IOA of the Securities; in doing so, each
ICSD will consult with the other to ensure that the aggregate of the amounts so updated by
them is equal to the total mark-up or mark-down notified to them;
(c)
information to the Issuer's agents to enable the Issuer's agents to comply with 2(c) below;
and
(d)
statement showing the sum of the total nominal amount of its customer holdings for the
Securities as of a specified date.
2.
(a)
the ICSDs to service the Securities (the
CSP
)) of the initial IOA for such Securities on or
prior to the applicable closing date;
(b)
for its customers to reflect such customers’ interest in such Securities, one of its agents will
promptly provide details of the amount of such mark-up or mark-down, together with a
description of the event that requires it, to the ICSDs (through the CSP) to ensure that the
IOA of such NGN Securities in the records of the ICSDs, or the records of the ICSDs
reflecting the IOA of such NSS Securities, remain(s) at all times accurate;
(c)
the CSP) with respect to the IOA for such Securities and will promptly inform the ICSDs
(through the CSP) of any discrepancies;
(d)
discrepancy identified in the IOA of such NGN Securities or in the records reflecting the IOA
of such NSS Securities;
(e)
paid under the Securities (or, where the Securities provide for delivery of assets other than
cash, of the assets so delivered);
(f)
Securities that will affect the amount of, or date for, any payment due under such
Securities;
(g)
information that is given to the holders of the Securities;
(h)
directly or through the CSP relating to the Securities; and
(i)
make any payment or delivery due under the Securities when due.
The Issuer’s obligations under this Agreement will be discharged if it includes provisions
substantially to the effect set out in the paragraph above in any agreement it has with its agents.
The Issuer agrees that the ICSDs may rely on communication from its agents as if such
communication was received directly from the Issuer.
3.
0010155-0003437 UKO2: 2005996996.8
150
between the parties to it.
0010155-0003437 UKO2: 2005996996.8
151
4.
Signed on behalf of:
Equinor ASA
By:
(
Signature of Authorised Officer of Issuer or agent with Authorisation of Issuer
)
Name of Signatory:
On behalf of Euroclear Bank SA/NV On behalf of Clearstream Banking, société
anonyme
Stéphane Bernard, Managing Director, Head of
Asset Servicing & Transaction Operations &
Client Services
Berthold Kracke
Member of Executive Board
Laurence Van Der Haegen, Head of
Department New Issues
Marc Kieffer, Executive Vice President,
Issuance & Distribution Services
0010155-0003437 UKO2: 2005996996.8
152
Schedule 1
Please tick one jurisdiction only.
Austria Latvia
Belgium Liechtenstein
Canada Lithuania
Cyprus Luxembourg
Czech Republic Malta
Denmark Netherlands
England & Wales
Norway
Estonia Poland
Finland Portugal
France Scotland
Germany Slovakia
Greece Slovenia
Hungary Spain
Iceland Switzerland
Ireland Sweden
Italy U.S.A. - New York
Japan - Other State
(
Name of Other State
)
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153
SCHEDULE 8
ADDITIONAL DUTIES OF THE AGENT
In relation to each Series of Notes that are NGNs, the Agent will comply with the following provisions:
1.
ICSDs
),
through the common service provider appointed by the ICSDs to service the Notes (the
CSP
), of the initial issue outstanding amount (
IOA
) for each Tranche on or prior to the
relevant Issue Date.
2.
holds for its customers to reflect such customers' interest in the Notes, the Agent will (to the
extent known to it) promptly provide details of the amount of such mark up or mark down,
together with a description of the event that requires it, to the ICSDs (through the
CSP)
to
ensure that the IOA of the Notes remains at all times accurate.
3.
information received from the ICSDs (through the CSP) with respect to the IOA maintained
by the ICSDs for the Notes and will promptly inform the ICSDs (through the CSP) of any
discrepancies.
4.
identified in the IOA of the Notes.
5.
by it under the Notes (or, where the Notes provide for delivery of assets other than cash, of
the assets so delivered).
6.
notice of any changes to the Notes that will affect the amount of, or date for, any payment
due under the Notes.
7.
copies of all information that is given to the holders of the Notes.
8.
ICSDs directly or through the CSP relating to the Notes.
9.
any failure by the Issuer to make any payment or delivery due under the Notes when due.
0010155-0003437 UKO2: 2005996996.8
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The Agent
THE BANK OF NEW YORK MELLON, LONDON BRANCH
160 Queen Victoria
Street London EC4V
4LA United Kingdom
Email:
m Copy to Fax: +44 207 964 2536
Attention: Corporate Trust Administration EQUINOR ASA
By:
The other Paying Agent
THE BANK OF NEW YORK MELLON SA/NV, LUXEMBOURG BRANCH
Vertigo Building
Polaris 2-4 rue Eugene
Ruppert L-2453
Luxembourg
Telephone:
Luc Biever: +352 24 52 5320
Sebastien Loiseau: +352 24 52 4436
Rima Hachoud: +352 24 52
5673 Email:
m
Fax: +352 24 52 42 04
Attention: Corporate Trust Administration EQUINOR ASA
All communications c/o the Agent
By:
0010155-0003437 UKO2: 2005996996.8
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APPENDIX 1
FORM OF CALCULATION AGENCY AGREEMENT
CALCULATION AGENCY AGREEMENT
[ ]
EQUINOR ASA
as
Issuer
and
[EQUINOR ENERGY AS
as Guarantor]
€20,000,000,000
EURO MEDIUM TERM NOTE PROGRAMME
126
CONTENTS
Clause Page
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
Signatories ................................ ................................ ................................ ................................ ... 133
0010155-0003437 UKO2: 2005996996.8
127
CALCULATION AGENCY AGREEMENT
in respect of the
EQUINOR ASA €20,000,000,000
EURO MEDIUM TERM NOTE PROGRAMME
THIS AGREEMENT
is made on [ ]
BETWEEN
:
(1)
EQUINOR ASA
of Forusbeen 50, N-4035 Stavanger, Norway (the
Issuer
);
(2)
EQUINOR ENERGY AS
of Forusbeen 50, N-4035 Stavanger, Norway (the
Guarantor
)]; and
(3)
Calculation Agent
, which expression shall include its successor
or successors for the time being as calculation agent hereunder).
WHEREAS
:
(A)
Dealers named therein dated 11 May 2023 under which the Issuer may issue Euro Medium
Term Notes (
Notes
) with an aggregate nominal amount of up to €20,000,000,000 (or its
equivalent in other currencies).
(B)
Agency Agreement (the
Agency Agreement
) dated 11 May 2023 and entered into
between the Issuer, The Bank of New York Mellon, London Branch as Agent (the
Agent
which expression shall include its successor or successors for the time being under the
Agency Agreement) and the other parties named therein.
NOW IT IS HEREBY AGREED
that:
1.
The Issuer hereby appoints [ ] as Calculation Agent in respect of each Series of
Notes described in the Schedule hereto (the
Relevant Notes
) for the purposes set out in
clause 2 below, all upon the provisions hereinafter set out. The agreement of the parties
hereto that this Agreement is to apply to each Series of Relevant Notes shall be evidenced
by the manuscript annotation and signature in counterpart of the Schedule hereto.
2.
The Calculation Agent shall in relation to each Series of Relevant Notes perform all the
functions and duties imposed on the Calculation Agent by the terms and conditions of the
Relevant Notes (the
Conditions
) including endorsing the Schedule hereto appropriately in
relation to each Series of Relevant Notes. In addition, the Calculation Agent agrees that it
will provide a copy of all calculations made by it which affect the nominal amount
outstanding of any Relevant Notes which are identified on the Schedule as being NGNs to
The Bank of New York Mellon, London Branch to the contact details set out on the
signature page hereof.
Notwithstanding any other provision of this Agreement, the Calculation Agent shall not be
obliged to perform any functions and duties imposed on it by the Conditions as a result of
any Benchmark Amendments and/or Benchmark Replacement Conforming Changes (as
0010155-0003437 UKO2: 2005996996.8
128
applicable) enacted without
0010155-0003437 UKO2: 2005996996.8
129
the consent of the Calculation Agent if, in the Calculation Agent’s opinion, acting
reasonably and in good faith, such Benchmark Amendments and/or Benchmark
Replacement Conforming Changes (as applicable) impose more onerous obligations upon
it or expose it to additional duties, responsibilities or liability, or reduce or amend the
protective provisions afforded to the Calculation Agent in the Conditions or this Agreement.
3.
[
To
be agreed at the time of appointment
.]
4.
4.1
to indemnify) the Calculation Agent against any loss, liability, cost, claim, action, demand or
expense (including, but not limited to, all reasonable costs, legal fees, charges and
expenses paid or incurred in disputing or defending any of the foregoing) which it may incur
or which may be made against the Calculation Agent as a result of or in connection with its
appointment or the exercise of its powers and duties hereunder except such as may (i)
result from its own default, negligence or bad faith or that of its officers, directors or
employees or the breach by it of the terms of this Agreement or (ii) be governed by any
other provision of this Agreement.
4.2
liability, cost, claim, action, demand or expense (including, but not limited to, all reasonable
costs, legal fees, charges and expenses paid or incurred in disputing or defending any of
the foregoing) which the Issuer may incur or which may be made against the Issuer as a
result of the breach by the Calculation Agent of the terms of this Agreement or its default,
negligence or bad faith or that of its officers, directors or employees.
5.
5.1
act solely as agent of the Issuer [and the Guarantor] and will not thereby assume any
obligations towards or relationship of agency or trust for or with any of the owners or
holders of the Relevant Notes or the coupons (if any) appertaining thereto (the
Coupons
).
5.2
Issuer to perform such obligations and duties, and shall be obliged to perform such duties
and only such duties as are herein and in the Conditions specifically set forth and no
implied duties or obligations shall be read into this Agreement or the Relevant Notes
against the Calculation Agent, other than the duty to act honestly and in good faith and to
exercise the diligence of a reasonably prudent agent in comparable circumstances.
5.3
opinion of such advisers shall be full and complete protection in respect of any action taken,
omitted or suffered hereunder in good faith and in accordance with the opinion of such
advisers.
5.4
action taken, omitted or suffered in reliance upon any instruction, request or order from the
Issuer [or the Guarantor] or any notice, resolution, direction, consent, certificate, affidavit,
statement, cable, telex or other paper or document which it reasonably believes to be
genuine and to have been delivered, signed or sent by the proper party or parties or upon
written instructions from the Issuer [or the Guarantor].
0010155-0003437 UKO2: 2005996996.8
130
5.5
owner of, or acquire any interest in, any Notes or Coupons (if any) with the same rights that
it or they would have if the Calculation Agent were not appointed hereunder, and may
engage or be interested in any financial or other transaction with the Issuer [or the
Guarantor] and may act on, or as depositary, trustee or agent for, any committee or body of
holders of Notes or Coupons (if any) or in connection with any other obligations of the
Issuer [or the Guarantor] as freely as if the Calculation Agent were not appointed
hereunder.
6.
6.1
any time by giving to the Calculation Agent at least 45 days' prior written notice to that
effect, provided that, so long as any of the Relevant Notes is outstanding:
(a)
payment is due in respect of any Relevant Notes; and
(b)
Relevant Notes at least 30 days prior to any removal of the Calculation Agent.
6.2
(a)
insolvent, or files a voluntary petition in bankruptcy or makes an assignment for the
benefit of its creditors or consents to the appointment of an administrator, liquidator
or administrative or other receiver of all or any substantial part of its property, or
admits in writing its inability to pay or meet its debts as they may mature or
suspends payment thereof, or if any order of any court is entered approving any
petition filed by or against it under the provisions of any applicable bankruptcy or
insolvency law or if a receiver of it or of all or a substantial part of its property is
appointed or if any officer takes charge or control of the Calculation Agent or of its
property or affairs for the purpose of rehabilitation, conservation or liquidation; or
(b)
the Conditions and this Agreement,
the Issuer [and the Guarantor] may forthwith without notice terminate the appointment of
the Calculation Agent, in which event notice thereof shall be given to the holders of the
Relevant Notes, in accordance with the Conditions as soon as practicable thereafter.
6.3
Calculation Agent hereunder shall not entitle the Calculation Agent to any amount by way of
compensation but shall be without prejudice to any amount then accrued due.
6.4
Issuer [and the Guarantor] at least 90 days' prior written notice to that effect. Following
receipt of a notice of resignation from the Calculation Agent, the Issuer shall promptly give
notice thereof to the holders of the Relevant Notes, in accordance with the Conditions.
6.5
Relevant Notes is outstanding, the termination of the appointment of the Calculation Agent
(whether by the Issuer [and the Guarantor] or by the resignation of the Calculation Agent)
shall not be effective unless upon the expiry of the relevant notice a successor Calculation
Agent has been appointed. The Issuer [and the Guarantor] agrees with the Calculation
Agent that if, by the day falling 10 days before the expiry of any notice under subclause
0010155-0003437 UKO2: 2005996996.8
131
6.1
0010155-0003437 UKO2: 2005996996.8
132
appointed a replacement Calculation Agent, the Calculation Agent shall be entitled, on
behalf of the Issuer to appoint as a successor Calculation Agent in its place a reputable
financial institution of good standing which the Issuer [and the Guarantor] shall approve
(such approval not to be unreasonably withheld or delayed).
6.6
further act, deed or conveyance, become vested with all the authority, rights, powers,
trusts, immunities, duties and obligations of such predecessor with like effect as if originally
named as the Calculation Agent hereunder.
6.7
[and the Guarantor] or by the resignation of the Calculation Agent), the Calculation Agent
shall, on the date on which such termination becomes effective, deliver to the successor
Calculation Agent any records concerning the Relevant Notes maintained by it (except such
documents and records as it is obliged by law or regulation to retain or not to release), but
shall have no other duties or responsibilities hereunder.
6.8
corporation with which the Calculation Agent may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Calculation Agent shall
be a party, or any corporation to which the Calculation Agent shall sell or otherwise transfer
all or substantially all of its assets shall, on the date when such merger, consolidation or
transfer becomes effective and to the extent permitted by any applicable laws, become the
successor Calculation Agent under this Agreement without the execution or filing of any
paper or any further act on the part of any of the parties hereto, unless otherwise required
by the Issuer and after the said effective date all references in this Agreement to the
Calculation Agent shall be deemed to be references to such corporation. Written notice of
any such merger, conversion, consolidation or transfer shall forthwith be given to the Issuer
and the Agent.
6.9
the Issuer shall use all reasonable endeavours to appoint a further financial institution of
good standing as successor Calculation Agent.
7.
Any notice or communication given hereunder shall be sufficiently given or served:
(a)
hereof or such other address as may be notified by the recipient in accordance with
this clause and, if so delivered, shall be deemed to have been delivered at time of
receipt; or
(b)
the sender within 24 hours of the time of sending, to the relevant email address
specified on the signature pages hereof or such other email address as may be
notified by the recipient in accordance with this clause; or
(c)
or such other address as may be notified by the recipient in accordance with this
clause and, if so sent, shall be deemed to have been delivered immediately after
transmission provided such transmission is confirmed when an acknowledgement of
receipt is received.
Where a communication is received after business hours it shall be deemed to be received
and become effective on the next business day. Every communication shall be irrevocable
0010155-0003437 UKO2: 2005996996.8
133
save in respect of any manifest error therein.
0010155-0003437 UKO2: 2005996996.8
134
8.
8.1
not define or limit the provisions hereof.
8.2
of counterparts, each of which shall be deemed to be an original, but all such counterparts
shall together constitute one and the same instrument.
8.3
unenforceable in any respect under the law of any jurisdiction, that will not affect or impair
(i) the validity, legality or enforceability under the law of that jurisdiction of any other
provision in or obligation under this Agreement, and (ii) the validity, legality or enforceability
under the law of any other jurisdiction of that or any other provision in or obligation under
this Agreement
[
Consider whether contractual recognition language (pursuant to Article 55 of the EU Bank
Recovery and Resolution Directive) is required to be included.
]
9.
A person who is not a party to this Agreement has no right under the Contracts (Rights of
Third Parties) Act 1999 to enforce any term of this Agreement but this does not affect any
right or remedy of a third party which exists or is available apart from that Act.
10.
10.1
are governed by, and shall be construed in accordance with, English law.
10.2
or in connection with this Agreement (including a dispute relating to any non-contractual
obligations arising out of or in connection with this Agreement) and accordingly any legal
action or proceedings arising out of or in connection with this Agreement (
Proceedings
)
(including any Proceedings relating to any non-contractual obligations arising out of or in
connection with this Agreement) may be brought in such courts. The Issuer [and the
Guarantor each] irrevocably submits to the jurisdiction of such courts and waives any
objection to Proceedings in any such courts whether on the ground of venue or on the
ground that the Proceedings have been brought in an inconvenient forum. This submission
is made for the benefit of the Calculation Agent and shall not limit its right to take
Proceedings in any other court of competent jurisdiction nor shall the taking of Proceedings
in one or more jurisdictions preclude the taking of Proceedings in any other jurisdiction
(whether concurrently or not).
10.3
offices are at the date of this Agreement at One Kingdom Street, Paddington Central,
London W2 6BD) as its agent for service of process in respect of any Proceedings in
England. If for any reason such agent shall cease to be such agent for service of process,
the Issuer shall forthwith, on request of the Calculation Agent, appoint a new agent for
service of process in England and deliver to the Calculation Agent a copy of the new
agent's acceptance of that appointment within 30 days. Nothing in this Agreement shall
affect the right to serve process in any other manner permitted by law.
IN WITNESS
whereof this Agreement has been entered into the day and year first above written.
0010155-0003437 UKO2: 2005996996.8
135
SCHEDULE TO THE CALCULATION AGENCY AGREEMENT
Series number Issue Date Maturity Date
Title
and
Nomina
l
Amount
NGN
[Yes/No
]
Annotation
by
Calculation
Agent/Issuer
0010155-0003437 UKO2: 2005996996.8
136
SIGNATORIES
EQUINOR ASA
Forusbeen 50
N-4035 Stavanger
Norway
Telefax No: + 47 51 99 90 17
Attention: Compliance Officer, Group
Finance By:
[
EQUINOR ENERGY AS
Forusbeen 50
N-4035 Stavanger
Norway
Telefax No: + 47 51 99 90 17
Attention: Compliance Officer, Group
Finance By: ]
[Name of Calculation Agent]
[Address of Calculation
Agent] Telefax No: [
Attention: [ ]
By: .............................................................................
Contact Details
THE BANK OF NEW YORK MELLON, LONDON BRANCH
160 Queen Victoria
Street London EC4V
4LA United Kingdom
Email:
om Copy to Fax: +44 207 964 2536
Attention: Corporate Trust Administration EQUINOR ASA